FINANCIAL ASSET SECURITIES CORP., Depositor FREMONT INVESTMENT & LOAN, Servicer WELLS FARGO BANK, N.A., Master Servicer and Trust Administrator DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee POOLING AND SERVICING AGREEMENT Dated as of April 1, 2006...
FINANCIAL
ASSET SECURITIES CORP.,
Depositor
FREMONT
INVESTMENT & LOAN,
Servicer
▇▇▇▇▇
FARGO BANK, N.A.,
Master
Servicer and Trust Administrator
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
Dated
as
of April 1, 2006
___________________________
Asset-Backed
Certificates, Series 2006-2
--
[TPW:
NYLEGAL:493712.7] 16159-00479 05/15/2006 07:06 PM[TPW:
NYLEGAL:340070.4] 16159-00434 06/22/2005 9:13 PM
Table
of Contents
ARTICLE
I
DEFINITIONS
|
SECTION
1.01
|
Defined
Terms.
|
|
SECTION
1.02
|
Accounting.
|
|
SECTION
1.03
|
Allocation
of Certain Interest Shortfalls.
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
SECTION
2.01
|
Conveyance
of Mortgage Loans.
|
|
SECTION
2.02
|
Acceptance
by Trustee.
|
|
SECTION
2.03
|
Repurchase
or Substitution of Mortgage Loans by the Originator or the
Seller.
|
|
SECTION
2.04
|
[Reserved].
|
|
SECTION
2.05
|
Representations,
Warranties and Covenants of the Servicer and the Master
Servicer.
|
|
SECTION
2.06
|
Representations
and Warranties of the Depositor.
|
|
SECTION
2.07
|
Issuance
of Certificates.
|
|
SECTION
2.08
|
[Reserved].
|
|
SECTION
2.09
|
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 2, REMIC
3,
REMIC 4, REMIC 5 and REMIC 6 by the Trustee; Issuance of
Certificates.
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
SECTION
3.01
|
Servicer
to Act as Servicer.
|
|
SECTION
3.02
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers.
|
|
SECTION
3.03
|
Successor
Sub-Servicers.
|
|
SECTION
3.04
|
Liability
of the Servicer.
|
|
SECTION
3.05
|
No
Contractual Relationship Between Sub-Servicers and the Trustee, the
Trust
Administrator or Certificateholders.
|
|
SECTION
3.06
|
Assumption
or Termination of Sub-Servicing Agreements by Master
Servicer.
|
|
SECTION
3.07
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.08
|
Sub-Servicing
Accounts.
|
|
SECTION
3.09
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.10
|
Collection
Account.
|
|
SECTION
3.11
|
Withdrawals
from the Collection Account.
|
|
SECTION
3.12
|
Investment
of Funds in the Collection Account.
|
|
SECTION
3.13
|
[Reserved].
|
|
SECTION
3.14
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
|
SECTION
3.15
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.16
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.17
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.18
|
Servicing
Compensation.
|
|
SECTION
3.19
|
Reports;
Collection Account Statements.
|
|
SECTION
3.20
|
Statement
as to Compliance.
|
|
SECTION
3.21
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.22
|
Access
to Certain Documentation.
|
|
SECTION
3.23
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.24
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3.25
|
Obligations
of the Servicer in Respect of Monthly Payments.
|
|
SECTION
3.26
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
3.27
|
Advance
Facility
|
|
SECTION
3.28
|
Late
Remittance.
|
ARTICLE
IIIA
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
SECTION
3A.01
|
Master
Servicer to Act as Master Servicer.
|
|
SECTION
3A.02
|
[Reserved].
|
|
SECTION
3A.03
|
Monitoring
of Servicer.
|
|
SECTION
3A.04
|
Fidelity
Bond.
|
|
SECTION
3A.05
|
Power
to Act; Procedures.
|
|
SECTION
3A.06
|
Due
on Sale Clauses; Assumption Agreements.
|
|
SECTION
3A.07
|
[Reserved].
|
|
SECTION
3A.08
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
|
SECTION
3A.09
|
Compensation
for the Master Servicer.
|
|
SECTION
3A.10
|
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3A.11
|
Distribution
Account.
|
|
SECTION
3A.12
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
ARTICLE
IV
FLOW
OF
FUNDS
|
SECTION
4.01
|
Distributions.
|
|
SECTION
4.02
|
[Reserved].
|
|
SECTION
4.03
|
Statements.
|
|
SECTION
4.04
|
Remittance
Reports; Advances.
|
|
SECTION
4.05
|
Commission
Reporting.
|
|
SECTION
4.06
|
[Reserved]
|
|
SECTION
4.07
|
[Reserved]
|
|
SECTION
4.08
|
Distributions
on the REMIC Regular Interests.
|
|
SECTION
4.09
|
Allocation
of Realized Losses.
|
|
SECTION
4.10
|
Swap
Account.
|
|
SECTION
4.11
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
ARTICLE
V
THE
CERTIFICATES
|
SECTION
5.01
|
The
Certificates.
|
|
SECTION
5.02
|
Registration
of Transfer and Exchange of Certificates.
|
|
SECTION
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
5.04
|
Persons
Deemed Owners.
|
|
SECTION
5.05
|
Appointment
of Paying Agent.
|
ARTICLE
VI
THE
MASTER SERVICER AND THE DEPOSITOR
|
SECTION
6.01
|
Liability
of the Master Servicer, the Servicer and the Depositor.
|
|
SECTION
6.02
|
Merger
or Consolidation of, or Assumption of the Obligations of, the Master
Servicer or the Depositor.
|
|
SECTION
6.03
|
Limitation
on Liability of the Servicer, the Master Servicer and
Others.
|
|
SECTION
6.04
|
Limitation
on Resignation of the Servicer; Assignment of Master
Servicing.
|
|
SECTION
6.05
|
Successor
Master Servicer.
|
|
SECTION
6.06
|
Delegation
of Duties.
|
|
SECTION
6.07
|
[Reserved].
|
|
SECTION
6.08
|
Inspection.
|
|
SECTION
6.09
|
Duties
of the Credit Risk Manager.
|
|
SECTION
6.10
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
6.11
|
Removal
of the Credit Risk Manager.
|
ARTICLE
VII
DEFAULT
|
SECTION
7.01
|
Servicer
Events of Termination and Master Servicer Events of
Termination.
|
|
SECTION
7.02
|
Master
Servicer or Trustee to Act; Appointment of Successor
Servicer.
|
|
SECTION
7.03
|
Trustee
to Act; Appointment of Successor Master Servicer.
|
|
SECTION
7.04
|
Waiver
of Defaults.
|
|
SECTION
7.05
|
Notification
to Certificateholders.
|
|
SECTION
7.06
|
Survivability
of Servicer and Master Servicer
Liabilities.
|
ARTICLE
VIII
THE
TRUSTEE AND THE TRUST ADMINISTRATOR
|
SECTION
8.01
|
Duties
of Trustee and Trust Administrator.
|
|
SECTION
8.02
|
Certain
Matters Affecting the Trustee and the Trust
Administrator.
|
|
SECTION
8.03
|
Trustee
and Trust Administrator Not Liable for Certificates or Mortgage
Loans.
|
|
SECTION
8.04
|
Trustee
and Trust Administrator May Own Certificates.
|
|
SECTION
8.05
|
Trust
Administrator and Trustee Compensation and Expenses.
|
|
SECTION
8.06
|
Eligibility
Requirements for Trustee and Trust Administrator.
|
|
SECTION
8.07
|
Resignation
or Removal of Trustee or Trust Administrator.
|
|
SECTION
8.08
|
Successor
Trustee.
|
|
SECTION
8.09
|
Merger
or Consolidation of Trustee or Trust Administrator.
|
|
SECTION
8.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11
|
Limitation
of Liability.
|
|
SECTION
8.12
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
|
SECTION
8.13
|
Suits
for Enforcement.
|
|
SECTION
8.14
|
Waiver
of Bond Requirement.
|
|
SECTION
8.15
|
Waiver
of Inventory, Accounting and Appraisal
Requirement.
|
ARTICLE
IX
REMIC
ADMINISTRATION
|
SECTION
9.01
|
REMIC
Administration.
|
|
SECTION
9.02
|
Prohibited
Transactions and Activities.
|
|
SECTION
9.03
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC
Status.
|
ARTICLE
X
TERMINATION
|
SECTION
10.01
|
Termination.
|
|
SECTION
10.02
|
Additional
Termination Requirements.
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
SECTION
11.01
|
Amendment.
|
|
SECTION
11.02
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
11.03
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
11.04
|
Governing
Law; Jurisdiction.
|
|
SECTION
11.05
|
Notices.
|
|
SECTION
11.06
|
Severability
of Provisions.
|
|
SECTION
11.07
|
Article
and Section References.
|
|
SECTION
11.08
|
Notice
to the Rating Agencies.
|
|
SECTION
11.09
|
Further
Assurances.
|
|
SECTION
11.10
|
Benefits
of Agreement.
|
|
SECTION
11.11
|
Acts
of Certificateholders.
|
|
SECTION
11.12
|
Intention
of the Parties and
Interpretation.
|
Exhibits:
|
Exhibit
A-1
|
Form
of Class I-A1 Certificates
|
|
Exhibit
A-2
|
Form
of Class II-A1 Certificates
|
|
Exhibit
A-3
|
Form
of Class II-A2 Certificates
|
|
Exhibit
A-4
|
Form
of Class II-A3 Certificates
|
|
Exhibit
A-5
|
Form
of Class II-A4 Certificates
|
|
Exhibit
A-6
|
Form
of Class M-1 Certificates
|
|
Exhibit
A-7
|
Form
of Class M-2 Certificates
|
|
Exhibit
A-8
|
Form
of Class M-3 Certificates
|
|
Exhibit
A-9
|
Form
of Class M-4 Certificates
|
|
Exhibit
A-10
|
Form
of Class M-5 Certificates
|
|
Exhibit
A-11
|
Form
of Class M-6 Certificates
|
|
Exhibit
A-12
|
Form
of Class M-7 Certificates
|
|
Exhibit
A-13
|
Form
of Class M-8 Certificates
|
|
Exhibit
A-14
|
Form
of Class M-9 Certificates
|
|
Exhibit
A-15
|
Form
of Class M-10 Certificates
|
|
Exhibit
A-16
|
Form
of Class B-1 Certificates
|
|
Exhibit
A-17
|
Form
of Class B-2 Certificates
|
|
Exhibit
A-18
|
Form
of Class C Certificates
|
|
Exhibit
A-19
|
Form
of Class P Certificates
|
|
Exhibit
A-20
|
Form
of Class R Certificates
|
|
Exhibit
A-21
|
Form
of Class R-X Certificates
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C
|
Form
of Assignment Agreement
|
|
Exhibit
D
|
Mortgage
Loan Schedule
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Trustee’s Initial Certification
|
|
Exhibit
F-2
|
Form
of Trustee’s Final Certification
|
|
Exhibit
F-3
|
Form
of Receipt of Mortgage Note
|
|
Exhibit
G
|
[Reserved]
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
|
Exhibit
I
|
Form
of Limited Power of Attorney
|
|
Exhibit
J
|
Form
of Investment Letter
|
|
Exhibit
K
|
Form
of Transfer Affidavit for Residual Certificates
|
|
Exhibit
L
|
Form
of Transferor Certificate
|
|
Exhibit
M
|
Form
of ERISA Representation Letter
|
|
Exhibit
N-1
|
Form
of Certification to be Provided by the Depositor with Form
10-K
|
|
Exhibit
N-2
|
Form
of Certification to be Provided to the Depositor by the
Servicer
|
|
Exhibit
O
|
Form
of Cap Contract
|
|
Exhibit
P
|
[Reserved]
|
|
Exhibit
Q
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
R-1
|
Form
of Delinquency Report
|
|
Exhibit
R-2
|
Form
of Monthly Remittance Advice
|
|
Exhibit
R-3
|
Form
of Realized Loss Report
|
|
Exhibit
S
|
Relevant
Servicing Criteria
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Schedule
I
|
Prepayment
Charge Schedule
|
This
Pooling and Servicing Agreement is dated as of April 1, 2006 (the “Agreement”),
among FINANCIAL ASSET SECURITIES CORP., as depositor (the “Depositor”), FREMONT
INVESTMENT & LOAN, as servicer (the “Servicer”), ▇▇▇▇▇ FARGO BANK, N.A., as
master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”) and DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee (the
“Trustee”).
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of twenty-one classes
of
certificates, designated as (i) the Class I-A1 Certificates, (ii) the Class
II-A1 Certificates, (iii) the Class II-A2 Certificates, (iv) the Class II-A3
Certificates, (v) the Class II-A4 Certificates, (vi) the Class M-1 Certificates,
(vii) the Class M-2 Certificates, (viii) the Class M-3 Certificates, (ix) the
Class M-4 Certificates, (x) the Class M-5 Certificates, (xi) the Class M-6
Certificates, (xii) the Class M-7 Certificates, (xiii) the Class M-8
Certificates, (xiv) the Class M-9 Certificates, (xv) the Class M-10
Certificates, (xvi) the Class B-1 Certificates, (xvii) the Class B-2
Certificates, (xviii) the Class C Certificates, (xix) the Class P Certificates,
(xx) the Class R Certificates and (xxi) the Class R-X Certificates.
REMIC
1
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (exclusive of the Net WAC Rate Carryover Reserve Account, any
Servicer Prepayment Charge Payment Amounts, the Cap Contract, the Swap Account,
the Supplemental Interest Trust and the Interest Rate Swap Agreement) as a
REMIC
for federal income tax purposes, and such segregated pool of assets shall be
designated as “REMIC 1.” The Class R-1 Interest shall represent the sole class
of “residual interests” in REMIC 1 for purposes of the REMIC Provisions (as
defined herein). The following table irrevocably sets forth the designation,
the
Uncertificated REMIC 1 Pass-Through Rate, the initial Uncertificated Principal
Balance and, for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity date” for each of the REMIC 1
Regular Interests (as defined herein). None of the REMIC 1 Regular Interests
shall be certificated.
|
Designation
|
Uncertificated
REMIC 1
Pass-Through
Rate
|
Initial
Uncertificated
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||||
|
I
|
Variable(2)
|
|
$
|
306,321,842.48
|
February
25, 2036
|
|||||
|
I-1-A
|
Variable(2)
|
|
$
|
16,093,230.00
|
February
25, 2036
|
|||||
|
I-1-B
|
Variable(2)
|
|
$
|
16,093,230.00
|
February
25, 2036
|
|||||
|
I-2-A
|
Variable(2)
|
|
$
|
15,322,872.50
|
February
25, 2036
|
|||||
|
I-2-B
|
Variable(2)
|
|
$
|
15,322,872.50
|
February
25, 2036
|
|||||
|
I-3-A
|
Variable(2)
|
|
$
|
14,589,571.25
|
February
25, 2036
|
|||||
|
I-3-B
|
Variable(2)
|
|
$
|
14,589,571.25
|
February
25, 2036
|
|||||
|
I-4-A
|
Variable(2)
|
|
$
|
13,891,541.25
|
February
25, 2036
|
|||||
|
I-4-B
|
Variable(2)
|
|
$
|
13,891,541.25
|
February
25, 2036
|
|||||
|
I-5-A
|
Variable(2)
|
|
$
|
13,227,075.00
|
February
25, 2036
|
|||||
|
I-5-B
|
Variable(2)
|
|
$
|
13,227,075.00
|
February
25, 2036
|
|||||
|
I-6-A
|
Variable(2)
|
|
$
|
12,594,556.25
|
February
25, 2036
|
|||||
|
I-6-B
|
Variable(2)
|
|
$
|
12,594,556.25
|
February
25, 2036
|
|||||
|
I-7-A
|
Variable(2)
|
|
$
|
12,047,917.50
|
February
25, 2036
|
|||||
|
I-7-B
|
Variable(2)
|
|
$
|
12,047,917.50
|
February
25, 2036
|
|||||
|
I-8-A
|
Variable(2)
|
|
$
|
12,751,793.75
|
February
25, 2036
|
|||||
|
I-8-B
|
Variable(2)
|
|
$
|
12,751,793.75
|
February
25, 2036
|
|||||
|
I-9-A
|
Variable(2)
|
|
$
|
38,246,445.00
|
February
25, 2036
|
|||||
|
I-9-B
|
Variable(2)
|
|
$
|
38,246,445.00
|
February
25, 2036
|
|||||
|
I-10-A
|
Variable(2)
|
|
$
|
159,223,570.00
|
February
25, 2036
|
|||||
|
I-10-B
|
Variable(2)
|
|
$
|
159,223,570.00
|
February
25, 2036
|
|||||
|
I-11-A
|
Variable(2)
|
|
$
|
1,750,065.00
|
February
25, 2036
|
|||||
|
I-11-B
|
Variable(2)
|
|
$
|
1,750,065.00
|
February
25, 2036
|
|||||
|
I-12-A
|
Variable(2)
|
|
$
|
1,562,706.25
|
February
25, 2036
|
|||||
|
I-12-B
|
Variable(2)
|
|
$
|
1,562,706.25
|
February
25, 2036
|
|||||
|
I-13-A
|
Variable(2)
|
|
$
|
1,368,390.00
|
February
25, 2036
|
|||||
|
I-13-B
|
Variable(2)
|
|
$
|
1,368,390.00
|
February
25, 2036
|
|||||
|
I-14-A
|
Variable(2)
|
|
$
|
982,808.75
|
February
25, 2036
|
|||||
|
I-14-B
|
Variable(2)
|
|
$
|
982,808.75
|
February
25, 2036
|
|||||
|
I-15-A
|
Variable(2)
|
|
$
|
943,795.00
|
February
25, 2036
|
|||||
|
I-15-B
|
Variable(2)
|
|
$
|
943,795.00
|
February
25, 2036
|
|||||
|
I-16-A
|
Variable(2)
|
|
$
|
906,416.25
|
February
25, 2036
|
|||||
|
I-16-B
|
Variable(2)
|
|
$
|
906,416.25
|
February
25, 2036
|
|||||
|
I-17-A
|
Variable(2)
|
|
$
|
870,598.75
|
February
25, 2036
|
|||||
|
I-17-B
|
Variable(2)
|
|
$
|
870,598.75
|
February
25, 2036
|
|||||
|
I-18-A
|
Variable(2)
|
|
$
|
836,273.75
|
February
25, 2036
|
|||||
|
I-18-B
|
Variable(2)
|
|
$
|
836,273.75
|
February
25, 2036
|
|||||
|
I-19-A
|
Variable(2)
|
|
$
|
836,986.25
|
February
25, 2036
|
|||||
|
I-19-B
|
Variable(2)
|
|
$
|
836,986.25
|
February
25, 2036
|
|||||
|
I-20-A
|
Variable(2)
|
|
$
|
809,280.00
|
February
25, 2036
|
|||||
|
I-20-B
|
Variable(2)
|
|
$
|
809,280.00
|
February
25, 2036
|
|||||
|
I-21-A
|
Variable(2)
|
|
$
|
921,262.50
|
February
25, 2036
|
|||||
|
I-21-B
|
Variable(2)
|
|
$
|
921,262.50
|
February
25, 2036
|
|||||
|
I-22-A
|
Variable(2)
|
|
$
|
1,704,840.00
|
February
25, 2036
|
|||||
|
I-22-B
|
Variable(2)
|
|
$
|
1,704,840.00
|
February
25, 2036
|
|||||
|
I-23-A
|
Variable(2)
|
|
$
|
609,498.75
|
February
25, 2036
|
|||||
|
I-23-B
|
Variable(2)
|
|
$
|
609,498.75
|
February
25, 2036
|
|||||
|
I-24-A
|
Variable(2)
|
|
$
|
587,400.00
|
February
25, 2036
|
|||||
|
I-24-B
|
Variable(2)
|
|
$
|
587,400.00
|
February
25, 2036
|
|||||
|
I-25-A
|
Variable(2)
|
|
$
|
566,111.25
|
February
25, 2036
|
|||||
|
I-25-B
|
Variable(2)
|
|
$
|
566,111.25
|
February
25, 2036
|
|||||
|
I-26-A
|
Variable(2)
|
|
$
|
545,607.50
|
February
25, 2036
|
|||||
|
I-26-B
|
Variable(2)
|
|
$
|
545,607.50
|
February
25, 2036
|
|||||
|
I-27-A
|
Variable(2)
|
|
$
|
525,853.75
|
February
25, 2036
|
|||||
|
I-27-B
|
Variable(2)
|
|
$
|
525,853.75
|
February
25, 2036
|
|||||
|
I-28-A
|
Variable(2)
|
|
$
|
14,068,245.00
|
February
25, 2036
|
|||||
|
I-28-B
|
Variable(2)
|
|
$
|
14,068,245.00
|
February
25, 2036
|
|||||
|
P
|
Variable(2)
|
|
$
|
100.00
|
February
25, 2036
|
|||||
________________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
|
| (2) |
Calculated
in accordance with the definition of “Uncertificated REMIC 1 Pass-Through
Rate” herein.
|
REMIC
2
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the REMIC 1 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets shall be designated as “REMIC 2.”
The Class R-2 Interest shall evidence the sole class of “residual interests” in
REMIC 2 for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
2 Pass-Through Rate, the initial Uncertificated Principal Balance and, for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC 2 Regular Interests (as
defined herein). None of the REMIC 2 Regular Interests shall be
certificated.
|
Designation
|
Uncertificated
REMIC 2
Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||||
|
LTAA
|
Variable(2)
|
|
$
|
963,429,439.68
|
February
25, 2036
|
|||||
|
LTIA1
|
Variable(2)
|
|
$
|
2,787,720.00
|
February
25, 2036
|
|||||
|
LTIIA1
|
Variable(2)
|
|
$
|
2,686,050.00
|
February
25, 2036
|
|||||
|
LTIIA2
|
Variable(2)
|
|
$
|
986,930.00
|
February
25, 2036
|
|||||
|
LTIIA3
|
Variable(2)
|
|
$
|
835,510.00
|
February
25, 2036
|
|||||
|
LTIIA4
|
Variable(2)
|
|
$
|
121,220.00
|
February
25, 2036
|
|||||
|
LTM1
|
Variable(2)
|
|
$
|
742,230.00
|
February
25, 2036
|
|||||
|
LTM2
|
Variable(2)
|
|
$
|
211,370.00
|
February
25, 2036
|
|||||
|
LTM3
|
Variable(2)
|
|
$
|
196,620.00
|
February
25, 2036
|
|||||
|
LTM4
|
Variable(2)
|
|
$
|
181,870.00
|
February
25, 2036
|
|||||
|
LTM5
|
Variable(2)
|
|
$
|
172,040.00
|
February
25, 2036
|
|||||
|
LTM6
|
Variable(2)
|
|
$
|
147,460.00
|
February
25, 2036
|
|||||
|
LTM7
|
Variable(2)
|
|
$
|
132,720.00
|
February
25, 2036
|
|||||
|
LTM8
|
Variable(2)
|
|
$
|
103,220.00
|
February
25, 2036
|
|||||
|
LTM9
|
Variable(2)
|
|
$
|
98,310.00
|
February
25, 2036
|
|||||
|
LTM10
|
Variable(2)
|
|
$
|
98,310.00
|
February
25, 2036
|
|||||
|
LTB1
|
Variable(2)
|
|
$
|
108,140.00
|
February
25, 2036
|
|||||
|
LTB2
|
Variable(2)
|
|
$
|
73,730.00
|
February
25, 2036
|
|||||
|
LTZZ
|
Variable(2)
|
|
$
|
9,978,375.30
|
February
25, ▇▇▇▇
|
|||||
|
▇▇▇
|
Variable(2)
|
|
$
|
100.00
|
February
25, 2036
|
|||||
|
LTIO
|
Variable(2)
|
|
(3
|
)
|
February
25, 2036
|
|||||
________________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
|
| (2) |
Calculated
in accordance with the definition of “Uncertificated REMIC 2 Pass-Through
Rate” herein.
|
| (3) |
REMIC
2 Regular Interest LTIO will not have an Uncertificated Principal
Balance,
but will accrue interest on its Uncertificated Notional Amount, as
defined
herein.
|
REMIC
3
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the REMIC 2 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets shall be designated as “REMIC 3.”
The Class R-3 Interest shall evidence the sole class of “residual interests” in
REMIC 3 for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each Class of Certificates that represents one or more of the “regular
interests” in REMIC 3 created hereunder:
|
Designation
|
Original
Class Certificate Principal Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|||||||
|
Class
I-A-1
|
$
|
278,772,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
II-A-1
|
$
|
268,605,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
II-A-2
|
$
|
98,693,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
II-A-3
|
$
|
83,551,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
II-A-4
|
$
|
12,122,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-1
|
$
|
74,223,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-2
|
$
|
21,137,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-3
|
$
|
19,662,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-4
|
$
|
18,187,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-5
|
$
|
17,204,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-6
|
$
|
14,746,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-7
|
$
|
13,272,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-8
|
$
|
10,322,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-9
|
$
|
9,831,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
M-10
|
$
|
9,831,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
B-1
|
$
|
10,814,000.00
|
Variable(2)
|
|
February
25, 2036
|
|||||
|
Class
B-2
|
$
|
7,373,000.00
|
5.000%
per annum(3)
|
|
February
25, 2036
|
|||||
|
Class
C Interest
|
$
|
14,746,264.98
|
Variable(4)
|
|
February
25, 2036
|
|||||
|
Class
P Interest
|
$
|
100.00
|
N/A(5)
|
|
February
25, 2036
|
|||||
|
Class
IO Interest
|
(6
|
)
|
(7
|
)
|
February
25, 2036
|
|||||
________________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
|
| (2) |
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
|
| (3) |
Subject
to increase and limitation as set forth in the definition of “Pass-Through
Rate” herein.
|
| (4) |
The
Class C Interest will accrue interest at its variable Pass-Through
Rate on
the Notional Amount of the Class C Interest outstanding from time
to time
which shall equal the aggregate Uncertificated Principal Balance
of the
REMIC 2 Regular Interests (other than REMIC 2 Regular Interest LTP).
The
Class C Interest will not accrue interest on its Certificate Principal
Balance.
|
| (5) |
The
Class P Interest will not accrue
interest.
|
| (6) |
For
federal income tax purposes, the Class IO Interest will not have
a
Certificate Principal Balance, but will have a notional amount equal
to
the Uncertificated Notional Amount of REMIC 2 Regular Interest
LTIO.
|
| (7) |
For
federal income tax purposes, the Class IO Interest will not have
a
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC 2 Regular Interest LTIO.
|
REMIC
4
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class C Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC 4.”
The Class R-4 Interest represents the sole class of “residual interests” in
REMIC 4 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the designation, Pass-Through Rate
,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated Class of Certificates that represents a “regular
interest” in REMIC 4 created hereunder:
|
Designation
|
Original
Class Certificate Principal Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|
Class
C Certificates
|
$14,746,264.98
|
Variable(2)
|
February
25, 2036
|
_______________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
|
| (2) |
The
Class C Certificates will receive 100% of amounts received in respect
of
the Class C Interest.
|
REMIC
5
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class P Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC 5.”
The Class R-5 Interest represents the sole class of “residual interests” in
REMIC 5 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the designation, Pass-Through Rate,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated Class of Certificates that represents a “regular
interest” in REMIC 5 created hereunder:
|
Designation
|
Original
Class Certificate Principal Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|
Class
P
|
$100.00
|
Variable(2)
|
February
25, 2036
|
_______________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
|
| (2) |
The
Class P Certificates will receive 100% of amounts received in respect
of
the Class P Interest.
|
REMIC
6
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class IO Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets shall be designated as “REMIC 6.”
The Class R-6 Interest represents the sole class of “residual interests” in
REMIC 6 for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated REMIC 6 Regular Interest, which will be
uncertificated.
|
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|
SWAP
IO
|
N/A
|
Variable(2)
|
February
25, 2036
|
________________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
|
| (2) |
REMIC
6 Regular Interest SWAP IO shall receive 100% of amounts received
in
respect of the Class IO Interest.
|
ARTICLE
I
DEFINITIONS
| SECTION 1.01 |
Defined
Terms.
|
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations in
respect of interest on the Floating Rate Certificates shall be made on the
basis
of the actual number of days elapsed and a 360-day year and all calculations
in
respect of interest on the
Fixed
Rate Certificates,
the
Class C Certificates, the Class IO Interest, the REMIC 1 Regular Interests,
the
REMIC 2 Regular Interests and all other calculations of interest described
herein shall be made on the basis of a 360-day year consisting of twelve 30-day
months. The Class P Certificates and the Residual Certificates are not entitled
to distributions in respect of interest and, accordingly, will not accrue
interest.
“10-K
Filing Deadline” has the meaning set forth in Section
4.05(a)(iv)(A).
“1933
Act”: The Securities Act of 1933, as amended.
“Account”:
Either of the Collection Account or Distribution Account.
“Accepted
Master Servicing Practices”: With respect to any Mortgage Loan, as applicable,
either (x) those customary mortgage loan master servicing practices of prudent
mortgage servicing institutions that master service mortgage loans of the same
type and quality as such Mortgage Loan in the jurisdiction where the related
Mortgaged Property is located, to the extent applicable to the Master Servicer
(except in its capacity as successor to the Servicer), or (y) as provided in
Section 3A.01 hereof, but in no event below the standard set forth in clause
(x).
“Accrual
Period”: With respect to the Floating Rate Certificates and each Distribution
Date, the period commencing on the preceding Distribution Date (or in the case
of the first such Accrual Period, commencing on the Closing Date) and ending
on
the day preceding such Distribution Date. With respect to the Fixed Rate
Certificates and the Class C Certificates and each Distribution Date, the
calendar month prior to the month of such Distribution Date.
“Additional
Disclosure Notification”: The meaning set forth in Section 4.05(a)(i).
“Additional
Form 10-D Disclosure”: The
meaning set forth in Section 4.05(a)(i).
“Additional
Form 10-K Disclosure”: The meaning set forth in Section
4.05(a)(iv).
“Adjustable-Rate
Mortgage Loan”: A first lien Mortgage Loan which provides at any period during
the life of such loan for the adjustment of the Mortgage Rate payable in respect
thereto. The Adjustable Rate Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the applicable Maximum Mortgage Rate for such Mortgage Loan (or the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the first
day
of the month preceding the month in which the related Distribution Date occurs
minus the sum of (i) the Servicing Fee Rate, (ii) the Administration Fee Rate
and (iii) the Credit Risk Manager Fee Rate.
“Adjusted
Net Mortgage Rate”: With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest equal
to the applicable Mortgage Rate for such Mortgage Loan as of the first day
of
the month preceding the month in which the related Distribution Date occurs
minus sum of (i) the Servicing Fee Rate and (ii) the Administration Fee Rate
and
(iii) the Credit Risk Manager Fee Rate.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, each adjustment date,
on which the Mortgage Rate of such Mortgage Loan changes pursuant to the related
Mortgage Note. The first Adjustment Date following the Cut-off Date as to each
Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
“Administration
Fee”: The amount payable to the Trust Administrator on each Distribution Date
pursuant to Section 8.05 as compensation for all services rendered by the Trust
Administrator in the execution and administration of the trust created hereby
and in the exercise and performance of any of the powers and duties of the
Trust
Administrator hereunder, which amount, with respect to the Mortgage Loans and
REO Properties and for any calendar month, shall be equal to one-twelfth of
the
Administration Fee Rate (without regard to the words “per annum” in the
definition thereof) multiplied by the Stated Principal Balance of the Mortgage
Loans as of the first day of the related Due Period. The fee payable to the
Trustee for all services rendered by it in the exercise and performance of
any
of its respective powers and duties hereunder will be paid by the Trust
Administrator on an annual basis from its own funds in accordance with a
separate agreement between the Trust Administrator and the Trustee.
“Administration
Fee Rate”: 0.0025% per annum.
“Advance”:
As to any Mortgage Loan or REO Property, any advance made by the Master Servicer
or Servicer in respect of any Distribution Date pursuant to Section
4.04
“Advance
Facility”: As defined in Section 3.27 hereof.
“Advance
Facility Notice”: As defined in Section 3.27 hereof.
“Advance
Financing Person”: As defined in Section 3.27 hereof.
“Advance
Reimbursement Amounts”: As defined in Section 3.27 hereof.
“Adverse
REMIC Event”: As defined in Section 9.01(f) hereof.
“Affiliate”:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and any Class of
Mezzanine Certificates or the Class B Certificates, the sum of (i) any Realized
Losses allocated to such Class of Certificates on such Distribution Date and
(ii) the amount of any Allocated Realized Loss Amount for such Class of
Certificates remaining undistributed from the previous Distribution Date as
reduced by an amount equal to the increase in the related Certificate Principal
Balance due to the receipt of Subsequent Recoveries.
“Assessment
of Compliance”: As defined in Section 3.21.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect or record the sale of
the
Mortgage.
“Assignment
Agreement”: The Assignment and Recognition Agreement, dated April 28, 2006,
among the Seller, the Originator and the Depositor, pursuant to which certain
of
the Seller’s rights under the Master Agreement were assigned to the Depositor,
substantially in the form attached hereto as Exhibit C.
“Assumed
Final Maturity Date”: As to each Class of Certificates, the date set forth as
such in the Prospectus Supplement.
“Attestation
Report”: As defined in Section 3.21.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess of
(i) the sum of (a) the aggregate of the related Monthly Payments received on
the
Mortgage Loans on or prior to the related Determination Date, (b) Net
Liquidation Proceeds, Insurance Proceeds, Principal Prepayments, Subsequent
Recoveries, proceeds from repurchases of and substitutions for such Mortgage
Loans and other unscheduled recoveries of principal and interest in respect
of
the Mortgage Loans received during the related Prepayment Period, (c) the
aggregate of any amounts received in respect of a related REO Property withdrawn
from any REO Account and deposited in the Collection Account for such
Distribution Date, (d) the aggregate of any amounts deposited in the Collection
Account by the Servicer in respect of related Prepayment Interest Shortfalls
for
such Distribution Date, (e) the aggregate of any Advances made by the Servicer
for such Distribution Date in respect of the Mortgage Loans, (f) the aggregate
of any related advances made by the Trustee in respect of the Mortgage Loans
for
such Distribution Date pursuant to Section 7.02 and (g) the amount of any
Prepayment Charges collected by the Servicer in connection with the full or
partial prepayment of any of the Mortgage Loans and any Servicer Prepayment
Charge Payment Amount over (ii) the sum of (a) amounts reimbursable or payable
to the Servicer pursuant to Section 3.11(a), to the Master Servicer pursuant
to
Section 3A.09 or the Swap Provider (including any New Swap Payment and Swap
Termination Payment owed to the Swap Provider but excluding any Swap Termination
Payment owed to the Swap Provider resulting from a Swap Provider Trigger Event),
(b) Extraordinary Trust Fund Expenses reimbursable to the Trustee, the Servicer,
the Master Servicer or the Trust Administrator pursuant to 3A.12 or the Trustee
pursuant to Section 3.11(b), (b) amounts deposited in the Collection Account
or
the Distribution Account pursuant to clauses (a) through (g) above, as the
case
may be, in error, (c) the amount of any Prepayment Charges collected by the
Servicer in connection with the full or partial prepayment of any of the
Mortgage Loans and any Servicer Prepayment Charge Payment Amount, (d) any
indemnification payments or expense reimbursements made by the Trust Fund
pursuant to Section 6.03 or Section 8.05, (e) any Net Swap Payment or Swap
Termination Payment owed to the Swap Provider (other than any Swap Termination
Payment owed to the Swap Provider resulting from a Swap Provider Trigger Event)
and (f) without duplication, any amounts in respect of the items set forth
in
clauses (I)(a) and (I)(b) permitted hereunder to be retained by the Master
Servicer or to be withdrawn by the Master Servicer from the Distribution Account
pursuant to 3A.12.
“Back-Up
Certification”: The meaning set forth in Section 4.05(a)(iv).
“Balloon
Mortgage Loan”: A Mortgage Loan that provides for the payment of the unamortized
Stated Principal Balance of such Mortgage Loan in a single payment at the
maturity of such Mortgage Loan that is substantially greater than the preceding
monthly payment.
“Balloon
Payment”: A payment of the unamortized Stated Principal Balance of a Mortgage
Loan in a single payment at the maturity of such Mortgage Loan that is
substantially greater than the preceding Monthly Payment.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Book-Entry
Certificates”: Any of the Certificates that shall be registered in the name of
the Depository or its nominee, the ownership of which is reflected on the books
of the Depository or on the books of a Person maintaining an account with the
Depository (directly, as a “Depository Participant”, or indirectly, as an
indirect participant in accordance with the rules of the Depository and as
described in Section 5.02 hereof). On the Closing Date, the Floating Rate
Certificates and the Fixed Rate Certificates shall be Book-Entry
Certificates.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings institutions in the State of Delaware, the State of New York, the State
of Texas, the State of California, the State of Minnesota or in the city in
which the Corporate Trust Office of the Trustee or the Corporate Trust Office
of
the Trust Administrator is located are authorized or obligated by law or
executive order to be closed.
“Cap
Amount”: The Cap Amount for any Class of the Floating Rate Certificates is equal
to (i) the aggregate amount received by the Trust from the Cap Contract
multiplied by (ii) a fraction equal to (a) the Certificate Principal Balance
of
such Class immediately prior to the applicable Distribution Date divided by
(b)
the aggregate Certificate Principal Balance of the Floating Rate Certificates
immediately prior to the applicable Distribution Date.
“Cap
Contract”: The Cap Contract between the Trust Administrator (in its capacity as
Supplemental Interest Trust Trustee) and the counterparty thereunder, a form
of
which is attached hereto as Exhibit O.
“Certificate”:
Any Regular Certificate or Residual Certificate.
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that a Disqualified Organization or non-U.S. Person
shall not be a Holder of a Residual Certificate for any purpose hereof and,
solely for the purposes of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Servicer or the Master
Servicer or any Affiliate thereof shall be deemed not to be outstanding and
the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent has been obtained, except as otherwise provided in
Section 11.01. The Trust Administrator, the Trustee and the NIMS Insurer may
conclusively rely upon a certificate of the Depositor, the Servicer or the
Master Servicer in determining whether a Certificate is held by an Affiliate
thereof. All references herein to “Holders” or “Certificateholders” shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trust Administrator,
the
Trustee and the NIMS Insurer shall be required to recognize as a “Holder” or
“Certificateholder” only the Person in whose name a Certificate is registered in
the Certificate Register.
“Certificate
Margin”: With respect to each Class of Floating Rate Certificates and for
purposes of the Marker Rate and the Maximum Uncertificated Accrued Interest
Deferral Amount, the specified REMIC 2 Regular Interest, as
follows:
|
Class
|
REMIC
2 Regular Interest
|
Certificate
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
I-A-1
|
LTIA1
|
0.160
|
0.320
|
|
II-A-1
|
LTIIA1
|
0.060
|
0.120
|
|
II-A-2
|
LTIIA2
|
0.110
|
0.220
|
|
II-A-3
|
LTIIA3
|
0.170
|
0.340
|
|
II-A-4
|
LTIIA4
|
0.270
|
0.540
|
|
M-1
|
LTM1
|
0.320
|
0.480
|
|
M-2
|
LTM2
|
0.360
|
0.540
|
|
M-3
|
LTM3
|
0.430
|
0.645
|
|
M-4
|
LTM4
|
0.470
|
0.705
|
|
M-5
|
LTM5
|
0.540
|
0.810
|
|
M-6
|
LTM6
|
1.050
|
1.575
|
|
M-7
|
LTM7
|
1.150
|
1.725
|
|
M-8
|
LTM8
|
2.000
|
3.000
|
|
M-9
|
LTM9
|
2.400
|
3.600
|
|
M-10
|
LTM10
|
2.400
|
3.600
|
|
B-1
|
LTB1
|
2.400
|
3.600
|
__________
| (1) |
For
the Accrual Period for each Distribution Date on or prior to the
Optional
Termination Date.
|
| (2) |
For
each other Accrual Period.
|
“Certificate
Owner”: With respect to each Book-Entry Certificate, any beneficial owner
thereof.
“Certificate
Principal Balance”: With respect to any Class of Regular Certificates (other
than the Class C Certificates) immediately prior to any Distribution Date,
will
be equal to the Initial Certificate Principal Balance thereof plus any
Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 4.01, reduced by the sum of all amounts actually
distributed in respect of principal of such Class and, in the case of a
Mezzanine Certificate or a Class B Certificate, Realized Losses allocated
thereto on all prior Distribution Dates. With respect to the Class C
Certificates as of any date of determination, an amount equal to the excess,
if
any, of (A) the then aggregate Uncertificated Principal Balance of the REMIC
2
Regular Interests over (B) the then aggregate Certificate Principal Balance
of
the Fixed Rate Certificates, the Floating Rate Certificates and the Class P
Certificates then outstanding.
“Certificate
Register” and “Certificate Registrar”: The register maintained and registrar
appointed pursuant to Section 5.02 hereof.
“Certification”:
As defined in Section 3.22(b)(ii).
“Certification
Parties”: The meaning set forth in Section 4.05(a)(iv).
“Certifying
Person”: The meaning set forth in Section 4.05(a)(iv).
“Class”:
Collectively, Certificates which have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
B
Certificates”: Collectively, the Class B-1 Certificates and Class B-2
Certificates.
“Class
B-1 Certificate”: Any one of the Class B-1 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-16, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
B-2 Certificate”: Any one of the Class B-2 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-17, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
B-1 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the
aggregate Certificate Principal Balance of the Class M-1 Certificates and the
Class M-2 Certificates (after taking into account the distribution of the Class
M-1/M-2 Principal Distribution Amount on such Distribution Date), (iii)
the
Certificate Principal Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-5 Certificates (after taking into account
the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date), (x) the Certificate Principal Balance of the Class M-10 Certificates
(after taking into account the distribution of the Class M-10 Principal
Distribution Amount on such Distribution Date) and (xi) the Certificate
Principal Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 95.50% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
B-2 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-10 Certificates (after taking into account the
distribution of the Class M-10 Principal Distribution Amount on such
Distribution Date), (xi) the Certificate Principal Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount on such Distribution Date) and (xii) the
Certificate Principal Balance of the Class B-2 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 97.00%
and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
C
Certificates”: Any one of the Class C Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-18, representing (i) a Regular Interest in REMIC 4, (ii) the
obligation to pay Net WAC Rate Carryover Amounts and Swap Termination Payments
and (iii) the right to receive the Class IO Distribution Amount.
“Class
C
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class C Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
I-A-1 Certificate”: Any one of the Class I-A-1 Certificates executed by the
Trust
Administrator,
and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-1, representing (i) a Regular Interest in
REMIC
3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation to pay the Class IO Distribution Amount.
“Class
II-A-1 Certificate”: Any one of the Class II-A-1 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-2 Certificate”: Any one of the Class II-A-2 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-3, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-3 Certificate”: Any one of the Class II-A-3 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-4, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-4 Certificate”: Any one of the Class II-A-4 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-5, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
IO
Distribution Amount”: As defined in Section 4.10 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal
the amount payable to the Trust Administrator on such Distribution Date in
excess of the amount payable on the Class IO Interest on such Distribution
Date,
all as further provided in Section 4.10 hereof.
“Class
IO
Interest”: An uncertificated interest in the Trust Fund evidencing a Regular
Interest in REMIC 3.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-6, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-1/M-2 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date) and (ii) the aggregate Certificate Principal Balance
of
the Class M-1 Certificates and the Class M-2 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 70.30%
and
(ii) the Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-7, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-8, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-3 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date) and (iii) the Certificate Principal Balance of the Class
M-3
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 74.30% and (ii) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the Overcollateralization Floor.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-9, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-4 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date) and (iv) the
Certificate Principal Balance of the Class M-4 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 78.00%
and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-10, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-5 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (v) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 81.50% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-11, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-6 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount
on
such Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (vi) the Certificate
Principal Balance of the Class M-6 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 84.50% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-12, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-7 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 87.20% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class
M-8 Certificate”: Any one of the Class M-8 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-13, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-8 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and (vii) the Certificate
Principal Balance of the Class M-8 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 89.30% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-14, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-9 Principal Distribution Amount”: The excess of (x) the sum of (i) the
Certificate Principal Balance of the Senior Certificates (after taking into
account the distribution of the Senior Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date) and (ix) the Certificate Principal Balance of the Class M-9 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 91.30% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class
M-10 Certificate”: Any one of the Class M-10 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-15, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-10 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date) and (x) the Certificate Principal
Balance of the Class M-10 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 93.30% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
“Class
P
Certificates”: Any one of the Class P Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-19, representing a Regular
Interest in REMIC 5.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
R
Certificate”: The Class R Certificate executed by the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-20 and evidencing the ownership of the Class
R-1 Interest, the Class R-2 Interest and the Class R-3 Interest.
“Class
R-X Certificate”: The Class R-X Certificate executed by the Trust Administrator,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-21 and evidencing the ownership of the
Class R-4 Interest, the Class R-5 Interest and the Class R-6
Interest.
“Class
R-1 Interest”: The uncertificated Residual Interest in REMIC 1.
“Class
R-2 Interest”: The uncertificated Residual Interest in REMIC 2.
“Class
R-3 Interest”: The uncertificated Residual Interest in REMIC 3.
“Class
R-4 Interest”: The uncertificated Residual Interest in REMIC 4.
“Class
R-5 Interest”: The uncertificated Residual Interest in REMIC 5.
“Class
R-6 Interest”: The uncertificated Residual Interest in REMIC 6.
“Close
of
Business”: As used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Closing
Date”: April 28, 2006.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The account or accounts created and maintained by the Servicer
pursuant to Section 3.10(a), which shall be entitled “Fremont Investment &
Loan, as Servicer for Deutsche Bank National Trust Company as Trustee, in trust
for the registered Holders of Fremont Home Loan Trust 2006-2, Asset-Backed
Certificates, Series 2006-2,” which must be an Eligible Account.
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: With respect to the Servicer and any Principal Prepayment, the amount
in respect of Prepayment Interest Shortfalls required to be paid by the Servicer
pursuant to Section 3.24 from its own funds without right of reimbursement.
With
respect to the Master Servicer, the amount in respect of Prepayment Interest
Shortfalls required to be paid by the Master Servicer pursuant to Section 3A.10
from its own funds without right of reimbursement except as provided in Section
3A.10.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee or the Trust
Administrator, as the case may be, at which at any particular time its corporate
trust business in connection with this Agreement shall be administered, which
office at the date of the execution of this instrument is located at, (i) with
respect to the Trustee, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, or at such other address as the Trustee may designate from time
to
time by notice to the Certificateholders, the Depositor, the Servicer, the
Master Servicer, the Originator, and the Trust Administrator, or (ii) with
respect to the Trust Administrator, (A) for Certificate transfer and surrender
purposes, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services—Fremont 2006-2
and (B) for all other purposes, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services—Fremont 2006-2, or
in each case, at such other address as the Trust Administrator may designate
from time to time by notice to the Certificateholders, the Depositor, the
Servicer, the Master Servicer, the Originator and the Trustee.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest set forth below, the
corresponding Regular Certificate set forth in the table below:
|
REMIC
2 Regular Interest
|
Regular
Certificate
|
|
LTIA1
|
Class
I-A-1
|
|
LTIIA1
|
Class
II-A-1
|
|
LTIIA2
|
Class
II-A-2
|
|
LTIIA3
|
Class
II-A-3
|
|
LTIIA4
|
Class
II-A-4
|
|
LTM1
|
Class
M-1
|
|
LTM2
|
Class
M-2
|
|
LTM3
|
Class
M-3
|
|
LTM4
|
Class
M-4
|
|
LTM5
|
Class
M-5
|
|
LTM6
|
Class
M-6
|
|
LTM7
|
Class
M-7
|
|
LTM8
|
Class
M-8
|
|
LTM9
|
Class
M-9
|
|
LTM10
|
Class
M-10
|
|
LTB1
|
Class
B-1
|
|
LTB2
|
Class
B-2
|
|
LTP
|
Class
P
|
“Credit
Risk Management Agreement”: The respective agreements between the Credit Risk
Manager and the Servicer and/or Master Servicer regarding the loss mitigation
and advisory services to be provided by the Credit Risk Manager.
“Credit
Risk Manager”: ▇▇▇▇▇▇▇ Fixed Income Services Inc., a Colorado corporation,
formerly known as The Murrayhill Company, and its successors and assigns.
“Credit
Risk Manager Fee”: The amount payable to the Credit Risk Manager on each
Distribution Date as compensation for all services rendered by it in the
exercise and performance of any of the powers and duties of the Credit Risk
Manager under the Credit Risk Management Agreement and any other agreement
pursuant to which the Credit Risk Manager is to perform any duties with respect
to the Mortgage Loans, which amount shall equal one twelfth of the product
of
(i) the Credit Risk Manager Fee Rate (without regard to the words “per annum”)
and (ii) the aggregate Stated Principal Balance of the Mortgage Loans and any
related REO Properties as of the first day of the related Due
Period.
“Credit
Risk Manager Fee Rate”: 0.0125% per annum.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred from the Cut-off Date to the last day of the preceding
calendar month and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
“Custodian”:
Deutsche Bank National Trust Company.
“Cut-off
Date”: With respect to each Mortgage Loan, April 1, 2006.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid Stated
Principal Balance thereof as of the Cut-off Date of such Mortgage Loan (or
as of
the applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan), after giving effect to scheduled payments due on or before
the
Cut-off Date, whether or not received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding Stated Principal Balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy
Code.
“Definitive
Certificates”: As defined in Section 5.02(c) hereof.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by one or more
Qualified Substitute Mortgage Loans.
“Delinquency
Percentage”: For any Distribution Date, the percentage obtained by dividing (x)
the aggregate Stated Principal Balance of Mortgage Loans that are Delinquent
60
days or more (including Mortgage Loans that are in foreclosure, that have been
converted to REO Properties or that have been discharged by reason of bankruptcy
and are Delinquent 60 days or more) by (y) the aggregate Stated Principal
Balance of the Mortgage Loans (in each case, as of the last day of the previous
calendar month after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment
Period).
“Delinquent”:
With respect to any Mortgage Loan and related Monthly Payment, the Monthly
Payment due on a Due Date which is not made by the Close of Business on the
next
scheduled Due Date for such Mortgage Loan. For example, a Mortgage Loan is
60 or
more days Delinquent if the Monthly Payment due on a Due Date is not made by
the
Close of Business on the second scheduled Due Date after such Due
Date.
“Depositor”:
Financial Asset Securities Corp., a Delaware corporation, or any successor
in
interest.
“Depository”:
The initial Depository shall be The Depository Trust Company, whose nominee
is
Cede & Co., or any other organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
The
Depository shall initially be the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing corporation” as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of
New
York.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by any REMIC other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicer or the Master
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Servicer or the Master
Servicer on behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance, or makes decisions
as to repairs or capital expenditures with respect to such REO
Property.
“Disqualified
Organization”: A “disqualified organization” under Section 860E of the Code,
which as of the Closing Date is any of: (i) the United States, any state or
political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any
organization (other than a cooperative described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the Code, (iii)
any
organization described in Section 1381(a)(2)(C) of the Code or (iv) an “electing
large partnership” within the meaning of Section 775 of the Code. A corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof, if all of its activities are subject to tax
and a majority of its board of directors is not selected by a governmental
unit.
The term “United States”, “state” and “international organizations” shall have
the meanings set forth in Section 7701 of the Code.
“Distribution
Account”: The trust account or accounts created and maintained by the Trust
Administrator pursuant to Section 3.10(b) which shall be entitled “Distribution
Account, ▇▇▇▇▇ Fargo Bank, N.A. as Trust Administrator, in trust for the
registered Certificateholders of Fremont Home Loan Trust 2006-2, Asset-Backed
Certificates, Series 2006-2” and which must be an Eligible Account.
“Distribution
Date”: The 25th
day of
any calendar month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in May 2006.
“Due
Date”: With respect to each Mortgage Loan and any Distribution Date, the first
day of the calendar month in which such Distribution Date occurs on which the
Monthly Payment for such Mortgage Loan was due (or, in the case of any Mortgage
Loan under the terms of which the Monthly Payment for such Mortgage Loan was
due
on a day other than the first day of the calendar month in which such
Distribution Date occurs, the day during the related Due Period on which such
Monthly Payment was due), exclusive of any days of grace.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month in which such Distribution Date
occurs and ending on the first day of the month in which such Distribution
Date
occurs.
“Eligible
Account”: Any of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1+ by S&P,
F-1 by Fitch and P-1 by ▇▇▇▇▇’▇ (or comparable ratings if S&P, Fitch and
▇▇▇▇▇’▇ are not the Rating Agencies) at the time any amounts are held on deposit
therein, (ii) an account or accounts the deposits in which are fully insured
by
the FDIC up to the insured amount, (iii) a trust account or accounts maintained
with the trust department of a federal or state chartered depository
institution, national banking association or trust company acting in its
fiduciary capacity or (iv) an account otherwise acceptable to each Rating Agency
without reduction or withdrawal of their then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the Trust
Administrator, the Trustee and the NIMS Insurer. Eligible Accounts may bear
interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Escrow
Payments”: The amounts constituting ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums and other payments required to be
escrowed by the Mortgagor with the mortgagee pursuant to any Mortgage
Loan.
“Excess
Overcollateralized Amount”: With respect to the Fixed Rate Certificates and the
Floating Rate Certificates and any Distribution Date, the excess, if any, of
the
sum of (i) the Overcollateralized Amount for such Distribution Date, assuming
that 100% of the Principal Remittance Amount is applied as a principal payment
on such Distribution Date and (ii) any amounts received under the Interest
Rate
Swap Agreement for such purposes over (iii) the Overcollateralization Target
Amount for such Distribution Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the Monthly Interest Distributable Amount distributable on the
Class C Certificates on such Distribution Date as reduced by Realized Losses
allocated thereto with respect to such Distribution Date pursuant to Section
4.08 and (y) the Overcollateralization Deficiency Amount for such Distribution
Date.
“Extraordinary
Trust Fund Expense”: Any amounts reimbursable to the Master Servicer pursuant to
Section 3A.03 or Section 6.03, to the Servicer, the Trustee or the Trust
Administrator, or any director, officer, employee or agent of the Trustee or
the
Trust Administrator from the Trust Fund pursuant to Section 6.03, Section 8.05
or Section 10.01(c) and any amounts payable from the Distribution Account in
respect of taxes pursuant to Section 10.01(g)(iii).
“▇▇▇▇▇▇
▇▇▇”: Federal National Mortgage Association or any successor
thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by the
Originator, the Seller or the Servicer pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 10.01, a determination made by the Servicer
that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Servicer, in its reasonable good faith judgment, expects
to
be finally recoverable in respect thereof have been so recovered. The Servicer
shall maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
“Fitch”:
Fitch Ratings, or its successor in interest.
“Fixed
Rate Certificates”: The Class B-2 Certificates.
“Fixed
Swap Payment”: With respect to any Distribution Date, a fixed amount equal to
the related amount set forth in the Interest Rate Swap Agreement.
“Floating
Rate Certificates”: The Class A Certificates, the Mezzanine Certificates and the
Class B Certificates (other than the Class B-2 Certificates).
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) Swap LIBOR, (ii) the related Base Calculation Amount (as
defined in the Interest Rate Swap Agreement), (iii) 250 and (iv) a fraction,
the
numerator of which is the actual number of days elapsed from and including
the
previous Floating Rate Payer Payment Date (as defined in the Interest Rate
Swap
Agreement) to but excluding the current Floating Rate Payer Payment (or, for
the
first Floating Rate Payer Payment Date, the actual number of days elapsed from
the Closing Date to but excluding the first Floating Rate Payer Payment Date),
and the denominator of which is 360.
“Form
8-K
Disclosure Information”: The meaning set forth in Section
4.06(a)(iii).
“Formula
Rate”: For any Distribution Date and each Class of Floating Rate Certificates,
the lesser of (a) the sum of (i) LIBOR plus (ii) the related Certificate Margin
and (b) the Maximum Cap Rate.
“▇▇▇▇▇▇▇
Mac”: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
“Group
I
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group I Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
I
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group I Principal Remittance Amount for such Distribution
Date
over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group I Allocation
Percentage.
“Group
I
Certificates”: The Class I-A-1 Certificates.
“Group
I
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group I Mortgage Loans.
“Group
I
Mortgage Loan”: A Mortgage Loan assigned to Loan Group I with a Stated Principal
Balance at origination that conforms to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac loan limits.
The aggregate principal balance of the Group I Mortgage Loans as of the Cut-off
Date is equal to $369,479,113.85.
“Group
I
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group I Basic Principal Distribution Amount for such Distribution
Date and (ii)(a) the Extra Principal Distribution Amount for such Distribution
Date multiplied by (b) the Group I Allocation Percentage.
“Group
I
Principal Remittance Amount”: With respect to any Distribution Date, that
portion of Available Funds equal to the sum of (i) each scheduled payment of
principal collected or advanced on the Group I Mortgage Loans by the Servicer
that were due during the related Due Period, (ii) the principal portion of
all
full Principal Prepayments of the Group I Mortgage Loans applied by the Servicer
during the related Prepayment Period, (iii) the principal portion of all related
partial Principal Prepayments, Net Liquidation Proceeds, Insurance Proceeds
and
Subsequent Recoveries received during the prior calendar month with respect
to
the Group I Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group I Mortgage Loan, deposited
to
the Collection Account during the prior calendar month, (v) the principal
portion of any related Substitution Adjustments deposited in the Collection
Account during the prior calendar month with respect to the Group I Mortgage
Loans and (vi) on the Distribution Date on which the Trust Fund is to be
terminated pursuant to Section 10.01, that portion of the Termination Price,
in
respect of principal on the Group I Mortgage Loans.
“Group
I
Senior Principal Distribution Amount”: The excess of (x) the Certificate
Principal Balance of the Group I Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 50.90% and
(ii)
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) minus the related Overcollateralization
Floor.
“Group
II
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group II Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
II
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group II Principal Remittance Amount for such Distribution
Date over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group II Allocation
Percentage.
“Group
II
Certificates”: Any Class II-A-1 Certificate, Class II-A-2 Certificate, Class
II-A-3 Certificate or Class II-A-4 Certificate.
“Group
II
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group II Mortgage Loans.
“Group
II
Mortgage Loan”: A Mortgage Loan assigned to Loan Group II with a Stated
Principal Balance at origination that may or may not conform to ▇▇▇▇▇▇ ▇▇▇
and
▇▇▇▇▇▇▇ Mac loan limits. The aggregate principal balance of the Group II
Mortgage Loans as of the Cut-off Date is equal to $613,612,251.13.
“Group
II
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group II Basic Principal Distribution Amount for such Distribution
Date and (ii)(a) the Extra Principal Distribution Amount for such Distribution
Date multiplied by (b) the Group II Allocation Percentage.
“Group
II
Principal Remittance Amount”: With respect to any Distribution Date, that
portion of Available Funds equal to the sum of (i) each scheduled payment of
principal collected or advanced on the Group II Mortgage Loans by the Servicer
that were due during the related Due Period, (ii) the principal portion of
all
full Principal Prepayments of the Group II Mortgage Loans applied by the
Servicer during the related Prepayment Period, (iii) the principal portion
of
all related partial Principal Prepayments, Net Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received during the prior calendar month
with
respect to the Group II Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group II Mortgage Loan, deposited
to
the Collection Account during the prior calendar month, (v) the principal
portion of any related Substitution Adjustments deposited in the Collection
Account during the prior calendar month with respect to the Group II Mortgage
Loans and (vi) on the Distribution Date on which the Trust Fund is to be
terminated pursuant to Section 10.01, that portion of the Termination Price,
in
respect of principal on the Group II Mortgage Loans.
“Group
II
Senior Principal Distribution Amount”: The excess of (x) the aggregate
Certificate Principal Balance of the Group II Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 50.90%
and
(ii) the aggregate Stated Principal Balance of the Group II Mortgage Loans
as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of
the
Group II Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Highest
Priority”: As of any date of determination, the Class of Mezzanine Certificates
or Class B Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the highest priority for payments pursuant to Section
4.01, in the following order of decreasing priority: Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class
M-10, Class B-1 and Class B-2 Certificates.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class C
Certificates, the Class P Certificates and/or the Class R Certificates (or
any
portion thereof) which may or may not be guaranteed by the NIMS
Insurer.
“Independent”:
When used with respect to any specified Person, any such Person who (a) is
in
fact independent of the Depositor, the Servicer or the Master Servicer and
their
respective Affiliates, (b) does not have any direct financial interest in or
any
material indirect financial interest in the Depositor or the Servicer or any
Affiliate thereof, and (c) is not connected with the Depositor or the Servicer
or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Depositor or
the
Servicer or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor or the
Servicer or any Affiliate thereof, as the case may be.
“Independent
Contractor”: Either (i) any Person (other than the Servicer or the Master
Servicer) that would be an “independent contractor” with respect to any of the
REMICs created hereunder within the meaning of Section 856(d)(3) of the Code
if
such REMIC were a real estate investment trust (except that the ownership tests
set forth in that section shall be considered to be met by any Person that
owns,
directly or indirectly, 35% or more of any Class of Certificates), so long
as
each such REMIC does not receive or derive any income from such Person and
provided that the relationship between such Person and such REMIC is at arm’s
length, all within the meaning of Treasury Regulation Section 1.856-4(b)(5),
or
(ii) any other Person (including the Servicer and the Master Servicer) if the
Trust Administrator has received an Opinion of Counsel for the benefit of the
Trustee and the Trust Administrator to the effect that the taking of any action
in respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a)
of
the Code), or cause any income realized in respect of such REO Property to
fail
to qualify as Rents from Real Property.
“Index”:
With respect to each Adjustable-Rate Mortgage Loan and with respect to each
related Adjustment Date, the index as specified in the related Mortgage
Note.
“Initial
Certificate Principal Balance”: With respect to any Regular Certificate, the
amount designated “Initial Certificate Principal Balance” on the face
thereof.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance policy
covering a Mortgage Loan, to the extent such proceeds are received by the
Servicer and are not to be applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the procedures that
the
Servicer would follow in servicing mortgage loans held for its own account,
subject to the terms and conditions of the related Mortgage Note and
Mortgage.
“Interest
Determination Date”: With respect to the Floating Rate Certificates and each
Accrual Period, the second LIBOR Business Day preceding the commencement of
such
Accrual Period.
“Interest
Rate Swap Agreement”: The 1992 ISDA Master Agreement (Multicurrency-Cross
Border) dated as of April 28, 2006 (together with the schedule thereto, the
Master Agreement) between the Swap Provider and the Trust Administrator (in
its
capacity as Supplemental Interest Trust Trustee).
“Late
Collections”: With respect to any Mortgage Loan, all amounts received by the
Servicer subsequent to the Determination Date immediately following any related
Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments
or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent on
a
contractual basis for such Due Period and not previously recovered.
“LIBOR”:
With respect to each Accrual Period, the rate determined by the Trust
Administrator
on the
related Interest Determination Date on the basis of the London interbank offered
rate for one-month United States dollar deposits, as such rate appears on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date. If such rate does not appear on Telerate Page 3750, the
rate
for such Interest Determination Date will be determined on the basis of the
offered rates of the Reference Banks for one-month United States dollar
deposits, as of 11:00 a.m. (London time) on such Interest Determination Date.
The Trust Administrator will request the principal London office of each of
the
Reference Banks to provide a quotation of its rate. On such Interest
Determination Date, LIBOR for the related Accrual Period will be established
by
the Trust Administrator as follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16 of 1%); and
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(i) LIBOR as determined on the previous Interest Determination Date and (ii)
the
Reserve Interest Rate.
“LIBOR
Business Day”: Any day on which banks in London, England and The City of New
York are open and conducting transactions in foreign currency and
exchange.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the Servicer has determined, in accordance with the servicing procedures
specified herein, as of the end of the related Prepayment Period, that all
Liquidation Proceeds which it expects to recover with respect to the liquidation
of the Mortgage Loan or disposition of the related REO Property have been
recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i) such
Mortgage Loan is paid in full, (ii) a Final Recovery Determination is made
as to
such Mortgage Loan or (iii) such Mortgage Loan is removed from the Trust Fund
by
reason of its being purchased, sold or replaced pursuant to or as contemplated
by Section 2.03, Section 3.16(c) or Section 10.01. With respect to any REO
Property, either of the following events: (i) a Final Recovery Determination
is
made as to such REO Property or (ii) such REO Property is removed from the
Trust
Fund by reason of its being sold or purchased pursuant to Section 3.23 or
Section 10.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the Servicer in
connection with (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan by means of a trustee’s sale, foreclosure sale or
otherwise or (iii) the repurchase, substitution or sale of a Mortgage Loan
or an
REO Property pursuant to or as contemplated by Section 2.03, Section 3.16(c),
Section 3.23 or Section 10.01.
“Loan-to-Value
Ratio”: As of any date and as to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
Mortgage Loan and the denominator of which is the Value of the related Mortgaged
Property.
“Loan
Group”: Either Loan Group I or Loan Group II, as the context
requires.
“Loan
Group I”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group I.
“Loan
Group II”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group II.
“Losses”:
As defined in Section 9.03.
“Lost
Note Affidavit”: With respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost, misplaced or destroyed and has not
been
replaced, an affidavit from the Originator certifying that the original Mortgage
Note has been lost, misplaced or destroyed (together with a copy of the related
Mortgage Note) and indemnifying the Trust against any loss, cost or liability
resulting from the failure to deliver the original Mortgage Note in the form
of
Exhibit H hereto.
“Majority
Certificateholders”: The Holders of Certificates evidencing at least 51% of the
Voting Rights.
“Marker
Rate”: With respect to the Class C Interest and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the Uncertificated
REMIC 2 Pass-Through Rates for each REMIC 2 Regular Interest (other than REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTIO and REMIC 2 Regular
Interest LTP), with the rate on each such REMIC 2 Regular Interest (other than
REMIC 2 Regular Interest LTZZ) subject to a cap equal to the Pass-Through Rate
for the Corresponding Certificate for the purpose of this calculation; and
with
the rate on REMIC 2 Regular Interest LTZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that solely for this purpose,
calculations of the Uncertificated REMIC 2 Pass-Through Rate and the related
caps with respect to each such REMIC 2 Regular Interest (other than REMIC 2
Regular Interest LTB3 and REMIC 2 Regular Interest LTZZ) shall be multiplied
by
a fraction, the numerator of which is the actual number of days in the related
Interest Accrual Period and the denominator of which is 30.
“Master
Agreement”: The Master Mortgage Loan Purchase and Interim Servicing Agreement,
between the Originator and the Seller.
“Master
Servicer”: As of the Closing Date, ▇▇▇▇▇ Fargo Bank, N.A. and thereafter, its
respective successors in interest who meet the qualifications of the Master
Servicer under this Agreement or any successor appointed hereunder.
“Master
Servicer Event of Termination”: One or more of the events described in Section
7.01(b).
“Master
Servicing Compensation”: The meaning specified in Section 3A.09.
“Master
Servicing Transfer Costs”: Shall mean all reasonable out-of-pocket costs and
expenses incurred by the Trustee in connection with the transfer of master
servicing from a predecessor Master Servicer, including, without limitation,
any
reasonable costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Trustee (or other successor master servicer)
to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or other successor master servicer) to master service the
Mortgage Loans properly and effectively.
“Maximum
Cap Rate”: For any Distribution Date and any Class of the Floating Rate
Certificates, a per annum rate equal to the product of (i) the sum of (x) the
weighted average of the Adjusted Net Maximum Mortgage Rates of the Mortgage
Loans, weighted on the basis of the outstanding Stated Principal Balance of
the
Mortgage Loans as of the first day of the calendar month preceding the month
of
such Distribution Date and (y) an amount, expressed as a percentage, equal
to a
fraction, the numerator of which is equal to the Net Swap Payment made by the
Swap Provider and the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans, multiplied by 12 and (ii) a fraction,
the numerator of which is 30 and the denominator of which is the actual number
of days elapsed in the related Accrual Period.
“Maximum
Mortgage Rate”: With respect to each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the maximum Mortgage Rate thereunder.
“Maximum
Uncertificated Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (a) accrued interest at the Uncertificated
REMIC 2 Pass-Through Rate applicable to REMIC 2 Regular Interest LTZZ for such
Distribution Date on a balance equal to the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTZZ minus the REMIC 2 Overcollateralization Amount,
in
each case for such Distribution Date, over (b) the sum of the Uncertificated
Accrued Interest on REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest
LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC
2 Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular
Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4,
REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular
Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9,
REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTB1 and REMIC 2
Regular Interest LTB2 with the rate on each such REMIC 2 Regular Interest
subject to a cap equal to the Pass-Through Rate for the related Corresponding
Certificate for the purpose of this calculation; provided, however, that for
this purpose, calculations of the Uncertificated REMIC 2 Pass-Through Rate
and
the related caps with respect to each such REMIC 2 Regular Interest (other
than
REMIC 2 Regular Interest LTB2 and REMIC 2 Regular Interest LTZZ) shall be
multiplied by a fraction, the numerator of which is the actual number of days
elapsed in the related Accrual Period and the denominator of which is
30.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Mezzanine
Certificate”: Any Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate, Class M-9 Certificate
or Class M-10 Certificate.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“MOM
Loan”: With respect to any applicable Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination
thereof.
“Monthly
Interest Distributable Amount”: With respect to the Fixed Rate Certificates, the
Floating Rate Certificates and the Class C Certificates and any Distribution
Date, the amount of interest accrued during the related Accrual Period at the
related Pass-Through Rate on the Certificate Principal Balance (or Notional
Amount in the case of the Class C Certificates) of such Class immediately prior
to such Distribution Date, in each case, reduced by any Net Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls (allocated to such Certificate
based on its respective entitlements to interest irrespective of any Net
Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution Date).
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the related
Mortgagor from time to time under the related Mortgage Note, determined: (a)
after giving effect to (i) any Deficient Valuation and/or Debt Service Reduction
with respect to such Mortgage Loan, (ii) any modifications to a Mortgage Loan
pursuant to Section 3.07 and (iii) any reduction in the amount of interest
collectible from the related Mortgagor pursuant to the Relief Act; (b) without
giving effect to any extension granted or agreed to by the Servicer pursuant
to
clause (ii) of Section 3.07 and (c) on the assumption that all other amounts,
if
any, due under such Mortgage Loan are paid when due.
“Moody’s”:
▇▇▇▇▇’▇ Investors Service, Inc., or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on, or first or second priority security interest in, a Mortgaged Property
securing a Mortgage Note.
“Mortgage
File”: The mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”: Each mortgage loan transferred and assigned to the Trustee pursuant to
Section 2.01 or Section 2.03(d) as from time to time held as a part of the
Trust
Fund, the Mortgage Loans so held being identified in the Mortgage Loan
Schedule.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in REMIC 1
on such date, separately identifying the Group I Mortgage Loans and the Group
II
Mortgage Loans, attached hereto as Exhibit D. The Mortgage Loan Schedule shall
be prepared by the Seller and shall set forth the following information with
respect to each Mortgage Loan, as applicable:
(i) the
Mortgage Loan identifying number;
(ii) [reserved];
(iii) the
state
and zip code of the Mortgaged Property;
(iv) a
code
indicating whether the Mortgaged Property was represented by the borrower,
at
the time of origination, as being owner-occupied;
(v) the
type
of Residential Dwelling constituting the Mortgaged Property;
(vi) the
original months to maturity;
(vii) the
stated remaining months to maturity from the Cut-off Date based on the original
amortization schedule;
(viii) the
Loan-to-Value Ratio at origination;
(ix) the
Mortgage Rate in effect immediately following the Cut-off Date;
(x) the
date
on which the first Monthly Payment was due on the Mortgage Loan;
(xi) the
stated maturity date;
(xii) the
amount of the Monthly Payment at origination;
(xiii) the
amount of the Monthly Payment due on the first Due Date after the Cut-off
Date;
(xiv) the
last
Due Date on which a Monthly Payment was actually applied to the unpaid Stated
Principal Balance;
(xv) the
original principal amount of the Mortgage Loan;
(xvi) the
Stated Principal Balance of the Mortgage Loan as of the Close of Business on
the
Cut-off Date;
(xvii) a
code
indicating the purpose of the Mortgage Loan (i.e., purchase financing, rate/term
refinancing, cash-out refinancing);
(xviii) the
Mortgage Rate at origination;
(xix) a
code
indicating the documentation program (i.e., full documentation, limited income
verification, no income verification, alternative income
verification);
(xx) the
risk
grade;
(xxi) the
Value
of the Mortgaged Property;
(xxii) the
sale
price of the Mortgaged Property, if applicable;
(xxiii) the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
(xxiv) the
type
and term of the related Prepayment Charge;
(xxv) with
respect to any Adjustable-Rate Mortgage Loan, the rounding code, the Minimum
Mortgage Rate, the Maximum Mortgage Rate, the Gross Margin, the next Adjustment
Date and the Periodic Rate Cap;
(xxvi) the
program code;
(xxvii) the
Loan
Group;
(xxviii) the
lien
priority; and
(xxix) the
MIN,
if applicable.
The
Mortgage Loan Schedule shall set forth the following information, with respect
to the Mortgage Loans in the aggregate and for each Loan Group as of the Cut-off
Date: (1) the number of Mortgage Loans; (2) the current Principal Balance of
the
Mortgage Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans
and
(4) the weighted average remaining term to maturity of the Mortgage Loans.
The
Mortgage Loan Schedule shall be amended from time to time by the Servicer in
accordance with the provisions of this Agreement. With respect to any Qualified
Substitute Mortgage Loan, Cut-off Date shall refer to the related Cut-off Date
for such Mortgage Loan, determined in accordance with the definition of Cut-off
Date herein. On the Closing Date, the Depositor will deliver to the Servicer, as
of the Cut-off Date, an electronic copy of the Mortgage Loan
Schedule.
“Mortgage
Note”: The original executed note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on Exhibit D from time to time,
and any REO Properties acquired in respect thereof.
“Mortgage
Rate”: With respect to each fixed-rate Mortgage Loan, the rate set forth in the
related Mortgage Note. With respect to each Adjustable-Rate Mortgage Loan,
the
annual rate at which interest accrues on such Mortgage Loan from time to time
in
accordance with the provisions of the related Mortgage Note, which rate (A)
as
of any date of determination until the first Adjustment Date following the
Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as the
Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any
date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date, to equal the sum, rounded to the next highest or nearest
0.125% (as provided in the Mortgage Note), of the Index, determined as set
forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the
annual rate determined in accordance with the immediately preceding sentence
as
of the date such Mortgage Loan became an REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of a fee simple estate in a parcel of real property
improved by a Residential Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan or any other
disposition of related Mortgaged Property (including REO Property) the related
Liquidation Proceeds and Insurance Proceeds net of Advances, Servicing Advances,
Servicing Fees and any other accrued and unpaid servicing fees or ancillary
income received and retained in connection with the liquidation of such Mortgage
Loan or Mortgaged Property.
“Net
Monthly Excess Cashflow”: With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and (b)
the
excess of (x) Available Funds for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Monthly Interest Distributable Amounts for
the
Fixed Rate Certificates and the Floating Rate Certificates, (B) the Unpaid
Interest Shortfall Amounts for the Senior Certificates and (C) the Principal
Remittance Amount.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property),
as of any date of determination, a per annum rate of interest equal to the
then
applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate.
“Net
Prepayment Interest Shortfall”: With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: For any Distribution Date with respect to the Fixed Rate Certificates and
the Floating Rate Certificates, a per annum rate (which rate, in the case of
the
Floating Rate Certificates, shall be multiplied by a fraction, the numerator
of
which is 30 and the denominator of which is the actual number of days elapsed
in
the related Accrual Period) equal to the weighted average of the Adjusted Net
Mortgage Rates of the Mortgage Loans, weighted based on their outstanding Stated
Principal Balances as of the first day of the calendar month preceding the
month
in which the Distribution Date occurs minus (i) an amount, expressed as a
percentage, equal to the product of (x) the Net Swap Payment, if any, paid
by
the Trust for such Distribution Date divided by the aggregate Stated Principal
Balance of the Mortgage Loans and (y) 12 and (ii) an amount, expressed as a
percentage, equal to the product of (x) the Swap Termination Payment, if any,
due from the Trust (other than any Swap Termination Payment resulting from
a
Swap Provider Trigger Event) for such Distribution Date divided by the aggregate
Stated Principal Balance of the Mortgage Loans, and (y) 12. For federal income
tax purposes, the equivalent of the foregoing shall be expressed as a per annum
rate (which rate, in the case of the Floating Rate Certificates, shall be
multiplied by a fraction, the numerator of which is 30 and the denominator
of
which is the actual number of days elapsed in the related Accrual Period) equal
to the weighted average of the Uncertificated REMIC 2 Pass-Through Rates on
each
REMIC 2 Regular Interest (other than REMIC 2 Regular Interests LTIO), weighted
on the basis of the Uncertificated Principal Balance of each such REMIC 2
Regular Interest.
“Net
WAC
Rate Carryover Amount”: With respect to the Fixed Rate Certificates and the
Floating Rate Certificates and any Distribution Date, the sum of (A) the
positive excess of (i) the amount of interest accrued on such Class of
Certificates on such Distribution Date calculated at the related Pass-Through
Rate (without regard to the Net WAC Rate) over (ii) the amount of interest
accrued on such Class of Certificates at the Net WAC Rate for such Distribution
Date and (B) the Net WAC Rate Carryover Amount for the previous Distribution
Date not previously paid, together with interest thereon at a rate equal to
the
related Pass-Through Rate (without regard to the Net WAC Rate) for the most
recently ended Accrual Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 3.28.
“New
Lease”: Any lease of REO Property entered into on behalf of the Trust, including
any lease renewed or extended on behalf of the Trust if the Trust has the right
to renegotiate the terms of such lease.
“NIMS
Insurer”: Any insurer that is guaranteeing certain payments under notes secured
by collateral which includes all or a portion of the Class C Certificates,
the
Class P Certificates and/or the Residual Certificates.
“Nonrecoverable
Advance”: Any Advance or Servicing Advance previously made or proposed to be
made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Servicer or the Master Servicer, as applicable, will
not be ultimately recoverable from Late Collections, Insurance Proceeds,
Liquidation Proceeds or condemnation proceeds on such Mortgage Loan or REO
Property as provided herein.
“Notional
Amount”: Immediately prior to any Distribution Date with respect to the Class C
Interest, the aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests (other than REMIC 2 Regular Interest LTP).
“Offered
Certificates”: The Class A Certificates and the Mezzanine Certificates offered
to the public pursuant to the Prospectus Supplement.
“Officers’
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president (however denominated),
and by the Treasurer, the Secretary, or one of the assistant treasurers or
assistant secretaries of the Servicer, the Master Servicer, the Originator,
the
Seller or the Depositor, as applicable.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor, the Seller, the Servicer or the Master
Servicer, acceptable to the Trustee, if such opinion is delivered to the
Trustee, or acceptable to the Trust Administrator, if such opinion is delivered
to the Trust Administrator, except that any opinion of counsel relating to
(a)
the qualification of any REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
“Optional
Termination Date”: The first Distribution Date on which the Terminator may opt
to terminate the Trust Fund pursuant to Section 10.01.
“Original
Class Certificate Principal Balance”:
With
respect to the Fixed Rate Certificates, the Floating Rate Certificates, the
Class C Certificates, the Class C Interest, the Class IO Interest, REMIC 6
Regular Interest SWAP IO, the Class P Certificates and the Class P Interest,
the
corresponding amounts set forth opposite such Class above in the Preliminary
Statement.
“Originator”:
Fremont Investment & Loan, or its successor in interest.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (assuming that 100% of the Principal Remittance
Amount is applied as a principal distribution on such Distribution
Date).
“Overcollateralization
Floor”: With respect to the Group I Certificates, $1,847,395.57. With respect to
the Group II Certificates, $3,068,061.26. With respect to the Mezzanine
Certificates, $4,915,456.83.
“Overcollateralization
Release Amount”: With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”: With
respect to any Distribution Date, (i) prior to the Stepdown Date, an amount
equal to 1.50% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date, (ii) on or after the Stepdown Date provided a Trigger
Event is not in effect, the greater of (A) 3.00% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
the
Overcollateralization Floor and
(iii) on or after the Stepdown Date if a Trigger Event is in effect, the
Overcollateralization Target Amount for the immediately preceding Distribution
Date.
Notwithstanding the foregoing, on and after any Distribution Date following
the
reduction of the aggregate Certificate Principal Balance of the Fixed Rate
Certificates and the Floating Rate Certificates to zero, the
Overcollateralization Target Amount shall be zero.
“Overcollateralized
Amount”: For any Distribution Date, the amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
(ii) the aggregate Certificate Principal Balance of the Fixed Rate Certificates,
the Floating Rate Certificates and the Class P Certificates as of such
Distribution Date after giving effect to distributions to be made on such
Distribution Date.
“Ownership
Interest”: As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
“Pass-Through
Rate”: With respect to the Fixed Rate Certificates and any Distribution Date,
the lesser of (x) the related fixed rate per annum set forth below for such
Distribution Date and (y) the Net WAC Rate for such Distribution
Date.
|
Class
|
Fixed
Rate
|
|
|
(1)
|
(2)
|
|
|
B-2
|
5.000%
per annum
|
5.500%
per annum
|
__________
| (1) |
For
the Accrual Period for each Distribution Date on or prior to the
Optional
Termination Date.
|
| (2) |
For
each other Accrual Period.
|
With
respect to the Floating
Rate Certificates and any Distribution Date, the lesser of (a) the related
Formula Rate and (b) the Net WAC Rate for such Distribution Date.
With
respect to the Class C Interest and any Distribution Date, a per annum rate
equal to the percentage equivalent of a fraction, the numerator of which is
(x)
the sum of (i) 100% of the interest on REMIC 2 Regular Interest LTP and (ii)
interest on the Uncertificated Balance of each REMIC 2 Regular Interest listed
in clause (y) at a rate equal to the related Uncertificated REMIC 2 Pass-Through
Rate minus the Marker Rate and the denominator of which is (y) the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interests ▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇, LTIIA2, LTIIA3, LTIIA4, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, LTM8,
LTM9, LTM10, LTB1, LTB2 and LTZZ.
With
respect to the Class C Certificates, 100% of the interest distributable to
the
Class C Interest, expressed as a per annum rate.
The
Class
IO Interest shall not have a Pass-Through Rate, but interest for such Regular
Interest and each Distribution Date shall be an amount equal to 100% of the
amounts distributable to REMIC 2 Regular Interest LTIO.
The
REMIC
6 Regular Interest SWAP-IO Interest shall not have a Pass-Through Rate, but
interest for such Regular Interest and each Distribution Date shall be an amount
equal to 100% of the amounts distributable to the Class IO Interest for such
Distribution Date.
The
Class
P Certificates, Class R Certificates and Class R-X Certificates will not accrue
interest and therefore will not have a Pass-Through Rate.
“Paying
Agent”: Any paying agent appointed pursuant to Section 5.05.
“PCAOB”:
The Public Company Accounting Oversight Board.
“Percentage
Interest”: With respect to any Certificate (other than a Residual Certificate),
a fraction, expressed as a percentage, the numerator of which is the Initial
Certificate Principal Balance represented by such Certificate and the
denominator of which is the Original Class Certificate Principal Balance of
the
related Class. With respect to a Residual Certificate, the portion of the Class
evidenced thereby, expressed as a percentage, as stated on the face of such
Certificate; provided, however, that the sum of all such percentages for each
such Class totals 100%.
“Periodic
Rate Cap”: With respect to each Adjustable-Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage Loan
may increase or decrease (without regard to the Maximum Mortgage Rate or the
Minimum Mortgage Rate) on such Adjustment Date from the Mortgage Rate in effect
immediately prior to such Adjustment Date.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued or managed by the Depositor, the Servicer, the Master Servicer, the
Trustee, the Trust Administrator or any of their respective Affiliates or for
which an Affiliate of the Trustee or the Trust Administrator serves as an
advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in one of the two highest
available ratings of ▇▇▇▇▇’▇ and the highest available rating category of Fitch
and S&P and provided that each such investment has an original maturity of
no more than 365 days; and provided further that, if the only Rating Agency
is
S&P and if the depository or trust company is a principal subsidiary of a
bank holding company and the debt obligations of such subsidiary are not
separately rated, the applicable rating shall be that of the bank holding
company; and, provided further that, if the original maturity of such short-
term obligations of a domestic branch of a foreign depository institution or
trust company shall exceed 30 days, the short-term rating of such institution
shall be A-1+ in the case of S&P if S&P is the Rating Agency; and (B)
any other demand or time deposit or deposit which is fully insured by the
FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated F-1+ or higher by Fitch, P-1 by
▇▇▇▇▇’▇ and rated A-1+ or higher by S&P, provided, however, that collateral
transferred pursuant to such repurchase obligation must be of the type described
in clause (i) above and must (A) be valued daily at current market prices plus
accrued interest, (B) pursuant to such valuation, be equal, at all times, to
105% of the cash transferred by the Trust
Administrator
in
exchange for such collateral and (C) be delivered to the Trust Administrator
or,
if the Trust Administrator is supplying the collateral, an agent for the Trust
Administrator, in such a manner as to accomplish perfection of a security
interest in the collateral by possession of certificated
securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by S&P (and if rated by any other Rating Agency, also by
such other Rating Agency) in its highest long-term unsecured rating category
at
the time of such investment or contractual commitment providing for such
investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by S&P
(and if rated by any other Rating Agency, also by such other Rating Agency)
in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds, including those money market funds managed or advised by
the
Trust Administrator or its Affiliates, that have been rated “AAA” by Fitch (if
rated by Fitch), “Aaa” by ▇▇▇▇▇’▇ and “AAAm” or “AAAm-G” by S&P;
and
(vii) if
previously confirmed in writing to the Trustee and the Trust Administrator,
any
other demand, money market or time deposit, or any other obligation, security
or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing securities having ratings equivalent to its highest
initial rating of the Senior Certificates;
provided,
that no instrument described hereunder shall evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
“Permitted
Transferee”: Any transferee of a Residual Certificate other than a Disqualified
Organization or a non-U.S. Person.
“Person”:
Any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Pool
Balance”: As of any date of determination, the aggregate Stated Principal
Balance of the Mortgage Loans in both Loan Groups as of such date.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Mortgage Loan, the charges or premiums, if any, due
in connection with a full or partial Principal Prepayment of such Mortgage
Loan
in accordance with the terms thereof (other than any Servicer Prepayment Charge
Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans included in the Trust Fund on such date, attached hereto as Schedule
I
(including the prepayment charge summary attached thereto). The Prepayment
Charge Schedule shall set forth the following information with respect to each
Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Prepayment Charge; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
The
Prepayment Charge Schedule shall be amended from time to time by the Servicer
in
accordance with the provisions of this Agreement and a copy of such amended
Prepayment Charge Schedule shall be furnished by the Servicer to the NIMS
Insurer.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full during the portion of
the
related Prepayment Period occurring between the first day and the 15th
day of
the calendar month in which such Distribution Date occurs, an amount equal
to
interest (to the extent received) at the applicable Net Mortgage Rate on the
amount of such Principal Prepayment in full for the number of days commencing
on
the first day of the calendar month in which such Distribution Date occurs
and
ending on the date on which such prepayment is so applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a Principal Prepayment during the portion of the
related Prepayment Period occurring from the first day of the related Prepayment
Period through the last day of the calendar month preceding the month in which
such Distribution Date occurs, an amount equal to one-month’s interest at the
applicable Net Mortgage Rate less any payments made by the
Mortgagor.
“Prepayment
Period”: With respect to any Distribution Date, the period commencing on the
16th
day of
the calendar month preceding the calendar month in which such Distribution
Date
occurs (or, in the case of the first Distribution Date, from April 1, 2006)
and
ending on the 15th
day of
the calendar month in which the related Distribution Date occurs.
“Principal
Balance”: As to any Mortgage Loan other than a Liquidated Mortgage Loan, and any
day, the related Cut-off Date Principal Balance, minus all collections credited
against the Cut-off Date Principal Balance of any such Mortgage Loan. For
purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have
a Principal Balance equal to the Principal Balance of the related Mortgage
Loan
as of the final recovery of related Liquidation Proceeds and a Principal Balance
of zero thereafter. As to any REO Property and any day, the Principal Balance
of
the related Mortgage Loan immediately prior to such Mortgage Loan becoming
REO
Property minus any REO Principal Amortization received with respect thereto
on
or prior to such day.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount of scheduled
interest due on any Due Date in any month or months subsequent to the month
of
prepayment.
“Principal
Remittance Amount”: With respect to any Distribution Date, the sum of the Group
I Principal Remittance Amount and the Group II Principal Remittance
Amount.
“Prospectus
Supplement”: That certain Prospectus Supplement dated April 6, 2006 relating to
the public offering of the Offered Certificates.
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased by the
Seller or the Servicer pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 10.01, and as confirmed by an Officers’ Certificate from the
party purchasing the Mortgage Loan to the Trustee, an amount equal to the sum
of
(i) 100% of the Stated Principal Balance thereof as of the date of purchase
(or
such other price as provided in Section 10.01), (ii) in the case of (x) a
Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable Mortgage Rate in effect from time to time from the Due Date as to
which interest was last covered by a payment by the Mortgagor or an Advance
by
the Servicer, which payment or Advance had as of the date of purchase been
distributed pursuant to Section 4.01, through the end of the calendar month
in
which the purchase is to be effected, and (y) an REO Property, the sum of (1)
accrued interest on such Stated Principal Balance at the applicable Mortgage
Rate in effect from time to time from the Due Date as to which interest was
last
covered by a payment by the Mortgagor or an advance by the Servicer through
the
end of the calendar month immediately preceding the calendar month in which
such
REO Property was acquired, plus (2) REO Imputed Interest for such REO Property
for each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such purchase
is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances that as of the date of purchase
had
been distributed as or to cover REO Imputed Interest pursuant to Section 4.04,
(iii) any unreimbursed Servicing Advances and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan or REO Property pursuant to Section 3.23 and (v) in the case of a Mortgage
Loan required to be purchased pursuant to Section 2.03, expenses reasonably
incurred or to be incurred by the Servicer, the Master Servicer, the Trust
Administrator or the Trustee in respect of the breach or defect giving rise
to
the purchase obligation, including any costs and damages incurred by the Trust
Fund in connection with any violation with respect to such loan of any predatory
or abusive lending law. With respect to the Originator and any Mortgage Loan
or
REO Property to be purchased pursuant to or as contemplated by Section 2.03
or
10.01, and as confirmed by a certificate of an Officers’ Certificate of the
Originator to the Trustee, an amount equal to the amount set forth pursuant
to
the terms of the Master Agreement.
“Qualified
Insurer”: Any insurance company acceptable to ▇▇▇▇▇▇ ▇▇▇.
“Qualified
Substitute Mortgage Loan”: With respect to the Seller, a mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement
which must, on the date of such substitution, (i) have an outstanding Stated
Principal Balance (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate Stated Principal Balance), after
application of all scheduled payments of principal and interest due during
or
prior to the month of substitution, not in excess of, and not more than 5%
less
than, the outstanding Stated Principal Balance of the Deleted Mortgage Loan
as
of the Due Date in the calendar month during which the substitution occurs,
(ii)
have a Mortgage Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Rate of the Deleted Mortgage Loan, (iii) if the
Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have
a
Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the Deleted
Mortgage Loan, (iv) if the Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a Minimum Mortgage Rate not less than the
Minimum Mortgage Rate of the Deleted Mortgage Loan, (v) if the Qualified
Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have a Gross
Margin equal to or greater than the Gross Margin of the Deleted Mortgage Loan,
(vi) if the Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage
Loan, have a next Adjustment Date not more than two months later than the next
Adjustment Date on the Deleted Mortgage Loan, (vii) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Deleted Mortgage Loan, (viii) be current as of the date of substitution, (ix)
have a Loan-to-Value Ratio as of the date of substitution equal to or lower
than
the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (x) have
a
risk grading determined by the Originator at least equal to the risk grading
assigned on the Deleted Mortgage Loan, (xi) have been underwritten or
reunderwritten by the Originator in accordance with the same underwriting
criteria and guidelines as the Deleted Mortgage Loan, (xii) be a first lien
mortgage loan if the Deleted Mortgage Loan is a first lien mortgage loan and
(xiii) conform to each representation and warranty assigned to the Depositor
pursuant to the Assignment Agreement applicable to the Deleted Mortgage Loan.
In
the event that one or more mortgage loans are substituted for one or more
Deleted Mortgage Loans, the amounts described in clause (i) hereof shall be
determined on the basis of aggregate Stated Principal Balance, the Mortgage
Rates described in clause (ii) hereof shall be satisfied for each such mortgage
loan, the risk gradings described in clause (x) hereof shall be satisfied as
to
each such mortgage loan, the terms described in clause (vii) hereof shall be
determined on the basis of weighted average remaining term to maturity (provided
that no such mortgage loan may have a remaining term to maturity longer than
the
Deleted Mortgage Loan), the Loan-to-Value Ratios described in clause (ix) hereof
shall be satisfied as to each such mortgage loan and, except to the extent
otherwise provided in this sentence, the representations and warranties
described in clause (xii) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be. With respect
to the Originator, a mortgage loan substituted for a Deleted Mortgage Loan
pursuant to the terms of the Master Agreement which must, on the date of such
substitution conform to the terms set forth in the Master
Agreement.
“Rating
Agency or Rating Agencies”: ▇▇▇▇▇’▇ and S&P, or their successors. If such
agencies or their successors are no longer in existence, “Rating Agencies” shall
be such nationally recognized statistical rating agencies, or other comparable
Persons, designated by the Depositor, notice of which designation shall be
given
to the Trustee and the Master Servicer.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage Loan.
If
the Servicer receives Subsequent Recoveries with respect to any Mortgage Loan,
the amount of the Realized Loss with respect to that Mortgage Loan will be
reduced to the extent such recoveries are applied to principal distributions
on
any Distribution Date.
“Record
Date”: With respect to (i) the Floating Rate Certificates, the Close of Business
on the Business Day immediately preceding the related Distribution Date;
provided, however, that following the date on which Definitive Certificates
for
any of the Floating Rate Certificates are available pursuant to Section 5.02,
the Record Date for such Certificates that are Definitive Certificates shall
be
the last Business Day of the calendar month preceding the month in which the
related Distribution Date occurs and (ii) the Fixed Rate Certificates, the
Class
P Certificates, the Class C Certificates and the Residual Certificates, the
Close of Business on the last Business Day of the calendar month preceding
the
month in which the related Distribution Date occurs.
“Reference
Banks”: Those banks (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with
the Originator, the Master Servicer, the Servicer or any Affiliate thereof
and
(iii) which have been designated as such by the Trust Administrator, after
consultation with the Depositor; provided, however, that if fewer than two
of
such banks provide a LIBOR rate, then any leading banks selected by the Trust
Administrator after consultation with the Depositor which are engaged in
transactions in United States dollar deposits in the international Eurocurrency
market.
“Refinanced
Mortgage Loan”: A Mortgage Loan the proceeds of which were not used to purchase
the related Mortgaged Property.
“Regular
Certificate”: Any of the Fixed Rate Certificates, the Floating Rate
Certificates, Class C Certificates or Class P Certificates.
“Regulation
AB”: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100 - 229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Relevant
Servicing Criteria”: The Servicing Criteria applicable to the various parties,
as set forth on Exhibit S attached hereto. For clarification purposes, multiple
parties can have responsibility for the same Relevant Servicing
Criteria.
“Relief
Act”: The Servicemembers Civil Relief Act, or any state law providing for
similar relief.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date, for any Mortgage
Loan with respect to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Due Period as a result of the
application of the Relief Act, the amount by which (i) interest collectible
on
such Mortgage Loan during such Due Period is less than (ii) one month’s interest
on the Stated Principal Balance of such Mortgage Loan at the Mortgage Rate
for
such Mortgage Loan before giving effect to the application of the Relief
Act.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
1”: The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made consisting of: (i) such Mortgage Loans as from time
to
time are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof, (ii)
any REO Property, together with all collections thereon and proceeds thereof,
(iii) the Trustee’s rights with respect to the Mortgage Loans under all
insurance policies, required to be maintained pursuant to this Agreement and
any
proceeds thereof, (iv) the Depositor’s rights under the Assignment Agreement
(including any security interest created thereby) and (v) the Collection
Account, the Distribution Account (subject to the last sentence of this
definition) and any REO Account and such assets that are deposited therein
from
time to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto. Notwithstanding the foregoing,
however, a REMIC election will not be made with respect to the Net WAC Rate
Carryover Reserve Account, the Cap Contract, the Swap Account, the Supplemental
Interest Trust, the Interest Rate Swap Agreement or any Servicer Prepayment
Charge Payment Amounts.
“REMIC
1
Regular Interests”: Any of the 58 separate non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and designated as a “regular interest” in
REMIC 1. Each REMIC 1 Regular Interest shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
“REMIC
2”: The segregated pool of assets consisting of all of the REMIC 1 Regular
Interests and conveyed in trust to the Trustee, for the benefit of REMIC 3,
as
holder of the REMIC 2 Regular Interests, and the Class R Certificateholders,
as
Holders of the Class R-2 Interest, pursuant to Article II hereunder, and all
amounts deposited therein, with respect to which a separate REMIC election
is to
be made.
“REMIC
2
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and related REO Properties then outstanding and (ii) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest LTAA
minus
the Marker Rate, divided by (b) 12.
“REMIC
2
Overcollateralization Amount”: With respect to any date of determination, (i)
1.00% of the aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests (other than REMIC 2 Regular Interest LTP) minus (ii) the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interest LTIA1, REMIC 2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTB1
and
REMIC 2 Regular Interest LTB2, in each case as of such date of
determination.
“REMIC
2
Overcollateralization Target Amount”: 1.00% of the Overcollateralization Target
Amount.
“REMIC
2
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to the product of (i) the aggregate Stated Principal Balance of
the
Mortgage Loans and related REO Properties then outstanding and (ii) 1 minus
a
fraction, the numerator of which is two times the aggregate Uncertificated
Principal Balance of REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest
LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC
2 Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular
Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4,
REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular
Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9,
REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTB1 and REMIC 2
Regular Interest LTB2 and the denominator of which is the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interest LTIA1, REMIC 2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTM10 and REMIC 2 Regular Interest
LTB1,
REMIC 2 Regular Interest LTB2 and REMIC 2 Regular Interest LTZZ.
“REMIC
2
Regular Interests”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. Each REMIC 2 Regular Interest shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The following is
a
list of each of the REMIC 2 Regular Interests: REMIC 2 Regular Interest LTAA,
REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest
LTM10, REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2, REMIC
2
Regular Interest LTZZ, REMIC 2 Regular Interest LTP and REMIC 2 Regular Interest
LTIO.
“REMIC
3”: The segregated pool of assets consisting of all of the REMIC 2 Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates or the Class
P
Certificates), the Class C Interest, the Class P Interest, the Class IO Interest
and the Class R Certificates (in respect of the Class R-3 Interest), pursuant
to
Article II hereunder, and all amounts deposited therein, with respect to which
a
separate REMIC election is to be made.
“REMIC
4”: The segregated pool of assets consisting of the Class C Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class C Certificates
and the Class R-X Certificates (in respect of the Class R-4 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
5”: The segregated pool of assets consisting of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class P Certificates
and the Class R-X Certificates (in respect of the Class R-5 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
6”: The segregated pool of assets consisting of the Class IO Interest conveyed
in trust to the Trustee, for the benefit of the Holders of the REMIC 6 Regular
Interest SWAP IO and the Class R-X Certificates (in respect of the Class R-6
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits which appear at Section 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
and rulings promulgated thereunder, as the foregoing may be in effect from
time
to time.
“REMIC
Regular Interests”: The REMIC 1 Regular Interests, the REMIC 2 Regular
Interests, the Class C Interest, the Class P Interest and the Class IO
Interest.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Master Servicer
pursuant to Section 4.04.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code.
“REO
Account”: The account or accounts maintained by the Servicer in respect of an
REO Property pursuant to Section 3.23.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of the
Trust Fund.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of the Trust Fund, one month’s interest
at the applicable Net Mortgage Rate on the Stated Principal Balance of such
REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.23 in respect of the proper operation, management and maintenance
of such REO Property or (ii) payable or reimbursable to the Servicer pursuant
to
Section 3.23 for unpaid Servicing Fees in respect of the related Mortgage Loan
and unreimbursed Servicing Advances and Advances in respect of such REO Property
or the related Mortgage Loan, over (b) the REO Imputed Interest in respect
of
such REO Property for such calendar month.
“REO
Property”: A Mortgaged Property acquired by the Servicer on behalf of the Trust
Fund through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23.
“Reporting
Servicer”: The meaning set forth in Section 4.05(a)(iv)(A).
“Reportable
Event”: The meaning set forth in Section 4.05(a)(iii).
“Request
for Release”: A release signed by a Servicing Officer, in the form of Exhibit E
attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trust Administrator determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of 1/16 of
1%)
of the one-month United States dollar lending rates which banks in The City
of
New York selected by the Trust Administrator are quoting on the relevant
Interest Determination Date to the principal London offices of leading banks
in
the London interbank market or (ii) in the event that the Trust Administrator
can determine no such arithmetic mean, in the case of any Interest Determination
Date after the initial Interest Determination Date, the lowest one-month United
States dollar lending rate which such New York banks selected by the Trust
Administrator are quoting on such Interest Determination Date to leading
European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
▇▇▇▇▇▇ ▇▇▇ eligible condominium project, (iv) a manufactured home, or (v) a
detached one-family dwelling in a planned unit development, none of which is
a
co-operative or mobile home.
“Residual
Certificate”: The Class R Certificates and the Class R-X
Certificates.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee or the Trust Administrator, any
director, any vice president, any assistant vice president, the Secretary,
any
assistant secretary, the Treasurer, any assistant treasurer or any other officer
of the Trustee or the Trust Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers
and, with respect to a particular matter, to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
“S&P”:
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., or its successor in interest.
▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”: The ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (including any interpretations thereof by
the
Commission’s staff).
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”: A written certification signed by an officer of the Master
Servicer that complies with (i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and (ii) Exchange Act
Rules 13a-14(d) and 15d-14(d), as in effect from time to time; provided that
if,
after the Closing Date (a) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act is amended, (b) the Rules
referred to in clause (ii) are modified or superseded by any subsequent
statement, rule or regulation of the Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published by
the
Commission from time to time pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, which in any
such case affects the form or substance of the required certification and
results in the required certification being, in the reasonable judgment of
the
Master Servicer, materially more onerous that then form of the required
certification as of the Closing Date, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification shall
be
as agreed to by the Master Servicer and the Depositor following a negotiation
in
good faith to determine how to comply with any such new
requirements.
“Securities
Act”: The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Seller”:
Greenwich Capital Financial Products, Inc., a Delaware corporation, in its
capacity as Seller under the Assignment Agreement.
“Senior
Certificate”: Any one of the Class I-A-1 Certificates, the Class II-A-1
Certificates, the Class II-A-2 Certificates, the Class II-A-3 Certificates
or
the Class II-A-4 Certificates.
“Senior
Credit Enhancement Percentage”: For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of the aggregate
Certificate Principal Balance of the Mezzanine Certificates, the Class B
Certificates and the Class C Certificates, and the denominator of which is
the
aggregate Stated Principal Balance of the Mortgage Loans calculated prior to
taking into account payments of principal on the Mortgage Loans and distribution
of the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount to the Holders of the Certificates then entitled to
distributions of principal on such Distribution Date.
“Senior
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group I Senior Principal Distribution Amount and (ii) the Group
II
Senior Principal Distribution Amount.
“Servicer”:
Fremont Investment & Loan, or any successor Servicer appointed as herein
provided, each in its capacity as a Servicer hereunder.
“Servicer’s
Assignee”: As defined in Section 3.27 hereof.
“Servicer
Certification”: As defined in Section 4.05.
“Servicer
Event of Termination”: One or more of the events described in Section
7.01.
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by the Servicer in
respect of any waived Prepayment Charges pursuant to Section 2.05 or Section
3.01.
“Servicer
Remittance Date”: With respect to any Distribution Date, the third Business Day
prior to such Distribution Date.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and expenses) incurred by the
Servicer in the performance of its servicing obligations, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of the Mortgaged Property, (ii) any enforcement, administrative
or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of the REO Property, (iv) taxes, assessments, water rates, sewer
rates and other charges which are or may become a lien on the Mortgaged Property
and insurance premiums and (v) compliance with the obligations under Sections
3.01, 3.09, 3.14, 3.16, and 3.23. The Servicer shall not be required to make
any
Servicing Advance that would be a Nonrecoverable Advance.
“Servicing
Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation
AB, as such may be amended from time to time.
“Servicing
Fee”: With respect to each Mortgage Loan, the amount of the annual fee paid to
the Servicer, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate (without regard to
the
words "per annum") and (b) the outstanding principal balance of such Mortgage
Loan. Such fee shall be payable monthly, computed on the basis of the same
principal amount and period respecting which any related interest payment on
a
Mortgage Loan is received. The obligation for payment of the Servicing Fee
is
limited to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds) of
such Monthly Payment collected by the Servicer, or as otherwise provided under
Section 3.11.
“Servicing
Fee Rate”: 0.50% per annum.
“Servicing
Function Participant”: Any Sub-Servicer or Subcontractor of a Servicer, the
Master Servicer, the Trustee, the Custodian or the Trust Administrator,
respectively.
“Servicing
Officer”: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Servicer
to
the Master Servicer, the Trust Administrator, the Trustee and the Depositor
on
the Closing Date, as such list may from time to time be amended. With respect
to
the Master Servicer, any officer of the Master Servicer involved in or
responsible for, the administration and master servicing of the Mortgage Loans
whose name appears on a list of master Servicing Officers furnished by the
Master Servicer to the Trustee, the Trust Administrator and the Depositor upon
request, as such list may from time to time be amended.
“Servicing
Transfer Costs”: Shall mean all reasonable out-of-pocket costs and expenses
incurred by the Trustee or the Master Servicer in connection with the transfer
of servicing from a predecessor servicer, including, without limitation, any
reasonable costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Trustee or the Master Servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
Trustee or the Master Servicer (or any successor servicer appointed pursuant
to
Section 7.02) to service the Mortgage Loans properly and effectively and any
fees associated with MERS.
“Startup
Day”: As defined in Section 9.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the outstanding principal balance of such Mortgage Loan
as
of the Cut-off Date as shown in the Mortgage Loan Schedule, minus the sum of
(i)
the principal portion of each Monthly Payment due on a Due Date subsequent
to
the Cut-off Date to the extent received from the Mortgagor or advanced by the
Servicer and distributed pursuant to Section 4.01 on or before such date of
determination, (ii) all Principal Prepayments received after the Cut-off Date
to
the extent distributed pursuant to Section 4.01 on or before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds to the
extent distributed pursuant to Section 4.01 on or before such date of
determination, and (iv) any Realized Loss incurred with respect thereto as
a
result of a Deficient Valuation made during or prior to the Due Period for
the
most recent Distribution Date coinciding with or preceding such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed,
zero.
With respect to any REO Property: (a) as of any date of determination up to
but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the related
Mortgage Loan as of the date on which such REO Property was acquired on behalf
of the Trust Fund, minus the aggregate amount of REO Principal Amortization
in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
“Stepdown
Date”: The earlier to occur of (i) the Distribution Date immediately following
the date on which the aggregate Certificate Principal Balance of the Senior
Certificates has been reduced to zero and (ii) the later to occur of (x) the
Distribution Date occurring in May 2009 and (y) the first Distribution Date
on
which the Senior Credit Enhancement Percentage (calculated for this purpose
only
after taking into account payments of principal on the Mortgage Loans but prior
to distribution of the Group I Principal Distribution Amount and the Group
II
Principal Distribution Amount to the Certificates then entitled to distributions
of principal on such Distribution Date) is equal to or greater than
49.10%.
“Subcontractor”:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Sub-Servicer of any Servicer),
the Master Servicer, the Trustee, the Custodian or the Trust
Administrator.
“Sub-Servicer”:
Any Person with which the Servicer has entered into a Sub- Servicing Agreement
and which meets the qualifications of a Sub-Servicer pursuant to Section
3.02.
“Sub-Servicing
Account”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer
relating to servicing and administration of certain Mortgage Loans as provided
in Section 3.02.
“Subsequent
Recoveries”: As of any Distribution Date, amounts received by the Servicer (net
of any related expenses permitted to be reimbursed) pursuant to Section 3.11
specifically related to a Mortgage Loan that was the subject of a liquidation
or
an REO Disposition prior to the related Prepayment Period that resulted in
a
Realized Loss.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Supplemental
Interest Trust”: As defined in Section 4.10(a).
“Supplemental
Interest Trust Trustee”: ▇▇▇▇▇ Fargo Bank, N.A., a national banking association,
not in its individual capacity but solely in its capacity as supplemental
interest Trust Trustee, and any successor thereto.
“Swap
Account”: The account or accounts created and maintained pursuant to Section
4.05. The Swap Account must be an Eligible Account.
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due to a
discrepancy between the Uncertificated Notional Amount of REMIC 6 Regular
Interest SWAP IO and the scheduled notional amount.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by the Swap Provider under
the Swap Agreement.
“Swap
Provider”: The Bank of New York.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party.
“Swap
Termination Payment”: The payment due to either party under the Interest Rate
Swap Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Tax
Matters Person”: The tax matters person appointed pursuant to Section 9.01(e)
hereof.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of the REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
by
the Trust Administrator on behalf of each REMIC, together with any and all
other
information reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
“Termination
Price”: As defined in Section 10.01(a) hereof.
“Terminator”:
As defined in Section 10.01(a) hereof.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date on or
after the Stepdown Date if:
(i) (a)
on any Distribution Date on which the Class A Certificates remain outstanding,
the Delinquency Percentage exceeds 32.55%
of the Senior Credit Enhancement Percentage; or (ii) on any Distribution Date
on
which the aggregate Certificate Principal Balance of the Class A Certificates
has been reduced to zero, the Delinquency Percentage exceeds 39.00%
of the Class M-1 Credit Enhancement Percentage; or
(ii) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (reduced by the aggregate amount of
Subsequent Recoveries received since the Cut-off Date through the last day
of
the related Due Period) divided by the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date (the “Realized Loss Percentage”), exceeds
the applicable percentages set forth below with respect to such Distribution
Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
May
2008 through April
2009
|
1.50%
for the first month, plus an additional 1/12th
of 1.90% for each month thereafter.
|
|
May
2009 through April 2010
|
3.40%
for the first month, plus an additional 1/12th
of 1.90% for each month thereafter.
|
|
May
2010 through April 2011
|
5.30%
for the first month, plus an additional 1/12th
of 1.50% for each month thereafter.
|
|
May
2011 through April 2012
|
6.80%
for the first month, plus an additional 1/12th
of 0.80% for each month thereafter.
|
|
May
2012 and thereafter
|
7.60%.
|
“Trust”:
Fremont Home Loan Trust 2006-2, the trust created hereunder.
“Trust
Administrator”: ▇▇▇▇▇ Fargo Bank, N.A., or any successor in interest, or any
successor trust administrator appointed as herein provided.
“Trust
Fund”: All of the assets of the Trust, which is the trust created hereunder
consisting of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC 5, REMIC 6, the Cap
Contract, the Interest Rate Swap Agreement, the Swap Account, the right to
receive any amounts from the Net WAC Rate Carryover Reserve Account and the
Servicer Prepayment Charge Payment Amounts.
“Trustee”:
Deutsche Bank National Trust Company, a national banking association, or any
successor trustee appointed as herein provided.
“Trustee
Compensation”: Such compensation, if any, as set forth in the separate fee
schedule between the Trustee and the Depositor, which compensation shall be
payable to the Trustee on each Distribution Date pursuant to Section 8.05 as
compensation for all services rendered by it in the execution of the trust
hereby created and in the exercise and performance of any of the powers and
duties of the Trustee hereunder.
“Uncertificated
Accrued Interest”: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated REMIC Pass-Through Rate on the Uncertificated Principal Balance
of such REMIC Regular Interest. In each case, Uncertificated Accrued Interest
will be reduced by any Net Prepayment Interest Shortfalls, Relief Act Interest
Shortfalls (allocated to such REMIC Regular Interests based on their respective
entitlements to interest irrespective of any Net Prepayment Interest Shortfalls
and Relief Act Interest Shortfalls for such Distribution Date).
“Uncertificated
Notional Amount”: With respect to REMIC 2 Regular Interest LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC 1 Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
2 Regular Interests
|
|
1st
through 12th
|
I-1-A
through ▇-▇▇-▇
|
|
▇▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇▇
|
▇-▇-▇
through I-28-A
|
|
21
|
I-10-A
through I-28-A
|
|
22
|
I-11-A
through I-28-A
|
|
23
|
I-12-A
through I-28-A
|
|
24
|
I-13-A
through I-28-A
|
|
25
|
I-14-A
through I-28-A
|
|
26
|
I-15-A
through I-28-A
|
|
27
|
I-16-A
through I-28-A
|
|
28
|
I-17-A
through I-28-A
|
|
29
|
I-18-A
through I-28-A
|
|
30
|
I-19-A
through I-28-A
|
|
31
|
I-20-A
through I-28-A
|
|
32
|
I-21-A
through I-28-A
|
|
33
|
I-22-A
through I-28-A
|
|
34
|
I-23-A
through I-28-A
|
|
35
|
I-24-A
through I-28-A
|
|
36
|
I-25-A
through I-28-A
|
|
37
|
I-26-A
through I-28-A
|
|
38
|
▇-▇▇-▇▇▇▇
▇-▇▇-▇
|
|
▇▇
|
▇-▇▇-▇
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC 2 Regular Interest
LTIO.
“Uncertificated
Principal Balance”: With respect to each REMIC Regular Interest, the amount of
such REMIC Regular Interest outstanding as of any date of determination. As
of
the Closing Date, the Uncertificated Principal Balance of each REMIC Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto
as
its initial Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC Regular Interest shall be reduced
by all distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.08 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.08, and the Uncertificated Principal Balance
of
REMIC Regular Interest LTZZ shall be increased by interest deferrals as provided
in Section 4.08. With respect to the Class C Interest as of any date of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Class A Certificates, the
Mezzanine Certificates, the Class B Certificates and the Class P Certificates
then outstanding. The Uncertificated Principal Balance of each REMIC Regular
Interest that has an Uncertificated Principal Balance shall never be less than
zero.
“Uncertificated
REMIC Pass-Through Rate”: The Uncertificated REMIC 1 Pass-Through Rate or
Uncertificated REMIC 2 Pass-Through Rate, as applicable.
“Uncertificated
REMIC 1 Pass-Through Rate”: With respect to REMIC 1 Regular Interest I and REMIC
1 Regular Interest P, a per annum rate equal to the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans. With respect to each REMIC
1
Regular Interest ending with the designation “A”, a per annum rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans
multiplied by 2, subject to a maximum rate of 10.4000%. With respect to each
REMIC 1 Regular Interest ending with the designation “B”, the greater of (x) a
per annum rate equal to the excess, if any, of (i) 2 multiplied by the weighted
average of the Adjusted Net Mortgage Rates of the Mortgage Loans over (ii)
10.4000% and (y) 0.00%.
“Uncertificated
REMIC 2 Pass-Through Rate”:
With
respect to REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1, REMIC
2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTB1,
REMIC 2 Regular Interest LTB2, REMIC 2 Regular Interest LTZZ and REMIC 2 Regular
Interest LTP, a
per
annum rate (but not less than zero) equal to the weighted average of (v) with
respect to REMIC 1 Regular Interest I and REMIC 1 Regular Interest P, the
Uncertificated REMIC 1 Pass-Through Rates for such REMIC 1 Regular Interests
for
each such Distribution Date, (w) with respect to REMIC 1 Regular Interests
ending with the designation “B”, the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for such REMIC 1 Regular Interests, weighted on
the
basis of the Uncertificated Principal Balance of such REMIC 1 Regular Interests
for each such Distribution Date and (x) with respect to REMIC 1 Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for each such REMIC 1
Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest for each such
Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
|
1st
through 11th
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
12
|
I-1-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
13
|
I-2-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
14
|
I-3-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
15
|
I-4-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
16
|
I-5-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
17
|
I-6-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
18
|
I-7-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
19
|
I-8-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
20
|
I-9-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
21
|
I-10-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
22
|
I-11-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
23
|
I-12-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
24
|
I-13-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
25
|
I-14-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
26
|
I-15-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
27
|
I-16-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
28
|
I-17-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
29
|
I-18-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
30
|
I-19-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
31
|
I-20-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
32
|
I-21-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
33
|
I-22-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
34
|
I-23-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
35
|
I-24-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
36
|
I-25-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
37
|
I-26-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
38
|
I-27-A
through I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
39
|
I-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
With
respect to REMIC 2 Regular Interest LTIO, and (a) the first 11 Distribution
Dates, the excess of (i) the weighted average of the Uncertificated REMIC 1
Pass-Through Rates for REMIC 1 Regular Interests ending with the designation
“A”
over (ii) the weighted average of the Uncertificated REMIC 1 Pass-Through Rates
for REMIC 1 Regular Interests ending with the designation “A”, and (b) the
twelfth Distribution Date through the 39th
Distribution Date, the excess of (i) the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for REMIC 1 Regular Interests ending with the
designation “A” over (ii) 2 multiplied by Swap LIBOR, and (c) thereafter 0.00%.
“Uninsured
Cause”: Any cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the hazard insurance
policies required to be maintained pursuant to Section 3.14.
“United
States Person” or “U.S. Person”: A citizen or resident of the United States, a
corporation, partnership (or other entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States, any state thereof, or the District
of Columbia (except in the case of a partnership, to the extent provided in
Treasury Regulations) provided that, for purposes solely of the restrictions
on
the transfer of Residual Certificates, no partnership or other entity treated
as
a partnership for United States federal income tax purposes shall be treated
as
a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation
for
United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, or an estate the income of
which from sources without the United States is includible in gross income
for
United States federal income tax purposes regardless of its connection with
the
conduct of a trade or business within the United States, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trust. The term “United States”
shall have the meaning set forth in Section 7701 of the Code or successor
provisions.
“Unpaid
Interest Shortfall Amount”: With respect to the Fixed Rate Certificates and the
Floating Rate Certificates and (i) the first Distribution Date, zero, and (ii)
any Distribution Date after the first Distribution Date, the amount, if any,
by
which (a) the sum of (1) the Monthly Interest Distributable Amount for such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such Class
in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not
distributed on the Certificates of such Class on such preceding Distribution
Date, to the extent permitted by law, at the Pass-Through Rate for such Class
for the related Accrual Period.
“Value”:
With respect to any Mortgaged Property, the lesser of (i) the value thereof
as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by an appraiser who met the minimum
requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and (ii) the purchase price paid
for
the related Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times the Fixed Rate Certificates, the
Floating Rate Certificates and the Class C Certificates shall have 98% of the
Voting Rights (allocated among the Holders of the Fixed Rate Certificates,
the
Floating Rate Certificates and the Class C Certificates in proportion to the
then outstanding Certificate Principal Balances of their respective
Certificates), the Class P Certificates shall have 1% of the Voting Rights
and
the Residual Certificates shall have 1% of the Voting Rights. The Voting Rights
allocated to any Class of Certificates (other than the Class P Certificates
and
the Residual Certificates) shall be allocated among all Holders of each such
Class in proportion to the outstanding Certificate Principal Balance of such
Certificates and the Voting Rights allocated to the Class P Certificates and
the
Residual Certificates shall be allocated among all Holders of each such Class
in
proportion to such Holders’ respective Percentage Interest; provided, however
that when none of the Regular Certificates are outstanding, 100% of the Voting
Rights shall be allocated among Holders of the Residual Certificates in
accordance with such Holders’ respective Percentage Interests in the
Certificates of such Class.
| SECTION 1.02 |
Accounting.
|
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
| SECTION 1.03 |
Allocation
of Certain Interest Shortfalls.
|
For
purposes of calculating the amount of the Monthly Interest Distributable Amount
for the Fixed Rate Certificates, the Floating Rate Certificates and the Class
C
Certificates for any Distribution Date, (1) the aggregate amount of any Net
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans for any Distribution Date shall be allocated
first, among the Class C Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate and,
thereafter, among the Fixed Rate Certificates and the Floating Rate Certificates
on a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate and (2) the aggregate amount of any Realized Losses and
Net WAC Rate Carryover Amounts shall be allocated among the Class C Certificates
on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to REMIC
1
Regular Interest I and to the REMIC 1 Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest, and then, to REMIC
1
Regular Interests ending with the designation “A”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1,
REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2
Regular Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8,
REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular
Interest LTB1, REMIC 2 Regular Interest LTB2 and REMIC 2 Regular Interest LTZZ
pro
rata based
on,
and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 2 Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC 2 Regular Interest.
| SECTION 1.04 |
Rights
of the NIMS Insurer.
|
Each
of
the rights of the NIMS Insurer set forth in this Agreement shall exist so long
as (i) the NIMS Insurer has undertaken to guarantee certain payments of notes
issued pursuant to an Indenture and (ii) any series of notes issued pursuant
to
one or more Indentures remain outstanding or the NIMS Insurer is owed amounts
in
respect of its guarantee of payment on such notes; provided, however, the NIMS
Insurer shall not have any rights hereunder (except pursuant to Section 11.01
in
the case of clause (ii) below) so long as (i) the NIMS Insurer has not
undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes. The Depositor
shall provide notice to the Servicer if a NIMS Insurer has been engaged, upon
the occurrence of a default under the insurance policy issued by the NIMS
Insurer and the termination of the NIMS Insurer.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
| SECTION 2.01 |
Conveyance
of Mortgage Loans.
|
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse for the benefit of the Certificateholders all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in and to (i) each Mortgage Loan identified on the
Mortgage Loan Schedule, including the related Cut-off Date Principal Balance,
all interest accruing thereon on and after the Cut-off Date and all collections
in respect of interest and principal due after the Cut-off Date; (ii) property
which secured each such Mortgage Loan and which has been acquired by foreclosure
or deed in lieu of foreclosure; (iii) its interest in any insurance policies
in
respect of the Mortgage Loans; (iv) the rights of the Depositor under the Master
Agreement (as assigned to the Depositor pursuant to the terms of the Assignment
Agreement), (v) the
right
to receive any amounts payable under the Cap Contract and the Interest Rate
Swap
Agreement,
(vi)
all other assets included or to be included in the Trust Fund and (vii) all
proceeds of any of the foregoing. Such assignment includes all interest and
principal due and collected by the Depositor or the Servicer after the Cut-off
Date with respect to the Mortgage Loans.
In
connection with such transfer and assignment, the Depositor, does hereby deliver
to, and deposit with, the Trustee (or the Custodian on behalf of the Trustee),
the following documents or instruments with respect to each Mortgage Loan so
transferred and assigned (with respect to each Mortgage Loan, a “Mortgage
File”):
(i) the
original Mortgage Note including any riders thereto, endorsed either (A) in
blank or (B) in the following form: “Pay to the order of Deutsche Bank National
Trust Company, as Trustee, without recourse” or with respect to any lost
Mortgage Note, an original Lost Note Affidavit stating that the original
mortgage note was lost, misplaced or destroyed, together with a copy of the
related mortgage note; provided, however, that such substitutions of Lost Note
Affidavits for original Mortgage Notes may occur only with respect to Mortgage
Loans, the aggregate Cut-off Date Principal Balance of which is less than or
equal to 1.00% of the Pool Balance as of the Cut-off Date;
(ii) the
original Mortgage (noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is
a MOM Loan), with evidence of recording thereon, and the original recorded
power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon or, if such Mortgage or power of attorney has
been
submitted for recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a copy of such
Mortgage or power of attorney, as the case may be, certified to be a true and
complete copy of the original submitted for recording;
(iii) unless
the Mortgage Loan is registered on the MERS® System, an original Assignment, in
form and substance acceptable for recording. The Mortgage shall be assigned
either (A) in blank or (B) to “Deutsche Bank National Trust Company, as Trustee,
without recourse”;
(iv) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments (or to MERS if the Mortgage Loan is registered on the MERS® System
and noting the presence of MIN);
(v) the
original or a certified copy of lender’s title insurance policy;
and
(vi) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any.
The
Depositor herewith also delivers to the Trustee an executed copy of the
Assignment Agreement and the Master Agreement.
If
any of
the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of
the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Trustee (or the Custodian on behalf of the Trustee) no later
than the Closing Date, of a copy of each such document certified by the
Originator in the case of (x) above or the applicable public recording office
in
the case of (y) above to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the Originator,
delivery to the Trustee (or the Custodian on behalf of the Trustee) promptly
upon receipt thereof of either the original or a copy of such document certified
by the applicable public recording office to be a true and complete copy of
the
original. If the original lender’s title insurance policy, or a certified copy
thereof, was not delivered pursuant to Section 2.01(v) above, the Depositor
shall deliver or cause to be delivered to the Trustee (or the Custodian on
behalf of the Trustee), the original or a copy of a written commitment or
interim binder or preliminary report of title issued by the title insurance
or
escrow company, with the original or a certified copy thereof to be delivered
to
the Trustee (or the Custodian on behalf of the Trustee), promptly upon receipt
thereof. The Servicer or the Depositor shall deliver or cause to be delivered
to
the Trustee or the Custodian promptly upon receipt thereof any other documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Trustee shall enforce the
obligations of the Originator under the Master Agreement to cure such defect
or
deliver such missing document to the Trustee (or the Custodian on behalf of
the
Trustee) within 90 days. If the Originator does not cure such defect or deliver
such missing document within such time period, the Trustee shall use
commercially reasonable efforts to enforce the obligations of the Originator
to
either repurchase or substitute for such Mortgage Loan in accordance with
Section 2.03; provided, however, that the Trustee shall not be under any
obligation to take any action pursuant to this paragraph unless directed by
the
Depositor and provided, further, the Depositor hereby agrees to assist the
Trustee in enforcing any obligations of the Originator to repurchase or
substitute for a Mortgage Loan which has breached a representation or warranty
under the Assignment Agreement. In connection with the foregoing, it is
understood that the Trustee shall have no duty to discover any such defects
except in the course of performing its review of the Mortgage Files to the
extent set forth herein.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage,
the Trustee (upon receipt of notice from the Custodian) shall enforce the
obligations of the Originator under the Master Agreement to cause the
Assignments which were delivered in blank to be completed and to record all
Assignments referred to in Section 2.01(iii) hereof and, to the extent
necessary, in Section 2.01(iv) hereof. The Trustee shall enforce the obligations
of the Originator under the Master Agreement to deliver such assignments for
recording within 180 days of the Closing Date. In the event that any such
Assignment is lost or returned unrecorded because of a defect therein, the
Trustee shall enforce the obligations of the Originator under the Master
Agreement to promptly have a substitute Assignment prepared or have such defect
cured, as the case may be, and thereafter cause each such Assignment to be
duly
recorded.
Notwithstanding
the foregoing, for administrative convenience and facilitation of servicing
and
to reduce closing costs, the Assignments shall not be required to be submitted
for recording (except with respect to any Mortgage Loan located in Maryland)
unless the Trustee and the Depositor receive notice that such failure to record
would result in a withdrawal or a downgrading by any Rating Agency of the rating
on any Class of Certificates; provided, however, each Assignment, except with
respect to any Mortgage Loan for which MERS is identified on the Mortgage,
shall
be submitted for recording in the manner described above, at no expense to
the
Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction
by the Holders of Certificates entitled to at least 25% of the Voting Rights,
(ii) the occurrence of a Servicer Event of Termination, (iii) the occurrence
of
a bankruptcy, insolvency or foreclosure relating to the Originator, (iv) the
occurrence of a servicing transfer as described in Section 7.02 hereof, (v)
upon
receipt of notice from the Servicer, the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Mortgagor under the related Mortgage, (vi) upon
receipt of notice from the Servicer, any Mortgage Loan that is 90 days or more
Delinquent and (vii) reasonable direction by the NIMS Insurer. In the event
of
(i) through (vii) set forth in the immediately preceding sentence, the Trustee
shall enforce the obligations of the Originator to deliver such Assignments
for
recording as provided above, promptly and in any event within 30 days following
receipt of notice by the Originator. Notwithstanding the foregoing, if the
Originator fails to pay the cost of recording the Assignments, such expense
will
be paid by the Trustee and the Trustee shall be reimbursed for such expenses
by
the Trust.
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Servicer shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 365
days
of its submission for recordation. In the event that the Servicer cannot provide
a copy of such document certified by the public recording office within such
365
day period, the Servicer shall deliver to the Custodian, within such 365 day
period, an Officers’ Certificate of the Servicer which shall (A) identify the
recorded document, (B) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(C) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, if known
and
(D) specify the date the applicable recorded document is expected to be
delivered to the Custodian, and, upon receipt of a copy of such document
certified by the public recording office, the Servicer shall immediately deliver
such document to the Custodian. In the event the appropriate public recording
office will not certify as to the accuracy of such document, the Servicer shall
deliver a copy of such document certified by an officer of the Servicer to
be a
true and complete copy of the original to the Custodian.
The
parties hereto understand and agree that it is not intended that any Mortgage
Loan be included in the Trust that is a “High-Cost Home Loan” as defined by the
Homeownership and Equity Protection Act of 1994 or any other applicable
predatory or abusive lending laws.
The
Depositor hereby directs the Trust Administrator to execute, deliver and perform
its obligations under the Interest Rate Swap Agreement (in its capacity as
Supplemental Interest Trust Trustee) and the Cap Contract. The Depositor, the
Servicer and the Holders of the Fixed Rate Certificates and the Floating Rate
Certificates by their acceptance of such Certificates acknowledge and agree
that
the Trust Administrator shall execute, deliver and perform its obligations
under
the Interest Rate Swap Agreement and the Cap Contract and shall do so solely
in
its capacity as Trust Administrator or as Supplemental Interest Trust Trustee,
as the case may be, and not in its individual capacity. Every provision of
this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trust Administrator shall apply to the Trust Administrator’s
execution of the Interest Rate Swap Agreement and the Cap Contract, and the
performance of its duties and satisfaction of its obligations
thereunder.
| SECTION 2.02 |
Acceptance
by Trustee.
|
Subject
to the provisions of Section 2.01 and subject to the review described below
and
any exceptions noted on the exception report described in the next paragraph
below, the Trustee acknowledges receipt (or receipt by the Custodian on behalf
of the Trustee) of the documents referred to in Section 2.01 above and all
other
assets included in the definition of “Trust Fund” and declares that it holds and
will hold such documents and the other documents delivered to it constituting
a
Mortgage File, and that it holds or will hold all such assets and such other
assets included in the definition of “Trust Fund” in trust for the exclusive use
and benefit of all present and future Certificateholders.
The
Trustee agrees to execute and deliver to the Depositor and the Servicer on
or
prior to the Closing Date an acknowledgment of receipt of the related original
Mortgage Note for each Mortgage Loan (with any exceptions noted), substantially
in the form attached as Exhibit F-3 hereto.
The
Trustee (or the Custodian on behalf of the Trustee) agrees, for the benefit
of
the Certificateholders, to review, or that it has reviewed pursuant to Section
2.01 (or to cause the Custodian to review or that it has caused the Custodian
to
have reviewed) each Mortgage File on or prior to the Closing Date, with respect
to each Mortgage Loan (or, with respect to any document delivered after the
Startup Day, within 45 days of receipt and with respect to any Qualified
Substitute Mortgage Loan, within 45 days after the assignment thereof). The
Trustee further agrees, for the benefit of the Certificateholders, to certify
to
the Depositor and the Servicer (with a copy to the NIMS Insurer) in
substantially the form attached hereto as Exhibit F-1, within 45 days after
the
Closing Date, with respect to each Mortgage Loan (or, with respect to any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage, within 45 days after the
assignment thereof) that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in the exception report annexed thereto as not being
covered by such certification), (i) all documents required to be delivered
to it
pursuant to Section 2.01 of this Agreement are in its possession, (ii) such
documents have been reviewed by it and have not been mutilated, damaged or
torn
and appear on their face to relate to such Mortgage Loan and (iii) based on
its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (1) and (3) of the Mortgage
Loan Schedule accurately reflects information set forth in the Mortgage File.
It
is herein acknowledged that, in conducting such review, the Trustee (or the
Custodian, as applicable) is under no duty or obligation to inspect, review
or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, legally enforceable, valid or binding or
appropriate for the represented purpose or that they have actually been recorded
or that they are other than what they purport to be on their face.
Prior
to
the first anniversary date of this Agreement the Trustee shall deliver (or
cause
the Custodian to deliver) to the Depositor the Trustee, the Servicer and the
Master Servicer (with a copy to the NIMS Insurer) a final certification in
the
form annexed hereto as Exhibit F-2, with any applicable exceptions noted
thereon.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the case
may
be, the certifications referred to above, the Trustee (or the Custodian, as
applicable) finds any document or documents constituting a part of a Mortgage
File to be missing or not to conform with respect to any characteristics which
are within the scope of the Trustee’s (or the Custodian’s, as applicable) review
as provided herein, at the conclusion of its review, the Trustee (or the
Custodian on behalf of the Trustee) shall so notify the Seller, the Depositor,
the Originator, the Trustee, the Servicer, the NIMS Insurer and the Master
Servicer. In addition, upon the discovery by the Depositor or the Servicer
or
the Master Servicer (or upon receipt by the Trustee of written notification
of
such breach) of a breach of any of the representations and warranties made
by
the Originator in the Master Agreement or the Seller in the Assignment Agreement
in respect of any Mortgage Loan which materially adversely affects such Mortgage
Loan or the interests of the Certificateholders in such Mortgage Loan, the
party
discovering such breach shall give prompt written notice to the other parties
to
this Agreement and the NIMS Insurer.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee in trust for the
benefit of the Certificateholders and that such property not be part of the
Depositor’s estate or property of the Depositor in the event of any insolvency
by the Depositor. In the event that such conveyance is deemed to be, or to
be
made as security for, a loan, the parties intend that the Depositor shall be
deemed to have granted and does hereby grant to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in and to the Mortgage Loans, the related Mortgage Notes and the related
documents, and that this Agreement shall constitute a security agreement under
applicable law.
| SECTION 2.03 |
Repurchase
or Substitution of Mortgage Loans by the Originator or the
Seller.
|
(a) Upon
discovery or receipt of written notice from the Custodian of any materially
defective document in, or that a document is missing from, a Mortgage File
or of
the breach by the Originator or the Seller, as applicable, of any
representation, warranty or covenant under the Master Agreement or the
Assignment Agreement, as applicable, in respect of any Mortgage Loan which
materially adversely affects the value of such Mortgage Loan or the interest
therein of the Certificateholders, the Trustee shall request that the Originator
deliver such missing document or that the Originator or the Seller cure such
defect or breach within 90 days from the date the Originator or the Seller
was
notified of such missing document, defect or breach, and if the Originator
or
the Seller does not deliver such missing document or cure such defect or breach
in all material respects during such period, the Trustee shall enforce (in
the
manner set forth in Section 2.01) the Originator’s obligation under the Master
Agreement or the Seller’s obligation under the Assignment Agreement and notify
the Originator or the Seller, as applicable, of its obligation to repurchase
such Mortgage Loan from the Trust Fund at the Purchase Price on or prior to
the
Determination Date following the expiration of such 90 day period (subject
to
Section 2.03(e)). The Purchase Price for the repurchased Mortgage Loan shall
be
remitted to the Servicer for deposit in the Collection Account, and the Trustee,
(or the Custodian on behalf of the Trustee), upon receipt of written
certification from the Servicer of such deposit, shall release to the Originator
or the Seller, as applicable, the related Mortgage File and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as the Originator or the Seller, as applicable, shall furnish
to it and as shall be necessary to vest in the Originator or the Seller, as
applicable, any Mortgage Loan released pursuant hereto and the Trustee and
the
Custodian shall have no further responsibility with regard to such Mortgage
File
(it being understood that the Trustee shall have no responsibility for
determining the sufficiency of such assignment for its intended purpose). In
lieu of repurchasing any such Mortgage Loan as provided above, the Originator
or
the Seller, as applicable, may cause such Mortgage Loan to be removed from
the
Trust Fund (in which case it shall become a Deleted Mortgage Loan) and
substitute one or more Qualified Substitute Mortgage Loans in the manner and
subject to the limitations set forth in Section 2.03(d); provided, however,
neither the Originator nor the Seller may substitute for any Mortgage Loan
which
breaches a representation or warranty regarding abusive or predatory lending
laws. In furtherance of the foregoing, if the Originator or the Seller, as
applicable, is not a member of MERS and repurchases a Mortgage Loan which is
registered on the MERS® System, the Originator or the Seller, as applicable, at
its own expense and without any right of reimbursement, shall cause MERS to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to the Originator or the Seller, as applicable, and
shall
cause such Mortgage to be removed from registration on the MERS® System in
accordance with MERS’ rules and regulations. It is understood and agreed that
the obligation of the Originator or the Seller, as applicable, to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a document
is
missing, a material defect in a constituent document exists or as to which
such
a breach has occurred and is continuing shall constitute the sole remedy against
the Originator or the Seller, as applicable, respecting such omission, defect
or
breach available to the Trustee on behalf of the
Certificateholders.
(b) Within
90
days of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of the breach of any representation, warranty or covenant of the
Depositor set forth in Section 2.06, which materially and adversely affects
the
interests of the Certificateholders in any Mortgage Loan, the Depositor shall
cure such breach in all material respects.
(c) Within
90
days of the earlier of discovery by the Servicer or receipt of notice by the
Servicer of the breach of any representation, warranty or covenant of the
Servicer set forth in Section 2.05 which materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the Servicer shall
cure such breach in all material respects.
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) must be effected prior to the last Business
Day
that is within two years after the Closing Date. As to any Deleted Mortgage
Loan
for which the Originator or the Seller, as applicable, substitutes a Qualified
Substitute Mortgage Loan or Loans, such substitution shall be effected by the
Originator or the Seller, as applicable, delivering to the Trustee, (or the
Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage
Loan
or Loans, the Mortgage Note, the Mortgage and the Assignment to the Trustee,
and
such other documents and agreements, with all necessary endorsements thereon,
as
are required by Section 2.01, together with an Officers’ Certificate providing
that each such Qualified Substitute Mortgage Loan satisfies the definition
thereof and specifying the Substitution Adjustment (as described below), if
any,
in connection with such substitution. The Trustee (or the Custodian on behalf
of
the Trustee), shall acknowledge receipt for such Qualified Substitute Mortgage
Loan or Loans and, within 45 days thereafter, shall review such documents as
specified in Section 2.02 and deliver to the Depositor and the Servicer, with
respect to such Qualified Substitute Mortgage Loan or Loans, a certification
substantially in the form attached hereto as Exhibit F-1 (with a copy to the
NIMS Insurer), with any applicable exceptions noted thereon. Within one year
of
the date of substitution, the Trustee (or the Custodian on behalf of the
Trustee) shall deliver to the Depositor and the Servicer a certification
substantially in the form of Exhibit F-2 hereto (with a copy to the NIMS
Insurer) with respect to such Qualified Substitute Mortgage Loan or Loans,
with
any applicable exceptions noted thereon. Monthly Payments due with respect
to
Qualified Substitute Mortgage Loans in the month of substitution are not part
of
the Trust Fund and will be retained by the Originator or the Seller, as
applicable. For the month of substitution, distributions to Certificateholders
will reflect the collections and recoveries in respect of such Deleted Mortgage
Loan in the Due Period preceding the month of substitution and the Originator
or
the Seller, as applicable, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Servicer
shall give or cause to be given written notice to the Trustee and the NIMS
Insurer, who shall forward such notice to the Certificateholders, that such
substitution has taken place, shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the Master Servicer,
the Trust Administrator, the Trustee, the Custodian, the Servicer and the NIMS
Insurer. Upon such substitution by the Originator or the Seller, as applicable,
such Qualified Substitute Mortgage Loan or Loans shall constitute part of the
Mortgage Pool and shall be subject in all respects to the terms of this
Agreement and the Assignment Agreement, including all applicable representations
and warranties thereof included in the Assignment Agreement as of the date
of
substitution.
For
any
month in which the Originator or the Seller, as applicable, substitutes one
or
more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Servicer will determine the amount (the “Substitution Adjustment”), if any,
by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds
the aggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated
Principal Balance thereof as of the date of substitution, together with one
month’s interest on such Stated Principal Balance at the applicable Mortgage
Rate. On the date of such substitution, the Originator or the Seller, as
applicable, will deliver or cause to be delivered to the Servicer for deposit
in
the Collection Account an amount equal to the Substitution Adjustment, if any,
and the Trustee, (or the Custodian on behalf of the Trustee), upon receipt
of
the related Qualified Substitute Mortgage Loan or Loans and certification by
the
Servicer of such deposit, shall release to the Originator or the Seller, as
applicable, the related Mortgage File or Files and the Trustee shall execute
and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Originator or the Seller, as applicable, shall deliver to
it
and as shall be necessary to vest therein any Deleted Mortgage Loan released
pursuant hereto.
In
addition, pursuant to the terms of the Assignment Agreement, the Originator
or
the Seller, as applicable, shall obtain at its own expense and deliver to the
Trustee, the Trust Administrator and the NIMS Insurer an Opinion of Counsel
to
the effect that such substitution will not cause (a) any federal tax to be
imposed on the Trust Fund, including without limitation, any federal tax imposed
on “prohibited transactions” under Section 860F(a)(I) of the Code or on
“contributions after the startup date” under Section 860G(d)(I) of the Code or
(b) any REMIC to fail to qualify as a REMIC at any time that any Certificate
is
outstanding. If such Opinion of Counsel can not be delivered, then such
substitution may only be effected at such time as the required Opinion of
Counsel can be given.
(e) Upon
discovery by the Depositor, the Master Servicer, the Trust Administrator or
the
NIMS Insurer that any Mortgage Loan does not constitute a “qualified mortgage”
within the meaning of Section 860G(a)(3) of the Code, the party discovering
such
fact shall within two Business Days give written notice thereof to the other
parties hereto. In connection therewith, the Originator or the Depositor, as
the
case may be, shall repurchase or, subject to the limitations set forth in
Section 2.03(d), substitute one or more Qualified Substitute Mortgage Loans
for
the affected Mortgage Loan within 90 days of the earlier of discovery or receipt
of such notice with respect to such affected Mortgage Loan. Such repurchase
or
substitution shall be made (i) by the Originator if the affected Mortgage Loan’s
status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Originator under the Assignment
Agreement or (ii) the Depositor, if the affected Mortgage Loan’s status as a
non-qualified mortgage is a breach of any representation or warranty of the
Depositor set forth in Section 2.06, or if its status as a non-qualified
mortgage is a breach of no representation or warranty. Any such repurchase
or
substitution shall be made in the same manner as set forth in Section 2.03(a)
or
2.03(d), if made by the Originator, or Section 2.03(b), if made by the
Depositor. The Trustee shall reconvey to the Depositor or the Originator, as
the
case may be, the Mortgage Loan to be released pursuant hereto in the same
manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty.
(f) Upon
discovery or receipt of written notice of a breach by the Seller of any
representation, warranty or covenant made by the Seller under the Assignment
Agreement in respect of any Mortgage Loan which materially adversely affects
the
value of such Mortgage Loan or the interest therein of the Certificateholders,
and if either (i) such Mortgage Loan is not in breach of any representation,
warranty or covenant of the Originator or (ii) the Originator has failed to
remedy such representation, warranty or covenant with respect to such Mortgage
Loan, then the Trustee shall enforce the obligation of the Seller to remedy
such
breach, to the extent provided in the Assignment Agreement, in the manner and
within the time periods set forth in the Assignment Agreement.
| SECTION 2.04 |
[Reserved].
|
| SECTION 2.05 |
Representations,
Warranties and Covenants of the Servicer and the Master
Servicer.
|
(a) The
Servicer hereby represents, warrants and covenants to the Trust Administrator
and the Trustee, for the benefit of each of the Trustee, the Trust
Administrator, the Certificateholders and to the Depositor that as of the
Closing Date or as of such date specifically provided herein:
(i) The
Servicer is a California industrial bank duly organized, validly existing and
in
good standing under the laws of the State of California and is duly authorized
and qualified to transact any and all business contemplated by this Agreement
to
be conducted by the Servicer in any state in which a Mortgaged Property is
located or is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing business laws
of any such State, to the extent necessary to ensure its ability to enforce
each
Mortgage Loan and to service the Mortgage Loans in accordance with the terms
of
this Agreement;
(ii) The
Servicer has the full power and authority to conduct its business as presently
conducted by it and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Servicer has
duly authorized the execution, delivery and performance of this Agreement,
has
duly executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Depositor, the Trustee and the
Trust Administrator, constitutes a legal, valid and binding obligation of the
Servicer, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity;
(iii) The
execution and delivery of this Agreement by the Servicer, the servicing of
the
Mortgage Loans by the Servicer hereunder, the consummation by the Servicer
of
any other of the transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business of
the
Servicer and will not (A) result in a breach of any term or provision of the
organizational documents of the Servicer or (B) conflict with, result in a
breach, violation or acceleration of, or result in a default under, the terms
of
any other material agreement or instrument to which the Servicer is a party
or
by which it may be bound, or any statute, order or regulation applicable to
the
Servicer of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Servicer; and the Servicer is not a party
to,
bound by, or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the Servicer to perform its obligations under this Agreement,
(y)
the business, operations, financial condition, properties or assets of the
Servicer taken as a whole or (z) the legality, validity or enforceability of
this Agreement;
(iv) The
Servicer is a HUD approved non-supervised mortgagee pursuant to Section 203
and
Section 211 of the National Housing Act. No event has occurred, including but
not limited to a change in insurance coverage, that would make the Servicer
unable to comply with HUD eligibility requirements or that would require
notification to HUD;
(v) No
litigation is pending against the Servicer that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or the
ability of the Servicer to service the Mortgage Loans or to perform any of
its
other obligations hereunder in accordance with the terms hereof;
(vi) There
are
no actions or proceedings against, or investigations known to it of, the
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability of, this
Agreement;
(vii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of,
or compliance by the Servicer with, this Agreement or the consummation by it
of
the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
(viii) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section 3.01. In addition, such Prepayment Charge
shall not be imposed in any instance where such Mortgage Loan is accelerated
or
paid off in connection with the workout of a delinquent mortgage or due to
the
borrower’s default, notwithstanding that the terms of such Mortgage Loan or
state or federal law might permit the imposition of such Prepayment Charge;
and
(ix) The
Servicer has fully furnished and will continue to fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on its borrower
credit files to Equifax, Experian and Trans Union Credit Information Company
or
their successors (the “Credit Repositories”) in a timely manner.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trustee or to the Custodian on its behalf and shall inure to the benefit of
the
Trustee, the Trust Administrator, the Depositor and the Certificateholders.
Upon
discovery by any of the Depositor, the Servicer, the Trust Administrator, the
Trustee or the NIMS Insurer of a breach of any of the foregoing representations,
warranties and covenants which materially and adversely affects the value of
any
Mortgage Loan, Prepayment Charge or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice (but in no event later than two Business Days following such discovery)
to the Servicer, the Trustee, the Trust Administrator and the NIMS Insurer.
Notwithstanding the foregoing, within 90 days of the earlier of discovery by
the
Servicer or receipt of notice by the Servicer of the breach of the
representation or covenant of the Servicer set forth in Section 2.05(viii)
above
which materially and adversely affects the interests of the Holders of the
Class
P Certificates in any Prepayment Charge, the Servicer must pay the amount of
such waived Prepayment Charge, for the benefit of the Holders of the Class
P
Certificates, by depositing such amount into the Collection Account. The
foregoing shall not, however, limit any remedies available to the
Certificateholders, the Depositor, the Trust Administrator or the Trustee on
behalf of the Certificateholders, pursuant to the Master Agreement respecting
a
breach of the representations, warranties and covenants of the
Originator.
(b) The
Master Servicer hereby represents, warrants and covenants to the Trustee, for
the benefit of each of the Trustee and the Certificateholders, and to the
Servicer and the Depositor that as of the Closing Date or as of such date
specifically provided herein:
(i) The
Master Servicer is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Depositor and the
Trustee, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or any statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, the
ability of the Master Servicer to perform its obligations under this
Agreement;
(iv) The
Master Servicer or an Affiliate thereof is an approved seller/servicer for
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac in good standing and is a HUD approved mortgagee
pursuant to Section 203 of the National Housing Act;
(v) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
(vi) No
litigation is pending against the Master Servicer that would materially and
adversely affect the execution, delivery or enforceability of this Agreement
or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof,
(vii) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(viii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations or orders, if any, that have been obtained
prior to the Closing Date.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the Trust Administrator, the Trustee or the Custodian, as applicable and shall
inure to the benefit of the Trustee, the Depositor and the Certificateholders.
Upon discovery by any of the Depositor, the Servicer, the Master Servicer or
the
Trustee of a breach of any of the foregoing representations, warranties and
covenants which materially and adversely affects the value of any Mortgage
Loan
or the interests therein of the Certificateholders, the party discovering such
breach shall give prompt written notice (but in no event later than two Business
Days following such discovery) to other parties to this Agreement.
| SECTION 2.06 |
Representations
and Warranties of the Depositor.
|
The
Depositor represents and warrants to the Trust, the Servicer and the Trustee
on
behalf of the Certificateholders as follows:
(i) This
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) Immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust of each Mortgage Loan, the Depositor had good and marketable title
to
each Mortgage Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage, security
interest, pledge, charge or other encumbrance or other interest of any
nature;
(iii) As
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust;
(iv) The
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its
creditors;
(v) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) The
Depositor is not in violation of its articles of incorporation or by-laws or
in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is a party
or
by which it or its properties may be bound, which default might result in any
material adverse changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) The
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated thereby, do not and will not
result in a material breach or violation of any of the terms or provisions
of,
or, to the knowledge of the Depositor, constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor is subject, nor
will
such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or, to the best of the Depositor’s
knowledge without independent investigation, any statute or any order, rule
or
regulation of any court or governmental agency or body having jurisdiction
over
the Depositor or any of its properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a material adverse effect
on
the ability of the Depositor to perform its obligations under this
Agreement);
(viii) To
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or Blue Sky laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) There
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
| SECTION 2.07 |
Issuance
of Certificates.
|
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02, together with the assignment to it of all other assets included in the
Trust Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trust Administrator,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, has executed, authenticated and delivered to or upon the order of
the
Depositor, the Certificates in authorized denominations. The interests evidenced
by the Certificates constitute the entire beneficial ownership interest in
the
Trust Fund.
| SECTION 2.08 |
[Reserved].
|
| SECTION 2.09 |
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 2, REMIC
3,
REMIC 4, REMIC 5 and REMIC 6 by the Trustee; Issuance of
Certificates.
|
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC 1 Regular Interests and the Class R Certificates (in
respect of the Class R-1 Interest). The interests evidenced by the Class R-1
Interest, together with the REMIC 1 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 1.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
1 Regular Interests for the benefit of the holders of the REMIC 2 Regular
Interests (which are uncertificated) and the Class R Certificates (in respect
of
the Class R-2 Interest). The Trustee acknowledges receipt of the REMIC 1 Regular
Interests and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the holders of the REMIC 2 Regular Interests and
the Class R Certificates (in respect of the Class R-2 Interest). The interests
evidenced by the Class R-2 Interest, together with the REMIC 2 Regular
Interests, constitute the entire beneficial ownership interest in REMIC
2.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
2 Regular Interests (which are uncertificated) for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates or the Class
P
Certificates), the
Class
C Interest, the Class P Interest, the Class IO Interest and
the
Class R Certificates (in respect of the Class R-3 Interest). The Trustee
acknowledges receipt of the REMIC 3 Regular Interests and declares that it
holds
and will hold the same in trust for the exclusive use and benefit of the Holders
of the Regular Certificates (other than the Class C Certificates or Class P
Certificates), the Class C Interest, the Class P Interest, the Class IO Interest
and the Class R Certificates (in respect of the Class R-3 Interest). The
interests evidenced by the Class R-3 Interest, together with the Regular
Certificates (other than the Class C Certificates or Class P Certificates),
the
Class C Interest, the Class P Interest and the Class IO Interest, constitute
the
entire beneficial ownership interest in REMIC 3.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
C Interest (which is uncertificated) for the benefit of the Holders of the
Class
C Certificates and the Class R-X Certificates (in respect of the Class R-4
Interest). The Trustee acknowledges receipt of the Class C Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class C Certificates and the Class R-X Certificates (in
respect of the Class R-4 Interest). The interests evidenced by the Class R-4
Interest, together with the Class C Certificates, constitute the entire
beneficial ownership interest in REMIC 4.
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
P Interest (which is uncertificated) for the benefit of the Holders of the
Class
P Certificates and the Class R-X Certificates (in respect of the Class R-5
Interest). The Trustee acknowledges receipt of the Class P Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class P Certificates and the Class R-X Certificates (in
respect of the Class R-5 Interest). The interests evidenced by the Class R-5
Interest, together with the Class P Certificates, constitute the entire
beneficial ownership interest in REMIC 5.
(f) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
IO Interest (which is uncertificated) for the benefit of the Holders of the
REMIC 6 Regular Interest SWAP IO and the Class R-X Certificates (in respect
of
the Class R-6 Interest). The Trustee acknowledges receipt of the Class IO
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of the REMIC 6 Regular Interest SWAP
IO
and the Class R-X Certificates (in respect of the Class R-6 Interest). The
interests evidenced by the Class R-6 Interest, together with the REMIC 6 Regular
Interest SWAP IO, constitute the entire beneficial ownership interest in REMIC
6.
(g) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 and the
acceptance by the Trustee thereof, pursuant to Section 2.01, Section 2.02 and
subsection (a) hereof, (ii) the assignment and delivery to the Trustee of REMIC
2 (including the Residual Interest therein represented by the Class R-2
Interest) and the acceptance by the Trustee thereof, pursuant to subsection
(b)
hereof, (iii) the assignment and delivery to the Trustee of REMIC 3 (including
the Residual Interest therein represented by the Class R-3 Interest) and the
acceptance by the Trustee thereof, pursuant to subsection (c) hereof and (iv)
the assignment and delivery to the Trustee of REMIC 4 (including the Residual
Interest therein represented by the Class R-4 Interest) and the acceptance
by
the Trustee thereof, pursuant to subsection (j) hereof, (xi) the assignment
and
delivery to the Trustee of REMIC 5 (including the Residual Interest therein
represented by the Class R-5 Interest) and the acceptance by the Trustee
thereof, pursuant to subsection (k) hereof and (xii) the assignment and delivery
to the Trustee of REMIC 6 (including the Residual Interest therein represented
by the Class R-6 Interest) and the acceptance by the Trustee thereof, pursuant
to subsection (l) hereof, pursuant to subsection (g) hereof, pursuant to
subsection (g) hereof, pursuant to subsection (g) hereof, the Trust
Administrator, pursuant to the written request of the Depositor executed by
an
officer of the Depositor, has executed, authenticated and delivered to or upon
the order of the Depositor, (A) the Class R Certificates in authorized
denominations evidencing the Class R-1 Interest, the Class R-2 Interest and
the
Class R-3 Interest and (B) the Class R-X Certificates in authorized
denominations evidencing the Class R-4 Interest, the Class R-5 Interest and
Class R-6 Interest.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
| SECTION 3.01 |
Servicer
to Act as Servicer.
|
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
Fund and in the best interests of and for the benefit of the Certificateholders
(as determined by the Servicer in its reasonable judgment) in accordance with
the terms of this Agreement and the Mortgage Loans and, to the extent consistent
with such terms, in the same manner in which it services and administers similar
mortgage loans for its own portfolio, giving due consideration to customary
and
usual standards of practice of mortgage lenders and loan servicers administering
similar mortgage loans but without regard to:
(i) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make Advances or Servicing Advances; or
(iv) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer (a) shall seek to maximize
the timely and complete recovery of principal and interest on the Mortgage
Notes
and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge
only
under the following circumstances: (i) such waiver is standard and customary
in
servicing similar mortgage loans and such waiver relates to a default or a
reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value
of
such Prepayment Charge and the related Mortgage Loan, (ii) the collection of
such Prepayment Charge would be in violation of applicable laws, (iii) the
amount of the Prepayment Charge set forth on the Prepayment Charge Schedule
is
not consistent with the related Mortgage Note or is otherwise unenforceable
or
(iv) the collection of such Prepayment Charge would be considered “predatory”
pursuant to written guidance published or issued by any applicable federal,
state or local regulatory authority acting in its official capacity and having
jurisdiction over such matters. If a Prepayment Charge is waived as permitted
by
meeting the standard described in clauses (ii), (iii) or (iv) above, then the
Trustee (upon receipt of written notice from the Servicer that such waiver
has
occurred) shall work with the Depositor to enforce the obligation of the
Originator to pay the amount of such waived Prepayment Charge to the Trust
Administrator for deposit in the Distribution Account for the benefit of the
Holders of the Class P Certificates. If a Prepayment Charge is waived other
than
in accordance with (i), (ii), (iii) or (iv) above, the Servicer shall pay the
amount of such waived Prepayment Charge to the Trust Administrator for deposit
in the Distribution Account for the benefit of the Holders of the Class P
Certificates.
Subject
only to the above-described servicing standards and the terms of this Agreement
and of the Mortgage Loans, the Servicer shall have full power and authority,
acting alone or through Sub-Servicers as provided in Section 3.02, to do or
cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Servicer in its own name or in the name of
a
Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer
believes it appropriate in its best judgment in accordance with the servicing
standards set forth above, to execute and deliver, on behalf of the
Certificateholders and the Trustee, and upon notice to the Trustee, any and
all
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings
or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee and Certificateholders. The Servicer shall service and administer
the Mortgage Loans in accordance with applicable state and federal law and
shall
provide to the Mortgagors any reports required to be provided to them thereby.
The Servicer shall also comply in the performance of this Agreement with all
reasonable rules and requirements of any standard hazard insurance policy.
Subject to Section 3.17, the Trustee shall execute, at the written request
of
the Servicer, and furnish to the Servicer and any Sub-Servicer any special
or
limited powers of attorney and other documents as are necessary or appropriate
to enable the Servicer or any Sub-Servicer to carry out their servicing and
administrative duties hereunder; provided, such limited powers of attorney
or
other documents shall be prepared by the Servicer and submitted to the Trustee
for execution. The Trustee shall not be liable for the actions of the Servicer
or any Sub-Servicers under such powers of attorney.
Subject
to Section 3.09 hereof, in accordance with the standards of the preceding
paragraph, the Servicer shall advance or cause to be advanced funds as necessary
for the purpose of effecting the timely payment of taxes and assessments on
the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable
in
the first instance from related collections from the Mortgagors pursuant to
Section 3.09, and further as provided in Section 3.11. Any cost incurred by
the
Servicer or by Sub-Servicers in effecting the timely payment of taxes and
assessments on a Mortgaged Property shall not, for the purpose of calculating
distributions to Certificateholders, be added to the unpaid Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on
the MERS System, or cause the removal from the registration of any Mortgage
Loan
on the MERS System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses (i) incurred as a result of
MERS
discontinuing or becoming unable to continue operations in connection with
the
MERS System or (ii) if the affected Mortgage Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable, incurred
in
connection with the actions described in the preceding sentence, shall be
subject to withdrawal by the Servicer from the Collection Account.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
Advances with respect to a Mortgage Loan (except as provided in Section 4.04)
and the Servicer shall not (i) permit any modification with respect to any
Mortgage Loan that would change the Mortgage Rate, reduce or increase the Stated
Principal Balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (unless,
in
any such case, as provided in Section 3.07, the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code
(or
Treasury Regulations promulgated thereunder) and (B) cause any REMIC created
hereunder to fail to qualify as a REMIC under the Code or the imposition of
any
tax on “prohibited transactions” or “contributions after the startup date” under
the REMIC Provisions.
Notwithstanding
anything in this Agreement to the contrary and notwithstanding its ability
to do
so pursuant to the terms of the related mortgage note, the Servicer shall not
be
required to enforce any provision in any mortgage note the enforcement of which
would violate federal, state or local laws or ordinances designed to discourage
predatory lending practices.
The
Servicer may delegate its responsibilities under this Agreement; provided,
however, that no such delegation shall release the Servicer from the
responsibilities or liabilities arising under this Agreement.
| SECTION 3.02 |
Sub-Servicing
Agreements Between Servicer and
Sub-Servicers.
|
(a) The
Servicer may enter into Sub-Servicing Agreements with Sub-Servicers, which
may
be Affiliates of the Servicer, for the servicing and administration of the
Mortgage Loans; provided, however, (i) such sub-servicing arrangement and the
terms of the related Sub-Servicing Agreement must provide for the servicing
of
the Mortgage Loans in a manner consistent with the servicing arrangement
contemplated hereunder and (ii) the NIMS Insurer shall have consented to such
sub-servicing agreement. The Trustee is hereby authorized to acknowledge, at
the
request of the Servicer, any Sub-Servicing Agreement. No such acknowledgment
shall be deemed to imply that the Trustee has consented to any such
Sub-Servicing Agreement, has passed upon whether such Sub-Servicing Agreement
meets the requirements applicable to Sub-Servicing Agreements set forth in
this
Agreement or has passed upon whether such Sub-Servicing Agreement is otherwise
permitted under this Agreement.
(b) Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
in which the related Mortgaged Properties it is to service are situated, if
and
to the extent required by applicable law to enable the Sub-Servicer to perform
its obligations hereunder and under the Sub-Servicing Agreement and (ii) an
institution approved as a mortgage loan originator by the Federal Housing
Administration or an institution that has deposit accounts insured by the FDIC.
Each Sub-Servicing Agreement must impose on the Sub-Servicer requirements
conforming to the provisions set forth in Section 3.08, 3.20 or 3.21 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Servicer will examine each Sub-Servicing Agreement and will be familiar
with
the terms thereof. The terms of any Sub-Servicing Agreement will not be
inconsistent with any of the provisions of this Agreement. The Servicer and
the
Sub-Servicers may enter into and make amendments to the Sub-Servicing Agreements
or enter into different forms of Sub-Servicing Agreements; provided, however,
that any such amendments or different forms shall be consistent with and not
violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Certificateholders, without
the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any variation without the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights from the provisions set forth
in
Section 3.08 (relating to insurance or priority requirements of Sub-Servicing
Accounts, or credits and charges to the Sub- Servicing Accounts or the timing
and amount of remittances by the Sub-Servicers to the Servicer), Section 3.20
or
Section 3.21, are conclusively deemed to be inconsistent with this Agreement
and
therefore prohibited. The Servicer shall deliver to the NIMS Insurer, the
Trustee, the Trust Administrator and the Master Servicer copies of all
Sub-Servicing Agreements and any amendments or modifications thereof, promptly
upon the Servicer’s execution and delivery of such instruments.
(c) As
part
of its servicing activities hereunder, the Servicer (except as otherwise
provided in the last sentence of this paragraph), for the benefit of the Trustee
and the Certificateholders, shall enforce the obligations of each Sub-Servicer
under the related Sub-Servicing Agreement, including, without limitation, any
obligation of a Sub-Servicer to make advances in respect of delinquent payments
as required by a Sub-Servicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements, and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Servicer, in its
good
faith business judgment, would require were it the owner of the related Mortgage
Loans. The Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting
from
such enforcement, to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans, or (ii) from a specific recovery
of costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
(d) As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Sub-Servicer) for the benefit of the Depositor, the Master
Servicer and the Trust Administrator to comply with the provisions of Sections
3.20, 3.21 and 4.05 of this Agreement to the same extent as if such
Subcontractor were the Servicer. The Servicer shall be responsible for obtaining
from each Subcontractor and delivering to the Depositor, the Master Servicer
and
the Trust Administrator any assessment of compliance and attestation required
to
be delivered by such Subcontractor under Section 3.21, in each case as and
when
required to be delivered.
| SECTION 3.03 |
Successor
Sub-Servicers.
|
The
Servicer, with the consent of the NIMS Insurer, shall be entitled to terminate
any Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of
any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the Servicer without any act or deed on the part of such
Sub-Servicer or the Servicer, and the Servicer either shall service directly
the
related Mortgage Loans or shall enter into a Sub-Servicing Agreement with a
successor Sub-Servicer which qualifies under Section 3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Master Servicer (if the Master Servicer is acting
as Servicer) without fee, in accordance with the terms of this Agreement, in
the
event that the Servicer (or the Master Servicer, if it is then acting as
Servicer) shall, for any reason, no longer be the Servicer (including
termination due to a Servicer Event of Termination).
| SECTION 3.04 |
Liability
of the Servicer.
|
Notwithstanding
any Sub-Servicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Servicer and a Sub-Servicer or reference
to actions taken through a Sub-Servicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee and the Certificateholders for
the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability
by
virtue of such Sub-Servicing Agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the
same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with a Sub- Servicer for indemnification of the Servicer by such Sub-Servicer
and nothing contained in this Agreement shall be deemed to limit or modify
such
indemnification.
| SECTION 3.05 |
No
Contractual Relationship Between Sub-Servicers and the Trustee, the
Trust
Administrator, the NIMS Insurer or
Certificateholders.
|
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer alone,
and the NIMS Insurer, the Trustee, the Master Servicer, the Trust Administrator
and the Certificateholders shall not be deemed parties thereto and shall have
no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.06. The Servicer shall be solely
liable for all fees owed by it to any Sub-Servicer, irrespective of whether
the
Servicer’s compensation pursuant to this Agreement is sufficient to pay such
fees.
| SECTION 3.06 |
Assumption
or Termination of Sub-Servicing Agreements by Master
Servicer.
|
In
the
event the Servicer shall for any reason no longer be the Servicer (including
by
reason of the occurrence of a Servicer Event of Termination), the Master
Servicer or, if the Master Servicer is the Servicer, the Trustee (or the
successor servicer appointed pursuant to Section 7.02) (or
another successor master servicer)
shall
thereupon assume all of the rights and obligations of the Servicer under each
Sub-Servicing Agreement that the Servicer may have entered into, unless the
Master Servicer or the Trustee (or successor servicer or master servicer),
as
applicable, elects to terminate any Sub-Servicing Agreement in accordance with
its terms as provided in Section 3.03. Upon such assumption, the Master Servicer
or the Trustee, as applicable (or the successor servicer appointed pursuant
to
Section 7.02 (or another successor master servicer) shall be deemed, subject
to
Section 3.03, to have assumed all of the Servicer’s interest therein and to have
replaced the Servicer as a party to each Sub-Servicing Agreement to the same
extent as if each Sub-Servicing Agreement had been assigned to the assuming
party, except that (i) the departing Servicer shall not thereby be relieved
of
any liability or obligations under any Sub-Servicing Agreement and (ii) none
of
the Trust Administrator, its designee or any successor Servicer shall be deemed
to have assumed any liability or obligation of the Servicer that arose before
it
ceased to be the Servicer.
The
Servicer at its expense shall, upon request of the Master Servicer, deliver
to
the assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreements to the assuming party.
| SECTION 3.07 |
Collection
of Certain Mortgage Loan Payments.
|
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies, follow such collection procedures as
it
would follow with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account. Consistent with the foregoing and the servicing
standards set forth in Section 3.01, the Servicer may in its discretion (i)
waive any late payment charge or, if applicable, any penalty interest, or any
provisions of any Mortgage Loan requiring the related Mortgagor to submit to
mandatory arbitration with respect to disputes arising thereunder or (ii) extend
the due dates for Monthly Payments due on a Mortgage Note for a period of not
greater than 180 days; provided that any extension pursuant to clause (ii)
above
shall not affect the amortization schedule of any Mortgage Loan for purposes
of
any computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the Servicer shall make timely
Advances on such Mortgage Loan during such extension pursuant to Section 4.04
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements. Notwithstanding the
foregoing, in the event that any Mortgage Loan is in default or, in the judgment
of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section 3.01, may waive, modify
or
vary any term of such Mortgage Loan (including, but not limited to,
modifications that change the Mortgage Rate, forgive the payment of principal
or
interest or extend the final maturity date of such Mortgage Loan), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of such Mortgage Loan (such payment, a “Short
Pay-off”) or consent to the postponement of strict compliance with any such term
or otherwise grant indulgence to any Mortgagor (any and all such waivers,
modifications, variances, forgiveness of principal or interest, postponements,
or indulgences collectively referred to herein as “forbearance”), provided,
however, that the NIMS Insurer’s prior written consent shall be required for any
modification, waiver or amendment if the aggregate number of outstanding
Mortgage Loans which have been modified, waived or amended exceeds 5% of the
Cut-off Date Principal Balance. The Servicer’s analysis supporting any
forbearance and the conclusion that any forbearance meets the standards of
Section 3.01 shall be reflected in writing in the Mortgage File.
| SECTION 3.08 |
Sub-Servicing
Accounts.
|
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a Sub-
Servicing Agreement, the Sub-Servicer will be required to establish and maintain
one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall comply with all
requirements of this Agreement relating to the Collection Account. The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Servicer for deposit in the Collection Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
| SECTION 3.09 |
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
To
the
extent required by the related Mortgage Note, the Servicer shall establish
and
maintain, or cause to be established and maintained, one or more accounts (the
“Escrow Accounts”), into which all Escrow Payments shall be deposited and
retained. Escrow Accounts shall be Eligible Accounts. The Servicer shall deposit
in the clearing account in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities, all Escrow Payments collected on account of the Mortgage Loans
and
shall deposit in the Escrow Accounts, in no event more than two Business Days
after the receipt of such Escrow Payments, all Escrow Payments collected on
account of the Mortgage Loans for the purpose of effecting the payment of any
such items as required under the terms of this Agreement. Withdrawals of amounts
from an Escrow Account may be made only to (i) effect payment of taxes,
assessments, hazard insurance premiums, and comparable items in a manner and
at
a time that assures that the lien priority of the Mortgage is not jeopardized
(or, with respect to the payment of taxes, in a manner and at a time that avoids
the loss of the Mortgaged Property due to a tax sale or the foreclosure as
a
result of a tax lien); (ii) reimburse the Servicer (or a Sub-Servicer to the
extent provided in the related Sub-Servicing Agreement) out of related
collections for any Servicing Advances made pursuant to Section 3.01 (with
respect to taxes and assessments) and Section 3.14 (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Mortgagors
on balances in the Escrow Account; or (v) clear and terminate the Escrow Account
at the termination of the Servicer’s obligations and responsibilities in respect
of the Mortgage Loans under this Agreement in accordance with Article X. In
the
event the Servicer shall deposit in a Escrow Account any amount not required
to
be deposited therein, it may at any time withdraw such amount from such Escrow
Account, any provision herein to the contrary notwithstanding. The Servicer
will
be responsible for the administration of the Escrow Accounts and will be
obligated to make Servicing Advances to such accounts when and as necessary
to
avoid the lapse of insurance coverage on the Mortgaged Property, or which the
Servicer knows, or in the exercise of the required standard of care of the
Servicer hereunder should know, is necessary to avoid the loss of the Mortgaged
Property due to a tax sale or the foreclosure as a result of a tax lien. If
any
such payment has not been made and the Servicer receives notice of a tax lien
with respect to the Mortgage being imposed, the Servicer will, within 10
Business Days of receipt of such notice, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property. As part of its
servicing duties, the Servicer or any Sub-Servicers shall pay to the Mortgagors
interest on funds in the Escrow Accounts, to the extent required by law and,
to
the extent that interest earned on funds in the Escrow Accounts is insufficient,
to pay such interest from its or their own funds, without any reimbursement
therefor. The Servicer may pay to itself any excess interest on funds in the
Escrow Accounts, to the extent such action is in conformity with the Servicing
Standard, is permitted by law and such amounts are not required to be paid
to
Mortgagors or used for any of the other purposes set forth above.
| SECTION 3.10 |
Collection
Account.
|
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain one or more
separate, segregated trust accounts (such account or accounts, the “Collection
Account”), held in trust for the benefit of the Trust Administrator, the Trustee
and the Certificateholders. On behalf of the Trust Fund, the Servicer shall
deposit or cause to be deposited in the clearing account (which account must
be
an Eligible Account) in which it customarily deposits payments and collections
on mortgage loans in connection with its mortgage loan servicing activities
on a
daily basis, and in no event more than two Business Days after the Servicer’s
receipt thereof, and shall thereafter deposit in the Collection Account, in
no
event more than one Business Day after the deposit of such funds into the
clearing account, as and when received or as otherwise required hereunder,
the
following payments and collections received or made by it from and after the
Cut-off Date (other than in respect of principal or interest on the related
Mortgage Loans due on or before the Cut-off Date), or payments (other than
Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a Due Period subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments (but not
Prepayment Charges), on the Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee and any Prepayment
Interest Excess) on each Mortgage Loan;
(iii) all
Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and condemnation
proceeds (other than proceeds collected in respect of any particular REO
Property and amounts paid by the Servicer in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section 9.01);
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection with
any
losses realized on Permitted Investments with respect to funds held in the
Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
Section 2.03, Section 3.16(c) or Section 9.01;
(vii) all
amounts required to be deposited in connection with Substitution Adjustments
pursuant to Section 2.03; and
(viii) all
Prepayment Charges collected by the Servicer and any Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans.
The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of Servicing Fees, late payment charges,
assumption fees, insufficient funds charges and ancillary income (other than
Prepayment Charges) need not be deposited by the Servicer in the Collection
Account and may be retained by the Servicer as additional compensation. In
the
event the Servicer shall deposit in the Collection Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Collection Account, any provision herein to the contrary
notwithstanding.
(b) On
behalf
of the Trust Fund, the Servicer shall deliver to the Trust Administrator in
immediately available funds for deposit in the Distribution Account (i) on
the
Servicer Remittance Date, that portion of the Available Funds for the related
Distribution Date then on deposit in the Collection Account, the amount of
all
Prepayment Charges collected during the applicable Prepayment Period by the
Servicer and Servicer Prepayment Charge Payment Amounts in connection with
the
Principal Prepayment of any of the Mortgage Loans then on deposit in the
Collection Account and (ii) on each Business Day as of the commencement of which
the balance on deposit in the Collection Account exceeds $75,000 following
any
withdrawals pursuant to the next succeeding sentence, the amount of such excess,
but only if the Collection Account constitutes an Eligible Account solely
pursuant to clause (ii) of the definition of “Eligible Account.” If the balance
on deposit in the Collection Account exceeds $75,000 as of the commencement
of
business on any Business Day and the Collection Account constitutes an Eligible
Account solely pursuant to clause (ii) of the definition of “Eligible Account,”
the Servicer shall, on such Business Day, withdraw from the Collection Account
any and all amounts payable or reimbursable to the Depositor, the Servicer,
the
Trustee, the Trust Administrator, the Seller or any Sub-Servicer pursuant to
Section 3.11 and shall pay such amounts to the Persons entitled
thereto.
(c) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. The Servicer shall give advance
notice to the NIMS Insurer, the Trust Administrator and the Master Servicer
of
the location of the Collection Account maintained by it when established and
prior to any change thereof. The Trust Administrator will then provide timely
written notice to the Depositor and Trustee.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
to
the Trust Administrator for deposit in an account (which may be the Distribution
Account and must satisfy the standards for the Distribution Account as set
forth
in the definition thereof) and for all purposes of this Agreement shall be
deemed to be a part of the Collection Account; provided, however, that the
Trust
Administrator shall have the sole authority to withdraw any funds held pursuant
to this subsection (d). In the event the Servicer shall deliver to the Trust
Administrator for deposit in the Distribution Account any amount not required
to
be deposited therein, it may at any time request that the Trust Administrator
withdraw such amount from the Distribution Account and remit to it any such
amount, any provision herein to the contrary notwithstanding. In addition,
the
Servicer shall deliver to the Trust Administrator from time to time for deposit,
and upon written notification from the Servicer, the Trust Administrator shall
so deposit, in the Distribution Account:
(i) any
Advances, as required pursuant to Section 4.04;
(ii) any
amounts required to be deposited pursuant to Section 3.23(d) or (f) in
connection with any REO Property;
(iii) any
amounts to be paid by the Servicer in connection with a purchase of Mortgage
Loans and REO Properties pursuant to Section 9.01; and
(iv) any
amounts required to be deposited pursuant to Section 3.24 in connection with
any
Prepayment Interest Shortfalls.
(e) The
Servicer shall deposit in the Collection Account any amounts required to be
deposited pursuant to Section 3.12(b) in connection with losses realized on
Permitted Investments with respect to funds held in the Collection
Account.
| SECTION 3.11 |
Withdrawals
from the Collection Account.
|
The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes, without priority, or as described in Section
4.04:
(i) to
remit
to the Trust Administrator for deposit in the Distribution Account the amounts
required to be so remitted pursuant to Section 3.10(b) or permitted to be so
remitted pursuant to the first sentence of Section 3.10(d);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for (a) any unreimbursed Advances
to the extent of amounts received which represent Late Collections (net of
the
related Servicing Fees), Liquidation Proceeds and Insurance Proceeds on Mortgage
Loans or REO Properties with respect to which such Advances were made in
accordance with the provisions of Section 4.04; or (b) without limiting any
right of withdrawal set forth in clause (vi) below, any unreimbursed Advances
that, upon a Final Recovery Determination with respect to such Mortgage Loan,
are Nonrecoverable Advances, but only to the extent that Late Collections (net
of the related Servicing Fees), Liquidation Proceeds and Insurance Proceeds
received with respect to such Mortgage Loan are insufficient to reimburse the
Servicer for such unreimbursed Advances;
(iii) subject
to Section 3.16(d), to pay the Servicer or any Sub-Servicer (A) any unpaid
Servicing Fees, (B) any unreimbursed Servicing Advances with respect to each
Mortgage Loan, but only to the extent of any Late Collections, Liquidation
Proceeds, Insurance Proceeds or other amounts as may be collected by the
Servicer from a Mortgagor, or otherwise received with respect to such Mortgage
Loan or REO Property and (C) without limiting any right of withdrawal set forth
in clause (vi) below, any Servicing Advances made with respect to a Mortgage
Loan that, upon a Final Recovery Determination with respect to such Mortgage
Loan are Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Servicer or any Sub-Servicer
for
such Servicing Advances;
(iv) to
pay to
the Servicer as servicing compensation (in addition to the Servicing Fee) on
the
Servicer Remittance Date any interest or investment income earned on funds
deposited in the Collection Account;
(v) (a)
to
pay to itself, the NIMS Insurer or the Seller, as the case may be, with respect
to each Mortgage Loan that has previously been purchased or replaced pursuant
to
Section 2.03 or Section 3.16(c) all amounts received thereon subsequent to
the
date of purchase or substitution, as the case may be and (b) to reimburse
itself, the Trust Administrator, the Master Servicer or the Trustee, as the
case
may be, for expenses reasonably incurred in respect of the breach or defect
giving rise to the purchase obligation under Section 2.03 that were included
in
the Purchase Price of the Mortgage Loan, including any expenses arising out
of
the enforcement of the purchase obligation;
(vi) to
reimburse the Servicer for any Advance or Servicing Advance previously made
which the Servicer has determined to be a Nonrecoverable Advance in accordance
with the provisions of Section 4.04;
(vii) to
pay,
or to reimburse the Servicer for Servicing Advances in respect of, expenses
incurred in connection with any Mortgage Loan pursuant to Section
3.16(b);
(viii) to
reimburse the Servicer, the Master Servicer or the Depositor for expenses
incurred by or reimbursable to the Servicer, the Master Servicer or the
Depositor, as the case may be, pursuant to Section 6.03;
(ix) to
recover amounts deposited in the Collection Account in error;
(x) to
pay
itself any Prepayment Interest Excess; and
(xi) to
clear
and terminate the Collection Account pursuant to Section 9.01.
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Collection Account, to the extent held by or on behalf of it, pursuant to
subclauses (ii), (iii), (iv), (v), (vi), (viii) and (ix) above. The Servicer
shall provide written notification to the NIMS Insurer and the Trust
Administrator, on or prior to the next succeeding Servicer Remittance Date,
upon
making any withdrawals from the Collection Account pursuant to subclause (vi)
above; provided that an Officers’ Certificate in the form described under
Section 4.04(d) shall suffice for such written notification to the Trustee
in
respect hereof.
| SECTION 3.12 |
Investment
of Funds in the Collection Account.
|
(a) The
Servicer may direct any depository institution maintaining the Collection
Account (for purposes of this Section 3.12, an “Investment Account”) to invest
the funds in such Investment Account in one or more Permitted Investments
specified in such instruction bearing interest or sold at a discount, and
maturing, unless payable on demand, no later than the Business Day on which
such
funds are required to be withdrawn from such account pursuant to this Agreement.
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trust Administrator (in its capacity as such) or in the name of
a
nominee of the Trust Administrator. The Trust Administrator shall be entitled
to
sole possession (except with respect to investment direction of funds held
in
the Collection Account and the Distribution Account and any income and gain
realized thereon) over each such investment, and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Trust Administrator or its agent, together with any document of transfer
necessary to transfer title to such investment to the Trust Administrator or
its
nominee. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Trust
Administrator shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trust Administrator that such Permitted Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account held by or on behalf of the Servicer, shall be for the
benefit of the Servicer and shall be subject to its withdrawal in accordance
with Section 3.11. The Servicer shall deposit in the Collection Account the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of
such
loss.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trust
Administrator may and, subject to Section 8.01 and Section 8.02(a)(v), upon
the
request of the Holders of Certificates representing more than 50% of the Voting
Rights allocated to any Class of Certificates, shall take such action as may
be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings.
| SECTION 3.13 |
[Reserved].
|
| SECTION 3.14 |
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
(a) The
Servicer shall cause to be maintained for each Mortgage Loan fire insurance
with
extended coverage on the Mortgaged Property in an amount which is at least
equal
to the least of (i) the current Principal Balance of such Mortgage Loan, (ii)
the amount necessary to fully compensate for any damage or loss to the
improvements that are a part of such property on a replacement cost basis,
in
each case in an amount not less than such amount as is necessary to avoid the
application of any coinsurance clause contained in the related fire insurance
policy, (iii) the maximum insurable value of the improvements which are a part
of such Mortgaged Property, and (iv) the amount determined by applicable
federal or state law, in each case in an amount not less than such amount as
is
necessary to avoid the application of any coinsurance clause contained in the
related fire insurance policy. The Servicer shall also cause to be maintained
hazard insurance with extended coverage on each REO Property in an amount which
is at least equal to the lesser of (i) the maximum insurable value of the
improvements which are a part of such property and (ii) the outstanding
Principal Balance of the related Mortgage Loan at the time it became an REO
Property. The Servicer will comply in the performance of this Agreement with
all
reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by the Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor
in
accordance with the procedures that the Servicer would follow in servicing
loans
held for its own account, subject to the terms and conditions of the related
Mortgage and Mortgage Note) shall be deposited in the Collection Account,
subject to withdrawal pursuant to Section 3.11, if received in respect of a
Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section
3.23, if received in respect of an REO Property. Any cost incurred by the
Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
Principal Balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. It is understood and agreed that no earthquake
or other additional insurance is to be required of any Mortgagor other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
or REO Property is at any time in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards and flood insurance has been made available, the Servicer will cause
to
be maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss
on a
replacement cost basis (or the unpaid principal balance of the related Mortgage
Loan if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under
the Flood Disaster Protection Act of 1973, as amended. If at any time during
the
term of the Mortgage Loan, the Servicer determines in accordance with applicable
law and pursuant to the Federal Emergency Management Agency Guides that a
Mortgaged Property is located in a special flood hazard area and is not covered
by flood insurance or is covered in an amount less than the amount required
by
the Flood Disaster Protection Act of 1973, as amended, the Servicer shall notify
the related Mortgagor to obtain such flood insurance coverage, and if said
Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Servicer shall immediately
force place the required flood insurance on the Mortgagor’s behalf. Any
out-of-pocket expense or advance made by the Servicer on such force placed
flood
insurance coverage shall be deemed a Servicing Advance.
In
the
event that the Servicer shall obtain and maintain a blanket policy insuring
against hazard losses on all of the Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations as set forth in the first two sentences
of this Section 3.14, it being understood and agreed that such policy may
contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by competent servicers, in which case
the
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with the first
two
sentences of this Section 3.14, and there shall have been one or more losses
which would have been covered by such policy, deposit to the Collection Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause. In connection with its activities as servicer
of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf
of
itself, the Depositor, the Trustee and Certificateholders, claims under any
such
blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of the Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac. The Servicer shall provide the Trustee and the NIMS Insurer, upon
request, with copies of such insurance policies and fidelity bond. The Servicer
shall also maintain a fidelity bond in the form and amount that would meet
the
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, unless the Servicer has obtained
a
waiver of such requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall
be deemed to have complied with this provision if an Affiliate of the Servicer
has such errors and omissions and fidelity bond coverage and, by the terms
of
such insurance policy or fidelity bond, the coverage afforded thereunder extends
to the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days’ prior written notice to the
Trustee, the Trust Administrator and the NIMS Insurer. The Servicer shall also
cause each Sub-Servicer to maintain a policy of insurance covering errors and
omissions and a fidelity bond which would meet such requirements.
(c) The
Servicer shall provide to the Master Servicer evidence of the authorization
of
the person signing any certification, statement, copy or other evidence of
any
fidelity bond, errors and omissions policy, financial information and reports
or
such other information related to the Servicer or any Sub-Servicer or to the
Servicer’s or such Sub-Servicer’s performance hereunder.
| SECTION 3.15 |
Enforcement
of Due-On-Sale Clauses; Assumption
Agreements.
|
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that the Servicer shall
not be required to take such action if in its sole business judgment the
Servicer believes it is not in the best interests of the Trust Fund and shall
not exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into an assumption
and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. The Servicer is also authorized,
to
the extent permitted under the related Mortgage Note, to enter into a
substitution of liability agreement with such person, pursuant to which the
original Mortgagor is released from liability and such person is substituted
as
the Mortgagor and becomes liable under the Mortgage Note, provided that no
such
substitution shall be effective unless such person satisfies the then current
underwriting criteria of the Servicer for mortgage loans similar to the Mortgage
Loans. In connection with any assumption or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures
as
shall be normal and usual in its general mortgage servicing activities and
as it
applies to other mortgage loans owned solely by it. The Servicer shall not
take
or enter into any assumption and modification agreement, however, unless (to
the
extent practicable in the circumstances) it shall have received confirmation,
in
writing, of the continued effectiveness of any applicable hazard insurance
policy. Any fee collected by the Servicer in respect of an assumption or
substitution of liability agreement will be retained by the Servicer as
additional servicing compensation. In connection with any such assumption,
no
material term of the Mortgage Note (including but not limited to the related
Mortgage Rate and the amount of the Monthly Payment) may be amended or modified,
except as otherwise required pursuant to the terms thereof. The Servicer shall
notify the Trustee, the Master Servicer, the Trust Administrator and the
Custodian that any such substitution or assumption agreement has been completed
by forwarding to the Custodian the executed original of such substitution or
assumption agreement, which document shall be added to the related Mortgage
File
and shall, for all purposes, be considered a part of such Mortgage File to
the
same extent as all other documents and instruments constituting a part
thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.15, the term “assumption” is deemed
to also include a sale (of the Mortgaged Property) subject to the Mortgage
that
is not accompanied by an assumption or substitution of liability
agreement.
| SECTION 3.16 |
Realization
Upon Defaulted Mortgage Loans.
|
(a) The
Servicer shall, consistent with the servicing standard set forth in Section
3.01, foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and
as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. The Servicer shall be responsible for all
costs and expenses incurred by it in any such proceedings; provided, however,
that such costs and expenses will be recoverable as Servicing Advances by the
Servicer as contemplated in Section 3.11 and Section 3.23. The foregoing is
subject to the provision that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Servicer shall not be required
to expend its own funds toward the restoration of such property unless it shall
determine in its discretion that such restoration will increase the proceeds
of
liquidation of the related Mortgage Loan after reimbursement to itself for
such
expenses.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Servicer has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to,
such
Mortgaged Property, if, as a result of any such action, the Trustee, the Trust
Fund, the Trust Administrator, the Servicer or the Certificateholders would
be
considered to hold title to, to be a “mortgagee-in-possession” of, or to be an
“owner” or “operator” of such Mortgaged Property within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended from time to time, or any comparable law, unless the Servicer has also
previously determined, based on its reasonable judgment and a report prepared
by
a Person who regularly conducts environmental audits using customary industry
standards, that:
(i) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(ii) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
Notwithstanding
the foregoing, if such environmental audit reveals, or if the Servicer has
actual knowledge or notice, that such Mortgaged Property contains such wastes
or
substances, the Servicer shall not foreclose or accept a deed in lieu of
foreclosure without the prior written consent of the NIMS Insurer.
The
cost
of the environmental audit report contemplated by this Section 3.16 shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a), such right
of reimbursement being prior to the rights of Certificateholders to receive
any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund;
provided that any amounts disbursed by the Servicer pursuant to this Section
3.16(b) shall constitute Servicing Advances, subject to Section 4.04(d). The
cost of any such compliance, containment, cleanup or remediation shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a), such right
of reimbursement being prior to the rights of Certificateholders to receive
any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
(c) The
Servicer may, at its option, purchase a Mortgage Loan which has become 90 or
more days delinquent or for which the Servicer has accepted a deed in lieu
of
foreclosure. Prior to purchase pursuant to this Section 3.16(c), the Servicer
shall be required to continue to make Advances pursuant to Section 4.04. The
Servicer shall not use any procedure in selecting Mortgage Loans to be
repurchased which is materially adverse to the interests of the
Certificateholders. The Servicer shall purchase such delinquent Mortgage Loan
at
a price equal to the Purchase Price of such Mortgage Loan. Any such purchase
of
a Mortgage Loan pursuant to this Section 3.16(c) shall be accomplished by
deposit in the Collection Account of the amount of the Purchase Price. Upon
the
satisfaction of the requirements set forth in Section 3.17(a), the Trustee
shall
immediately deliver the Mortgage File and any related documentation to the
Servicer and will execute such documents provided to it as are necessary to
convey the Mortgage Loan to the Servicer.
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Liquidation
Proceeds or condemnation proceeds, in respect of any Mortgage Loan, will be
applied in the following order of priority: first, to unpaid Servicing Fees;
second, to reimburse the Servicer or any Sub-Servicer for any related
unreimbursed Servicing Advances pursuant to Section 3.11(a)(iii) and Advances
pursuant to Section 3.11(a)(ii); third, to accrued and unpaid interest on the
Mortgage Loan, to the date of the Final Recovery Determination, or to the Due
Date prior to the Distribution Date on which such amounts are to be distributed
if not in connection with a Final Recovery Determination; and fourth, as a
recovery of principal of the Mortgage Loan. The portion of the recovery so
allocated to unpaid Servicing Fees shall be reimbursed to the Servicer or any
Sub-Servicer pursuant to Section 3.11(a)(iii).
| SECTION 3.17 |
Trustee
to Cooperate; Release of Mortgage
Files.
|
(a) Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer will promptly notify the Custodian, or the Master
Servicer may notify the Custodian on behalf of the Trustee, by a Request for
Release in the form of Exhibit E (which certification shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Collection Account
pursuant to Section 3.10 have been or will be so deposited) of a Servicing
Officer and shall request that the Custodian, on behalf of the Trustee, deliver
to it the Mortgage File. Upon receipt of such certification and request, the
Custodian shall within five Business Days release the related Mortgage File
to
the Servicer (at the Servicer’s expense), and the Servicer is authorized to
cause the removal from the registration on the MERS® System of any such
Mortgage, if applicable, and to execute and deliver, on behalf of the Trustee
and the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation or of partial or full release. No expenses incurred
in connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the Collection Account or the Distribution
Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Custodian shall, upon request of the
Servicer and delivery to the Custodian of a Request for Release in the form
of
Exhibit E, release the related Mortgage File to the Servicer, and the Trustee
shall, at the written direction of the Servicer, execute such documents as
shall
be necessary to the prosecution of any such proceedings. Such Request for
Release shall obligate the Servicer to return each and every document previously
requested from the Mortgage File to the Custodian when the need therefor by
the
Servicer no longer exists, unless the Mortgage Loan has been liquidated and
the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Collection Account or the Mortgage File or such document has been delivered
to
an attorney, or to a public trustee or other public official as required by
law,
for purposes of initiating or pursuing legal action or other proceedings for
the
foreclosure of the Mortgaged Property either judicially or non-judicially,
and
the Servicer has delivered to the Custodian, on behalf of the Trustee, a
certificate of a Servicing Officer certifying as to the name and address of
the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that
are
required to be deposited into the Collection Account have been so deposited,
or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Custodian, on behalf of the Trustee, to the
Servicer.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer any court pleadings, requests for trustee’s sale or
other documents reasonably necessary to the foreclosure or trustee’s sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain
a
deficiency judgment, or to enforce any other remedies or rights provided by
the
Mortgage Note or Mortgage or otherwise available at law or in equity. Each
such
certification shall include a request that such pleadings or documents be
executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee’s sale.
| SECTION 3.18 |
Servicing
Compensation.
|
As
compensation for the activities of the Servicer hereunder, the Servicer shall
be
entitled to the Servicing Fee with respect to each Mortgage Loan payable solely
from payments of interest in respect of such Mortgage Loan, subject to Section
3.24. In addition, the Servicer shall be entitled to recover unpaid Servicing
Fees out of Insurance Proceeds, Liquidation Proceeds or condemnation proceeds
to
the extent permitted by Section 3.11(a)(iii) and out of amounts derived from
the
operation and sale of an REO Property to the extent permitted by Section 3.23.
Except as provided in Section 3.27, the right to receive the Servicing Fee
may
not be transferred in whole or in part except in connection with the transfer
of
all of the Servicer’s responsibilities and obligations under this Agreement;
provided, however, that the Servicer may pay from the Servicing Fee any amounts
due to a Sub-Servicer pursuant to a Sub-Servicing Agreement entered into under
Section 3.02.
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges, ancillary income or otherwise (other than Prepayment
Charges) shall be retained by the Servicer only to the extent such fees or
charges are received by the Servicer. The Servicer shall also be entitled
pursuant to Section 3.11(a)(iv) to withdraw from the Collection Account and
pursuant to Section 3.23(b) to withdraw from any REO Account, as additional
servicing compensation, interest or other income earned on deposits therein,
subject to Section 3.12 and Section 3.24. The Servicer shall be required to
pay
all expenses incurred by it in connection with its servicing activities
hereunder (including premiums for the insurance required by Section 3.14, to
the
extent such premiums are not paid by the related Mortgagors or by a
Sub-Servicer, and servicing compensation of each Sub-Servicer) and shall not
be
entitled to reimbursement therefor except as specifically provided
herein.
The
Servicer shall be entitled to any Prepayment Interest Excess, which it may
withdraw from the Collection Account pursuant to Section
3.11(a)(ix).
| SECTION 3.19 |
Reports;
Collection Account Statements.
|
Not
later
than thirty days after each Distribution Date, the Servicer shall forward,
upon
request, to the Trust Administrator, the Trustee, the Depositor or the NIMS
Insurer, the most current available bank statement for the Collection Account.
Copies of such statement shall be provided by the Trust Administrator to any
Certificateholder and to any Person identified to the Trust Administrator as
a
prospective transferee of a Certificate, upon request at the expense of the
requesting party, provided such statement is delivered by the Servicer to the
Trust Administrator.
| SECTION 3.20 |
Statement
as to Compliance.
|
The
Servicer, the Master Servicer and the Trust Administrator shall deliver (or
otherwise make available) (and the Master Servicer and the Trust Administrator
shall cause any Servicing Function Participant engaged by it to deliver) to
the
Depositor and the Trust Administrator on or before March 1 (with a ten-calendar
day cure period) of each year, commencing in March 2007, an Officer’s
Certificate stating, as to the signer thereof, that (a) a review of such party’s
activities during the preceding calendar year or portion thereof and of such
party’s performance under this Agreement, or such other applicable agreement in
the case of a Servicing Function Participant, has been made under such officer’s
supervision and (b) to the best of such officer’s knowledge, based on such
review, such party has fulfilled all its obligations under this Agreement,
or
such other applicable agreement in the case of a Servicing Function Participant,
in all material respects throughout such year or portion thereof, or, if there
has been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof.
The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicer with its own annual statement of compliance to be submitted
to
the Trust Administrator pursuant to this Section.
In
the
event the Servicer, the Master Servicer, the Trust Administrator or any
Servicing Function Participant engaged by any such party is terminated or
resigns pursuant to the terms of this Agreement, or any applicable agreement
in
the case of a Servicing Function Participant, as the case may be, such party
shall provide an Officer’s Certificate pursuant to this Section 3.20 or to such
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
Any
failure by the Servicer to deliver the Annual Statement of Compliance when
and
as required under this Section 3.20, including any failure by the Servicer
to
identify any Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, which continues unremedied for ten
calendar days after the date on which such Annual Statement of Compliance was
required to be delivered shall (subject
to the provisions of Section 7.01(a)(v)) constitute
an Servicer Event of Termination with respect to the Servicer under this
Agreement, and shall entitle the Trustee, pursuant to Section 7.01(a), to
terminate the rights and obligations of the Servicer as servicer under this
Agreement without payment (notwithstanding anything in this Agreement to the
contrary) of any compensation to the Servicer; provided that to the extent
that
any provision of this Agreement expressly provides for the survival of certain
rights or obligations following termination of the Servicer as servicer, such
provision shall be given effect.
Each
of
the Servicer, the Master Servicer and the Trust Administrator (each, an
“Indemnifying Party”) shall indemnify and hold harmless the Depositor, the
Master Servicer, the Trust Administrator and their officers, directors and
Affiliates, as applicable, from and against any actual losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses that such Person may sustain
based
upon a breach of the obligations of such Indemnifying Party under this Section
3.20.
| SECTION 3.21 |
Assessments
of Compliance and Attestation
Reports.
|
(a) By
March
1 (with a ten-calendar day cure period) of each year, commencing in March 2007,
the Servicer, the Master Servicer, the Trust Administrator and the Trustee
(in
its capacity as Custodian), each at its own expense, shall furnish or otherwise
make available, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Trust
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (i) a statement by such party
of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (ii) a statement that such party used the Relevant Servicing Criteria
to assess compliance with the Relevant Servicing Criteria, (iii) such party’s
assessment of compliance with the Relevant Servicing Criteria as of and for
the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
4.05, including, if there has been any material instance of noncompliance with
the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof and (iv) a statement that a registered public
accounting firm has issued an attestation report on such party’s assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
Notwithstanding the foregoing, as to the Trustee, an assessment of compliance
is
not required to be delivered unless it is required as part of the Form 10-K
with
respect to the Trust Fund.
No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Master Servicer and the Trustee shall each forward to the Trust
Administrator and the Depositor the name of each Servicing Function Participant
engaged by it and what Relevant Servicing Criteria will be addressed in the
report on assessment of compliance prepared by such Servicing Function
Participant (provided, however, that the Master Servicer need not provide such
information to the Trust Administrator so long as the Master Servicer and the
Trust Administrator are the same Person). When the Master Servicer, the Trust
Administrator and Trustee (or any Servicing Function Participant engaged by
them) submit their assessments to the Trust Administrator, such parties will
also at such time include the assessment and attestation pursuant to Section
3.21(b) of each Servicing Function Participant engaged by it.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Trust Administrator and any Servicing Function Participant engaged
by such parties as to the nature of any material instance of noncompliance
with
the Relevant Servicing Criteria by each such party, and (ii) the Trust
Administrator shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit S in respect of the Servcier
and
notify the Depositor of any exceptions.
The
Master Servicer shall include all annual reports on assessment of compliance
received by it from the Servicer with its own assessment of compliance to be
submitted to the Trust Administrator pursuant to this Section.
In
the
event the Master Servicer, the Trust Administrator or any Servicing Function
Participant engaged by any such party is terminated, assigns its rights and
obligations under, or resigns pursuant to, the terms of this Agreement, or
any
other applicable agreement, as the case may be, such party shall provide a
report on assessment of compliance pursuant to this Section 3.21(a), or to
such
other applicable agreement, notwithstanding any such termination, assignment
or
resignation.
(b) By
March
1 (with a ten-calendar day cure period) of each year, commencing in March 2007,
the Servicer, the Master Servicer, the Trust Administrator and the Trustee
(in
its capacity as Custodian), each at its own expense, shall cause, and each
such
party shall cause any Servicing Function Participant engaged by it to cause,
each at its own expense, a registered public accounting firm (which may also
render other services to the Master Servicer, the Trustee, the Trust
Administrator, or such other Servicing Function Participants, as the case may
be) and that is a member of the American Institute of Certified Public
Accountants to furnish an attestation report to the Trust Administrator and
the
Depositor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii)
on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
Promptly
after receipt of each such assessment of compliance and attestation report,
the
Trust Administrator shall confirm that each assessment submitted pursuant to
Section 3.21(a) is coupled with an attestation meeting the requirements of
this
Section and notify the Depositor of any exceptions.
The
Master Servicer shall include each such attestation furnished to it by the
Servicer with its own attestation to be submitted to the Trust Administrator
pursuant to this Section.
In
the
event the Master Servicer, the Trust Administrator, any Servicer or any
Servicing Function Participant engaged by any such party, is terminated, assigns
its rights and duties under, or resigns pursuant to the terms of, this
Agreement, or any applicable sub-servicing agreement, as the case may be, such
party shall cause a registered public accounting firm to provide an attestation
pursuant to this Section 3.21(b), or such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
Any
failure by the Servicer to deliver the Assessment of Compliance and Attestation
Reports when and as required under this Section 3.21, including any failure
by
the Servicer to identify any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such Annual Statement
of Compliance was required to be delivered shall (subject to the provisions
of
Section 7.01(a)(v)) constitute an Servicer Event of Termination with respect
to
the Servicer under this Agreement, and shall entitle the Trustee, pursuant
to
Section 7.01(a), to terminate the rights and obligations of the Servicer as
servicer under this Agreement without payment (notwithstanding anything in
this
Agreement to the contrary) of any compensation to the Servicer; provided that
to
the extent that any provision of this Agreement expressly provides for the
survival of certain rights or obligations following termination of the Servicer
as servicer, such provision shall be given effect.
Each
of
the Servicer, the Master Servicer, the Trustee (in its capacity as Custodian)
and the Trust Administrator shall indemnify and hold harmless the Depositor,
the
Master Servicer and the Trust Administrator and their officers, directors and
Affiliates from and against any actual losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses that such Person may sustain based upon a breach
of
the obligations of such Indemnifying Party under this Section 3.21.
| SECTION 3.22 |
Access
to Certain Documentation.
|
The
Servicer shall provide to the Office of the Controller of the Currency, the
Office of Thrift Supervision, the FDIC, and any other federal or state banking
or insurance regulatory authority that may exercise authority over any
Certificateholder, access to the documentation regarding the Mortgage Loans
required by applicable laws and regulations. Such access shall be afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the Servicer designated by it. In addition, access
to
the documentation regarding the Mortgage Loans required by applicable laws
and
regulations will be provided to such Certificateholder, the Trustee, the Trust
Administrator, the NIMS Insurer, the Master Servicer and to any Person
identified to the Servicer as a prospective transferee of a Certificate subject
to the execution of a confidentiality agreement in form and substance
satisfactory to the servicer, upon reasonable request during normal business
hours at the offices of the Servicer designated by it at the expense of the
Person requesting such access. Nothing in this Section 3.22 shall derogate
from
the obligation of any such party to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of any such
party to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section 3.22.
| SECTION 3.23 |
Title,
Management and Disposition of REO
Property.
|
(a) The
deed
or certificate of sale of any REO Property shall, subject to applicable laws,
be
taken in the name of the Trustee, or its nominee, in trust for the benefit
of
the Certificateholders. The Servicer, on behalf of REMIC 1, shall sell any
REO
Property as soon as practicable and in any event no later than the end of the
third full taxable year after the taxable year in which such REMIC acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code
or
request from the Internal Revenue Service, no later than 60 days before the
day
on which the three-year grace period would otherwise expire, an extension of
such three-year period, unless the Servicer shall have delivered to the Trustee,
the Trust Administrator and the NIMS Insurer an Opinion of Counsel acceptable
to
the NIMS Insurer and addressed to the Trustee, the Trust Administrator, the
NIMS
Insurer and the Depositor, to the effect that the holding by the REMIC of such
REO Property subsequent to three years after its acquisition will not result
in
the imposition on the REMIC of taxes on “prohibited transactions” thereof, as
defined in Section 860F of the Code, or cause any of the REMICs created
hereunder to fail to qualify as a REMIC under Federal law at any time that
any
Certificates are outstanding. The Servicer shall manage, conserve, protect
and
operate each REO Property for the Certificateholders solely for the purpose
of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any of the REMICs
created hereunder of any “income from non-permitted assets” within the meaning
of Section 860F(a)(2)(B) of the Code, or any “net income from foreclosure
property” which is subject to taxation under the REMIC Provisions.
(b) The
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall establish and maintain with respect to REO Properties
an account held in trust for the Trustee for the benefit of the
Certificateholders (the “REO Account”), which shall be an Eligible Account. The
Servicer shall be permitted to allow the Collection Account to serve as the
REO
Account, subject to separate ledgers for each REO Property. The Servicer shall
be entitled to retain or withdraw any interest income paid on funds deposited
in
the REO Account.
(c) The
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which
the
Servicer manages and operates similar property owned by the Servicer or any
of
its Affiliates, all on such terms and for such period as the Servicer deems
to
be in the best interests of Certificateholders. In connection therewith, the
Servicer shall deposit, or cause to be deposited in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than two Business Days after
the Servicer’s receipt thereof, and shall thereafter deposit in the REO Account,
in no event more than one Business Day after the deposit of such funds into
the
clearing account, all revenues received by it with respect to an REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of such REO Property including, without
limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if,
the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Notwithstanding
the foregoing, none of the Servicer, the Trust Administrator or the Trustee
shall:
(i) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property, if the New Lease by its terms will give rise to any income that
does not constitute Rents from Real Property;
(ii) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(iii) authorize
any construction on any REO Property, other than the completion of a building
or
other improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed before default
on the related Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) authorize
any Person to Directly Operate any REO Property on any date more than 90 days
after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel, provided
to
the Trust Administrator, the NIMS Insurer and the Master Servicer to the effect
that such action will not cause such REO Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the at any
time that it is held by the Trust Fund, in which case the Servicer may take
such
actions as are specified in such Opinion of Counsel.
The
Servicer may contract with any Independent Contractor for the operation and
management of any REO Property; provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the Servicer
as soon as practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none
of
the provisions of this Section 3.23(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
the Servicer of any of its duties and obligations to the Trustee on behalf
of
the Certificateholders with respect to the operation and management of any
such
REO Property; and
(iv) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.18 is sufficient to pay such
fees.
(d) In
addition to the withdrawals permitted under Section 3.23(c), the Servicer may
from time to time make withdrawals from the REO Account for any REO Property:
(i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect of the
related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. Any income from the related REO Property
received during any calendar months prior to a Final Recovery Determination,
net
of any withdrawals made pursuant to Section 3.23(c) or this Section 3.23(d),
shall be withdrawn by the Servicer from each REO Account maintained by it and
remitted to the Trust Administrator for deposit into the Distribution Account
in
accordance with Section 3.10(d)(ii) on the Servicer Remittance Date relating
to
a Final Recovery Determination with respect to such Mortgage Loan, for
distribution on the related Distribution Date in accordance with Section
4.01.
(e) Subject
to the time constraints set forth in Section 3.23(a), each REO Disposition
shall
be carried out by the Servicer at such price and upon such terms and conditions
as the Servicer shall deem necessary or advisable, as shall be normal and usual
in its general servicing activities for similar properties.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above, shall
be
remitted to the Trust Administrator for deposit in the Distribution Account
in
accordance with Section 3.10(d)(ii) on the Servicer Remittance Date in the
month
following the receipt thereof for distribution on the related Distribution
Date
in accordance with Section 4.01. Any REO Disposition shall be for cash only
(unless changes in the REMIC Provisions made subsequent to the Startup Day
allow
a sale for other consideration).
(g) The
Servicer shall file information returns with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness income
with respect to any Mortgaged Property as required by Sections 6050H, 6050J
and
6050P of the Code, respectively. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
| SECTION 3.24 |
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
Not
later
than 1:00 p.m. New York time on each Servicer Remittance Date, the Servicer
shall deliver to the Trust Administrator for deposit into the Distribution
Account an amount (“Compensating Interest”) equal to the lesser of (A) the
aggregate of the Prepayment Interest Shortfalls for the related Distribution
Date and (B) its aggregate Servicing Fee received in the related Due Period.
The
Servicer shall not have the right to reimbursement for any amounts remitted
to
the Trust Administrator in respect of Compensating Interest. Such amounts so
remitted shall be included in the Available Funds and distributed therewith
on
the next Distribution Date. The Servicer shall not be obligated to pay
Compensating Interest with respect to Relief Act Interest
Shortfalls.
| SECTION 3.25 |
Obligations
of the Servicer in Respect of Monthly Payments.
|
In
the
event that a shortfall in any collection on or liability with respect to any
Mortgage Loan results from or is attributable to adjustments to Mortgage Rates,
Monthly Payments or Stated Principal Balances that were made by the Servicer
in
a manner not consistent with the terms of the related Mortgage Note and this
Agreement, the Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Trust Administrator for deposit in the
Distribution Account from its own funds the amount of any such shortfall and
shall indemnify and hold harmless the Trust Fund, the Trustee, the Trust
Administrator, the Depositor and any successor servicer in respect of any such
liability. Such indemnities shall survive the termination or discharge of this
Agreement. If amounts paid by the Servicer with respect to any Mortgage Loan
pursuant to this Section 3.25 are subsequently recovered from the related
Mortgagor, the Servicer shall be permitted to reimburse itself for such amounts
paid by it pursuant to this Section 3.25 from such recoveries.
| SECTION 3.26 |
Net
WAC Rate Carryover Reserve Account.
|
No
later
than the Closing Date, the Trust Administrator shall establish and maintain
with
itself a separate, segregated trust account titled, “Net WAC Rate Carryover
Reserve Account, Deutsche Bank National Trust Company, as Trustee, in trust
for
registered Holders of Fremont Home Loan Trust 2006-2, Asset-Backed Certificates,
Series 2006-2.” All amounts deposited in the Net WAC Rate Carryover Reserve
Account shall be distributed to the Holders of the Fixed Rate Certificates
and
the Floating Rate Certificates in the manner set forth in Section
4.01(d).
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to the Fixed Rate Certificates and the Floating Rate Certificates, the Trust
Administrator has been directed by the Class C Certificateholders to, and
therefore will, deposit into the Net WAC Rate Carryover Reserve Account the
amounts described in Section 4.01(c)(v), rather than distributing such amounts
to the Class C Certificateholders. In addition, any payments received by the
Trust Administrator under the Cap Contract on each Distribution Date will be
deposited into the Net WAC Rate Carryover Reserve Account. On each such
Distribution Date, the Trust Administrator shall hold all such amounts for
the
benefit of the Holders of the Fixed Rate Certificates and the Floating Rate
Certificates, and will distribute such amounts to the Holders of the Fixed
Rate
Certificates and the Floating Rate Certificates in the amounts and priorities
set forth in Section 4.01(d).
On
each
Distribution Date, any amounts remaining in the Net WAC Rate Carryover Reserve
Account (representing payments received by the Trust Administrator under the
Cap
Contract) after the payment of any Net WAC Rate Carryover Amounts on the Fixed
Rate Certificates and the Floating Rate Certificates for such Distribution
Date,
shall be payable to the Trust Administrator as additional compensation. For
so
long as any Floating Rate Certificates are beneficially owned by the Depositor
or any of its Affiliates, the Depositor shall refund or cause such Affiliate
to
refund any amounts paid to it under the Cap Contract to the Trust Administrator
who shall, pursuant to the terms of the Cap Contract, return such amount to
the
counterparty thereunder.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Net WAC Rate Carryover Reserve Account be
disregarded as an entity separate from the Holder of the Class C Certificates
unless and until the date when either (a) there is more than one Class C
Certificateholder or (b) any Class of Certificates in addition to the Class
C
Certificates is recharacterized as an equity interest in the Net WAC Rate
Carryover Reserve Account for federal income tax purposes, in which case it
is
the intention of the parties hereto that, for federal and state income and
state
and local franchise tax purposes, the Net WAC Rate Carryover Reserve Account
be
treated as a partnership; provided, that the Trust Administrator shall not
be
required to prepare and file partnership tax returns in respect of such
partnership unless it receives additional reasonable compensation (not to exceed
$10,000 per year) for the preparation of such filings, written notification
recognizing the creation of a partnership agreement or comparable documentation
evidencing the partnership, if any. All amounts deposited into the Net WAC
Rate
Carryover Reserve Account (other than amounts received under the Cap Contract)
shall be treated as amounts distributed by REMIC 3 to the Holder of the Class
C
Interest and by REMIC 4 to the Holder of the Class C Certificates. The Net
WAC
Rate Carryover Reserve Account will be an “outside reserve fund” within the
meaning of Treasury Regulation Section 1.860G-2(h). Upon the termination of
the
Trust, or the payment in full of the Fixed Rate Certificates and the Floating
Rate Certificates, all amounts remaining on deposit in the Net WAC Rate
Carryover Reserve Account will be released by the Trust and distributed to
the
Holders of the Class C Certificates or their designee. The Net WAC Rate
Carryover Reserve Account will be part of the Trust but not part of any REMIC
and any payments to the Holders of the Fixed Rate Certificates and the Floating
Rate Certificates of Net WAC Rate Carryover Amounts will not be payments with
respect to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trust Administrator, and the Trust Administrator hereby is directed,
to deposit into the Net WAC Rate Carryover Reserve Account the amounts described
above on each Distribution Date as to which there is any Net WAC Rate Carryover
Amount rather than distributing such amounts to the Class C Certificateholders.
By accepting a Class C Certificate, each Class C Certificateholder further
agrees that such direction is given for good and valuable consideration, the
receipt and sufficiency of which is acknowledged by such
acceptance.
Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
For
federal tax return and information reporting, the right of the Holders of the
Fixed Rate Certificates and Floating Rate Certificates to receive payments
from
the Net WAC Rate Carryover Reserve Account in respect of any Net WAC Cap Carry
Forward Amounts shall be assigned a value of $262,000.
| SECTION 3.27 |
Advance
Facility
|
The
Servicer, with the consent of the NIMS Insurer, is hereby authorized to enter
into a financing or other facility (any such arrangement, an “Advance Facility”)
under which (1) the Servicer sells, assigns or pledges to another Person
(together with such Person’s successors and assigns, an “Advancing Person”) the
Servicer’s rights under this Agreement to be reimbursed for any Advances or
Servicing Advances and/or (2) an Advancing Person agrees to fund some or all
Advances and/or Servicing Advances required to be made by the Servicer pursuant
to this Agreement. No consent of the Depositor, the Trustee, the
Certificateholders or any other party (other than the NIMS Insurer consent)
shall be required before the Servicer may enter into an Advance Facility. The
Servicer shall notify the NIMS Insurer and each other party to this Agreement
prior to or promptly after entering into or terminating any Advance Facility.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund Advances and/or Servicing Advances on the Servicer’s
behalf, the Servicer shall remain obligated pursuant to this Agreement to make
Advances and Servicing Advances pursuant to and as required by this Agreement.
If the Servicer enters into an Advance Facility, and for so long as an Advancing
Person remains entitled to receive reimbursement for any Advances including
Nonrecoverable Advances (“Advance Reimbursement Amounts”) and/or Servicing
Advances including Nonrecoverable Advances (“Servicing Advance Reimbursement
Amounts” and together with Advance Reimbursement Amounts, “Reimbursement
Amounts”) (in each case to the extent such type of Reimbursement Amount is
included in the Advance Facility), as applicable, pursuant to this Agreement,
then the Servicer shall identify such Reimbursement Amounts consistent with
the
reimbursement rights set forth in Section 3.11(a)(ii), (iii), (vi) and (vii)
and
remit such Reimbursement Amounts in accordance with Section 3.10(b) or otherwise
in accordance with the documentation establishing the Advance Facility to such
Advancing Person or to a trustee, agent or custodian (an “Advance Facility
Trustee”) designated by such Advancing Person. Notwithstanding the foregoing, if
so required pursuant to the terms of the Advance Facility, the Servicer may
direct, and if so directed the Trustee is hereby authorized to and shall pay
to
the Advance Facility Trustee the Reimbursement Amounts identified pursuant
to
the preceding sentence. Notwithstanding anything to the contrary herein, in
no
event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement
Amounts be included in the Available Funds or distributed to
Certificateholders.
If
the
terms of a facility proposed to be entered into with an Advancing Person by
the
Trust Fund would not materially and adversely affect the interests of any
Certificateholder, then the NIMS Insurer shall not withhold its consent to
the
Trust Fund’s entering such facility.
Reimbursement
Amounts shall consist solely of amounts in respect of Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would
be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer or the Advancing Person had made the related Advance(s) and/or
Servicing Advance(s). Notwithstanding the foregoing, except with respect to
reimbursement of Nonrecoverable Advances as set forth in this Agreement, no
Person shall be entitled to reimbursement from funds held in the Collection
Account for future distribution to Certificateholders pursuant to this
Agreement. None of the Depositor or the Trustee shall have any duty or liability
with respect to the calculation of any Reimbursement Amount, nor shall the
Depositor or the Trustee have any responsibility to track or monitor the
administration of the Advance Facility and the Depositor shall not have any
responsibility to track, monitor or verify the payment of Reimbursement Amounts
to the related Advancing Person or Advance Facility Trustee. The Servicer shall
maintain and provide to any successor servicer and (upon request) the Trustee
a
detailed accounting on a loan by loan basis as to amounts advanced by, sold,
pledged or assigned to, and reimbursed to any Advancing Person. The successor
servicer shall be entitled to rely on any such information provided by the
predecessor servicer, and the successor servicer shall not be liable for any
errors in such information. Any successor Servicer shall reimburse the
predecessor Servicer and itself for outstanding Advances and Servicing Advances,
respectively, with respect to each Mortgage Loan on a first in, first out
(“FIFO”) basis; provided that the successor Servicer has received prior written
notice from the predecessor Servicer or the Advancing Person of reimbursement
amounts owed to the predecessor Servicer. Liquidation Proceeds with respect
to a
Mortgage Loan shall be applied to reimburse Advances outstanding with respect
to
that Mortgage Loan before being applied to reimburse Servicing Advances
outstanding with respect to that Mortgage Loan.
An
Advancing Person who receives an assignment or pledge of the rights to be
reimbursed for Advances and/or Servicing Advances, and/or whose obligations
hereunder are limited to the funding or purchase of Advances and/or Servicing
Advances shall not be required to meet the criteria for qualification of a
subservicer set forth in this Agreement.
Upon
the
direction of and at the expense of the Servicer, the Trustee agrees to execute
such acknowledgments, certificates, and other documents provided by the Servicer
recognizing the interests of any Advance Facility Trustee in such Reimbursement
Amounts as the Servicer may cause to be made subject to Advance Facilities
pursuant to this Section 3.27.
The
Servicer shall remain entitled to be reimbursed for all Advances and Servicing
Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
The
Servicer shall indemnify the Depositor, the Trustee, the NIMS Insurer, any
successor servicer and the Trust Fund for any loss, liability or damage
resulting from any claim by the related Advancing Person, except to the extent
that such claim, loss, liability or damage resulted from or arose out of
negligence, recklessness or willful misconduct or breach of its duties hereunder
on the part of the Depositor, the Trustee, the NIMS Insurer or any successor
servicer.
Any
amendment to this Section 3.27 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 3.27, including amendments to add provisions
relating to a successor servicer, may be entered into by the Trustee, the
Depositor and the Servicer without the consent of any Certificateholder but
the
consent of the NIMS Insurer, provided such amendment complies with Section
11.01
hereof. All reasonable costs and expenses (including attorneys’ fees) of each
party hereto of any such amendment shall be borne solely by the Servicer. Prior
to entering into an Advance Facility, the Servicer shall notify the Advancing
Person in writing that: (a) the Advances and/or Servicing Advances purchased,
financed by and/or pledged to the Advancing Person are obligations owed to
the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances and/or Servicing
Advances only to the extent provided herein, and the Trustee and the Trust
are
not otherwise obligated or liable to repay any Advances and/or Servicing Advance
financed by the Advancing Person and (b) the Trustee shall not have any
responsibility to track or monitor the administration of the Advance Facility
between the Servicer and the Advancing Person.
| SECTION 3.28 |
Late
Remittance.
|
With
respect to any remittance received by the Master Servicer after the day on
which
such payment was due, the Servicer shall pay to the Master Servicer interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the
Distribution Account by the Servicer on the date such late payment is made
and
shall cover the period commencing with the day such payment was due and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Servicer Remittance Date. The payment by the Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of
any
Servicer Event of Termination.
ARTICLE
IIIA
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
| SECTION 3A.01 |
Master
Servicer to Act as Master Servicer.
|
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicer to service and administer the Mortgage Loans in accordance with the
terms of this Agreement and shall have full power and authority to do any and
all things which it may deem necessary or desirable in connection with such
master servicing and administration. In performing its obligations hereunder,
the Master Servicer shall act in a manner consistent with Accepted Master
Servicing Practices. Furthermore, the Master Servicer shall oversee and consult
with the Servicer as necessary from time-to-time to carry out the Master
Servicer’s obligations hereunder, shall receive, review and evaluate all
reports, information and other data provided to the Master Servicer by the
Servicer and shall cause the Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by the Servicer under
this Agreement. The Master Servicer shall independently monitor the Servicer’s
servicing activities with respect to each Mortgage Loan, reconcile the results
of such monitoring with such information provided in the previous sentence
on a
monthly basis and coordinate corrective adjustments to the Servicer’s and Master
Servicer’s records, and based on such reconciled and corrected information, the
Master Servicer shall provide such information to the Trust Administrator as
shall be necessary in order for it to prepare the statements specified in
Section 4.02, and prepare any other information and statements required to
be forwarded by the Master Servicer hereunder. The Master Servicer shall
reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicer to the Distribution Account pursuant to Section
3A.11.
The
Master Servicer and the Trust Administrator shall at all times be the same
Person.
The
Trustee shall furnish the Servicer and the Master Servicer with any powers
of
attorney and other documents in form as provided to it necessary or appropriate
to enable the Servicer and the Master Servicer to service and administer the
Mortgage Loans and REO Properties.
The
Trustee and the Trust Administrator shall provide access to the records and
documentation in possession of the Trustee or the Trust Administrator, as
applicable, regarding the Mortgage Loans and REO Properties and the servicing
thereof to the Certificateholders, the FDIC, and the supervisory agents and
examiners of the FDIC, such access being afforded only upon reasonable prior
written request and during normal business hours at the office of the Trustee
or
the Trust Administrator, as applicable; provided, however, that, unless
otherwise required by law, neither the Trustee nor the Trust Administrator
shall
be required to provide access to such records and documentation if the provision
thereof would violate the legal right to privacy of any Mortgagor. The Trustee
and the Trust Administrator shall allow representatives of the above entities
to
photocopy any of the records and documentation and shall provide equipment
for
that purpose at a charge that covers the Trustee’s or Trust Administrator’s, as
applicable, actual costs.
The
Trustee shall execute and deliver to the Servicer and the Master Servicer any
court pleadings, requests for trustee’s sale or other documents necessary or
desirable to (i) the foreclosure or trustee’s sale with respect to a Mortgaged
Property; (ii) any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Security Instrument; (iii) obtain a deficiency judgment
against the Mortgagor; or (iv) enforce any other rights or remedies provided
by
the Mortgage Note or Mortgage or otherwise available at law or
equity.
| SECTION 3A.02 |
[Reserved].
|
| SECTION 3A.03 |
Monitoring
of Servicer.
|
In
the
review of the Servicer’s activities, the Master Servicer may rely upon an
Officers’ Certificate of the Servicer (or similar document signed by a Servicing
Officer of the Servicer) with regard to the Servicer’s compliance with the terms
of this Agreement. In the event that the Master Servicer, in its judgment,
determines that the Servicer should be terminated in accordance with the terms
hereof, or that a notice should be sent pursuant to the terms hereof with
respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Depositor,
the Trust Administrator and the Trustee thereof and the Master Servicer shall
issue such notice or take such other action as it deems
appropriate.
The
Master Servicer or (if the Master Servicer is the Servicer) the Trustee, for
the
benefit of the Certificateholders, shall enforce the obligations of the Servicer
under this Agreement, and shall, in the event that it receives notice that
the
Servicer has failed to perform its obligations in accordance with this
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of the Servicer hereunder in accordance with the provisions of
Article VII and act as Servicer of the Mortgage Loans or appoint a successor
servicer; provided, however, it is understood and acknowledged by the parties
hereto that there will be a period of transition (not to exceed 90 days) before
the actual servicing functions can be fully transferred to such successor
servicer. Such enforcement, including, without limitation, the legal prosecution
of claims and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer or
Trustee (or such other successor master servicer), as applicable, in its good
faith business judgment, would require were it the owner of the Mortgage Loans.
The Master Servicer or the Trustee (or such other successor master servicer),
as
applicable, shall pay the costs of such enforcement at its own expense, provided
that the Master Servicer or the Trustee (or such other successor master
servicer), as applicable, shall not be required to prosecute or defend any
legal
action except to the extent that the Master Servicer or the Trustee (or such
other successor master servicer), as applicable, shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
To
the
extent that the costs and expenses of the Master Servicer or Trustee, as
applicable, related to any termination of the Servicer, appointment of a
successor servicer or the transfer and assumption of servicing by the Master
Servicer or the Trustee, as applicable, with respect to this Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of a Servicer Event of Termination
and
(ii) all costs and expenses associated with the complete transfer of servicing,
including all servicing files and all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
successor servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the successor servicer to service the Mortgage
Loans
in accordance with this Agreement) are not fully and timely reimbursed by the
terminated Servicer, the Master Servicer or the Trustee, as applicable, shall
be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
The
Master Servicer (or if the Master Servicer is the Servicer, the Trustee (or
other successor master servicer)) shall, upon receipt from the Servicer, the
Master Servicer or the Trust Administrator, of notice of any failure of the
Servicer to comply with the remittance requirements and other obligations set
forth in this Agreement, enforce such obligations after consultation with the
Depositor.
If
the
Master Servicer or the Trustee, as applicable, acts as Servicer, it will not
assume liability for the representations and warranties of the Servicer that
it
replaces.
| SECTION 3A.04 |
Fidelity
Bond.
|
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as Master Servicer.
| SECTION 3A.05 |
Power
to Act; Procedures.
|
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement; provided, however,
that the Master Servicer shall not (and, consistent with its responsibilities
under Article X, shall not permit any Servicer to) knowingly or intentionally
take any action, or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, would cause the Trust REMIC to fail to qualify as a REMIC or result
in the imposition of a tax upon the Trust Fund (including but not limited to
the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the Master Servicer has received an Opinion of Counsel (but not
at
the expense of the Master Servicer) to the effect that the contemplated action
would not cause any REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC. The Trustee shall furnish the Master
Servicer or the Servicer, upon written request from a Servicing Officer, with
any powers of attorney empowering the Master Servicer or the Servicer to execute
and deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to
the
Mortgage Loans or the Mortgaged Property, in accordance with this Agreement,
and
the Trustee shall execute and deliver such other documents, as the Master
Servicer may request, to enable the Master Servicer to master service and
administer the Mortgage Loans and carry out its duties hereunder, in each case
in accordance with Accepted Master Servicing Practices (and the Trustee shall
have no liability for misuse of any such powers of attorney by the Master
Servicer or the Servicer). If the Master Servicer or the Trustee has been
advised that it is likely that the laws of the state in which action is to
be
taken prohibit such action if taken in the name of the Trustee or that the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, the Master Servicer shall join
with the Trustee in the appointment of a co-trustee pursuant to
Section 8.10 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action in the name of the Trustee, be deemed to
be
the agent of the Trustee.
| SECTION 3A.06 |
Due
on Sale Clauses; Assumption
Agreements.
|
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicer to enforce such clauses in accordance with
this Agreement. If applicable law prohibits the enforcement of a due-on-sale
clause or such clause is otherwise not enforced in accordance with this
Agreement, and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be released from liability in accordance with this
Agreement.
| SECTION 3A.07 |
[Reserved].
|
| SECTION 3A.08 |
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
The
Master Servicer and the Servicer shall transmit to the Trustee (or the Custodian
on behalf of the Trustee) such documents and instruments coming into the
possession of the Master Servicer or the Servicer from time to time as are
required by the terms hereof to be delivered to the Trustee, the Trust
Administrator or the Custodian. Any funds received by the Master Servicer or
by
the Servicer in respect of any Mortgage Loan or which otherwise are collected
by
the Master Servicer or by the Servicer as Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan shall be held for the benefit of the
Trustee and the Certificateholders subject to the Master Servicer’s right to
retain or withdraw from the Distribution Account the Master Servicing
Compensation and other amounts provided in this Agreement, and to the right
of
the Servicer to retain its Servicing Fee and other amounts as provided in this
Agreement. The Master Servicer shall, and subject to Section 3.22 shall cause
the Servicer to, provide access to information and documentation regarding
the
Mortgage Loans to the Trust Administrator, its agents and accountants at any
time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan associations, banks or insurance
companies, the Office of Thrift Supervision, the FDIC and the supervisory agents
and examiners of such Office and Corporation or examiners of any other federal
or state banking or insurance regulatory authority if so required by applicable
regulations of the Office of Thrift Supervision or other regulatory authority,
such access to be afforded without charge but only upon reasonable request
in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not
be
responsible for determining the sufficiency of such information.
All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer or the Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Servicer or the Master Servicer,
as
applicable, for and on behalf of the Trustee and the Certificateholders and
shall be and remain the sole and exclusive property of the Trustee; provided,
however, that the Master Servicer and the Servicer shall be entitled to setoff
against, and deduct from, any such funds any amounts that are properly due
and
payable to the Master Servicer or the Servicer under this
Agreement.
| SECTION 3A.09 |
Compensation
for the Master Servicer.
|
The
Master Servicer will be entitled to a portion of the Administration Fee and
all
income and gain realized from any investment of funds in the Distribution
Account, pursuant to Section 3A.11 and Section 3A.12, for the
performance of its activities hereunder (the “Master Servicing Compensation”).
Servicing compensation in the form of assumption fees, if any, late payment
charges, as collected, if any, or otherwise shall be retained by the Servicer
in
accordance with Section 3.18. The Master Servicer shall be required to pay
all
expenses incurred by it in connection with the performance of its duties
hereunder and shall not be entitled to reimbursement therefor except as provided
in this Agreement.
| SECTION 3A.10 |
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
In
the
event of a Prepayment Interest Shortfall, the Master Servicer shall remit to
the
Trust Administrator, from its own funds and without right of reimbursement
(except as described below), not later than the related Distribution Date,
Compensating Interest in an amount equal to the lesser of (i) the aggregate
amounts in respect of Compensating Interest required to be paid by the Servicer
pursuant to Section 3.24 with respect to Prepayment Interest Shortfalls
attributable to Principal Prepayments in full on the Mortgage Loans for the
related Distribution Date and not so paid by the Servicer and (ii) the aggregate
compensation payable to the Master Servicer for the related collection period
under this Agreement. In the event the Master Servicer pays any amount in
respect of such Compensating Interest prior to the time it shall have succeeded
as successor servicer, the Master Servicer shall be subrogated to the Trust
Fund’s right to receive such amount from the Servicer. In the event the Trust
Fund receives from the Servicer all or any portion of amounts in respect of
Compensating Interest required to be paid by the Servicer pursuant to Section
3.24, not so paid by the Servicer when required, and paid by the Master Servicer
pursuant to this Section 3A.10, then the Master Servicer may reimburse
itself for the amount of Compensating Interest paid by the Master Servicer
from
such receipts by the Trust Fund.
| SECTION 3A.11 |
Distribution
Account.
|
On
behalf
of the Trust Fund, the Trust Administrator shall establish and maintain one
or
more accounts (such account or accounts, the “Distribution Account”), held in
Trust for the benefit of the Trustee and the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer will
deposit in the Distribution Account as identified by the Master Servicer and
as
received by the Master Servicer, the following amounts:
(1) Any
amounts remitted to the Master Servicer by the Servicer from the Collection
Account;
(2) Any
Advances received from the Servicer, or made by the Master Servicer or (if
the
Master Servicer is the Servicer) the Trustee (in each case in its capacity
as
successor servicer), and any payments of Compensating Interest received from
the
Servicer or made by the Master Servicer (unless, in the case of the Master
Servicer, such amounts are deposited by the Master Servicer directly into the
Distribution Account);
(3) Any
Insurance Proceeds or Net Liquidation Proceeds received by or on behalf of
the
Master Servicer or which were not deposited in the Collection
Account;
(4)
Any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(5) Any
other
amounts received by or on behalf of the Master Servicer and required to be
deposited in the Distribution Account pursuant to this Agreement.
All
amounts deposited to the Distribution Account shall be held by the Master
Servicer in the name of the Trustee in Trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (A) late payment charges or
assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges and (B) the items
enumerated in Section 3A.12(a) (with respect the clearing and termination
of the Distribution Account and with respect to amounts deposited in error),
in
Section 3A.12(b) or in clauses (i), (ii), (iii) and (iv), (v) of
Section 3A.12(c), need not be credited by the Master Servicer to the
Distribution Account. In the event that the Master Servicer shall deposit or
cause to be deposited to the Distribution Account any amount not required to
be
credited thereto, the Trustee or the Trust Administrator, upon receipt of a
written request therefor signed by a Servicing Officer of the Master Servicer,
shall promptly transfer such amount to the Master Servicer, any provision herein
to the contrary notwithstanding.
The
Trust
Administrator may direct any depository institution maintaining the Distribution
Account to invest the funds on deposit in such account or to hold such funds
uninvested. All investments pursuant to this Section 3A.11 shall be in one
or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if a Person other than the Trust
Administrator is the obligor thereon or if such investment is managed or advised
by a Person other than the Trust Administrator or an Affiliate of the Trust
Administrator, and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the Trust
Administrator is the obligor thereon or if such investment is managed or advised
by the Trust Administrator or any Affiliate. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds
in
the Distribution Account shall be made in the name of the Trustee, or in the
name of a nominee of the Trust Administrator. The Trust Administrator shall
be
entitled to sole possession over each such investment, and any certificate
or
other instrument evidencing any such investment shall be delivered directly
to
the Trust Administrator or its agent, together with any document of transfer
necessary to transfer title to such investment to the Trust Administrator or
its
nominee. In the event amounts on deposit in the Distribution Account are at
any
time invested in a Permitted Investment payable on demand, the Trust
Administrator shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trust Administrator that such Permitted Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Distribution Account.
All
income and gain realized from the investment of funds deposited in the
Distribution Account shall be for the benefit of the Master Servicer. The Trust
Administrator shall deposit in the Distribution Account the amount of any loss
of principal incurred in respect of any such Permitted Investment made with
funds in such Account immediately upon realization of such loss.
| SECTION 3A.12 |
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
(a)
The
Trust Administrator will, from time to time on demand of the Master Servicer,
the Servicer or the Trustee, make or cause to be made such withdrawals or
transfers from the Distribution Account pursuant to this Agreement. The Trust
Administrator may clear and terminate the Distribution Account pursuant to
Section 9.01 and remove amounts from time to time deposited in
error.
(b)
On an
ongoing basis, the Trust Administrator shall withdraw funds from the
Distribution Account to pay (i) any Extraordinary Trust Fund Expenses including
but not limited to amounts payable to the Servicer or the Depositor pursuant
to
Section 6.03(b) or Master Servicer pursuant to Section 6.03(c), and
(ii) any amounts expressly payable to the Master Servicer as set forth in
Section 3A.09.
(c)
The
Trust Administrator may withdraw from the Distribution Account any of the
following amounts (in the case of any such amount payable or reimbursable to
the
Servicer, only to the extent the Servicer shall not have paid or reimbursed
itself such amount prior to making any remittance to the Master Servicer
pursuant to the terms of this Agreement):
(i) to
reimburse the Master Servicer or (if the Master Servicer is the Servicer) the
Trustee (to the extent either of them is obligated to do so as successor
Servicer) for any Advance of its own funds, the right of the Master Servicer
or
the Trustee, as applicable, to reimbursement pursuant to this subclause (i)
being limited to amounts received on a particular Mortgage Loan (including,
for
this purpose, the Purchase Price therefor, Insurance Proceeds, Liquidation
Proceeds and Subsequent Recoveries) which represent late payments or recoveries
of the principal of or interest on such Mortgage Loan respecting which such
Advance was made;
(ii) to
reimburse the Master Servicer from Insurance Proceeds, Liquidation Proceeds
or
Subsequent Recoveries relating to a particular Mortgage Loan for amounts
expended by the Master Servicer in good faith in connection with the restoration
of the related Mortgaged Property which was damaged by an Uninsured Cause or
in
connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer from Insurance Proceeds relating to a particular
Mortgage Loan for insured expenses incurred with respect to such Mortgage Loan
and to reimburse the Master Servicer from Liquidation Proceeds and Subsequent
Recoveries from a particular Mortgage Loan for Liquidation Expenses incurred
with respect to such Mortgage Loan;
(iv) to
reimburse the Master Servicer for advances of funds (other than Advances) made
with respect to the Mortgage Loans, and the right to reimbursement pursuant
to
this subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and Subsequent Recoveries) which represent late recoveries
of the payments for which such advances were made;
(v) to
reimburse the Master Servicer or (if the Master Servicer is the Servicer) the
Trustee (to the extent either of them is obligated to do so as successor
Servicer) for any Advance or Servicing Advance, after a Realized Loss has been
allocated with respect to the related Mortgage Loan if the Advance or Servicing
Advance has not been reimbursed pursuant to clauses (i) through
(iv);
(vi) to
pay
the Credit Risk Manager the Credit Risk Manager Fee;
(vii) to
make
distributions in accordance with Section 4.01;
(viii) to
pay
compensation to the Trust Administrator on each Distribution Date;
(ix) to
pay
any amounts in respect of taxes pursuant to Section 10.01(g);
(x) without
duplication of the amount set forth in clause (iii) above, to pay any
Extraordinary Trust Fund Expenses to the extent not paid by the Master Servicer
from the Distribution Account;
(xi) without
duplication of any of the foregoing, to reimburse or pay the Servicer any such
amounts as are due thereto under this Agreement and have not been retained
by or
paid to the Servicer, to the extent provided in this Agreement and to refund
to
the Servicer any amount remitted by the Servicer to the Master Servicer in
error;
(xii) to
pay to
the Master Servicer, any interest or investment income earned on funds deposited
in the Distribution Account;
(xiii) to
withdraw any amount deposited in the Distribution Account in error;
and
(xiv) to
clear
and terminate the Distribution Account pursuant to
Section 9.01.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of accounting for any reimbursement
from
the Distribution Account pursuant to clauses (i) through (v) above or with
respect to any such amounts which would have been covered by such clauses had
the amounts not been retained by the Master Servicer without being deposited
in
the Distribution Account.
On
or
before the Business Day prior to each Distribution Date, the Master Servicer
or
(if the Master Servicer is the Servicer) the Trustee (to the extent either
of
them is obligated to do so as successor Servicer) shall remit to the Trust
Administrator for deposit in the Distribution Account any Advances required
to
be made and the Master Servicer shall deposit in the Distribution Account any
Compensating Interest required to be paid, in either such case by the Master
Servicer or the Trustee, as applicable, with respect to the Mortgage
Loans.
ARTICLE
IV
FLOW
OF
FUNDS
| SECTION 4.01 |
Distributions.
|
(a) (I)
On
each Distribution Date, the Trust Administrator shall, first, withdraw from
the
Distribution Account an amount equal to the Credit Risk Manager Fee for such
Distribution Date and shall pay such amount to the Credit Risk Manager and,
then, withdraw that portion of Available Funds for such Distribution Date
consisting of the Group I Interest Remittance Amount for such Distribution
Date,
and make the following disbursements and transfers in the order of priority
described below, in each case to the extent of the Group I Interest Remittance
Amount remaining for such Distribution Date:
(i) to
the
Holders of the Group I Certificates, the Monthly Interest Distributable Amount
and the Unpaid Interest Shortfall Amount, if any, for such Class;
and
(ii) concurrently,
to the Holders of the Group II Certificates, on a pro
rata basis
based on the entitlement of each such Class, an amount equal to the excess,
if
any, of (x) the amount required to be distributed pursuant to Section
4.01(a)(II)(i) below for such Distribution Date over (y) the amount actually
distributed pursuant to such clause from the Group II Interest Remittance
Amount.
(II) On
each
Distribution Date the Trustee shall withdraw from the Distribution Account
that
portion of Available Funds for such Distribution Date consisting of the Group
II
Interest Remittance Amount for such Distribution Date, and make the following
disbursements and transfers in the order of priority described below, in each
case to the extent of the Group II Interest Remittance Amount remaining for
such
Distribution Date.
(i) concurrently,
to the Holders of the Group II Certificates, on a pro
rata
basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, for each such Class;
and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(a)(I)(i)
above for such Distribution Date over (y) the amount actually distributed
pursuant to such clause from the Group I Interest Remittance
Amount.
(III) On
each
Distribution Date, distributions to the extent of the sum of the Group I
Interest Remittance Amount and the Group II Interest Remittance Amount remaining
undistributed for such Distribution Date shall be distributed sequentially,
to
the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class
M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the
Class M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates,
the Class M-9 Certificates, the Class M-10 Certificates, the Class B-1
Certificates and the Class B-2 Certificates, in that order, in an amount equal
to the Monthly Interest Distributable Amount for each such Class.
(b) (I)On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which
a
Trigger Event is in effect, distributions in respect of principal to the extent
of the Group I Principal Distribution Amount shall be made in the following
amounts and order of priority:
(i) to
the
Holders of the Group I Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and
(ii) after
taking into account the amount distributed to the Holders of the Group II
Certificates pursuant to Section 4.01(b)(II)(i) below on such Distribution
Date,
to the Holders of the Group II Certificates (allocated among the Group II
Certificates in the priority described below), until the Certificate Principal
Balances thereof have been reduced to zero.
(II) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the Group
II Principal Distribution Amount shall be made in the following amounts and
order of priority:
(i) to
the
Holders of the Group II Certificates (allocated among Group II Certificates
in
the priority described below), until the Certificate Principal Balances thereof
have been reduced to zero; and
(ii) after
taking into account the amount distributed to the Holders of the Group I
Certificates pursuant to Section 4.01(b)(I)(i) above on such Distribution Date,
to the Holders of the Group I Certificates, until the Certificate Principal
Balance thereof has been reduced to zero.
(III) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the sum
of
the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
distributed sequentially, to the Holders of the Class M-1 Certificates, the
Class M-2 Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class M-7
Certificates, the Class M-8 Certificates, the Class M-9 Certificates, the Class
M-10 Certificates, the Class B-1 Certificates and the Class B-2 Certificates,
in
that order, in each case, until the Certificate Principal Balance thereof has
been reduced to zero.
(IV) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Group I Principal Distribution Amount shall be made in the following amounts
and order of priority:
(i) to
the
Holders of the Group I Certificates, the Group I Senior Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(ii) to
the
Holders of the Group II Certificates (allocated among Group II Certificates
in
the priority described below), an amount equal to the excess, if any, of (x)
the
amount required to be distributed pursuant to Section 4.01(c)(V)(i) below for
such Distribution Date over (y) the amount actually distributed pursuant to
Section 4.01(c)(V)(i) below from the Group II Principal Distribution Amount
on
such Distribution Date.
(V) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Group II Principal Distribution Amount shall be made in the following
amounts and order of priority:
(i) to
the
Holders of the Group II Certificates (allocated among Group II Certificates
in
the priority described below), the Group II Senior Principal Distribution Amount
until the Certificate Principal Balances thereof have been reduced to zero;
and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(c)(IV)(i)
above for such Distribution Date over (y) the amount actually distributed
pursuant to Section 4.01(c)(IV)(i) above from the Group I Principal Distribution
Amount on such Distribution Date.
(VI) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the sum of the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
made in the following amounts and order of priority:
(i) sequentially,
to the Holders of the Class M-1 Certificates and Class M-2 Certificates, in
that
order, the Class M-1/M-2 Principal Distribution Amount until the Certificate
Principal Balances thereof have been reduced to zero;
(ii) to
the
Holders of the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iii) to
the
Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iv) to
the
Holders of the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(v) to
the
Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vi) to
the
Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vii) to
the
Holders of the Class M-8 Certificates, the Class M-8 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(viii) to
the
Holders of the Class M-9 Certificates, the Class M-9 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(ix) to
the
Holders of the Class M-10 Certificates, the Class M-10 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(x) to
the
Holders of the Class B-1 Certificates, the Class B-1 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(xi) to
the
Holders of the Class B-2 Certificates, the Class B-2 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero.
With
respect to the Group II Certificates, all principal distributions will be
distributed sequentially, first, to the Holders of the Class II-A-1
Certificates, until the Certificate Principal Balance of the Class II-A-1
Certificates has been reduced to zero; second, to the Holders of the Class
II-A-2 Certificates, until the Certificate Principal Balance of the Class II-A-2
Certificates has been reduced to zero; third, to
the
Holders of the Class II-A-3 Certificates until the Certificate Principal Balance
of the Class II-A-3 Certificates has been reduced to zero
and
fourth, to the Holders of the Class II-A-4 Certificates until the Certificate
Principal Balance of the Class II-A-4 Certificates has been reduced to zero;
provided, however, on any Distribution Date on which the aggregate Certificate
Principal Balance of the Mezzanine Certificates, the Class B Certificates and
the Class C Certificates has been reduced to zero, all principal distributions
will be distributed concurrently, to the Holders of the Group II Certificates,
on a pro
rata basis
based on the Certificate Principal Balance of each such Class.
(c) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed as
follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Group I Principal Distribution Amount and/or the Group II Principal Distribution
Amount as described under Section 4.01(b) above;
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates, the Class M-10 Certificates, the
Class
B-1 Certificates and the Class B-2 Certificates, in that order, first, up to
the
Unpaid Interest Shortfall Amount for each such Class and second, up to the
Allocated Realized Loss Amount for each such Class;
(iii) to
the
Net WAC Rate Carryover Reserve Account, the aggregate of any Net WAC Rate
Carryover Amounts for the Fixed Rate Certificates and the Floating Rate
Certificates which exceed the amounts received under the Cap Contract, without
taking into account amounts, if any, received under the Swap
Agreement;
(iv) to
the
Swap Provider, any Swap Termination Payments resulting from a Swap Provider
Trigger Event;
(v) to
the
Holders of the Class C Certificates, (a) the Monthly Interest Distributable
Amount for such Distribution Date and any Overcollateralization Release Amount
for such Distribution Date and (b) on any Distribution Date on which the
Certificate Principal Balances of the Fixed Rate Certificates and the Floating
Rate Certificates have been reduced to zero, any remaining amounts in reduction
of the Certificate Principal Balance of the Class C Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
(vi) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero; and
(vii) any
remaining amounts to the Holders of the Residual Certificates (in respect of
the
Class R-3 Interest).
(d) On
each
Distribution Date, after making the distributions of the Available Funds as
set
forth above, the Trust Administrator shall withdraw from the Net WAC Rate
Carryover Reserve Account, to the extent of amounts remaining on deposit
therein, the aggregate of any Net WAC Rate Carryover Amounts for such
Distribution Date and distribute such amount in the following order of
priority:
(i) concurrently,
to each Class of Senior Certificates, the related Cap Amount, from payments
made
under the Cap Contract, in each case up to a maximum amount equal to the related
Net WAC Rate Carryover Amount for such Distribution Date;
(ii) sequentially,
the Class M-1 Certificates, the Class M-2 Certificates, the Class M-3
Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the Class
M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates, the
Class M-9 Certificates, the Class M-10 Certificates and the Class B-1
Certificates, in that order, the related Cap Amount, from payments made under
the Cap Contract, in each case up to a maximum amount equal to the related
Net
WAC Rate Carryover Amount for such Distribution Date;
(iii) concurrently,
to each Class of Senior Certificates, the related Net WAC Rate Carryover Amount
remaining undistributed pursuant to clause (i) above, on a pro
rata
basis
based on such respective remaining Net WAC Rate Carryover Amounts;
and
(iv) sequentially,
the Class M-1 Certificates, the Class M-2 Certificates, the Class M-3
Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the Class
M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates, the
Class M-9 Certificates, the Class M-10 Certificates, the Class B-1 Certificates
and the Class B-2 Certificates, in that order, the related Net WAC Rate
Carryover Amount remaining undistributed pursuant to clause (ii)
above.
(e) On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow and amounts on deposit in the Net WAC Rate Carryover
Reserve Account as set forth above, the Trust Administrator shall distribute
the
amount on deposit in the Swap Account as follows:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement for such Distribution Date;
(ii) to
the
Swap Provider, any Swap Termination Payment owed to the Swap Provider not due
to
a Swap Provider Trigger Event pursuant to the Interest Rate Swap
Agreement;
(iii) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed after the distributions of the Group I Interest Remittance Amount
and the Group II Interest Remittance Amount, on a pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(iv) sequentially,
to the Class M-1 Certificates,
Class
M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates, Class M-9 Certificates, Class M-10 Certificates, Class B-1
Certificates and Class B-2 Certificates, in that order, the related Monthly
Interest Distributable Amount and Unpaid Interest Shortfall Amount, to the
extent remaining undistributed after the distributions of the Group I Interest
Remittance Amount, the Group II Interest Remittance Amount and the Net Monthly
Excess Cashflow;
(v) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Group I Principal Distribution Amount and/or the Group II Principal Distribution
Amount, after taking into account distributions made pursuant to Section
4.01(c)(i);
(vi) sequentially
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates, Class
M-10 Certificates, Class B-1 Certificates and Class B-2 Certificates,
in that
order, in each case up to the related Allocated Realized Loss Amount related
to
such Certificates for such Distribution Date remaining undistributed after
distribution of the Net Monthly Excess Cashflow;
(vii) concurrently,
to each Class of Senior Certificates, the related Net WAC Rate Carryover Amount,
to the extent remaining undistributed after distributions are made from the
Net
WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(viii) sequentially,
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates, Class M-10
Certificates, Class B-1 Certificates and Class B-2 Certificates, in that order,
the related Net WAC Rate Carryover Amount, to the extent remaining undistributed
after distributions are made from the Net WAC Rate Carryover Reserve Account;
and
(ix) any
remaining amounts to the Holders of the Class C Certificates.
(f) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and any Servicer
Prepayment Charge Payment Amounts paid by the Servicer during the related
Prepayment Period will be withdrawn from the Distribution Account and
distributed by the Trust Administrator to the Holders of the Class P
Certificates and shall not be available for distribution to the Holders of
any
other Class of Certificates. The payment of the foregoing amounts to the Holders
of the Class P Certificates shall not reduce the Certificate Principal Balances
thereof.
(g) The
Trust
Administrator shall make distributions in respect of a Distribution Date to
each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 respecting the final distribution), in the case of
Certificateholders of the Regular Certificates, by check or money order mailed
to such Certificateholder at the address appearing in the Certificate Register,
or by wire transfer. Distributions among Certificateholders shall be made in
proportion to the Percentage Interests evidenced by the Certificates held by
such Certificateholders.
(h) Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit the amount of such distribution to the accounts
of its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Depositor or the Servicer shall have
any
responsibility therefor except as otherwise provided by applicable
law.
On
each
Distribution Date, following the foregoing distributions, an amount equal to
the
amount of Subsequent Recoveries deposited into the Collection Account pursuant
to Section 3.10 shall be applied to increase the Certificate Principal Balance
of the Class of Certificates with the Highest Priority up to the extent of
such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.08. An amount equal to the amount of any remaining Subsequent
Recoveries shall be applied to increase the Certificate Principal Balance of
the
Class of Certificates with the next Highest Priority, up to the amount of such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.08. Holders of such Certificates will not be entitled to any
distribution in respect of interest on the amount of such increases for any
Interest Accrual Period preceding the Distribution Date on which such increase
occurs. Any such increases shall be applied to the Certificate Principal Balance
of each Certificate of such Class in accordance with its respective Percentage
Interest.
(i) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests and that the Residual Certificates are to receive no principal
and interest. If the Trust Administrator determines that the Residual
Certificates are entitled to any distributions, the Trust Administrator, prior
to any such distribution to any Residual Certificate, shall notify the Depositor
of such impending distribution but shall make such distribution in accordance
with the terms of this Agreement until this Agreement is amended as specified
in
the following sentence. Upon such notification, the Depositor will request
an
amendment to the Pooling and Servicing Agreement to revise such mistake in
the
distribution provisions. The Residual Certificate Holders, by acceptance of
their Certificates, and the Servicer(s), hereby agree to any such amendment
and
no further consent shall be necessary, notwithstanding anything to the contrary
in Section 11.01 of this Pooling and Servicing Agreement; provided, however,
that such amendment shall otherwise comply with Section 11.01
hereof.
| SECTION 4.02 |
[Reserved].
|
| SECTION 4.03 |
Statements.
|
(a) On
each
Distribution Date, based, as applicable, on information provided to the Trust
Administrator by the Master Servicer (which in turn shall be based, as
applicable, on information provided to the Master Servicer by the Servicer),
the
Trust Administrator shall prepare and make available to each Holder of the
Regular Certificates, the Credit Risk Manager, the Servicer and the Rating
Agencies, a statement as to the distributions made on such Distribution
Date:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates, separately identified, allocable to principal
and
the amount of the distribution made to the Holders of the Class P Certificates
allocable to Prepayment Charges and Servicer Prepayment Charge Payment
Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates (other than the Class P Certificates) allocable
to
interest, separately identified;
(iii) the
Net
Monthly Excess Cashflow, the Overcollateralized Amount, the
Overcollateralization Release Amount, the Overcollateralization Deficiency
Amount and the Overcollateralization Target Amount as of such Distribution
Date
and the Excess Overcollateralized Amount for the Mortgage Pool for such
Distribution Date;
(iv) the
fees
and expenses of the Trust Fund accrued and paid on such Distribution Date and
to
whom such fees and expenses were paid;
(v) the
aggregate amount of Advances for the related Due Period (including the general
purpose of such Advances);
(vi) the
Pool
Balance at the Close of Business at the end of the related Due
Period;
(vii) the
number, aggregate Stated Principal Balance, weighted average remaining term
to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of the
related Determination Date;
(viii) the
number and aggregate unpaid Stated Principal Balance of Mortgage Loans that
were
(A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and
REO
Properties) using the OTS Method (as described below) (1) 30 to 59 days, (2)
60
to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings
have
been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3)
90 or
more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to 89
days
and (3) 90 or more days, in each case as of the Close of Business on the last
day of the calendar month preceding such Distribution Date and (D) REO
Properties, as well as the aggregate principal balance of Mortgage Loans that
were liquidated and the net proceeds resulting therefrom;
(ix) the
total
number and cumulative Stated Principal Balance of all REO Properties as of
the
Close of Business of the last day of the calendar month preceding the related
Distribution Date;
(x) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period, separately indicating Principal Prepayments in full and Principal
Prepayments in part;
(xi) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, which will include the aggregate amount of Subsequent Recoveries
received during the related Prepayment Period and the aggregate amount of
Realized Losses incurred since the Closing Date, which will include the
cumulative amount of Subsequent Recoveries received since the Closing
Date;
(xii) the
aggregate amount of extraordinary Trust Fund expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(xiii) the
Certificate Principal Balance of each Class of Floating Rate Certificates and
the Class C Certificates, before and after giving effect to the distributions
made on such Distribution Date;
(xiv) the
Monthly Interest Distributable Amount in respect of the Fixed Rate Certificates,
the Floating Rate Certificates and the Class C Certificates for such
Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect
to the Fixed Rate Certificates and the Floating Rate Certificates for such
Distribution Date;
(xv) the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to Section
3.24;
(xvi) the
Senior Credit Enhancement Percentage and the Class M-1 Credit Enhancement
Percentage for such Distribution Date;
(xvii) the
Net
WAC Rate Carryover Amount for the Fixed Rate Certificates and the Floating
Rate
Certificates, if any, for such Distribution Date and the amount remaining unpaid
after reimbursements therefor on such Distribution Date;
(xviii) whether
the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage
for such Distribution Date and the Realized Loss Percentage for such
Distribution Date;
(xix) the
total
cashflows received and the general sources thereof;
(xx) the
respective Pass-Through Rates applicable to the Fixed Rate Certificates, the
Floating Rate Certificates and the Class C Certificates for such Distribution
Date and the Pass-Through Rate applicable to the Fixed Rate Certificates and
the
Floating Rate Certificates for the immediately succeeding Distribution
Date;
(xxi) payments,
if any, made under the Cap Contract and the amount distributed to each Class
of
Certificates from payments made under the Cap Contract;
(xxii) the
amount of any Net Swap Payments or Swap Termination Payments; and
(xxiii) the
applicable Record Date, Accrual Period and any other applicable determination
dates for calculating distributions for such Distribution Date.
The
Trust
Administrator will make such statement (and, at its option, any additional
files
containing the same information in an alternative format) available each month
to Certificateholders, the Master Servicer, the Servicer, the Depositor and
the
Rating Agencies via the Trust Administrator’s internet website. The Trust
Administrator’s internet website shall initially be located at
“▇▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling
the Trust Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that
are unable to use the above distribution options are entitled to have a paper
copy mailed to them via first class mail by calling the customer service desk
and indicating such. The Trust Administrator shall have the right to change
the
way such statements are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Trust
Administrator shall provide timely and adequate notification to all above
parties regarding any such changes. As a condition to access the Trust
Administrator’s internet website, the Trust Administrator may require
registration and the acceptance of a disclaimer. The Trust Administrator will
not be liable for the dissemination of information in accordance with this
Agreement. The Trust Administrator shall also be entitled to rely on but shall
not be responsible for the content or accuracy of any information provided
by
third parties for purposes of preparing the distribution date statement and
may
affix thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party
thereto).
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Cut-off
Date.
In
addition, on each Distribution Date, based, as applicable, on information
provided to the Trust Administrator by the Master Servicer (which in turn shall
be based, as applicable, on information provided to the Master Servicer by
the
Servicer), the Trust Administrator shall prepare and make available information,
separated for the Originator, regarding the performance of the Mortgage Loans,
including, but not limited to, information regarding delinquency, loss and
prepayment experience of the Mortgage Loans.
For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined and reported based on the “OTS” methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans. By way of
example, a Mortgage Loan would be Delinquent with respect to a Monthly Payment
due on a Due Date if such Monthly Payment is not made by the close of business
on the Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan would be
more than 30-days Delinquent with respect to such Monthly Payment if such
Monthly Payment were not made by the close of business on the Mortgage Loan’s
second succeeding Due Date. The Servicer hereby represents and warrants to
the
Depositor that this delinquency recognition policy is not less restrictive
than
any delinquency recognition policy established by the primary safety and
soundness regulator, if any, of the Servicer.
Once
each
calendar month, the Trust Administrator shall supply an electronic tape to
Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg Financial
Markets, Inc. on a monthly basis, and shall supply an electronic tape to Loan
Performance and Intex Solutions in a format acceptable to Loan Performance
and
Intex Solutions on a monthly basis.
(b) Within
a
reasonable period of time after the end of each calendar year, the Trust
Administrator shall, upon written request, furnish to each Person who at any
time during the calendar year was a Certificateholder of a Regular Certificate,
if requested in writing by such Person, such information as is reasonably
necessary to provide to such Person a statement containing the information
set
forth in subclauses (i) and (ii) above, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trust Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
prepared and furnished by the Trust Administrator to Certificateholders pursuant
to any requirements of the Code as are in force from time to time.
(c) On
each
Distribution Date, the Trust Administrator shall make available to the NIMS
Insurer and the Residual Certificateholders a copy of the reports forwarded
to
the Regular Certificateholders in respect of such Distribution Date with such
other information as the Trust Administrator deems necessary or
appropriate.
(d) Within
a
reasonable period of time after the end of each calendar year, the Trust
Administrator shall deliver to the NIMS Insurer, upon request, and each Person
who at any time during the calendar year was a Residual Certificateholder,
if
requested in writing by such Person, such information as is reasonably necessary
to provide to such Person a statement containing the information provided
pursuant to the previous paragraph aggregated for such calendar year or
applicable portion thereof during which such Person was a Residual
Certificateholder. Such obligation of the Trust Administrator shall be deemed
to
have been satisfied to the extent that substantially comparable information
shall be prepared and furnished to Certificateholders by the Trust Administrator
pursuant to any requirements of the Code as from time to time in
force.
| SECTION 4.04 |
Remittance
Reports; Advances.
|
(a) On
each
Determination Date, the Servicer shall furnish to the Master Servicer (and
the
Master Servicer shall make available to the NIMS Insurer) a monthly remittance
advice (which together with any supplemental reports is known as the “Remittance
Report”) in a format attached as Exhibit R-2 or in any other format as mutually
agreed to between the Servicer and the Master Servicer, containing such
information regarding the Mortgage Loans as is needed by the Master Servicer
to
perform its duties as set forth in Section 4.01 and 4.02 hereof. Such Remittance
Report will also include a delinquency report substantially in the form set
forth in Exhibit R-1 and a realized loss report substantially in the form set
forth in Exhibit R-3 (or in either case, such other format as mutually agreed
to
between the Servicer and the Master Servicer). No later than 3 Business Days
after the 15th day of each calendar month, the Servicer shall furnish to the
Master Servicer a monthly report containing such information regarding
prepayments in full on Mortgage Loans during the applicable Prepayment Period
in
a format as mutually agreed to between the Servicer and the Master Servicer.
The
Master Servicer shall not be responsible to recompute, recalculate or verify
any
information provided to it by the Servicer.
(b) The
amount of Advances to be made by the Servicer for any Distribution Date shall
equal, subject to Section 4.04(d), the sum of (i) the aggregate amount of
Monthly Payments (net of the related Servicing Fee), due during the related
Due
Period in respect of the Mortgage Loans (other than with respect to any REO
Property or second lien Mortgage Loan as described in clauses (ii) and (iii)
below or a Balloon Mortgage Loan as described below), which Monthly Payments
were delinquent on a contractual basis as of the Close of Business on the
related Determination Date, (ii) with respect to each REO Property, which REO
Property was acquired during or prior to the related Due Period and as to which
REO Property an REO Disposition did not occur during the related Due Period,
an
amount equal to the excess, if any, of the REO Imputed Interest on such REO
Property for the most recently ended calendar month, over the net income from
such REO Property transferred to the Distribution Account pursuant to Section
3.23 for distribution on such Distribution Date and (iii) with respect to each
second lien Mortgage Loan, an amount equal to the interest portion of the
related Monthly Payment (net of the related Servicing Fee). For purposes of
the
preceding sentence, the Monthly Payment on each Balloon Mortgage Loan with
a
delinquent Balloon Payment is equal to the assumed monthly payment that would
have been due on the related Due Date based on the original principal
amortization schedule for such Balloon Mortgage Loan. In addition, the Servicer
shall not be required to advance any Relief Act Interest Shortfalls or to cover
Prepayment Interest Shortfalls in excess of its obligations under Section
3.24.
On
or
before the Servicer Remittance Date, the Servicer shall remit in immediately
available funds to the Trust Administrator for deposit in the Distribution
Account an amount equal to the aggregate amount of Advances, if any, to be
made
in respect of the Mortgage Loans and REO Properties for the related Distribution
Date either (i) from its own funds or (ii) from the Collection Account, to
the
extent of funds held therein for future distribution (in which case it will
cause to be made an appropriate entry in the records of Collection Account
that
amounts held for future distribution have been, as permitted by this Section
4.04, used by the Servicer in discharge of any such Advance) or (iii) in the
form of any combination of (i) and (ii) aggregating the total amount of Advances
to be made by the Servicer with respect to the Mortgage Loans and REO
Properties. Servicing Advances, if any, to be made by the Servicer in respect
of
the Mortgage Loans and REO Properties for the related Distribution Date may
be
made either (i) from its own funds, (ii) from the Collection Account, to the
extent of funds held therein for future distribution (in which case, it shall
cause to be made an appropriate entry in the records of the Collection Account
that amounts held for future distribution have been, as permitted by this
Section 4.04, used by the Servicer in discharge of any such Servicing Advance)
or (iii) in the form of any combination of (i) and (ii) aggregating the total
amount of Servicing Advances to be made by the Servicer with respect to the
Mortgage Loans and REO Properties. Any amounts held for future distribution
used
by the Servicer to make an Advance or Servicing Advance as permitted in the
preceding sentence shall be appropriately reflected in the Servicer’s records
and replaced by the Servicer by deposit in the Collection Account on or before
any future Servicer Remittance Date to the extent that the Available Funds
for
the related Distribution Date (determined without regard to Advances and
Servicing Advances to be made on the Servicer Remittance Date) shall be less
than the total amount that would be distributed to the Classes of
Certificateholders pursuant to Section 4.01 on such Distribution Date if such
amounts held for future distributions had not been so used to make Advances.
The
Trust Administrator will provide notice to the Servicer by telecopy by the
Close
of Business on any Servicer Remittance Date in the event that the amount
remitted by the Servicer to the Trust Administrator on such date is less than
the Advances required to be made by the Servicer for the related Distribution
Date, as set forth in the related Remittance Report.
(c) The
obligation of the Servicer to make Advances and Servicing Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any Mortgage Loan, shall continue until the Mortgage Loan
is paid in full or until all Liquidation Proceeds thereon have been recovered,
or a Final Recovery Determination has been made thereon.
(d) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by the Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance or Servicing Advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by a certification of a Servicing Officer delivered
to the Trust Administrator and the NIMS Insurer (whereupon, upon receipt of
such
certification, the Trust Administrator shall forward a copy of such
certification to the Depositor, the Trustee and the Credit Risk Manager).
Notwithstanding the foregoing, if following the application of Liquidation
Proceeds on any Mortgage Loan that was the subject of a Final Recovery
Determination, any Servicing Advance with respect to such Mortgage Loan shall
remain unreimbursed to the Servicer, then without limiting the provisions of
Section 3.11(a), a certification of a Servicing Officer regarding such
Nonrecoverable Advance shall not be required to be delivered by the Servicer
to
the Trust Administrator.
(e) In
the
event the Servicer fails to make any Advance required to be made by it pursuant
to this Section 4.04 and such failure is not remedied within the applicable
cure
period pursuant to Section 7.01(a), then, pursuant to Section 7.01(a), the
Servicer will be terminated, and, in accordance with Sections 7.01(a) and 7.02,
the Master Servicer or (if the Master Servicer is the Servicer) the Trustee
(in
its respective capacity as successor servicer) or another successor servicer
shall be required to make such Advance on the Distribution Date with respect
to
which the Servicer was required to make such Advance, subject to the Master
Servicer’s or the Trustee’s (or other successor servicer’s) determination of
recoverability. The Master Servicer or the Trustee, as applicable (or other
successor servicer) shall not be required to make any Advance to cover any
Relief Act Interest Shortfall on any Mortgage Loan. If the Master Servicer
or
the Trustee, as applicable (or other successor servicer) is required to make
any
Advances, such advances may be made by it in the manner set forth under (b)
above.
| SECTION 4.05 |
Commission
Reporting.
|
(a) (i)
Using
best efforts, within 10 days after each Distribution Date, and no later than
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Trust Administrator shall, in accordance with industry
standards, prepare and file, on behalf of the Trust, with the Commission via
the
Electronic Data Gathering and Retrieval System (“▇▇▇▇▇”), any Form 10-D required
by the Exchange Act, in form and substance as required by the Exchange Act,
signed by the Master Servicer, with a copy of the monthly statement to be
furnished by the Trust Administrator to the Certificateholders for such
Distribution Date attached thereto. Any disclosure in addition to the monthly
statement that is required to be included on Form 10-D (“Additional Form 10-D
Disclosure”) shall be reported by the parties set forth on Exhibit T to the
Depositor and the Trust Administrator and directed and approved by the Depositor
pursuant to the following paragraph, and the Trust Administrator will have
no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
(ii) For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
within 5 calendar days after the related Distribution Date, (i) the parties
set
forth in Exhibit T shall be required to provide, pursuant to Section 4.05(a)(v)
below, to the Trust Administrator (by email at ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
and by
facsimile at 410-715-2380) and the Depositor, to the extent known, in
▇▇▇▇▇-compatible format, or in such other format as otherwise agreed upon by
the
Trust Administrator and such party, the form and substance of any Additional
Form 10-D Disclosure, if applicable, together with an Additional Disclosure
Notification in the form attached hereto as Exhibit P (an “Additional Disclosure
Notification”) and (ii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-D
Disclosure on Form 10-D. The Trust Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
T of their duties under this paragraph or proactively solicit or procure from
such parties any Additional Form 10-D Disclosure information. The Depositor
will
be responsible for any reasonable fees and expenses assessed or incurred by
the
Trust Administrator in connection with including any Additional Form 10-D
Disclosure on Form 10-D pursuant to this Section.
After
preparing the Form 10-D, the Trust Administrator shall, upon request, forward
electronically a copy of the Form 10-D to the Depositor for review, only to
the
extent that the Form 10-D contains Additional Form 10-D Disclosure. Within
two
Business Days after receipt of such copy, but no later than the 13th calendar
day after the Distribution Date, the Depositor shall notify the Trust
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form
10-D,
the Trust Administrator shall be entitled to assume that such Form 10-D is
in
final form and the Trust Administrator may proceed with the execution and filing
of the Form 10-D. A duly authorized representative of the Master Servicer shall
sign each Form 10-D. If a Form 10-D cannot be filed on time or if a previously
filed Form 10-D needs to be amended, the Trust Administrator will follow the
procedures set forth in Section 4.05(a)(vi). Promptly (but no later than 1
Business Day) after filing with the Commission, the Trust Administrator will
make available on its internet website a final executed copy of each Form 10-D
filed by the Trust Administrator. The parties to this Agreement acknowledge
that
the performance by the Master Servicer and the Trust Administrator of its duties
under Sections 4.05(a)(i), (ii) and (v) related to the timely preparation and
filing of Form 10-D is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under such Sections.
The
Depositor acknowledges that the performance by the Master Servicer and the
Trust
Administrator of its duties under this Section 4.05(a)(ii) related to the timely
preparation, execution and filing of Form 10-D is also contingent upon the
Servicer, the Custodians and any Sub-Servicer or Subcontractor strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Trust
Administrator of any necessary Additional Form 10-D Disclosure pursuant to
the
Custodial Agreement or any other applicable agreement. Neither the Master
Servicer nor the Trust Administrator shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 10-D and Form 10-K,
where
such failure results from the Trust Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto or
any
Custodian, Sub-Servicer or Subcontractor needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
(iii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, the Trust Administrator shall prepare and file on behalf of the
Trust
a Form 8-K, as required by the Exchange Act, provided that the Depositor shall
file the initial Form 8-K in connection with the issuance of the Certificates.
Any disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K other than the initial Form 8-K (“Form 8-K
Disclosure Information”) shall, be reported by the parties set forth on Exhibit
T to the Depositor and the Trust Administrator and directed and approved by
the
Depositor, pursuant to the following paragraph, and the Trust Administrator
will
have no duty or liability for any failure hereunder to determine or prepare
any
Form 8-K Disclosure Information or any Form 8-K, except as set forth in the
next
paragraph.
For
so
long as the Trust is subject to the Exchange Act reporting requirements, no
later than the close of business (New York City Time) on the 2nd
Business
Day after the occurrence of a Reportable Event (i) the parties set forth in
Exhibit T shall be required pursuant to Section 4.05(a)(v) below to provide
to
the Trust Administrator and the Depositor, to the extent known, in
▇▇▇▇▇-compatible format, or in such other format as otherwise agreed upon by
the
Trust Administrator and such party, the form and substance of any Form 8-K
Disclosure Information, if applicable, together with an Additional Disclosure
Notification and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trust Administrator in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
Section.
After
preparing the Form 8-K, the Trust Administrator shall, upon request, forward
electronically a copy of the Form 8-K to the Depositor for review. Promptly,
but
no later than the close of business on the third Business Day after the
Reportable Event, the Depositor shall notify the Trust Administrator in writing
(which may be furnished electronically) of any changes to or approval of such
Form 8-K. In the absence of receipt of any written changes or approval, or
if
the Depositor does not request a copy of a Form 8-K, the Trust Administrator
shall be entitled to assume that such Form 8-K is in final form and the Trust
Administrator may proceed with the execution and filing of the Form 8-K. A
duly
authorized representative of the Master Servicer shall sign each Form 8-K.
If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to
be
amended, the Trust Administrator will follow the procedures set forth in Section
4.05(a)(vi). Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Trust Administrator will make available on its internet website
a final executed copy of each Form 8-K filed by it. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the Trust
Administrator of its duties under this Section 4.05(a)(iii) related to the
timely preparation and filing of Form 8-K is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section 4.05(a)(iii). The Depositor acknowledges that the performance
by the Master Servicer and the Trust Administrator of its duties under this
Section 4.05(a)(iii) related to the timely preparation, execution and filing
of
Form 10-D is also contingent upon the Servicer, the Custodians and any
Sub-Servicer or Subcontractor strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Trust Administrator of any necessary Form 8-K Disclosure
Information pursuant to the Custodial Agreement or any other applicable
agreement. Neither the Master Servicer nor the Trust Administrator shall have
any liability for any loss, expense, damage or claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
8-K, where such failure results from the Trust Administrator’s inability or
failure to receive, on a timely basis, any information from any other party
hereto or any Custodian, Sub-servicer or Subcontractor needed to prepare,
arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
(iv) (A)
On or
prior to 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it
being understood that the fiscal year for the Trust ends on December
31st
of each
year), commencing in March 2007, the Trust Administrator shall prepare and
file
on behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trust Administrator within
the applicable time frames set forth in this Agreement, (i) an annual compliance
statement for the Servicer, the Master Servicer, the Trust Administrator and
any
Sub-Servicer, Subcontractor or other Person engaged by such parties or the
Trustee (together with the Custodian, each a “Reporting Servicer”), as described
under Section 3.20 of this Agreement and the Custodial Agreement, provided,
however, that the Trust Administrator, at its discretion, may omit from the
Form
10-K any annual compliance statement that is not required to be filed with
such
Form 10-K for each Reporting Servicer pursuant to Regulation AB, (ii)(A) the
annual reports on assessment of compliance with Servicing Criteria for each
Reporting Servicer, as described under Section 3.21 of this Agreement and the
Custodial Agreement, and (B) if the report on assessment of compliance with
the
Servicing Criteria identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if each reporting Servicer’s
report on assessment of compliance with Servicing Criteria is not included
as an
exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation why such report is not included provided, however, that the Trust
Administrator, at its discretion, may omit from the Form 10-K any assessment
of
compliance or attestation report described in clause (iii) below that is not
required to be filed with such Form 10-K pursuant to Regulation AB, (iii)(A)
the
registered public accounting firm attestation report as described under Section
3.21 of this Agreement and the Custodial Agreement, and (B) if any registered
public accounting firm attestation report described under Section 3.21
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”) as described below. Any disclosure or information in addition to
(i) through (iv) above that is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”) shall, be reported by the parties set forth on Exhibit T
to the Depositor and the Trust Administrator and directed and approved by the
Depositor pursuant to the following paragraph, and the Trust Administrator
will
have no duty or liability for any failure hereunder to determine or prepare
any
Additional Form 10-K Disclosure, except as set forth in the next
paragraph.
No
later
than March 1st
(with a
10 calendar day cure period) of each year that the Trust is subject to the
Exchange Act reporting requirements, commencing in 2007, (i) the parties set
forth in Exhibit T shall be required to provide pursuant to Section 4.05(a)(v)
below to the Depositor and to the Trust Administrator (by email at ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
and by
facsimile at 410-715-2380), to the extent known, in ▇▇▇▇▇-compatible format,
or
in such other format as otherwise agreed upon by the Trust Administrator and
such party, the form and substance of any Additional Form 10-K Disclosure,
if
applicable, together with an Additional Disclosure Notification and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Trust
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit T of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trust Administrator
in
connection with including any Additional Form 10-K Disclosure on Form 10-K
pursuant to this Section.
After
preparing the Form 10-K, the Trust Administrator shall forward, upon request,
electronically a copy of the Form 10-K to the Depositor for review. Within
three
Business Days after receipt of such copy, but no later than March 25th, the
Depositor shall notify the Trust Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K.
In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Trust Administrator shall be
entitled to assume that such Form 10-K is in final form and the Trust
Administrator may proceed with the execution and filing of the Form 10-K. A
senior officer of the Master Servicer in charge of the master servicing function
shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Trust Administrator will
follow the procedures set forth in Section 4.05(a)(vi). Promptly (but no later
than 1 Business Day) after filing with the Commission, the Trust Administrator
will make available on its internet website a final executed copy of each Form
10-K filed by it. The parties to this Agreement acknowledge that the performance
by the Master Servicer and the Trust Administrator of its duties under Section
4.05(a)(iv) and Section 4.05(a)(v) related to the timely preparation, execution
and filing of Form 10-K is contingent upon such parties strictly observing
all
applicable deadlines in the performance of their duties under such Sections,
Section 3.20 and Section 3.21. The Depositor acknowledges that the performance
by the Master Servicer and the Trust Administrator of its duties under this
Section 4.05(a)(iv) related to the timely preparation, execution and filing
of
Form 10-K is also contingent upon the Servicer, the Custodians and any
Sub-Servicer or Subcontractor strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Trust Administrator of any necessary Additional Form
10-K
Disclosure, any annual statement of compliance and any assessment of compliance
and attestation pursuant to the related Custodial Agreement or any other
applicable agreement. Neither the Master Servicer nor the Trust Administrator
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 10-K, where such failure results from the Trust Administrator’s inability
or failure to receive, on a timely basis, any information from any other party
hereto or any Custodian, Sub-servicer or Subcontractor needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
Each
Form
10-K shall include a certification (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification”), exactly
as set forth in Exhibit N-1 attached hereto, required to be included therewith
pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Each of the Servicer, the Master Servicer
and the Trust Administrator shall provide, and each such party and the Trustee
shall cause any Sub-servicer or Subcontractor engaged by it to provide, to
the
Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the “Certifying Person”), by
March 15th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act, a certification (a “Back-Up Certification”), in the form attached hereto as
Exhibit N-2, upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity’s officers, directors and
Affiliates (collectively with the Certifying Person, “Certification Parties”)
can reasonably rely. A senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of
the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at ▇▇▇-▇▇▇-▇▇▇▇. In the
event that any such party or any Sub-servicer or Subcontractor engaged by such
party is terminated or resigns pursuant to the terms of this Agreement, or
any
other applicable agreement, as the case may be, such party shall provide a
Back-Up Certification to the Certifying Person pursuant to this Section
4.05(a)(iv) with respect to the period of time it was subject to this Agreement
or any other applicable agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Trust Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in
the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing
Agreement.
(v) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trust Administrator’s obligation to
include such Additional Information in the applicable Exchange Act report is
subject to receipt from the entity that is indicated in Exhibit T as the
responsible party for providing that information, if other than the Trust
Administrator, as and when required as described in Section 4.05(a)(ii) through
(iv) above. Each of the Master Servicer, the Servicer, the Trust Administrator
and Depositor hereby agree to notify and to provide, to the extent known, to
the
Trust Administrator and the Depositor, all Additional Disclosure relating to
the
Trust Fund, with respect to which such party is the responsible party for
providing that information, as indicated in Exhibit P hereof. The Swap Provider
will be obligated pursuant to the Swap Agreement to provide to the Trust
Administrator any information that may be required to be included in any Form
10-D, Form 8-K or Form 10-K. The Servicer shall be responsible for determining
the pool concentration applicable to any Sub-Servicer or originator at any
time,
for purposes of disclosure as required by Items 1108 and 1110 of Regulation
AB.
(vi) On
or
prior to January 30 of the first year in which the Trust Administrator is able
to do so under applicable law, the Trust Administrator shall prepare and file
a
Form 15 Suspension Notification relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act.
In
the
event that the Trust Administrator is unable to timely file with the Commission
all or any required portion of any Form 8-K, Form 10-D or Form 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or was delivered to it after the delivery deadlines set
forth in this Agreement or for any other reason, the Trust Administrator will
promptly notify electronically the Depositor. In the case of Form 10-D and
Form
10-K, the parties to this Agreement will cooperate to prepare and file a Form
12b-25 and a Form 10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25
of the Exchange Act. In the case of Form 8-K, the Trust Administrator will,
upon
receipt of all required Form 8-K Disclosure Information and upon the approval
and direction of the Depositor, include such disclosure information on the
next
succeeding Form 10-D. In the event that any previously filed Form 8-K, Form
10-D
or Form 10-K needs to be amended, in connection with any Additional Form 10-D
Disclosure (other than, in the case of Form 10-D, for the purpose of restating
any Monthly Statement), Additional Form 10-K Disclosure or Form 8-K Disclosure
Information, the Trust Administrator will electronically notify the Depositor
and such other parties to the transaction as are affected by such amendment,
and
such parties will cooperate to prepare any necessary Form 8-K/A, Form 10-D/A
or
Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K or Form
10-D
shall be signed by a duly authorized representative or senior officer in charge
of master servicing, as applicable, of the Master Servicer. The parties to
this
Agreement acknowledge that the performance by the Master Servicer and the Trust
Administrator of its duties under this Section 4.05(a)(vi) related to the timely
preparation, execution and filing of Form 15, a Form 12b-25 or any amendment
to
Form 8-K, Form 10-D or Form 10-K is contingent upon each such party performing
its duties under this Section. Neither the Master Servicer nor the Trust
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file any such Form 15, Form 12b-25 or any amendments to Form
8-K,
Form 10-D or Form 10-K, where such failure results from the Trust
Administrator’s inability or failure to receive, on a timely basis, any
information from any other party hereto or any custodian, sub-servicer or
subcontractor needed to prepare, arrange for execution or file such Form 15,
Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trust Administrator, from time
to
time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Trust
Administrator reasonably deems appropriate to prepare and file all necessary
reports with the Commission. The Trust Administrator shall have no
responsibility to file any items other than those specified in this Section
4.05; provided, however, the Trust Administrator will cooperate with the
Depositor in connection with any additional filings with respect to the Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees and expenses
incurred by the Trust Administrator in connection with this Section 4.05 shall
not be reimbursable from the Trust Fund.
(b) (A)
The
Trust Administrator shall indemnify and hold harmless the Depositor and its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(i) a
breach of the Trust Administrator’s obligations under this Section 4.05 or the
Trust Administrator’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Annual Statement
of Compliance and the Assessment of Compliance delivered by the Trust
Administrator pursuant to Section 3.20 and Section 3.21.
(B) The
Depositor shall indemnify and hold harmless the Trust Administrator and the
Master Servicer and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Depositor under
this Section 4.05 or the Depositor’s negligence, bad faith or willful misconduct
in connection therewith.
(C) The
Master Servicer shall indemnify and hold harmless the Trust Administrator and
the Depositor and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) a breach of the obligations of the Master
Servicer under this Section 4.05 or the Master Servicer’s negligence, bad faith
or willful misconduct in connection therewith or (ii) any material misstatement
or omission in the Statement as to Compliance delivered by the Master Servicer
pursuant to Section 3.20 or the Assessment of Compliance delivered by the Master
Servicer pursuant to Section 3.21.
(D) The
Servicer shall indemnify and hold harmless the Master Servicer, Trust
Administrator and the Depositor and their respective officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon (i) a breach of the obligations of
the
Servicer under Section 3.20, Section 3.21 or Section 4.06, including any failure
by the Servicer (or any Sub-Servicer or any Subcontractor engaged by the
Servicer), to provide any Back-Up Certification, annual statement of compliance,
annual assessment of compliance with Servicing Criteria or attestation report,
any information, data or materials required to be included in any Exchange
Act
report or any other information or material when and as required under Sections
3.20, 3.21 or 4.05, or the Servicer’s negligence, bad faith or willful
misconduct in connection therewith and (ii) any
material misstatement or omission contained in any information, disclosure,
report, certification, data, accountants’ letter or other material provided
under Sections 3.20, 3.21 and 4.05 to the Master Servicer or the Trust
Administrator by or on behalf of the Servicer or on behalf of any Sub-Servicer
or Subcontractor), including any material misstatement or material omission
in
(i) any Back-Up Certification, annual statement of compliance, annual assessment
of compliance with Servicing Criteria or attestation report delivered by the
Servicer, or by any Sub-Servicer or Subcontractor engaged by it, pursuant to
this Agreement, or (ii) any Additional Form 10-D Disclosure, Additional Form
10-K Disclosure or Form 8-K Disclosure Information provided by the
Servicer.
(E) The
Trustee (and in its capacity as Custodian) shall indemnify and hold harmless
the
Master Servicer, Trust Administrator and the Depositor and their respective
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(i) a
breach of the obligations of the Trustee under Section 3.21 or Section 4.06,
including any failure by the Trustee, to provide any annual assessment of
compliance or attestation report, any information, data or materials required
to
be included in any Exchange Act report or any other information or material
when
and as required under Sections 3.21 or 4.05, or the Trustee’s negligence, bad
faith or willful misconduct in connection therewith and (ii) any
material misstatement or omission contained in any information, disclosure,
report, certification, data, accountants’ letter or other material provided
under Sections 3.20, 3.21 and 4.05 to the Master Servicer or the Trust
Administrator by or on behalf of the Trustee,
including any material misstatement or material omission in (i) any annual
assessment of compliance or attestation report, or (ii) any Additional Form
10-D
Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information
provided by the Trustee.
(F) If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, the Master Servicer, the Trustee or the Trust
Administrator, as applicable, then the defaulting party, in connection with
a
breach of its respective obligations under this Section 4.05 or its respective
negligence, bad faith or willful misconduct in connection therewith, agrees
that
it shall contribute to the amount paid or payable by the other parties as a
result of the losses, claims, damages or liabilities of the other party in
such
proportion as is appropriate to reflect the relative fault and the relative
benefit of the respective parties. This indemnification shall survive the
termination of this Agreement or the termination of any party to this
Agreement.
(c) Nothing
shall be construed from the foregoing subsections (a) and (b) to require the
Trust Administrator or any officer, director or Affiliate thereof to sign any
Form 10-K or any certification contained therein. Furthermore, the inability
of
the Trust Administrator to file a Form 10-K as a result of the lack of required
information as set forth in Section 4.05(a) or required signatures on such
Form
10-K or any certification contained therein shall not be regarded as a breach
by
the Trust Administrator of any obligation under this Agreement.
(d) Notwithstanding
the provisions of Section 11.01, this Section 4.05 may be amended without the
consent of the Certificateholders.
(e) Each
of
the parties agrees to provide to the Master Servicer and the Trust Administrator
such additional information related to such party as the Master Servicer and
the
Trust Administrator may reasonably request, including evidence of the
authorization of the person signing any certificate or statement, financial
information and reports, and such other information related to such party or
its
performance hereunder.
(f) Any
notice or notification required to be delivered by the Trust Administrator
or
Master Servicer to the Depositor pursuant to this 4.05, may be delivered via
facsimile to the legal department at (▇▇▇) ▇▇▇-▇▇▇▇, with a copy delivered
to
the operations group at facsimile (▇▇▇) ▇▇▇-▇▇▇▇.
| SECTION 4.06 |
[Reserved]
|
| SECTION 4.07 |
[Reserved]
|
| SECTION 4.08 |
Distributions
on the REMIC Regular Interests.
|
(a) On
each
Distribution Date, the Trust Administrator shall cause in the following order
of
priority, the following amounts which shall be deemed to be distributed by
REMIC
1 to REMIC 2 on account of the REMIC 1 Regular Interests or withdrawn from
the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-1 Interest), as the case may be:
(i) to
Holders of each of REMIC 1 Regular Interest I and REMIC 1 Regular Interest
I-1-A
through I-28-B, on a pro
rata
basis,
in an amount equal to (A) Uncertificated Accrued Interest for such REMIC 1
Regular Interests for such Distribution Date, plus (B) any amounts payable
in
respect thereof remaining unpaid from previous Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(A)
above, payments of principal shall be allocated as follows: first, to REMIC
1
Regular Interest I and then to REMIC 1 Regular interests I-1-A through I-28-B
starting with the lowest numerical denomination until the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest is reduced to zero,
provided that, for REMIC 1 Regular Interests with the same numerical
denomination, such payments of principal shall be allocated pro rata between
such REMIC 1 Regular Interests; and
(iii) to
the
Holders of REMIC 1 Regular Interest P, (A) on each Distribution Date, 100%
of
the amount paid in respect of Prepayment Charges and (B) on the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause.
(b) On
each
Distribution Date, the Trust Administrator shall cause in the following order
of
priority, the following amounts which shall be deemed to be distributed by
REMIC
2 to REMIC 3 on account of the REMIC 2 Regular Interests or withdrawn from
the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-2 Interest), as the case may be:
(i) first,
to
the Holders of REMIC 2 Regular Interest LTIO, in an amount equal to (A)
Uncertificated Accrued Interest for such REMIC 2 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates;
(ii) second,
to the extent of Available Funds, to Holders of REMIC 2 Regular Interest LTAA,
REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest
LTM10, REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2, REMIC
2
Regular Interest LTZZ and REMIC 2 Regular Interest LTP, on a pro
rata
basis,
in an amount equal to (A) the Uncertificated Accrued Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates. Amounts payable as Uncertificated Accrued Interest
in respect of REMIC 2 Regular Interest LTZZ shall be reduced and deferred when
the REMIC 2 Overcollateralization Amount is less than the REMIC 2
Overcollateralization Target Amount, by the lesser of (x) the amount of such
difference and (y) the Maximum Uncertificated Accrued Interest Deferral Amount
and such amount will be payable to the Holders of REMIC 2 Regular Interest
LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC
2
Regular Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8,
REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular
Interest LTB1 and REMIC 2 Regular Interest LTB2 in the same proportion as the
Overcollateralization Deficiency Amount is allocated to the Corresponding
Certificates and the Uncertificated Principal Balance of the REMIC 2 Regular
Interest LTZZ shall be increased by such amount; and
(iii) third,
to
the Holders of REMIC 2 Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above, allocated as follows:
(a) 98.00%
of
such remainder to the Holders of REMIC 2 Regular Interest LTAA and REMIC 2
Regular Interest LTP, until the Uncertificated Principal Balance of such
Uncertificated REMIC 2 Regular Interest is reduced to zero; provided, however,
that REMIC 2 Regular Interest LTP shall not be reduced until the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC 2 Regular
Interest LTP, until $100 has been distributed pursuant to this
clause;
(b) 2.00%
of
such remainder first, to the Holders of REMIC 2 Regular Interest LTIA1, REMIC
2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTB1
and
REMIC 2 Regular Interest LTB2, of and in the same proportion as principal
payments are allocated to the Corresponding Certificates, until the
Uncertificated Principal Balances of such REMIC 2 Regular Interests are reduced
to zero, and second, to the Holders of REMIC 2 Regular Interest LTZZ, until
the
Uncertificated Principal Balance of such REMIC 2 Regular Interest is reduced
to
zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-2 Interest);
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Release Amount shall be allocated
to
Holders of (i) REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTP,
in that order and (ii) REMIC 2 Regular Interest LTZZ, respectively; provided
that REMIC 2 Regular Interest LTP shall not be reduced until the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC 2 Regular
Interest LTP, until $100 has been distributed pursuant to this
clause.
| SECTION 4.09 |
Allocation
of Realized Losses.
|
(a) All
Realized Losses on the Mortgage Loans allocated to any Regular Certificate
shall
be allocated by the Trust Administrator on each Distribution Date as follows:
first, to Net Monthly Excess Cashflow; second, to
Net
Swap
Payments received under the Interest Rate Swap Agreement; third, to the Class
C
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; fourth, to the Class B-2 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; fifth, to the Class B-1 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero; sixth,
to the Class M-10 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; seventh, to the Class M-9 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eighth, to
the
Class M-8 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; ninth to the Class M-7 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; tenth, to the Class M-6
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; eleventh, to the Class M-5 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; twelfth, to the Class M-4
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; thirteenth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; fourteenth, to the Class
M-2
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero and fifteenth, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All Realized Losses to
be
allocated to the Certificate Principal Balances of all Classes on any
Distribution Date shall be so allocated after the actual distributions to be
made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Certificates shall be to the Certificate
Principal Balance of such Class immediately prior to the relevant Distribution
Date, before reduction thereof by any Realized Losses, in each case to be
allocated to such Class of Certificates, on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate or Class B Certificate
on any Distribution Date shall be made by reducing the Certificate Principal
Balance thereof by the amount so allocated; any allocation of Realized Losses
to
a Class C Certificates shall be made first by reducing the amount otherwise
payable in respect thereof pursuant to Section 4.01(c)(v). No allocations of
any
Realized Losses shall be made to the Certificate Principal Balances of the
Senior Certificates or the Class P Certificates.
(b) With
respect to the REMIC 1 Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated by the Trust Administrator on each Distribution Date,
first to REMIC 1 Regular Interest I until the Uncertificated Principal Balance
has been reduced to zero, and second, to REMIC 1 Regular Interest I-1-A through
REMIC 1 Regular Interest I-28-B, starting with the lowest numerical denomination
until such REMIC 1 Regular Interest has been reduced to zero, provided that,
for
REMIC 1 Regular Interests with the same numerical denomination, such Realized
Losses shall be allocated pro
rata
between
such REMIC 1 Regular Interests.
(c) All
Realized Losses on the Mortgage Loans shall be deemed to have been allocated
in
the specified percentages, as follows: first, to Uncertificated Accrued Interest
payable to the REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTZZ
up to an aggregate amount equal to the REMIC 2 Interest Loss Allocation Amount,
98% and 2%, respectively; second, to the Uncertificated Principal Balances
of
REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an
aggregate amount equal to the REMIC 2 Principal Loss Allocation Amount, 98%
and
2%, respectively; third, to the Uncertificated Principal Balances of REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTB2 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTB2 has been reduced to zero; fourth,
to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTB1 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTB1 has been reduced to zero; fifth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM10 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM10 has been
reduced to zero; sixth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM9 has been reduced to zero; seventh,
to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTM8 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM8 has been reduced to zero; eighth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM7 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM7 has been
reduced to zero; ninth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM6 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM6 has been reduced to zero; tenth, to
the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM5 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM5 has been reduced to zero; eleventh, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTM4 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM4 has been
reduced to zero; twelfth, to the Uncertificated Principal Balances of REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTM3 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM3 has been reduced to zero; thirteenth,
to the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA,
REMIC
2 Regular Interest LTM2 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM2 has been reduced to zero and fourteenth,
to the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA,
REMIC
2 Regular Interest LTM1 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM1 has been reduced to zero.
| SECTION 4.10 |
Swap
Account.
|
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit the Interest Rate Swap
Agreement. The Supplemental Interest Trust shall be maintained by the
Supplemental Interest Trust Trustee. No later than the Closing Date, the
Supplemental Interest Trust Trustee shall establish and maintain a separate,
segregated trust account to be held in the Supplemental Interest Trust, titled,
“Swap Account, ▇▇▇▇▇ Fargo Bank, N.A., as Supplemental Interest Trust Trustee,
in trust for the registered Certificateholders of Fremont Home Loan Trust
2006-2, Asset-Backed Certificates, Series 2006-2.” Such account shall be an
Eligible Account and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other moneys, including, without
limitation, other moneys of the Trust Administrator held pursuant to this
Agreement. Amounts therein shall be held uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the
Supplemental Interest Trust Trustee shall deposit into the Swap Account: (i)
the
amount of any Net Swap Payment or Swap Termination Payment (other than any
Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed to the
Swap Provider (after taking into account any upfront payment received from
the
counterparty to a replacement interest rate swap agreement) from funds collected
and received with respect to the Mortgage Loans prior to the determination
of
Available Funds. For federal income tax purposes, any amounts paid to the Swap
Provider on each Distribution Date shall first be deemed paid to the Swap
Provider in respect of REMIC 6 Regular Interest SWAP IO to the extent of the
amount distributable on REMIC 6 Regular Interest SWAP IO on such Distribution
Date, and any remaining amount shall be deemed paid to the Swap Provider in
respect of a Class IO Distribution Amount (as defined below).
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the Holder of the Class C Certificates unless and until
the date when either (a) there is more than one Class C Certificateholder or
(b)
any Class of Certificates in addition to the Class C Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Supplemental Interest Trust be treated as a partnership; provided,
that the Trust Administrator shall not be required to prepare and file
partnership tax returns in respect of such partnership unless it receives
additional reasonable compensation (not to exceed $10,000 per year) for the
preparation of such filings, written notification recognizing the creation
of a
partnership agreement or comparable documentation evidencing the partnership,
if
any. The Supplemental Interest Trust will be an “outside reserve fund” within
the meaning of Treasury Regulation Section 1.860G-2(h).
(d) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Supplemental Interest Trust Trustee, any obligation of the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
shall
be deemed to be an obligation of the Supplemental Interest Trust.
(e) The
Trust
Administrator shall treat the Holders of Certificates (other than the Class
P,
Class C, Class R and Class R-X Certificates) as having entered into a notional
principal contract with respect to the Holders of the Class C Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class C, Class R and Class R-X Certificates) shall
be
treated as having agreed to pay, on each Distribution Date, to the Holder of
the
Class C Certificates an aggregate amount equal to the excess, if any, of (i)
the
amount payable on such Distribution Date on the REMIC 2 Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on
such
Class of Certificates on such Distribution Date (such excess, a “Class
IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the excess of (a) the amount of interest otherwise
payable to such Certificates over (ii) the amount of interest payable to such
Certificates at a per annum rate equal to the Net WAC Rate, and a Class IO
Distribution Amount payable from principal collections shall be allocated to
the
most subordinate Class of Certificates with an outstanding principal balance
to
the extent of such balance. In addition, pursuant to such notional principal
contract, the Holder of the Class C Certificates shall be treated as having
agreed to pay Net WAC Rate Carryover Amounts to the Holders of the Certificates
(other than the Class C, Class P, Class R and Class R-X Certificates) in
accordance with the terms of this Agreement. Any payments to the Certificates
from amounts deemed received in respect of this notional principal contract
shall not be payments with respect to a Regular Interest in a REMIC within
the
meaning of Code Section 860G(a)(1). However, any payment from the Certificates
(other than the Class C, Class P, Class R and Class R-X Certificates) of a
Class
IO Distribution Amount shall be treated for tax purposes as having been received
by the Holders of such Certificates in respect of their interests in REMIC
3 and
as having been paid by such Holders pursuant to the notional principal contract.
Thus, each Certificate (other than the Class P and Class R Certificates) shall
be treated as representing not only ownership of Regular Interests in REMIC
2,
but also ownership of an interest in, and obligations with respect to, a
notional principal contract.
(f) The
Trust
Administrator shall, at the direction of the Depositor, enforce all of its
rights and exercise any remedies under the Swap Agreement. In the event the
Swap
Agreement is terminated as a result of the designation by either party thereto
of an Early Termination Date (as defined therein), the Trust Administrator
shall, at the direction of the Depositor, appoint a replacement counterparty
to
enter into a replacement swap agreement. The Trust Administrator 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 Trust Administrator shall be deposited in the Swap Account
and
shall be used to make any upfront payment required under a replacement swap
agreement and any upfront payment received from the counterparty to a
replacement swap agreement shall be used to pay any Swap Termination Payment
owed to the Swap Provider.
(g) For
federal tax return and information reporting, the right of the Holders of the
Fixed Rate Certificates and Floating Rate Certificates to receive payments
from
the Supplemental Interest Trust shall be assigned a value of
$13,204,501.
| SECTION 4.11 |
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
For
federal income tax purposes, each holder of a Floating Rate Certificate is
deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Net WAC Rate
Carryover Reserve Account or the Swap Account in respect of the Net WAC Rate
Carryover Amount or the obligation to make payments to the Swap Account. For
federal income tax purposes, the Trust Administrator will account for payments
to each Floating Rate Certificates as follows: each Floating Rate Certificate
will be treated as receiving their entire payment from REMIC 3 (regardless
of
any Swap Termination Payment or obligation under the Interest Rate Swap
Agreement) and subsequently paying their portion of any Swap Termination Payment
in respect of each such Class’ obligation under the Interest Rate Swap
Agreement. In the event that any such Class is resecuritized in a REMIC, the
obligation under the Interest Rate Swap Agreement to pay any such Swap
Termination Payment (or any shortfall in Swap Provider Fee), will be made by
one
or more of the REMIC Regular Interests issued by the resecuritization REMIC
subsequent to such REMIC Regular Interest receiving its full payment from any
such Floating Rate Certificate.
The
REMIC
regular interest corresponding to a Floating Rate Certificate will be entitled
to receive interest and principal payments at the times and in the amounts
equal
to those made on the certificate to which it corresponds, except that (i) the
maximum interest rate of that REMIC regular interest will equal the Net WAC
Rate
computed for this purpose by limiting the Base Calculation Amount of the
Interest Rate Swap Agreement to the aggregate Stated Principal Balance of the
Mortgage Loans and (ii) any Swap Termination Payment will be treated as being
payable solely from Net Monthly Excess Cashflow. As a result of the foregoing,
the amount of distributions and taxable income on the REMIC regular interest
corresponding to a Floating Rate Certificate may exceed the actual amount of
distributions on the Floating Rate Certificate.
ARTICLE
V
THE
CERTIFICATES
| SECTION 5.01 |
The
Certificates.
|
Each
of
the Fixed Rate Certificates, the Floating Rate Certificates, the Class P
Certificates, the Class C Certificates and the Residual Certificates shall
be
substantially in the forms annexed hereto as exhibits, and shall, on original
issue, be executed, authenticated and delivered by the Trust Administrator
to or
upon the order of the Depositor concurrently with the sale and assignment to
the
Trust Administrator of the Trust Fund. The Fixed Rate Certificates and the
Floating Rate Certificates shall be initially evidenced by one or more
Certificates representing a Percentage Interest with a minimum dollar
denomination of $25,000 and integral dollar multiples of $1.00 in excess
thereof; provided, that the Fixed Rate Certificates and the Floating Rate
Certificates must be purchased in minimum total investments of $100,000 per
Class and that one Certificate of each such Class of Certificates may be in
a
different denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Certificate Principal Balance of
such
Class on the Closing Date. The Class C Certificates, the Class P Certificates
and the Residual Certificates are issuable in any Percentage Interests;
provided, however, that the sum of all such percentages for each such Class
totals 100% and no more than ten Certificates of each Class may be issued and
outstanding at any one time.
The
Certificates shall be executed on behalf of the Trust Administrator by manual
or
facsimile signature on behalf of the Trust Administrator by a Responsible
Officer. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures were affixed, authorized to sign
on
behalf of the Trust Administrator shall bind the Trust, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at
the date of such Certificate. No Certificate shall be entitled to any benefit
under this Agreement or be valid for any purpose, unless such Certificate shall
have been manually authenticated by the Trust Administrator substantially in
the
form provided for herein, and such authentication upon any Certificate shall
be
conclusive evidence, and the only evidence, that such Certificate has been
duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication. Subject to Section 5.02(c), the Fixed Rate Certificates
and the Floating Rate Certificates shall be Book-Entry Certificates. The other
Classes of Certificates shall not be Book-Entry Certificates.
| SECTION 5.02 |
Registration
of Transfer and Exchange of
Certificates.
|
(a) The
Certificate Registrar shall cause to be kept at the Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as it
may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trust Administrator shall initially serve as Certificate Registrar for
the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided.
Upon
surrender for registration of transfer of any Certificate at any office or
agency of the Certificate Registrar maintained for such purpose pursuant to
the
foregoing paragraph which office shall initially be the offices of the Trust
Administrator’s agent located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services - Fremont Home Loan Trust
2006-2, and, in the case of a Residual Certificate, upon satisfaction of the
conditions set forth below, the Trust Administrator on behalf of the Trust
shall
execute, authenticate and deliver, in the name of the designated transferee
or
transferees, one or more new Certificates of the same aggregate Percentage
Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the Trust
Administrator shall execute on behalf of the Trust and authenticate and deliver
the Certificates which the Certificateholder making the exchange is entitled
to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trust Administrator or the Certificate
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer satisfactory to the Trust Administrator and the Certificate Registrar
duly executed by, the Holder thereof or his attorney duly authorized in writing.
In addition, (i) with respect to each Class R Certificate, the holder thereof
may exchange, in the manner described above, such Class R Certificate for four
separate certificates, each representing such holder’s respective Percentage
Interest in the Class R-1 Interest, the Class R-2 Interest and the Class R-3
Interest that was evidenced by the Class R Certificate being exchanged and
(ii)
with respect to each Class R-X Certificate, the holder thereof may exchange,
in
the manner described above, such Class R-X Certificate for three separate
certificates, each representing such holder’s respective Percentage Interest in
the Class R-4 Interest, the Class R-5 Interest and the Class R-6 Interest that
was evidenced by the Class R-X Certificate being exchanged.
(b) Except
as
provided in paragraph (c) below, the Book-Entry Certificates shall at all times
remain registered in the name of the Depository or its nominee and at all times:
(i) registration of such Certificates may not be transferred by the Trust
Administrator except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect
to
ownership and transfers of such Certificates; (iii) ownership and transfers
of
registration of such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the Depository
may collect its usual and customary fees, charges and expenses from its
Depository Participants; (v) The Trustee, the Trust Administrator, the Master
Servicer and the Depositor may for all purposes deal with the Depository as
representative of the Certificate Owners of the Certificates for purposes of
exercising the rights of Holders under this Agreement, and requests and
directions for and votes of such representative shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners;
(vi)
the Trust Administrator may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners; and (vii) the
direct participants of the Depository shall have no rights under this Agreement
under or with respect to any of the Certificates held on their behalf by the
Depository, and the Depository may be treated by the Trust Administrator and
its
agents, employees, officers and directors as the absolute owner of the
Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute a Letter of Representations with the Depository or take such other
action as may be necessary or desirable to register a Book-Entry Certificate
to
the Depository. In the event of any conflict between the terms of any such
Letter of Representation and this Agreement, the terms of this Agreement shall
control.
(c) If
(i)(x)
the Depository or the Depositor advises the Trust Administrator in writing
that
the Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Trustee or the Depositor is unable
to
locate a qualified successor or (ii) after the occurrence of a Servicer Event
of
Termination or a Master Servicer Event of Termination, the Certificate Owners
of
the Book-Entry Certificates representing Percentage Interests of such Classes
aggregating not less than 51% advise the Trust Administrator and Depository
through the Financial Intermediaries and the Depository Participants in writing
that the continuation of a book-entry system through the Depository to the
exclusion of definitive, fully registered certificates (the “Definitive
Certificates”) to Certificate Owners is no longer in the best interests of the
Certificate Owners. Upon surrender to the Certificate Registrar of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trust Administrator
shall
in the case of (i) and (ii) above, execute on behalf of the Trust and
authenticate the Definitive Certificates. None of the Depositor, the Master
Servicer, the Servicer, the Trustee or the Trust Administrator shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Trust Administrator, the Certificate
Registrar, the Servicer, the Master Servicer, any Paying Agent and the Depositor
shall recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No
transfer, sale, pledge or other disposition of any Class
B-1
Certificate,
Class
B-2 Certificate, Class C Certificate, Class P Certificate or Residual
Certificate (the “Private Certificates”) shall be made unless such disposition
is exempt from the registration requirements of the Securities Act of 1933,
as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and laws. In the event of any such transfer (other
than in connection with (i) the initial transfer of any such Certificate by
the
Depositor to an Affiliate of the Depositor or, in the case of the Class R-X
Certificates, the first transfer by an Affiliate of the Depositor or the first
transfer by the initial transferee of an Affiliate of the Depositor, (ii) the
transfer of any such Class C, Class P or Residual Certificate to the issuer
under the Indenture or the indenture trustee under the Indenture or (iii) a
transfer of any such Class C, Class P or Residual Certificate from the issuer
under the Indenture or the indenture trustee under the Indenture to the
Depositor or an Affiliate of the Depositor), (x) unless such transfer is made
in
reliance upon Rule 144A (as evidenced by the investment letter delivered to
the
Trust Administrator, in substantially the form attached hereto as Exhibit J)
under the 1933 Act, the Trust Administrator and the Depositor shall require
a
written Opinion of Counsel (which may be in-house counsel) acceptable to and
in
form and substance reasonably satisfactory to the Trust Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act or is being
made pursuant to the 1933 Act, which Opinion of Counsel shall not be an expense
of the Trust Administrator or the Depositor or (y) the Trust Administrator
shall
require the transferor to execute a transferor certificate (in substantially
the
form attached hereto as Exhibit L) and the transferee to execute an investment
letter (in substantially the form attached hereto as Exhibit J) acceptable
to
and in form and substance reasonably satisfactory to the Depositor and the
Trust
Administrator certifying to the Depositor and the Trust Administrator the facts
surrounding such transfer, which investment letter shall not be an expense
of
the Trust Administrator or the Depositor. The Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee, the Trust Administrator and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
Notwithstanding
the foregoing, in the event of any such transfer of any Ownership Interest
in
any Private Certificate that is a Book-Entry Certificate, except with respect
to
the initial transfer of any such Ownership Interest by the Depositor, such
transfer shall be required to be made in reliance upon Rule 144A under the
1933
Act, and the transferor will be deemed to have made each of the transferor
representations and warranties set forth Exhibit L hereto in respect of such
interest as if it was evidenced by a Definitive Certificate and the transferee
will be deemed to have made each of the transferee representations and
warranties set forth Exhibit J hereto in respect of such interest as if it
was
evidenced by a Definitive Certificate. The Certificate Owner of any such
Ownership Interest in any such Book-Entry Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust Administrator
and
the Depositor against any liability that may result if the transfer is not
so
exempt or is not made in accordance with such federal and state
laws.
Notwithstanding
the foregoing, no certification or Opinion of Counsel described above in this
Section 5.02(d) will be required in connection with the transfer, on the Closing
Date, of any Residual Certificate by the Depositor to an “accredited investor”
within the meaning of Rule 501 of the 1933 Act.
No
transfer of a Class C Certificate, Class P Certificate or Residual Certificate
or any interest therein shall be made to any Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any Person acquiring such Certificates with “Plan Assets” of a Plan
within the meaning of the Department of Labor regulation promulgated at 29
C.F.R. § 2510.3-101 (“Plan Assets”), as certified by such transferee in the form
of Exhibit M, unless the Trust Administrator is provided with an Opinion of
Counsel for the benefit of the Trustee, the Trust Administrator, the Depositor,
the Master Servicer and the Servicer and on which they may rely which
establishes to the satisfaction of the Depositor, the Trust Administrator,
the
Servicer and the Master Servicer that the purchase of such Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee or the Trust Fund to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Master Servicer, the Servicer,
the
Trust Administrator, the Trustee or the Trust Fund. Neither a certification
nor
an Opinion of Counsel will be required in connection with (i) the initial
transfer of any such Certificate by the Depositor to an Affiliate of the
Depositor, (ii) the transfer of any such Class C Certificate, Class P
Certificate or Residual Certificate to the issuer under the Indenture or the
indenture trustee under the Indenture or (iii) a transfer of any such Class
C
Certificate, Class P Certificate or Residual Certificate from the issuer under
the Indenture or the indenture trustee under the Indenture to the Depositor
or
an Affiliate of the Depositor (in which case, the Depositor or any Affiliate
thereof shall have deemed to have represented that such Affiliate is not a
Plan
or a Person investing Plan Assets) and the Trust Administrator shall be entitled
to conclusively rely upon a representation (which, upon the request of the
Trust
Administrator, shall be a written representation) from the Depositor of the
status of such transferee as an affiliate of the Depositor.
For
so
long as the Supplemental Interest Trust is in existence, each beneficial owner
of a Floating Rate Certificate or any interest therein, shall be deemed to
have
represented, by virtue of its acquisition or holding of the Floating Rate
Certificate, or interest therein, that either (i) it is not a Plan or (ii)
(A)
it is an accredited investor within the meaning of Prohibited Transaction
Exemption (“PTE”) 90-59, 55 Fed. Reg. 36724 (September 6, 1990), as amended by
PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE 2000-58, 65 Fed. Reg. 67765
(November 13, 2000) and PTE 2002-41, 67 Fed. Reg. 54487 (August 22, 2002) (the
“Exemption”) and (B) the acquisition and holding of such Certificate and the
separate right to receive payments from the Supplemental Interest Trust are
eligible for the exemptive relief available under Prohibited Transaction Class
Exemption (“PTCE”) 84-14, 91-38, 90-1, 95-60 or 96-23, in the case of a
Mezzanine Certificate or PTCE 95-60, in the case of a Class B
Certificate.
Subsequent
to the termination of the Supplemental Interest Trust, each Transferee of a
Mezzanine Certificate or Class B Certificate will be deemed to have represented
by virtue of its purchase or holding of such Certificate (or interest therein)
that either (a) such Transferee is not a Plan or purchasing such Certificate
with Plan Assets, (b) in the case of a Mezzanine Certificate, it has acquired
and is holding such Certificate in reliance on the Exemption and that it
understands that there are certain conditions to the availability of the
Exemption including that such Certificate must be rated, at the time of
purchase, not lower than “BBB-” (or its equivalent) by a Rating Agency or (c)
the following conditions are satisfied: (i) such Transferee is an insurance
company, (ii) the source of funds used to purchase or hold such Certificate
(or
interest therein) is an “insurance company general account” (as defined in U.S.
Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60, and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied.
If
any
Mezzanine Certificate or Private Certificate or any interest therein is acquired
or held in violation of the provisions of the two preceding paragraphs, the
next
preceding permitted beneficial owner will be treated as the beneficial owner
of
that Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any such
Certificate or interest therein was effected in violation of the provisions
of
the two preceding paragraphs shall indemnify and hold harmless the Depositor,
the Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS Insurer and the Trust from and against any and all liabilities, claims,
costs or expenses incurred by those parties as a result of that acquisition
or
holding.
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trust
Administrator of any change or impending change in its status as a Permitted
Transferee.
(ii) No
Person
shall acquire an Ownership Interest in a Residual Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trust Administrator shall as a condition to registration of
the
transfer, require delivery to it, in form and substance satisfactory to it,
of
each of the following:
|
(A)
|
an
affidavit in the form of Exhibit K hereto from the proposed transferee
to
the effect that such transferee is a Permitted Transferee and that
it is
not acquiring its Ownership Interest in the Residual Certificate
that is
the subject of the proposed transfer as a nominee, trustee or agent
for
any Person who is not a Permitted Transferee;
and
|
|
(B)
|
a
covenant of the proposed transferee to the effect that the proposed
transferee agrees to be bound by and to abide by the transfer restrictions
applicable to the Residual
Certificates.
|
(iv) Any
attempted or purported transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of a Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. The Trust Administrator shall be under no liability to any Person
for any registration of transfer of a Residual Certificate that is in fact
not
permitted by this Section or for making any distributions due on such Residual
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the Trust
Administrator received the documents specified in clause (iii). The Trust
Administrator shall be entitled to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Residual Certificate.
Any
such distributions so recovered by the Trust Administrator shall be distributed
and delivered by the Trust Administrator to the prior Holder of such Residual
Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trust Administrator shall have the right but not the obligation, without notice
to the Holder of such Residual Certificate or any other Person having an
Ownership Interest therein, to notify the Depositor to arrange for the sale
of
such Residual Certificate. The proceeds of such sale, net of commissions (which
may include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the Trust
Administrator to the previous Holder of such Residual Certificate that is a
Permitted Transferee, except that in the event that the Trust Administrator
determines that the Holder of such Residual Certificate may be liable for any
amount due under this Section or any other provisions of this Agreement, the
Trust Administrator may withhold a corresponding amount from such remittance
as
security for such claim. The terms and conditions of any sale under this clause
(v) shall be determined in the sole discretion of the Trust Administrator and
it
shall not be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trust Administrator upon receipt of reasonable compensation will provide to
the
Internal Revenue Service, and to the persons specified in Sections 860E(e)(3)
and (6) of the Code, information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of residual interests to disqualified
organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Trust
Administrator, in form and substance satisfactory to the Trust Administrator,
(i) written notification from each Rating Agency that the removal of the
restrictions on transfer set forth in this Section will not cause such Rating
Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause any REMIC created
hereunder to fail to qualify as a REMIC.
(e) No
service charge shall be made for any registration of transfer or exchange of
Certificates of any Class, but the Certificate Registrar may require payment
of
a sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall be
canceled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
| SECTION 5.03 |
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(i)
any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (ii) there is delivered to the Trustee,
the
Depositor and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Trustee Administrator, the Trustee or the Certificate Registrar that
such
Certificate has been acquired by a bona fide purchaser, the Trust Administrator
shall execute on behalf of the Trust, authenticate and deliver, in exchange
for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new
Certificate of like tenor and Percentage Interest. Upon the issuance of any
new
Certificate under this Section, the Trust Administrator or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) in connection therewith. Any duplicate Certificate issued pursuant
to
this Section, shall constitute complete and indefeasible evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
| SECTION 5.04 |
Persons
Deemed Owners.
|
The
Servicer, the Depositor, the Master Servicer, the Trust Administrator, the
Trustee, the Certificate Registrar, any Paying Agent and any agent of the
Servicer, the Depositor, the Master Servicer, the Trust Administrator, the
Trustee, the Certificate Registrar or any Paying Agent may treat the Person,
including a Depository, in whose name any Certificate is registered as the
owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, and none of the Depositor,
the Master Servicer, the Trust Administrator, the Trustee, the Certificate
Registrar or any Paying Agent nor any agent of any of them shall be affected
by
notice to the contrary.
| SECTION 5.05 |
Appointment
of Paying Agent.
|
(a) The
Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 4.01. The duties of the Paying Agent
may include the obligation (i) to withdraw funds from the Collection Account
pursuant to Section 3.11(a) and for the purpose of making the distributions
referred to above and (ii) to distribute statements and provide information
to
Certificateholders as required hereunder. The Paying Agent hereunder shall
at
all times be an entity duly organized and validly existing under the laws of
the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. The Paying Agent shall initially be the Trust
Administrator.
ARTICLE
VI
THE
MASTER SERVICER AND THE DEPOSITOR
| SECTION 6.01 |
Liability
of the Master Servicer, the Servicer and the
Depositor.
|
The
Master Servicer and the Servicer shall be liable in accordance herewith only
to
the extent of the obligations specifically imposed upon and undertaken by the
Master Servicer and Servicer herein. The Depositor shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken by the Depositor.
| SECTION 6.02 |
Merger
or Consolidation of, or Assumption of the Obligations of, the Master
Servicer or the Depositor.
|
Any
entity into which the Servicer, the Master Servicer or Depositor may be merged
or consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Servicer the Master Servicer or the Depositor shall
be a party, or any corporation succeeding to the business of the Servicer the
Master Servicer or the Depositor, shall be the successor of the Servicer the
Master Servicer or the Depositor, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor Servicer shall satisfy all the requirements of
Section 7.02 with respect to the qualifications of a successor
Servicer.
| SECTION 6.03 |
Limitation
on Liability of the Servicer, the Master Servicer and
Others.
|
Neither
the Master Servicer, the Servicer or the Depositor nor any of the directors
or
officers or employees or agents of the Master Servicer, the Servicer or the
Depositor shall be under any liability to the Trust or the Certificateholders
for any action taken or for refraining from the taking of any action by the
Master Servicer, the Servicer or the Depositor in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer, the Servicer, the Depositor or any such
Person against any liability which would otherwise be imposed by reason of
its
willful misfeasance, bad faith or negligence in the performance of duties of
the
Master Servicer, the Servicer or the Depositor, as the case may be, or by reason
of its reckless disregard of its obligations and duties of the Master Servicer,
the Servicer or the Depositor, as the case may be, hereunder; provided, further,
that this provision shall not be construed to entitle the Master Servicer and
the Servicer to indemnity in the event that amounts advanced by the Master
Servicer and the Servicer to retire any senior lien exceed Liquidation Proceeds
(in excess of related liquidation expenses) realized with respect to the related
Mortgage Loan. The Master Servicer and the Servicer and any director or officer
or employee or agent of the Master Servicer and the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by
any Person respecting any matters arising hereunder. The Master Servicer and
the
Servicer and the Depositor, and any director or officer or employee or agent
of
the Master Servicer and the Servicer or the Depositor, shall be indemnified
by
the Trust and held harmless against (i) any loss, liability or expense incurred
in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of its willful misfeasance, bad faith
or
negligence in the performance of duties hereunder or by reason of its reckless
disregard of obligations and duties hereunder or (ii) any breach of a
representation or warranty by the Originator regarding the Mortgage Loans.
The
Master Servicer, the Servicer or the Depositor may undertake any such action
which it may deem necessary or desirable in respect of this Agreement, and
the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the reasonable legal expenses
and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust and the Depositor, the Master Servicer,
or
the Servicer shall be entitled to be reimbursed therefor from the Collection
Account as and to the extent provided in Section 3.11, any such right of
reimbursement being prior to the rights of the Certificateholders to receive
any
amount in the Collection Account. The Master Servicer’s and the Servicer’s right
to indemnity or reimbursement pursuant to this Section shall survive any
resignation or termination of the Master Servicer and the Servicer pursuant
to
Section 6.04 or 7.01 with respect to any losses, expenses, costs or liabilities
arising prior to such resignation or termination (or arising from events that
occurred prior to such resignation or termination). This paragraph shall apply
to the Master Servicer and the Servicer solely in their capacity as Master
Servicer and Servicer hereunder and in no other capacities.
| SECTION 6.04 |
Limitation
on Resignation of the Servicer; Assignment of Master
Servicing.
|
The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination pursuant to the preceding sentence
permitting the resignation of the Servicer shall be evidenced by an Opinion
of
Counsel to such effect obtained at the expense of the Servicer and delivered
to
the Trustee, the Trust Administrator and the Master Servicer. No resignation
of
the Servicer shall become effective until the Master Servicer or (if the Master
Servicer is the Servicer) the Trustee or a successor servicer shall have assumed
the Servicer’s responsibilities, duties, liabilities (other than those
liabilities arising prior to the appointment of such successor) and obligations
under this Agreement.
Except
as
expressly provided herein, the Servicer shall not assign or transfer any of
its
rights, benefits or privileges hereunder to any other Person, or delegate to
or
subcontract with, or authorize or appoint any other Person to perform any of
the
duties, covenants or obligations to be performed by the Servicer hereunder.
The
foregoing prohibition on assignment shall not prohibit the Servicer from
designating a Sub-Servicer as payee of any indemnification amount payable to
the
Servicer hereunder; provided, however, no Sub-Servicer shall be a third-party
beneficiary hereunder and the parties hereto shall not be required to recognize
any Subservicer as an indemnitee under this Agreement.
The
Master Servicer may sell, assign or delegate its rights, duties and obligations
as Master Servicer under this Agreement in their entirety; provided, however,
that: (i) the purchaser or transferee accepting such sale, assignment and
delegation (a) shall be a Person qualified to service mortgage loans for ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) shall have a net worth of not less than $50,000,000
(unless otherwise approved by each Rating Agency pursuant to clause (ii) below);
(c) shall be reasonably satisfactory to the Trustee (as evidenced in a writing
signed by the Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it
as
master servicer under this Agreement from and after the effective date of such
assumption agreement; (ii) each Rating Agency shall be given prior written
notice of the identity of the proposed successor to the Master Servicer and
shall confirm in writing to the Master Servicer and the Trustee that any such
sale, assignment or delegation would not result in a withdrawal or a downgrading
of the rating on any Class of Certificates in effect immediately prior to such
sale, assignment or delegation; and (iii) the Master Servicer shall deliver
to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent to such action under this Agreement have been
fulfilled and such action is permitted by and complies with the terms of this
Agreement. No such sale, assignment or delegation shall affect any liability
of
the Master Servicer arising prior to the effective date thereof.
| SECTION 6.05 |
Successor
Master Servicer.
|
In
connection with the appointment of any successor Master Servicer or the
assumption of the duties of the Master Servicer, the Depositor or the Trustee
may make such arrangements for the compensation of such successor Master
Servicer out of payments on the Mortgage Loans as the Depositor or the Trustee
and such successor Master Servicer shall agree. If the successor Master Servicer
does not agree that such market value is a fair price, such successor Master
Servicer shall obtain two quotations of market value from third parties actively
engaged in the master servicing of single-family mortgage loans. Notwithstanding
the foregoing, the compensation payable to a successor Master Servicer may
not
exceed the compensation which the Master Servicer would have been entitled
to
retain if the Master Servicer had continued to act as Master Servicer
hereunder.
| SECTION 6.06 |
Delegation
of Duties.
|
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those set forth
in Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04. Except as provided
in Section 3.02, no such delegation is permitted that results in the delegee
subservicing any Mortgage Loans. The Servicer shall provide the Trustee, the
Trust Administrator and the NIMS Insurer with written notice prior to the
delegation of any of its duties to any Person other than any of the Servicer’s
Affiliates or their respective successors and assigns.
| SECTION 6.07 |
[Reserved].
|
| SECTION 6.08 |
Inspection.
|
The
Servicer, in its capacity as Servicer, shall afford the Depositor, the Master
Servicer, the Trust Administrator, the NIMS Insurer and the Trustee, upon
reasonable notice, during normal business hours, access to all records
maintained by the Servicer in respect of its rights and obligations hereunder
and access to officers of the Servicer responsible for such
obligations.
| SECTION 6.09 |
Duties
of the Credit Risk Manager.
|
For
and on behalf of the Depositor, the Credit Risk Manager will provide reports
and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Charges with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
to the Credit Risk Manager pursuant to the respective Credit Risk Management
Agreement, and the Credit Risk Manager shall look solely to the Servicer and/or
Master Servicer, as applicable, for all information and data (including loss
and
delinquency information and data) relating to the servicing of the Mortgage
Loans. Upon any termination of the Credit Risk Manager or the appointment of
a
successor Credit Risk Manager, the Depositor shall give written notice thereof
to the Servicer, the Trustee, the Master Servicer, the Trust Administrator
and
each Rating Agency. Notwithstanding the foregoing, the termination of the Credit
Risk Manager pursuant to this Section shall not become effective until the
appointment of a successor Credit Risk Manager.
| SECTION 6.10 |
Limitation
Upon Liability of the Credit Risk
Manager.
|
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents shall be under any liability to the Trustee, the Certificateholders,
the
Trust Administrator, the Servicer and/or the Master Servicer or the Depositor
for any action taken or for refraining from the taking of any action made in
good faith pursuant to this Agreement, in reliance upon information provided
by
the Servicer and/or the Master Servicer under the Credit Risk Management
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Credit Risk Manager or any such person against liability
that would otherwise be imposed by reason of willful malfeasance or bad faith
in
its performance of its duties. The Credit Risk Manager and any director,
officer, employee, or agent of the Credit Risk Manager may rely in good faith
on
any document of any kind prima
facie
properly executed and submitted by any Person respecting any matters arising
hereunder, and may rely in good faith upon the accuracy of information furnished
by the Servicer and/or the Master Servicer pursuant to the Credit Risk
Management Agreement in the performance of its duties thereunder and
hereunder.
| SECTION 6.11 |
Removal
of the Credit Risk Manager.
|
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66 2/3% of the Voting Rights in the Trust Fund, in the
exercise of its or their sole discretion. The Certificateholders shall provide
written notice of the Credit Risk Manager’s removal to the Trust Administrator.
Upon receipt of such notice, the Trust Administrator shall provide written
notice to the Credit Risk Manager of its removal, which shall be effective
upon
receipt of such notice by the Credit Risk Manager.
ARTICLE
VII
DEFAULT
| SECTION 7.01 |
Servicer
Events of Termination and Master Servicer Events of
Termination.
|
(a) If
any
one of the following events (“Servicer Events of Termination”) shall occur and
be continuing:
(i) (A)
The
failure by the Servicer to make any Advance; or (B) any other failure by the
Servicer to deposit in the Collection Account or Distribution Account any
deposit required to be made under the terms of this Agreement which continues
unremedied for a period of one Business Day after the date upon which written
notice of such failure shall have been given to the Servicer by the Trust
Administrator or to the Servicer and the Trust Administrator by the NIMS Insurer
or any Holders of a Regular Certificate evidencing at least 25% of the Voting
Rights; or
(ii) The
failure by the Servicer to make any required Servicing Advance which failure
continues unremedied for a period of 30 days, or the failure by the Servicer
duly to observe or perform, in any material respect, any other covenants,
obligations or agreements of the Servicer as set forth in this Agreement, which
failure continues unremedied for a period of 30 days, after the date (A) on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Trust Administrator or to the Trust
Administrator by the NIMS Insurer or any Holders of a Regular Certificate
evidencing at least 25% of the Voting Rights or (B) of actual knowledge of
such
failure by a Servicing Officer of the Servicer; provided, however, that in
the
case of a failure or breach that cannot be cured within 30 days after
notice or actual knowledge by the Servicer, the cure period may be extended
for
an additional 30 days upon delivery by the Servicer to the Depositor, the Master
Servicer, the Trust Administrator and the Trustee of a certificate to the effect
that the Servicer believes in good faith that the failure or breach can be
cured
within such additional time period and the Servicer is diligently pursuing
remedial action; or
(iii) The
entry
against the Servicer of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 days; or
(iv) The
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator or receiver or liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Servicer and such decree or order shall have remained
in force undischarged, unbonded or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors
or
voluntarily suspend payment of its obligations; or
(v) The
Servicer fails to duly perform, within the required time period, its obligations
under Section 3.20, Section 3.21 or Section 4.05, which failure continues
unremedied for a period of three (3) days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given to
the
Servicer by any party to this Agreement;
then,
and
in each and every such case, so long as a Servicer Event of Termination shall
not have been remedied within the applicable grace period, (x) with respect
solely to clause (i)(A) above, if such Advance is not made by 11:00 A.M., New
York time, on the Business Day immediately following the Servicer Remittance
Date (provided the Trust Administrator shall give the Servicer notice of such
failure to advance by 5:00 P.M. New York time on the Servicer Remittance Date),
the Trust Administrator shall, at the direction of the NIMS Insurer, terminate
all of the rights and obligations of the Servicer under this Agreement, to
the
extent permitted by law, and in and to the Mortgage Loans and the proceeds
thereof and the Master Servicer or the Trustee (as
successor master servicer and servicer),
or a
successor servicer appointed in accordance with Section 7.02, shall make such
Advance in accordance with Section 4.04 and assume, pursuant to Section 7.02,
the duties of a successor Servicer, (y) in
the
case of (i)(B), (ii), (iii) and (iv) above, the Trust Administrator shall,
at
the direction of the NIMS Insurer or Holders of each Class of Regular
Certificates evidencing Percentage Interests aggregating not less than 51%,
by
notice then given in writing to the Servicer (and to the Trust Administrator
if
given by Holders of Certificates), terminate all of the rights and obligations
of the Servicer as servicer under this Agreement
and (z)
in the case of (v) above, the Trust Administrator shall, at the direction of
the
Depositor, by notice then given in writing to the Servicer, terminate all of
the
rights and obligations of the Servicer as servicer under this Agreement. Any
such notice to the Servicer shall also be given to each Rating Agency, the
Depositor and the Servicer. On or after the receipt by the Servicer (and by
the
Trustee if such notice is given by the Holders) of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Certificates or the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this Section; and, without
limitation, and the Master Servicer and the Trustee are hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of each Mortgage Loan and related documents or otherwise. The
Servicer agrees to cooperate with the Master Servicer and the Trustee (or the
applicable successor Servicer) in effecting the termination of the
responsibilities and rights of the Servicer hereunder, including, without
limitation, the delivery to the Master Servicer and the Trustee (as successor
master servicer and servicer) of all documents and records requested by it
to
enable it to assume the Servicer’s functions under this Agreement within ten
Business Days subsequent to such notice, the transfer within one Business Day
subsequent to such notice to the Trustee (or the applicable successor Servicer)
for the administration by it of all cash amounts that shall at the time be
held
by the Servicer and to be deposited by it in the Collection Account, the
Distribution Account, any REO Account or any Servicing Account or that have
been
deposited by the Servicer in such accounts or thereafter serviced by the
Servicer with respect to the Mortgage Loans or any REO Property received by
the
Servicer (provided, however, that the Servicer shall continue to be entitled
to
receive all amounts accrued or owing to it under this Agreement on or prior
to
the date of such termination, whether in respect of Advances, Servicing
Advances, accrued Servicing Fees or otherwise, and shall continue to be entitled
to the benefits of Section 6.03, notwithstanding any such termination, with
respect to events occurring prior to such termination). All reasonable costs
and
expenses (including attorneys’ fees) incurred in connection with transferring
the Mortgage Files to the successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid
by
the predecessor Servicer (or if the predecessor Servicer is the Trustee, the
initial Servicer) upon presentation of reasonable documentation of such costs
and expenses and to the extent not paid by the Servicer, by the Trust.
(b) “Master
Servicer Event of Termination,” wherever used herein, means any one of the
following events:
(i) the
Master Servicer fails to cause to be deposited in the Distribution Account
any
amount so required to be deposited pursuant to this Agreement (other than an
Advance), and such failure continues unremedied for a period of three Business
Days after the date upon which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer;
or
(ii) the
Master Servicer fails to observe or perform in any material respect any other
material covenants and agreements set forth in this Agreement to be performed
by
it, which covenants and agreements materially affect the rights of
Certificateholders, and such failure continues unremedied for a period of 60
days after the date on which written notice of such failure, properly requiring
the same to be remedied, shall have been given to the Master Servicer by the
Trustee or to the Master Servicer and the Trustee by the Holders of Certificates
evidencing not less than 25% of the Voting Rights; or
(iii) there
is
entered against the Master Servicer a decree or order by a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the winding
up or liquidation of its affairs, and the continuance of any such decree or
order is unstayed and in effect for a period of 60 consecutive days, or an
involuntary case is commenced against the Master Servicer under any applicable
insolvency or reorganization statute and the petition is not dismissed within
60
days after the commencement of the case; or
(iv) the
Master Servicer consents to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or
substantially all of its property; or the Master Servicer admits in writing
its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes
an
assignment for the benefit of its creditors, or voluntarily suspends payment
of
its obligations; or
(v) the
Master Servicer assigns or delegates its duties or rights under this Agreement
in contravention of the provisions permitting such assignment or delegation
under Section 6.05; or
(vi) any
failure of the Master Servicer to make any Advance (other than a Nonrecoverable
Advance) required to be made from its own funds pursuant to Section 4.04 by
5:00 p.m. New York time on the Business Day prior to the applicable Distribution
Date.
In
each
and every such case, so long as such Master Servicer Event of Termination with
respect to the Master Servicer shall not have been remedied, either the Trustee
or the Holders of Certificates evidencing not less than 51% of the Voting
Rights, by notice in writing to the Depositor, the Master Servicer (and to
the
Trustee if given by such Certificateholders), with a copy to the Rating
Agencies, may terminate all of the rights and obligations (but not the
liabilities) of the Master Servicer under this Agreement and in and to the
Mortgage Loans and/or the REO Property master serviced by the Master Servicer
and the proceeds thereof. Upon the receipt by the Master Servicer of the written
notice, all authority and power of the Master Servicer under this Agreement,
whether with respect to the Certificates, the Mortgage Loans, REO Property
or
under any other related agreements (but only to the extent that such other
agreements relate to the Mortgage Loans or related REO Property) shall, subject
to Section 7.03, automatically and without further action pass to and be
vested in the Trustee(as successor master servicer and servicer) pursuant to
this Section 7.01(b); and, without limitation, the Trustee (as successor
master servicer and servicer) is hereby authorized and empowered to execute
and
deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any
and all documents and other instruments and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer’s rights and obligations hereunder, including, without limitation, the
transfer to the Trustee of (i) the property and amounts which are then or should
be part of the Trust Fund or which thereafter become part of the Trust Fund;
and
(ii) originals or copies of all documents of the Master Servicer reasonably
requested by the Trustee to enable it to assume the Master Servicer’s duties
thereunder. In addition to any other amounts which are then, or, notwithstanding
the termination of its activities under this Agreement, may become payable
to
the Master Servicer under this Agreement, the Master Servicer shall be entitled
to receive, out of any amount received on account of a Mortgage Loan or related
REO Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall
not
affect any obligations incurred by the Master Servicer prior to such
termination.
Notwithstanding
the foregoing, if a Master Servicer Event of Termination described in clause
(v)
of this Section 7.01(b) shall occur, the Trustee shall, by notice in
writing to the Master Servicer, which may be delivered by telecopy, immediately
terminate all of the rights and obligations of the Master Servicer thereafter
arising under this Agreement, but without prejudice to any rights it may have
as
a Certificateholder or to reimbursement of Advances and other advances of its
own funds, and the Trustee shall (as successor master servicer) act as provided
in Section 7.03 to carry out the duties of the Master Servicer, including
the obligation to make any Advance the nonpayment of which was a Master Servicer
Event of Termination described in clause (vi) of this Section 7.01(b). Any
such action taken by the Trustee or the Trust Administrator must be prior to
the
distribution on the relevant Distribution Date.
| SECTION 7.02 |
Master
Servicer or Trustee to Act; Appointment of Successor
Servicer.
|
(a) Within
90
days of the time the Servicer (and the Trustee, if notice is sent by the
Holders) receives a notice of termination pursuant to Section 7.01 or 6.04,
the
Master Servicer or (if the Master Servicer is the Servicer) the Trustee (or
such
other successor Servicer as is approved in accordance with this Agreement)
shall
be the successor in all respects to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein
and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions hereof arising on
and
after its succession. Notwithstanding the foregoing, the parties hereto agree
that the Master Servicer or the Trustee, in its capacity as successor Servicer,
immediately will assume all of the obligations of the Servicer to make advances.
Notwithstanding the foregoing, the Master Servicer or the Trustee, in its
capacity as successor Servicer, shall not be responsible for the lack of
information and/or documents that it cannot obtain through reasonable efforts.
As compensation therefor, the Master Servicer or the Trustee (or such other
successor Servicer) shall be entitled to such compensation as the Servicer
would
have been entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, (i) if the Master Servicer or the Trustee is
unwilling to act as successor Servicer or (ii) if the Master Servicer or the
Trustee is legally unable so to act, the Master Servicer or Trustee shall
appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution, bank or other mortgage loan
or
home equity loan servicer having a net worth of not less than $50,000,000 as
the
successor to the Servicer hereunder in the assumption of all or any part of
the
responsibilities, duties or liabilities of the Servicer hereunder; provided,
that the appointment of any such successor Servicer shall be approved by the
NIMS Insurer (such approval not to be unreasonably withheld), as evidenced
by
the prior written consent of the NIMS Insurer, and will not result in the
qualification, reduction or withdrawal of the ratings assigned to the
Certificates by the Rating Agencies as evidenced by a letter to such effect
from
the Rating Agencies. Pending appointment of a successor to the Servicer
hereunder, the Master Servicer or the Trustee shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
successor shall be entitled to receive compensation out of payments on Mortgage
Loans in an amount equal to the compensation which the Servicer would otherwise
have received pursuant to Section 3.18 (or such other compensation as the Master
Servicer or the Trustee and such successor shall agree, not to exceed the
Servicing Fee). The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer which may have arisen under this Agreement
prior to its termination as Servicer to pay any deductible under an insurance
policy pursuant to Section 3.14 or to reimburse the Master Servicer or Trustee
pursuant to Section 3.06), nor shall any successor Servicer be liable for any
acts or omissions of the predecessor Servicer or for any breach by such Servicer
of any of its representations or warranties contained herein or in any related
document or agreement. The Master Servicer or the Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to
effectuate any such succession. All Servicing Transfer Costs shall be paid
by
the predecessor Servicer upon presentation of reasonable documentation of such
costs, and if such predecessor Servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor Servicer, the Master Servicer
or the Trustee (in which case the successor Servicer, the Master Servicer or
the
Trustee, as applicable, shall be entitled to reimbursement therefor from the
assets of the Trust).
(b) Any
successor to the Servicer, including the Master Servicer or the Trustee, shall
during the term of its service as servicer continue to service and administer
the Mortgage Loans for the benefit of Certificateholders, and maintain in force
a policy or policies of insurance covering errors and omissions in the
performance of its obligations as Servicer hereunder and a fidelity bond in
respect of its officers, employees and agents to the same extent as the Servicer
is so required pursuant to Section 3.14.
(c) In
connection with the resignation, removal or expiration of the term of the
Servicer hereunder, or in connection with the resignation or removal of any
successor to the Servicer (or any other successor to the Servicer appointed
hereunder) acting as successor Servicer hereunder, either (i) the successor
Servicer, (or any other successor to the Servicer appointed hereunder) acting
as
successor Servicer hereunder, shall represent and warrant that it is a member
of
MERS in good standing and shall agree to comply in all material respects with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, in which case the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to revise
its records to reflect the transfer of servicing to the successor Servicer
as
necessary under MERS’ rules and regulations or (ii) the predecessor Servicer
shall cooperate with the successor Servicer in causing MERS to execute and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Master Servicer or the Trustee and to execute and deliver
such
other notices, documents and other instruments as may be necessary or desirable
to effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan
on
the MERS® System to the successor Servicer. The predecessor Servicer shall file
or cause to be filed any such assignment in the appropriate recording office.
The predecessor Servicer shall bear any and all fees of MERS, costs of preparing
any assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this paragraph.
| SECTION 7.03 |
Trustee
to Act; Appointment of Successor Master
Servicer.
|
(a) Upon
the
receipt by the Master Servicer of a notice of termination pursuant to
Section 7.01(b) or an Opinion of Counsel rendered by Independent counsel
pursuant to Section 6.05(b) to the effect that the Master Servicer is
legally unable to act or to delegate its duties to a Person which is legally
able to act, the Trustee shall automatically become the successor in all
respects to the Master Servicer in its capacity under this Agreement and the
transactions set forth or provided for herein and shall thereafter be subject
to
all the responsibilities, duties, liabilities and limitations on liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof; provided, however, that the Trustee (i) shall have no obligation
whatsoever with respect to any liability (other than Advances deemed recoverable
and not previously made) incurred by the Master Servicer at or prior to the
time
of termination and (ii) shall not be obligated to perform any obligation of
the
Master Servicer under Section 3.20 or 3.21 with respect to any period of time
during which the Trustee was not the Master Servicer. As compensation therefor,
but subject to Section 6.05, the Trustee shall be entitled to compensation
which the Master Servicer would have been entitled to retain if the Master
Servicer had continued to act hereunder, except for those amounts due the Master
Servicer as reimbursement permitted under this Agreement for advances previously
made or expenses previously incurred. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable
so to
act, appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a ▇▇▇▇▇▇ ▇▇▇- or
▇▇▇▇▇▇▇ Mac-approved servicer, and with respect to a successor to the Master
Servicer only, having a net worth of not less than $10,000,000, as the successor
to the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the Depositor shall obtain consent and a letter or other evidence
each Rating Agency that the ratings, if any, on each of the Certificates will
not be lowered as a result of the selection of the successor to the Master
Servicer. Pending appointment of a successor to the Master Servicer hereunder,
the Trustee shall act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Trustee may make such arrangements
for
the compensation of such successor out of payments on the Mortgage Loans as
it
and such successor shall agree; provided, however, that the provisions of
Section 6.05 shall apply, the compensation shall not be in excess of that
which the Master Servicer would have been entitled to if the Master Servicer
had
continued to act hereunder, and that such successor shall undertake and assume
the obligations of the Trustee to pay compensation to any third Person acting
as
an agent or independent contractor in the performance of master servicing
responsibilities hereunder. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate
any
such succession.
If
the
Master Servicer and the Trust Administrator are the same entity, then at any
time the Master Servicer resigns or is removed as Master Servicer, the Trust
Administrator shall also be removed hereunder. All reasonable Master Servicing
Transfer Costs shall be paid by the predecessor Master Servicer (or, if the
Trustee is the predecessor master servicer, the Trust Fund) upon presentation
of
reasonable documentation of such costs, and if such predecessor Master Servicer
defaults in its obligation to pay such costs, such costs shall be paid by the
successor Master Servicer or the Trustee (in which case the successor Master
Servicer or the Trustee, as applicable, shall be entitled to reimbursement
therefor from the assets of the Trust Fund).
If
the
Trustee shall succeed to any duties of the Master Servicer respecting the
Mortgage Loans as provided herein, it shall do so in a separate capacity and
not
in its capacity as Trustee and, accordingly, the provisions of Article VIII
shall be inapplicable to the Trustee in its duties as the successor to the
Master Servicer in the master servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VI, however, shall apply to it in its capacity as
successor Master Servicer.
| SECTION 7.04 |
Waiver
of Defaults.
|
The
Majority Certificateholders may, on behalf of all Certificateholders, waive
any
events permitting removal of the Servicer as servicer pursuant to this Article
VII, provided, however, that the Majority Certificateholders may not waive
a
default in making a required distribution on a Certificate without the consent
of the Holder of such Certificate. Upon any waiver of a past default, such
default shall cease to exist and any or Master Servicer Event of Termination
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto except to the extent expressly so waived.
Notice of any such waiver shall be given by the Trust Administrator or the
Trustee as applicable, to the Rating Agencies.
| SECTION 7.05 |
Notification
to Certificateholders.
|
(a) Upon
any
termination or appointment of a successor to the Servicer or the Master Servicer
pursuant to this Article VII or Section 6.04, the Trust Administrator, or in
the
event of the termination of the Master Servicer, the Trustee (or such other
trust administrator) shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register and each Rating Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute a Servicer Event of
Termination or a Master Servicer Event of Termination for five Business Days
after a Responsible Officer of the Trust Administrator (in the case of a
Servicer Event of Termination) or the Trustee (in the case of a Master Servicer
Event of Termination) becomes aware of the occurrence of such an event, the
Trust Administrator or Trustee, as applicable, shall transmit by mail to the
Credit Risk Manager and all Certificateholders notice of such occurrence unless
such default, Servicer Event of Termination or Master Servicer Event of
Termination shall have been waived or cured.
| SECTION 7.06 |
Survivability
of Servicer and Master Servicer
Liabilities.
|
Notwithstanding
anything herein to the contrary, upon termination of the Servicer or the Master
Servicer hereunder, any liabilities of the Servicer or the Master Servicer,
as
applicable, which accrued prior to such termination shall survive such
termination.
ARTICLE
VIII
THE
TRUSTEE
AND THE
TRUST ADMINISTRATOR
| SECTION 8.01 |
Duties
of Trustee and Trust Administrator.
|
The
Trustee and the Trust Administrator, prior to the occurrence of a Servicer
Event
of Termination or Master Servicer Event of Termination and after the curing
of
all Servicer Events of Termination or Master Servicer Events of Termination
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement. If a Servicer Event of
Termination or Master Servicer Event of Termination has occurred (which has
not
been cured) of which a Responsible Officer has knowledge, each of the Trustee
and the Trust Administrator shall exercise such of the rights and powers vested
in it by this Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in
the conduct of his own affairs.
Each
of
the Trustee and the Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that neither the Trustee nor the Trust Administrator will be responsible for
the
accuracy or content of any such resolutions, certificates, statements, opinions,
reports, documents or other instruments. If any such instrument is found not
to
conform to the requirements of this Agreement in a material manner the Trustee
or the Trust Administrator, as applicable, shall take such action as it deems
appropriate to have the instrument corrected, and if the instrument is not
corrected to the Trustee’s or the Trust Administrator’s satisfaction, the
Trustee or the Trust Administrator, as applicable, will provide notice thereof
to the Certificateholders.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however,
that:
(i) prior
to
the occurrence of a Servicer Event of Termination or Master Servicer Event
of
Termination, and after the curing of all such Servicer Events of Termination
or
Master Servicer Events of Termination which may have occurred, the duties and
obligations of the Trustee and the Trust Administrator shall be determined
solely by the express provisions of this Agreement, the Trustee and the Trust
Administrator shall not be liable except for the performance of such duties
and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Trust Administrator and, in the absence of bad faith on the part of
the
Trustee or the Trust Administrator, as applicable, the Trustee or the Trust
Administrator, as applicable, may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the Trust Administrator,
as
the case may be, and conforming to the requirements of this
Agreement;
(ii) neither
the Trustee nor the Trust Administrator shall be personally liable for an error
of judgment made in good faith by a Responsible Officer of the Trustee or the
Trust Administrator, as applicable, unless it shall be proved that the Trustee
or the Trust Administrator, as the case may be, was negligent in ascertaining
the pertinent facts;
(iii) neither
the Trustee nor the Trust Administrator shall be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Majority Certificateholders relating to
the
time, method and place of conducting any proceeding for any remedy available
to
the Trustee or the Trust Administrator, as applicable, or exercising or omitting
to exercise any trust or power conferred upon the Trustee, under this Agreement;
and
(iv) the
Trustee shall not be charged with knowledge of any failure by the Servicer
to
comply with the obligations of the Servicer referred to in clauses (i) and
(ii)
of Section 7.01(a) or of the existence of any Servicer Event of Termination
unless a Responsible Officer of the Trustee at the Corporate Trust Office
obtains actual knowledge of such failure or the Trustee receives written notice
of such failure from the Depositor, the Servicer or the Majority
Certificateholders.
Neither
the Trustee nor the Trust Administrator shall be required to expend or risk
its
own funds or otherwise incur financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this Agreement, except
during such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Master Servicer
in
accordance with the terms of this Agreement.
| SECTION 8.02 |
Certain
Matters Affecting the Trustee and the Trust
Administrator.
|
(a) Except
as
otherwise provided in Section 8.01:
(i) either
the Trustee or the Trust Administrator may request and rely upon, and shall
be
protected in acting or refraining from acting upon, any resolution, Officers’
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document reasonably believed by it to be genuine and to have
been
signed or presented by the proper party or parties, and the manner of obtaining
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee or the Trust Administrator may prescribe;
(ii) either
the Trustee or the Trust Administrator may consult with counsel and any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) neither
the Trustee nor the Trust Administrator shall be under any obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation hereto,
at
the request, order or direction of any of the Certificateholders or the NIMS
Insurer, pursuant to the provisions of this Agreement, unless such
Certificateholders or the NIMS Insurer, as applicable, shall have offered to
the
Trustee or the Trust Administrator, as applicable, reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the right of the Trustee or the Trust Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Trust Administrator shall
be answerable for other than its negligence or willful misconduct in the
performance of any such act;
(iv) neither
the Trustee nor the Trust Administrator shall be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to
be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) prior
to
the occurrence of a Servicer Event of Termination
or
Master Servicer Event of Termination and after the curing of all Servicer Events
of Termination or Master Servicer Events of Termination which may have occurred,
neither the Trustee nor the Trust Administrator shall be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or documents, unless requested in writing to
do so
by the Majority Certificateholder or the NIMS Insurer; provided, however, that
if the payment within a reasonable time to the Trustee or the Trust
Administrator, as applicable, of the costs, expenses or liabilities likely
to be
incurred by it in the making of such investigation is, in the opinion of the
Trustee or the Trust Administrator, as applicable, not reasonably assured to
the
Trustee or the Trust Administrator, as applicable, by the security afforded
to
it by the terms of this Agreement, the Trustee or the Trust Administrator,
as
applicable, may require reasonable indemnity against such cost, expense or
liability as a condition to such proceeding. The reasonable expense of every
such examination shall be paid by the Servicer or the NIMS Insurer (if requested
by the NIMS Insurer) or, if paid by the Trustee or the Trust Administrator,
as
applicable, shall be reimbursed by the Servicer or the NIMS Insurer ( if
requested by the NIMS Insurer) upon demand and, if not reimbursed by the
Servicer or the NIMS Insurer (if requested by the NIMS Insurer), shall be
reimbursed by the Trust. Nothing in this clause (v) shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Mortgagors;
(vi) the
Trustee or the Trust Administrator shall not be accountable, shall have no
liability and make no representation as to any acts or omissions hereunder
of
the Servicer until such time as the Trustee may be required to act as Servicer
pursuant to Section 7.02 and thereupon only for the acts or omissions of the
Trustee as successor Servicer;
(vii) the
Trustee or the Trust Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, custodians or nominees;
(viii) the
right
of the Trustee or the Trust Administrator to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct
in
the performance of such act;
(ix) neither
the Trustee nor the Trust Administrator shall be personally liable for any
loss
resulting from the investment of funds held in the Collection Account or the
REO
Account made at the direction of the Servicer pursuant to Section 3.12;
and
(x) the
Trustee or the Trust Administrator or its Affiliates are permitted to receive
compensation that could be deemed to be in the Trustee’s or the Trust
Administrator’s economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation shall not be considered
an
amount that is reimbursable or payable pursuant to Section 3.11.
To
help
fight the funding of terrorism and money laundering activities, the Trustee
or
the Trust Administrator will obtain, verify, and record information that
identifies individuals or entities that establish a relationship or open an
account with the Trustee or the Trust Administrator. The Trustee or the Trust
Administrator will ask for the name, address, tax identification number and
other information that will allow the Trustee or the Trust Administrator to
identify the individual or entity who is establishing the relationship or
opening the account. The Trustee or the Trust Administrator may also ask for
formation documents such as articles of incorporation, an offering memorandum,
or other identifying documents to be provided.
| SECTION 8.03 |
Trustee
and Trust Administrator Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein and in the Certificates (other than, with respect
to
the Trust Administrator, the authentication of the Trust Administrator on the
Certificates) shall be taken as the statements of the Depositor, and neither
the
Trustee nor the Trust Administrator assumes responsibility for the correctness
of the same. Neither the Trustee nor the Trust Administrator makes any
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than, with respect to the Trust Administrator, the signature
and authentication of the Trust Administrator on the Certificates) or of any
Mortgage Loan or related document or MERS or the MERS® System other than, with
respect to the Trust Administrator, the Trust Administrator’s execution and
authentication of the Certificates. Neither the Trustee nor the Trust
Administrator shall be accountable for the use or application by the Servicer,
or for the use or application of any funds paid to the Servicer in respect
of
the Mortgage Loans or deposited in or withdrawn from the Collection Account
by
the Servicer. The Trustee and the Trust Administrator shall at no time have
any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon (other than if the Trustee shall assume the duties of the
Servicer pursuant to Section 7.02); the validity of the assignment of any
Mortgage Loan to the Trustee or of any intervening assignment; the completeness
of any Mortgage Loan; the performance or enforcement of any Mortgage Loan (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
7.02); the compliance by the Depositor, the Originator, the Seller or the
Servicer with any warranty or representation made under this Agreement or in
any
related document or the accuracy of any such warranty or representation prior
to
the Trustee’s receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; any investment of monies by or at the direction
of the Servicer or any loss resulting therefrom, it being understood that the
Trust Administrator shall remain responsible for any Trust property that it
may
hold in its individual capacity; the acts or omissions of any of the Servicer
(other than if the Trust Administrator shall assume the duties of the Servicer
pursuant to Section 7.02), any Sub-Servicer or any Mortgagor; any action of
the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), or any Sub-Servicer taken in the name of the Trust
Administrator; the failure of a Servicer or any Sub-Servicer to act or perform
any duties required of it as agent of the Trust Administrator hereunder; or
any
action by the Trust Administrator taken at the instruction of the Servicer
(other than if the Trustee shall assume the duties of the Servicer pursuant
to
Section 7.02); provided, however, that the foregoing shall not relieve the
Trustee of its obligation to perform its duties under this Agreement, including,
without limitation, the Trustee’s duty to review the Mortgage Files pursuant to
Section 2.01. Neither the Trust Administrator nor the Trustee shall have
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder (unless the Trustee shall
have
become the successor Servicer).
| SECTION 8.04 |
Trustee
and Trust Administrator May Own
Certificates.
|
The
Trustee and the Trust Administrator in its individual or any other capacity
may
become the owner or pledgee of Certificates with the same rights as it would
have if it were not Trustee or Trust Administrator may transact any banking
and
trust business with the Originator, the Servicer, the Depositor or their
Affiliates.
| SECTION 8.05 |
Trust
Administrator and Trustee Compensation and
Expenses.
|
(a) The
Trust
Administrator will be paid by the Master Servicer pursuant to a side letter
between each other.
(b) The
Trustee, the Trust Administrator or any director, officer, employee or agent
of
any of them, shall be indemnified by the Trust Fund and held harmless against
any loss, liability or expense (not including expenses and disbursements
incurred or made by the Trustee or the Trust Administrator, including the
compensation and the expenses and disbursements of its agents and counsel,
in
the ordinary course of the Trustee’s or the Trust Administrator’s performance in
accordance with the provisions of this Agreement) incurred by the Trustee or
by
the Trust Administrator arising out of or in connection with the acceptance
or
administration of the obligations and duties of the Trustee or the Trust
Administrator under this Agreement, other than any loss, liability or expense
(i) resulting from a breach of the Servicer’s or the Master Servicer’s
obligations and duties under this Agreement for which the Trustee or the Trust
Administrator, as applicable, is indemnified under Section 8.05(b) or (ii)
any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence of the Trustee or of the Trust Administrator, as applicable,
in
the performance of its duties hereunder or by reason of the Trustee’s or the
Trust Administrator’s, as applicable, reckless disregard of obligations and
duties hereunder or as a result of a breach of the Trustee’s or the Trust
Administrator’s, as applicable, obligations under Article X hereof. Any amounts
payable to the Trustee, the Trust Administrator or any director, officer,
employee or agent of the Trustee or the Trust Administrator, in respect of
the
indemnification provided by this Section 8.05, or pursuant to any other right
of
reimbursement from the Trust Fund that the Trustee, the Trust Administrator
or
any director, officer, employee or agent of the Trustee or the Trust
Administrator, may have hereunder in its capacity as such, may be withdrawn
by
the Trust Administrator from the Distribution Account at any time. The foregoing
indemnity shall survive the resignation or removal of the Trustee or the Trust
Administrator.
| SECTION 8.06 |
Eligibility
Requirements for Trustee and Trust
Administrator.
|
Each
of
the Trustee and the Trust Administrator hereunder shall at all times be an
entity duly organized and validly existing under the laws of the United States
of America or any state thereof, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority. If such entity publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.06, the combined capital
and
surplus of such entity shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. The principal
offices of each of the Trustee and the Trust Administrator (other than the
initial Trustee and initial Trust Administrator) shall be in a state with
respect to which an Opinion of Counsel has been delivered to such the NIMS
Insurer and Trustee or Trust Administrator, as applicable, at the time such
Trustee or Trust Administrator, as applicable, is appointed Trustee or Trust
Administrator, as applicable, to the effect that the Trust will not be a taxable
entity under the laws of such state. In case at any time the Trustee or the
Trust Administrator shall cease to be eligible in accordance with the provisions
of this Section 8.06, the Trustee or the Trust Administrator, as applicable,
shall resign immediately in the manner and with the effect specified in Section
8.07.
| SECTION 8.07 |
Resignation
or Removal of Trustee or Trust
Administrator.
|
The
Trustee or the Trust Administrator may at any time resign and be discharged
from
the trusts hereby created by giving written notice thereof to the NIMS Insurer,
the Depositor, the Servicer, the Master Servicer, each Rating Agency and, if
the
Trustee is resigning, to the Trust Administrator, or, if the Trust Administrator
is resigning, to the Trustee. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Trustee or Trust Administrator
acceptable to the NIMS Insurer (which may be the same Person in the event both
the Trustee and the Trust Administrator resign or are removed), by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the
resigning Trustee or Trust Administrator, as applicable, and one copy to the
successor Trustee or Trust Administrator. If no successor Trustee or Trust
Administrator, as applicable, shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or Trust Administrator may petition any court of competent
jurisdiction for the appointment of a successor Trustee or Trust Administrator,
as applicable.
If
the
Trust Administrator and the Master Servicer are the same entity, then at any
time the Trust Administrator resigns or is removed as Trust Administrator,
the
Master Servicer shall also be removed hereunder.
If
at any
time the Trustee or the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the NIMS Insurer (or in the case
of
the Trust Administrator, the Trustee), or if at any time the Trustee or the
Trust Administrator shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or the Trust Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or the Trust Administrator or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the
Depositor, the Servicer, the NIMS Insurer or the Master Servicer may remove
the
Trustee or the Trust Administrator, as applicable. If the Depositor, the
Servicer, the NIMS Insurer or the Master Servicer removes the Trustee or the
Trust Administrator under the authority of the immediately preceding sentence,
the Depositor (with the consent of the NIMS Insurer) shall promptly appoint
a
successor Trustee or Trust Administrator, as applicable, by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee
or
Trust Administrator so removed and one copy to the successor Trustee or Trust
Administrator.
The
Majority Certificateholders or the NIMS Insurer may at any time remove the
Trustee or Trust Administrator by written instrument or instruments delivered
to
the Servicer, the Master Servicer, the Depositor, the Trust Administrator and
the Trustee; the Depositor shall thereupon use its best efforts to appoint
a
successor trustee in accordance with this Section.
Any
resignation or removal of the Trustee or Trust Administrator and appointment
of
a successor Trustee or Trust Administrator pursuant to any of the provisions
of
this Section 8.07 shall not become effective until acceptance of appointment
by
the successor trustee as provided in Section 8.08.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the Trust
Administrator shall at all times be the same Person.
| SECTION 8.08 |
Successor
Trustee or Trust Administrator.
|
Any
successor Trustee or Trust Administrator appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the NIMS Insurer, the Depositor,
the
Servicer, the Master Servicer and to its predecessor Trustee or Trust
Administrator an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee or Trust Administrator
shall become effective, and such successor Trustee or Trust Administrator,
without any further act, deed or conveyance, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee or Trust Administrator. The
Depositor, the Master Servicer, the Servicer and the predecessor Trustee or
Trust Administrator shall execute and deliver such instruments and do such
other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee Trust Administrator all such rights, powers,
duties and obligations.
No
successor Trustee or Trust Administrator shall accept appointment as provided
in
this Section 8.08 unless at the time of such acceptance such successor Trustee
or Trust Administrator shall be eligible under the provisions of Section 8.06
and the appointment of such successor Trustee or Trust Administrator shall
not
result in a downgrading of the Regular Certificates by any Rating Agency, as
evidenced by a letter from each Rating Agency.
Upon
acceptance of appointment by a successor Trustee or Trust Administrator as
provided in this Section 8.08, the successor Trustee or Trust Administrator
shall mail notice of the appointment of a successor Trustee or Trust
Administrator hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to each Rating Agency.
| SECTION 8.09 |
Merger
or Consolidation of Trustee or Trust
Administrator.
|
Any
entity into which the Trustee or the Trust Administrator may be merged or
converted or with which it may be consolidated, or any entity resulting from
any
merger, conversion or consolidation to which the Trustee or the Trust
Administrator shall be a party, or any entity succeeding to the business of
the
Trustee or Trust Administrator, shall be the successor of the Trustee or the
Trust Administrator hereunder, as applicable, provided such entity shall be
eligible under the provisions of Section 8.06 and 8.08, without the execution
or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
| SECTION 8.10 |
Appointment
of Co-Trustee or Separate Trustee.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust or
any
Mortgaged Property may at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-Trustee or co-Trustees, jointly with the Trustee, or separate trustee or
separate Trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity and for the benefit of the Certificateholders,
such
title to the Trust, or any part thereof, and, subject to the other provisions
of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider necessary or desirable. Any such
co-trustee or separate trustee shall be subject to the written approval of
the
Servicer and the NIMS Insurer. If the Servicer and the NIMS Insurer shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, or in the case a Servicer Event of Termination shall have
occurred and be continuing, the Trustee alone shall have the power to make
such
appointment. No co-Trustee or separate trustee hereunder shall be required
to
meet the terms of eligibility as a successor trustee under Section 8.06, and
no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08. The Servicer shall be responsible
for the fees of any co-trustee or separate trustee appointed
hereunder.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-Trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-Trustee, but solely at
the
direction of the Trustee;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Servicer and the Trustee, acting jointly, may at any time accept the resignation
of or remove any separate trustee or co-trustee except that following the
occurrence of a Servicer Event of Termination, the Trustee acting alone may
accept the resignation or remove any separate trustee or
co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-Trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-Trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-Trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Depositor, the Servicer and the NIMS Insurer.
Any
separate trustee or co-Trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-Trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
| SECTION 8.11 |
Limitation
of Liability.
|
The
Certificates are executed by the Trust Administrator, not in its individual
capacity but solely as Trust Administrator of the Trust, in the exercise of
the
powers and authority conferred and vested in it by this Agreement. Each of the
undertakings and agreements made on the part of the Trust Administrator in
the
Certificates is made and intended not as a personal undertaking or agreement
by
the Trust Administrator but is made and intended for the purpose of binding
only
the Trust.
| SECTION 8.12 |
Trustee
May Enforce Claims Without Possession of
Certificates.
|
(a) All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment
has
been recovered.
(b) The
Trustee shall afford the Seller, the Depositor, the Servicer, the NIMS Insurer
and each Certificateholder upon reasonable prior notice during normal business
hours, access to all records maintained by the Trustee in respect of its duties
hereunder and access to officers of the Trustee responsible for performing
such
duties. Upon request, the Trustee shall furnish the Depositor, the Servicer,
the
NIMS Insurer and any requesting Certificateholder with its most recent financial
statements. The Trustee shall cooperate fully with the Seller, the Servicer,
the
Depositor, the NIMS Insurer and such Certificateholder and shall make available
to the Seller, the Servicer, the Depositor, the NIMS Insurer and such
Certificateholder for review and copying such books, documents or records as
may
be requested with respect to the Trustee’s duties hereunder. The Seller, the
Depositor, the Servicer, the NIMS Insurer and the Certificateholders shall
not
have any responsibility or liability for any action or failure to act by the
Trustee and are not obligated to supervise the performance of the Trustee under
this Agreement or otherwise.
| SECTION 8.13 |
Suits
for Enforcement.
|
In
case a
Servicer Event of Termination or other default by the Servicer or the Depositor
hereunder shall occur and be continuing, the Trustee, shall, at the direction
of
the Majority Certificateholders or the NIMS Insurer, or may, proceed to protect
and enforce its rights and the rights of the Certificateholders or the NIMS
Insurer under this Agreement by a suit, action or proceeding in equity or at
law
or otherwise, whether for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the execution of any power granted
in
this Agreement or for the enforcement of any other legal, equitable or other
remedy, as the Trustee, being advised by counsel, and subject to the foregoing,
shall deem most effectual to protect and enforce any of the rights of the
Trustee, the NIMS Insurer and the Certificateholders.
| SECTION 8.14 |
Waiver
of Bond Requirement.
|
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
| SECTION 8.15 |
Waiver
of Inventory, Accounting and Appraisal
Requirement.
|
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
ARTICLE
IX
REMIC
ADMINISTRATION
| SECTION 9.01 |
REMIC
Administration.
|
(a) REMIC
elections as set forth in the Preliminary Statement shall be made by the Trustee
on Form 1066 or other appropriate federal tax or information return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code.
(c) The
Trust
Administrator shall pay any and all expenses relating to any tax audit of any
REMIC (including, but not limited to, any professional fees or any
administrative or judicial proceedings with respect to any Trust REMIC that
involve the Internal Revenue Service or state tax authorities), including the
expense of obtaining any tax related Opinion of Counsel. The Trust Administrator
shall be entitled to reimbursement of expenses incurred pursuant to this Section
9.01(c) to the extent provided in Section 8.05.
(d) The
Trust
Administrator shall prepare, sign and file, all of the REMICs’ federal and state
tax and information returns (including Form 8811) as the direct representative
each REMIC created hereunder. The expenses of preparing and filing such returns
shall be borne by the Trust Administrator.
(e) The
Holder of the Class R Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the related “Tax Matters Person”) with respect to REMIC 1, REMIC 2
and REMIC 3 and shall act as Tax Matters Person for each such REMIC. The Holder
of the Class R-X Certificate at any time holding the largest Percentage Interest
thereof shall be the Tax Matters Person with respect to REMIC 4, REMIC 5 and
REMIC 6, and shall act as Tax Matters Person for each such REMIC. The Trust
Administrator, as agent for the Tax Matters Person, shall perform on behalf
of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or
local
taxing authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Trust Administrator, as agent for the
Tax Matters Person, shall provide (i) to the Treasury or other governmental
authority such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any disqualified person
or
organization upon reasonable additional compensation and (ii) to the
Certificateholders such information or reports as are required by the Code
or
REMIC Provisions. The Trust Administrator, as agent for the Tax Matters Person,
shall represent each REMIC in any administrative or judicial proceedings
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of any REMIC, enter
into settlement agreements with any government taxing agency, extend any statute
of limitations relating to any item of any REMIC and otherwise act on behalf
of
any REMIC in relation to any tax matter involving the Trust.
(f) The
Trust
Administrator, the Master Servicer, the Servicer and the Holders of Certificates
shall take any action or cause any REMIC to take any action necessary to create
or maintain the status of each REMIC as a REMIC under the REMIC Provisions
and
shall assist each other as necessary to create or maintain such status. None
of
the Trustee, the Trust Administrator, the Servicer or the Holder of any Residual
Certificate shall take any action, cause any REMIC created hereunder to take
any
action or fail to take (or fail to cause to be taken) any action that, under
the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of such REMIC as a REMIC or (ii) result in the imposition of a tax
upon such REMIC (including but not limited to the tax on prohibited transactions
as defined in Code Section 860F(a)(2) and the tax on prohibited contributions
set forth on Section 860G(d) of the Code) (either such event, an “Adverse REMIC
Event”) unless the Trustee, the Trust Administrator and the Servicer have
received an Opinion of Counsel, (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not endanger such
status or result in the imposition of such a tax. In addition, prior to taking
any action with respect to any REMIC created hereunder or the assets therein,
or
causing such REMIC to take any action, which is not expressly permitted under
the terms of this Agreement, any Holder of a Residual Certificate will consult
with the Trustee, the Trust Administrator and the Servicer, or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person
shall
take any such action or cause any REMIC to take any such action as to which
the
Trustee, the Trust Administrator or the Master Servicer has advised it in
writing that an Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
each REMIC created hereunder by federal or state governmental authorities.
To
the extent that such Trust taxes are not paid by a Residual Certificateholder,
the Trust Administrator shall pay any remaining REMIC taxes out of current
or
future amounts otherwise distributable to the Holder of the Residual Certificate
in the REMICs or, if no such amounts are available, out of other amounts held
in
the Distribution Account, and shall reduce amounts otherwise payable to Holders
of regular interests in the related REMIC. Subject to the foregoing, in the
event that a REMIC incurs a state or local tax, including franchise taxes,
as a
result of a determination that such REMIC is domiciled in the State of
California for state tax purposes by virtue of the location of the Servicer,
the
Servicer agrees to pay on behalf of such REMIC when due, any and all state
and
local taxes imposed as a result of such a determination, in the event that
the
Holder of the related Residual Certificate fails to pay such taxes, if any,
when
imposed.
(h) The
Trust
Administrator, as agent for the Tax Matters Person, shall, for federal income
tax purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) None
of
the Trustee, the Trust Administrator, the Servicer or the Master Servicer shall
enter into any arrangement by which any REMIC created hereunder will receive
a
fee or other compensation for services.
(k) [Reserved].
(l) The
Trust
Administrator will apply for an Employee Identification Number from the Internal
Revenue Service via a Form SS-4 or other acceptable method for all tax entities
and shall complete the Form 8811.
| SECTION 9.02 |
Prohibited
Transactions and Activities.
|
None
of
the Depositor, the Servicer , the Master Servicer, the Trust Administrator
or
the Trustee shall sell, dispose of, or substitute for any of the Mortgage Loans,
except in a disposition pursuant to (i) the foreclosure of a Mortgage Loan,
(ii)
the bankruptcy of the Trust Fund, (iii) the termination of any REMIC created
hereunder pursuant to Article X of this Agreement, (iv) a substitution pursuant
to Article II of this Agreement or (v) a repurchase of Mortgage Loans pursuant
to Article II of this Agreement, nor acquire any assets for any REMIC, nor
sell
or dispose of any investments in the Distribution Account for gain, nor accept
any contributions to either REMIC after the Closing Date, unless it has received
an Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) affect adversely the status of any REMIC created
hereunder as a REMIC or of the interests therein other than the Residual
Certificates as the regular interests therein, (b) affect the distribution
of
interest or principal on the Certificates, (c) result in the encumbrance of
the
assets transferred or assigned to the Trust Fund (except pursuant to the
provisions of this Agreement) or (d) cause any REMIC created hereunder to be
subject to a tax on prohibited transactions or prohibited contributions pursuant
to the REMIC Provisions.
| SECTION 9.03 |
Indemnification
with Respect to Certain Taxes and Loss of REMIC
Status.
|
(a) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth herein,
the
Servicer shall indemnify the NIMS Insurer, the Trustee, the Master Servicer,
the
Trust Administrator and the Trust Fund against any and all losses, claims,
damages, liabilities or expenses (“Losses”) resulting from such negligence;
provided, however, that the Servicer shall not be liable for any such Losses
attributable to the action or inaction of the Master Servicer, the Trustee,
the
Trust Administrator, the Depositor or the Holder of such Residual Certificate,
as applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Servicer has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies
of
the Holder of such Residual Certificate now or hereafter existing at law or
in
equity. Notwithstanding the foregoing, however, in no event shall the Servicer
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Servicer of its duties and obligations
set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on the
Certificates).
(b) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Trust Administrator of its duties and obligations set forth
herein, the Trust Administrator shall indemnify the Trust Fund against any
and
all Losses resulting from such negligence; provided, however, that the Trust
Administrator shall not be liable for any such Losses attributable to the action
or inaction of the Servicer, the Depositor or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the
Trust Administrator has relied. The foregoing shall not be deemed to limit
or
restrict the rights and remedies of the Holder of such Residual Certificate
now
or hereafter existing at law or in equity. Notwithstanding the foregoing,
however, in no event shall the Trust Administrator have any liability (1) for
any action or omission that is taken in accordance with and in compliance with
the express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent performance
by the Trust Administrator of its duties and obligations set forth herein,
and
(3) for any special or consequential damages to Certificateholders (in addition
to payment of principal and interest on the Certificates).
ARTICLE
X
TERMINATION
| SECTION 10.01 |
Termination.
|
(a) The
respective obligations and responsibilities of the Servicer, the Depositor,
the
Master Servicer, the Trust Administrator and the Trustee created hereby (other
than the obligation of the Trust Administrator to make certain payments to
Certificateholders after the final Distribution Date and the obligation of
the
Servicer to send certain notices as hereinafter set forth) shall terminate
upon
notice to the Trust Administrator upon the earliest of (i) the Distribution
Date
on which the Certificate Principal Balances of the Regular Certificates have
been reduced to zero, (ii) the final payment or other liquidation of the last
Mortgage Loan in the Trust, (iii) the optional purchase by the Terminator of
the
Mortgage Loans as described below and (iv) the Distribution Date in February
2036. Notwithstanding the foregoing, in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United
States to the Court of St. James’s, living on the date hereof.
The
Servicer (in such capacity, the “Terminator”), may, at its option, terminate
this Agreement on any date on which the aggregate Stated Principal Balance
of
the Mortgage Loans (after giving effect to scheduled payments of principal
due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) on such date is equal to or less than 10% of the aggregate Stated
Principal Balance of the Mortgage Loans on the Cut-off Date, by purchasing,
on
the next succeeding Distribution Date, all of the outstanding Mortgage Loans
and
REO Properties at a price equal to the greater of (i) the Stated Principal
Balance of the Mortgage Loans (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties and (ii) fair market
value
of the Mortgage Loans and REO Properties (as determined and as agreed upon
as of
the close of business on the third Business Day next preceding the date upon
which notice of any such termination is furnished to the related
Certificateholders pursuant to Section 10.01(c) by (x) the Terminator, (y)
the
Holders of a majority in Percentage Interest in the Class C Certificates and
(z)
if the Fixed Rate Certificates and the Floating Rate Certificates will not
receive all amounts owed to it as a result of the termination, the Trust
Administrator, provided that if this clause (z) applies to such determination,
such determination shall be based solely upon an appraisal obtained as provided
in the last sentence of this paragraph), plus accrued and unpaid interest
thereon at the weighted average of the Mortgage Rates through the end of the
Due
Period preceding the final Distribution Date plus unreimbursed Servicing
Advances, Advances, any unpaid Servicing Fees allocable to such Mortgage Loans
and REO Properties and any accrued and unpaid Net WAC Rate Carryover Amounts
and
any Swap Termination payment payable to the Swap Provider (the “Termination
Price”); provided, however, such option may only be exercised if the Termination
Price is sufficient to result in the payment of all interest accrued on, as
well
as amounts necessary to retire the principal balance of, each class of notes
issued pursuant to the Indenture and any amounts owed to the NIMS Insurer (as
it
notifies the Servicer and the Trust Administrator in writing). In addition,
if
the Servicer fails exercise its option hereunder, the Master Servicer may,
at
its option and at the Termination Price, terminate this Agreement on any date
on
which the aggregate Stated Principal Balance of the Mortgage Loans (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) on such date is equal to or
less
than 5% of the aggregate Stated Principal Balance of the Mortgage Loans on
the
Cut-off Date. If the determination of the fair market value of the Mortgage
Loans and REO Properties shall be required to be made and agreed upon by the
Terminator, the Holders of a majority in Percentage Interest in the Class C
Certificates and the Trust Administrator as provided in (ii) above, such
determination shall be based on an appraisal of the value of the Mortgage Loans
and REO Properties conducted by an independent appraiser mutually agreed upon
by
the Terminator, the Holders of a majority in Percentage Interest in the Class
C
Certificates and the Trust Administrator in their reasonable discretion, and
(A)
such appraisal shall be obtained at no expense to the Trustee and (B) the Trust
Administrator may conclusively rely on, and shall be protected in relying on,
such appraisal.
By
acceptance of a Residual Certificate, the Holders of the Residual Certificates
agree, in connection with any termination hereunder, to assign and transfer
any
amounts in excess of par, and to the extent received in respect of such
termination, to pay any such amounts to the Holders of the Class C
Certificates.
In
connection with any such purchase pursuant to the preceding paragraph, the
Terminator shall deposit in the Distribution Account all amounts then on deposit
in the Collection Account, which deposit shall be deemed to have occurred
immediately preceding such purchase.
Any
such
purchase shall be accomplished by deposit into the Distribution Account on
the
Determination Date before such Distribution Date of the Termination
Price.
(b) Notice
of
any termination, specifying the Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trust Administrator for payment of the
final
distribution and cancellation, shall be given promptly by the Trust
Administrator upon the Trust Administrator receiving notice of such date from
the Terminator, by letter to the Certificateholders mailed not earlier than
the
15th
day and
not later than the 25th
day of
the month next preceding the month of such final distribution specifying (1)
the
Distribution Date upon which final distribution of the Certificates will be
made
upon presentation and surrender of such Certificates at the office or agency
of
the Trust Administrator therein designated, (2) the amount of any such final
distribution and (3) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trust Administrator therein specified.
(c) Upon
presentation and surrender of the Certificates, the Trust Administrator shall
cause to be distributed to the Holders of the Certificates on the Distribution
Date for such final distribution, in proportion to the Percentage Interests
of
their respective Class and to the extent that funds are available for such
purpose, an amount equal to the amount required to be distributed to such
Holders in accordance with the provisions of Section 4.01 for such Distribution
Date. By acceptance of the Residual Certificates, the Holders of the Residual
Certificates agree, in connection with any termination hereunder, to assign
and
transfer any amounts in excess of the par value of the Mortgage Loans, and
to
the extent received in respect of such termination, to pay any such amounts
to
the Holders of the Class C Certificates.
(d) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final Distribution Date, the
Trust Administrator shall promptly following such date cause all funds in the
Distribution Account not distributed in final distribution to Certificateholders
to be withdrawn therefrom and credited to the remaining Certificateholders
by
depositing such funds in a separate Servicing Account for the benefit of such
Certificateholders, and the Servicer (if the Servicer has exercised its right
to
purchase the Mortgage Loans) or the Trust Administrator (in any other case)
shall give a second written notice to the remaining Certificateholders, to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within nine months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Residual
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto, and the Trust Administrator upon transfer of such
funds shall be discharged of any responsibility for such funds, and the
Certificateholders shall look to the Residual Certificateholders for
payment.
| SECTION 10.02 |
Additional
Termination Requirements.
|
(a) In
the
event that the Terminator exercises its purchase option as provided in Section
10.01, each REMIC shall be terminated in accordance with the following
additional requirements, unless the Trust Administrator shall have been
furnished with an Opinion of Counsel to the effect that the failure of the
Trust
to comply with the requirements of this Section will not (i) result in the
imposition of taxes on “prohibited transactions” of the Trust as defined in
Section 860F of the Code or (ii) cause any REMIC constituting part of the Trust
Fund to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) Within
90
days prior to the final Distribution Date, the Terminator shall adopt and the
Trust Administrator shall sign a plan of complete liquidation of each REMIC
created hereunder meeting the requirements of a “Qualified Liquidation” under
Section 860F of the Code and any regulations thereunder; and
(ii) At
or
after the time of adoption of such a plan of complete liquidation and at or
prior to the final Distribution Date, the Trust Administrator shall sell all
of
the assets of the Trust Fund to the Terminator for cash pursuant to the terms
of
the plan of complete liquidation.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trust Administrator as their attorney in fact to: (i) adopt such a plan of
complete liquidation (and the Certificateholders hereby appoint the Trust
Administrator as their attorney in fact to sign such plan) as appropriate and
(ii) to take such other action in connection therewith as may be reasonably
required to carry out such plan of complete liquidation all in accordance with
the terms hereof.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
| SECTION 11.01 |
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, the Servicer,
the
Master Servicer, the Trust Administrator and the Trustee with the consent of
the
NIMS Insurer; and without the consent of the Certificateholders (i) to cure
any
ambiguity, (ii) to correct or supplement any provisions herein which may be
defective or inconsistent with any other provisions herein or (iii) to make
any
other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of this Agreement;
provided that such action shall not as evidenced by either (a) an Opinion of
Counsel delivered to the Servicer, the Master Servicer, the Trustee and the
Trust Administrator or (b) written notice to the Depositor, the Servicer the
Master Servicer, the Trustee and the Trust Administrator from each Rating Agency
that such action will not result in the reduction or withdrawal of the rating
of
any outstanding Class of Certificates with respect to which it is a Rating
Agency, adversely affect in any material respect the interests of any
Certificateholder. No amendment shall be deemed to adversely affect in any
material respect the interests of any Certificateholder who shall have consented
thereto, and no Opinion of Counsel or Rating Agency confirmation shall be
required to address the effect of any such amendment on any such consenting
Certificateholder.
In
addition, this Agreement may be amended from time to time by the Depositor,
the
Servicer, the Master Servicer, the Trust Administrator, and the Trustee with
the
consent of the NIMS Insurer and the Majority Certificateholders for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the
provisions of this Agreement or of modifying in any manner the rights of the
Swap Provider or the Holders of Certificates; provided, however, that no such
amendment or waiver shall (x) reduce in any manner the amount of, or delay
the
timing of, payments on the Certificates or distributions which are required
to
be made on any Certificate without the consent of the Holder of such
Certificate, (y) adversely affect in any material respect the interests of
the
Swap Provider or the Holders of any Class of Certificates (as evidenced by
either (i) an Opinion of Counsel delivered to the Trustee or (ii) written notice
to the Depositor, the Servicer the Master Servicer and the Trustee from each
Rating Agency that such action will not result in the reduction or withdrawal
of
the rating of any outstanding Class of Certificates with respect to which it
is
a Rating Agency) in a manner other than as described in clause (x) above,
without the consent of the Holders of Certificates of such Class evidencing
at
least a 66% Percentage Interest in such Class, or (z) reduce the percentage
of
Voting Rights required by clause (y) above without the consent of the Holders
of
all Certificates of such Class then outstanding. Upon approval of an amendment,
a copy of such amendment shall be sent to the Rating Agencies.
Notwithstanding
any provision of this Agreement to the contrary, the Trustee and the Trust
Administrator shall not consent to any amendment to this Agreement unless it
shall have first received an Opinion of Counsel, delivered by (and at the
expense of) the Person seeking such Amendment and satisfactory to the NIMS
Insurer, to the effect that such amendment will not result in the imposition
of
a tax on any REMIC created hereunder constituting part of the Trust Fund
pursuant to the REMIC Provisions or cause any REMIC created hereunder
constituting part of the Trust to fail to qualify as a REMIC at any time that
any Certificates are outstanding and that the amendment is being made in
accordance with the terms hereof.
Notwithstanding
any of the other provisions of this Section 11.01, none of the Depositor, the
Servicer, the Master Servicer, the Trust Administrator or the Trustee shall
enter into any amendment to this Agreement that adversely affects in any respect
the rights and interests hereunder of the Swap Provider without the prior
written consent of the Swap Provider.
Promptly
after the execution of any such amendment the Trust Administrator shall furnish,
at the expense of the Person that requested the amendment if such Person is
the
Servicer (but in no event at the expense of the Trustee or the Trust
Administrator), otherwise at the expense of the Trust, a copy of such amendment
and the Opinion of Counsel referred to in the immediately preceding paragraph
to
the Servicer and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
to approve the particular form of any proposed amendment; instead it shall
be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trust Administrator may prescribe.
The
Trustee and the Trust Administrator may, but neither shall be obligated to,
enter into any amendment pursuant to this Section 11.01 that affects its rights,
duties and immunities under this Agreement or otherwise.
| SECTION 11.02 |
Recordation
of Agreement; Counterparts.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer at the expense
of
the Trust, but only upon direction of the Certificateholders accompanied by
an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
| SECTION 11.03 |
Limitation
on Rights of Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this
Section 11.03 each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
| SECTION 11.04 |
Governing
Law; Jurisdiction.
|
This
Agreement shall be construed in accordance with the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws. With respect to any claim arising
out
of this Agreement, each party irrevocably submits to the exclusive jurisdiction
of the courts of the State of New York and the United States District Court
located in the Borough of Manhattan in The City of New York, and each party
irrevocably waives any objection which it may have at any time to the laying
of
venue of any suit, action or proceeding arising out of or relating hereto
brought in any such courts, irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum and further irrevocably waives the right to object, with
respect to such claim, suit, action or proceeding brought in any such court,
that such court does not have jurisdiction over such party, provided that
service of process has been made by any lawful means.
| SECTION 11.05 |
Notices.
|
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, by facsimile or by express delivery service, to
(a)
in the case of the Servicer, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇), or such other address or telecopy number
as
may hereafter be furnished to the Depositor, the Master Servicer, the Trust
Administrator and the Trustee in writing by the Servicer, (b) in the case of
the
Master Servicer or the Trust Administrator, ▇▇▇▇▇ Fargo Bank, N.A., ▇.▇. ▇▇▇
▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Fremont 2006-2 (telecopy number (▇▇▇)
▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Fremont 2006-2 (telecopy number (▇▇▇)
▇▇▇-▇▇▇▇), and for certificate transfer purposes, with a copy to ▇▇▇▇▇ Fargo
Bank, N.A., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Fremont 2006-2, or such other address or telecopy number as may
hereafter be furnished to the Servicer, the Trustee and the Depositor in writing
by the Master Servicer, (c) in the case of the Trustee, Deutsche Bank National
Trust Company, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Trust Admin—GC06F2 (telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇), or such other
address or telecopy number as may hereafter be furnished to the Depositor,
the
Servicer, the Trust Administrator and the Master Servicer in writing by the
Trustee, or such other address or telecopy number as may hereafter be furnished
to the Master Servicer and the Depositor in writing by the Trustee, (d) in
the
case of the Credit Risk Manager, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or such other address or telecopy
number as may hereafter be furnished to the Depositor, the Servicer, and the
Trustee and (e) in the case of the Depositor, Financial Asset Securities Corp.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal, or such
other address or telecopy number as may hereafter be furnished to the Servicer,
the Master Servicer, the Trust Administrator and the Trustee in writing by
the
Depositor. Any notice required or permitted to be mailed to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Notice of the Servicer Event of
Termination shall be given by telecopy and by certified mail. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have duly been given when mailed, whether or not the
Certificateholder receives such notice. A copy of any notice required to be
telecopied hereunder shall also be mailed to the appropriate party in the manner
set forth above.
| SECTION 11.06 |
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
| SECTION 11.07 |
Article
and Section References.
|
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
| SECTION 11.08 |
Notice
to the Rating Agencies and the NIMS
Insurer.
|
(a) Each
of
the Trustee, the Trust Administrator, the Master Servicer and the Servicer
shall
be obligated to use its best reasonable efforts promptly to provide notice
to
the Rating Agencies and the NIMS Insurer with respect to each of the following
of which a Responsible Officer of the Trust Administrator, the Master Servicer
or the Servicer, as the case may be, has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Servicer Event of Termination or Master Servicer Event of
Termination that has not been cured or waived;
(iii) the
resignation or termination of Master Servicer, the Trust Administrator or the
Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as successor Servicer pursuant to Section 7.02 hereof, any
event that would result in the inability of the Trustee to make
Advances.
(b) In
addition, the Trust Administrator shall promptly make available to each Rating
Agency copies of each Statement to Certificateholders described in Section
4.03
hereof and copies of the following:
(i) each
annual statement as to compliance described in Section 3.20 hereof;
(ii) each
Attestation Report described in Section 3.21 hereof; and
(iii) each
notice delivered pursuant to Section 7.01(a) hereof which relates to the fact
that the Servicer has not made an Advance.
Any
such
notice pursuant to this Section 11.08 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to (i) ▇▇▇▇▇’▇ Investors
Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (ii) Standard
& Poor’s Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage Surveillance
Group.
| SECTION 11.09 |
Further
Assurances.
|
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
| SECTION 11.10 |
Third
Party Rights.
|
The
NIMS
Insurer and the Swap Provider shall each be deemed third-party beneficiaries
of
this Agreement to the same extent as if they were parties hereto, and shall
have
the right to enforce the provisions of this Agreement.
| SECTION 11.11 |
Benefits
of Agreement.
|
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders and the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
| SECTION 11.12 |
Acts
of Certificateholders.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and the Servicer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust,
if made in the manner provided in this Section 11.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
| SECTION 11.13 |
Intention
of the Parties and Interpretation.
|
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.20, 3.21
and 4.05 of this Agreement is to facilitate compliance by
the Depositor with the provisions of Regulation AB promulgated by the SEC
under the 1934 Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended
from time to time and subject to clarification and interpretive advice as may
be
issued by the staff of the SEC from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB, (c)
the
parties shall comply, with requests made by the Depositor for delivery of
additional or different information as the Depositor may determine in good
faith is necessary to comply with the provisions of Regulation AB, and (d)
no
amendment of this Agreement shall be required to effect any such changes in
the
parties’ obligations as are necessary to accommodate evolving interpretations of
the provisions of Regulation AB.
IN
WITNESS WHEREOF, the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee have caused their names to be signed hereto by
their respective officers thereunto duly authorized, in each case as of the
day
and year first above written.
|
FINANCIAL
ASSET SECURITIES CORP.,
as
Depositor
|
|||||||||||||
|
By:
|
/s/
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
FREMONT
INVESTMENT & LOAN, as Servicer
|
|||||||||||||
|
By:
|
/s/
▇▇▇▇▇ ▇.▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
||||||||||||
|
Title:
|
Senior
Vice President
|
||||||||||||
|
▇▇▇▇▇
FARGO BANK, N.A., as Master Servicer and Trust
Administrator
|
|||||||||||||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||||||||||||
|
Title:
|
Assistant
Vice President
|
||||||||||||
|
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
|
|||||||||||||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇▇
|
||||||||||||
|
Title:
|
Associate
|
||||||||||||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
For
purposes of Sections 6.09, 6.10 and 6.11:
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC.
|
By:
|
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
Title:
|
Authorized
Representative
|
|
STATE
OF CONNECTICUT
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF FAIRFIELD
|
)
|
On
the
_____ day of April, 2006 before me, a notary public in and for said State,
personally appeared _________________________ known to me to be
_______________________ of Financial Asset Securities Corp., a Delaware
corporation that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
_____ day of, April 2006 before me, a notary public in and for said State,
personally appeared ____________________________ known to me to be a
___________________________ of Fremont Investment & Loan, a California
industrial bank that executed the within instrument, and also known to me to
be
the person who executed it on behalf of said corporation, and acknowledged
to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
STATE
OF
|
)
|
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
||
On
the
____ day of April, 2006 before me, a notary public in and for said State,
personally appeared _________________________, known to me to be a(n)
_______________________ and _________________________, known to me to be a(n)
_______________________of Deutsche Bank National Trust Company, a corporation
that executed the within instrument, and also known to me to be the person
who
executed it on behalf of said association, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
STATE
OF
|
)
|
ss.:
|
|
|
COUNTY
OF
|
)
|
||
On
the
____ day of April, 2006 before me, a notary public in and for said State,
personally appeared _________________________, known to me to be a(n)
_______________________ and _________________________, known to me to be a(n)
_______________________of ▇▇▇▇▇ Fargo Bank, N.A., an entity that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said national banking association, and acknowledged to me that entity
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
EXHIBIT
A-1
FORM
OF
CLASS I-A-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, NO TRANSFER OF THIS CERTIFICATE
TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”)
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$278,772,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$278,772,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PU 8
|
|
Class
|
:
|
I-A-1
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Asset-Backed
Certificates,
Series
2006-2
CLASS
I-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class I-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class I-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class I-A-1 Certificate (obtained by dividing the Denomination
of this Class I-A-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class I-A-1 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class I-A-1 Certificate by virtue of the acceptance hereof assents
and
by which such Holder is bound.
Reference
is hereby made to the further provisions of this Class I-A-1 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class I-A-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
April __, 2006
|
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class I-A-1Certificate]
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
Prior
to
termination of the Supplemental Interest Trust, no transfer of this Certificate
to a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate shall be made except in accordance with
Section 5.02(d) of the Agreement.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF
CLASS II-A-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, NO TRANSFER OF THIS CERTIFICATE
TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”)
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$268,605,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$268,605,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PV 6
|
|
Class
|
:
|
II-A-1
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
II-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-1 Certificate (obtained by dividing the
Denomination of this Class II-A-1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇
Fargo Bank, N.A. as master servicer and trust administrator (the “Master
Servicer” and “Trust Administrator”), and Deutsche Bank National Trust Company,
a national banking association, as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Class II-A-1 Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class II-A-1 Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Class II-A-1 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-1 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class II-A-1Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
Prior
to
termination of the Supplemental Interest Trust, no transfer of this Certificate
to a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate shall be made except in accordance with
Section 5.02(d) of the Agreement.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF
CLASS II-A-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, NO TRANSFER OF THIS CERTIFICATE
TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”)
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$98,693,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$98,693,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PW 4
|
|
Class
|
:
|
II-A-2
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
II-A-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-2 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-2 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-2 Certificate (obtained by dividing the
Denomination of this Class II-A-2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇
Fargo Bank, N.A. as master servicer and trust administrator (the “Master
Servicer” and “Trust Administrator”), and Deutsche Bank National Trust Company,
a national banking association, as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Class II-A-2 Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class II-A-2 Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Class II-A-2 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-2 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class II-A-2Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
Prior
to
termination of the Supplemental Interest Trust, no transfer of this Certificate
to a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate shall be made except in accordance with
Section 5.02(d) of the Agreement.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF
CLASS II-A-3 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, NO TRANSFER OF THIS CERTIFICATE
TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”)
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$83,551,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$83,551,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PX 2
|
|
Class
|
:
|
II-A-3
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
II-A-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-3 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-3 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-3 Certificate (obtained by dividing the
Denomination of this Class II-A-3 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇
Fargo Bank, N.A. as master servicer and trust administrator (the “Master
Servicer” and “Trust Administrator”), and Deutsche Bank National Trust Company,
a national banking association, as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Class II-A-3 Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class II-A-3 Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Class II-A-3 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-3 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class II-A-3Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
Prior
to
termination of the Supplemental Interest Trust, no transfer of this Certificate
to a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate shall be made except in accordance with
Section 5.02(d) of the Agreement.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF
CLASS II-A-4 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, NO TRANSFER OF THIS CERTIFICATE
TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”)
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$12,122,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$12,122,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PY 0
|
|
Class
|
:
|
II-A-4
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
II-A-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-4 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-4 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-4 Certificate (obtained by dividing the
Denomination of this Class II-A-4 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇
Fargo Bank, N.A. as master servicer and trust administrator (the “Master
Servicer” and “Trust Administrator”), and Deutsche Bank National Trust Company,
a national banking association, as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Class II-A-4 Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class II-A-4 Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Class II-A-4 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-4 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class II-A-4 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
Prior
to
termination of the Supplemental Interest Trust, no transfer of this Certificate
to a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate shall be made except in accordance with
Section 5.02(d) of the Agreement.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
FORM
OF
CLASS M-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$74,223,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$74,223,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PZ 7
|
|
Class
|
:
|
M-1
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-1 Certificate (obtained by dividing the Denomination
of this Class M-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-1 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-1 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-1 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class M-1 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-7
FORM
OF
CLASS M-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND CLASS M-1 CERTIFICATES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$21,137,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$21,137,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QA 1
|
|
Class
|
:
|
M-2
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-2 Certificate (obtained by dividing the Denomination
of this Class M-2 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-2 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-2 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-2 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class M-2 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-8
FORM
OF
CLASS M-3 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES
AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$19,662,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$19,662,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QB 9
|
|
Class
|
:
|
M-3
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-3 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-3 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-3 Certificate (obtained by dividing the Denomination
of this Class M-3 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-3 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-3 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-3 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-3 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
|
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
||
[Reverse
of Class M-3 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-9
FORM
OF
CLASS M-4 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, AND THE CLASS M-3 CERTIFICATES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$18,187,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$18,187,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QC 7
|
|
Class
|
:
|
M-4
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-4 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-4 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-4 Certificate (obtained by dividing the Denomination
of this Class M-4 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-4 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-4 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-4 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-4 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class M-4 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
______________________________________________________________________________
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-10
FORM
OF
CLASS M-5 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES AND THE CLASS M-4
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$17,204,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$17,204,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QD 5
|
|
Class
|
:
|
M-5
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-5
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-5 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-5 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-5 Certificate (obtained by dividing the Denomination
of this Class M-5 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-5 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-5 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-5 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-5 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[REVERSE
OF CLASS M-5 CERTIFICATE]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
______________________________________________________________________________
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-11
FORM
OF
CLASS M-6 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4
CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$14,746,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$14,746,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QE 3
|
|
Class
|
:
|
M-6
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-6
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-6 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-6 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-6 Certificate (obtained by dividing the Denomination
of this Class M-6 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-6 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-6 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-6 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-6 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class M-6 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
______________________________________________________________________________
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-12
FORM
OF
CLASS M-7 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4
CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6 CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$13,272,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$13,272,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QF 0
|
|
Class
|
:
|
M-7
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-7
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-7 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-7 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-7 Certificate (obtained by dividing the Denomination
of this Class M-7 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-7 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-7 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-7 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-7 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class M-7 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
______________________________________________________________________________
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-13
FORM
OF
CLASS M-8 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4
CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES AND THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$10,322,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$10,322,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QG 8
|
|
Class
|
:
|
M-8
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-8
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-8 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-8 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-8 Certificate (obtained by dividing the Denomination
of this Class M-8 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-8 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-8 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-8 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-8 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class M-8 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and deliver
such Certificate to the following address:______
______________________________________________________________________________
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-14
FORM
OF
CLASS M-9 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, CLASS M-1 CERTIFICATES,
THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4
CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE CLASS
M-7 CERTIFICATES AND THE M-8 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$9,831,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$9,831,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QH 6
|
|
Class
|
:
|
M-9
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-9
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-9 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-9 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-9 Certificate (obtained by dividing the Denomination
of this Class M-9 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-9 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-9 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-9 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-9 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class M-9 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
______________________________________________________________________________
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-15
FORM
OF
CLASS M-10 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR
CERTIFICATES, CLASS M-1 CERTIFICATES, CLASS M-2 CERTIFICATES, CLASS M-3
CERTIFICATES, CLASS M-4 CERTIFICATES, CLASS M-5 CERTIFICATES, CLASS M-6
CERTIFICATES, CLASS M-7 CERTIFICATES, CLASS M-8 CERTIFICATES AND CLASS M-9
CERTIFICATES,
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$9,831,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$9,831,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QJ 2
|
|
Class
|
:
|
M-10
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
M-10
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-10 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-10 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-10 Certificate (obtained by dividing the Denomination
of this Class M-10 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class M-10 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class M-10 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable sate securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act, and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to indemnify the Trustee and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-10 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class M-10 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class M-10 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-16
FORM
OF
CLASS B-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES, TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$10,814,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$10,814,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QK 9
|
|
Class
|
:
|
B-1
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
B-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class B-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class B-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class B-1 Certificate (obtained by dividing the Denomination
of this Class B-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class B-1 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class B-1 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable sate securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act, and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to indemnify the Trust Administrator and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class B-1 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class B-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class B-1 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-17
FORM
OF
CLASS B-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES, TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$7,373,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$7,373,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
QL 7
|
|
Class
|
:
|
B-2
|
|
Assumed
Maturity Date
|
:
|
February
2036
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
B-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class B-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class B-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class B-2 Certificate (obtained by dividing the Denomination
of this Class B-2 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor,
Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇ Fargo Bank,
N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class B-2 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class B-2 Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable sate securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act, and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to indemnify the Trust Administrator and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class B-2 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class B-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class B-2 Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-18
FORM
OF
CLASS C CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Notional Amount
of
this Certificate (“Denomination”)
|
:
|
$14,746,264.98
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$14,746,264.98
|
|
Percentage
Interest
|
:
|
100.00%
|
|
CUSIP
|
:
|
35729P
QM 5
|
|
Class
|
:
|
C
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
C
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class C Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class C Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, the Master Servicer, the Trust Administrator or the Trustee referred
to below or any of their respective affiliates.
This
certifies that Greenwich Capital Financial Products, Inc. is the registered
owner of the Percentage Interest evidenced by this Class C Certificate (obtained
by dividing the Denomination of this Class C Certificate by the Original Class
Certificate Principal Balance) in certain distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇
Fargo Bank, N.A. as master servicer and trust administrator (the “Master
Servicer” and “Trust Administrator”), and Deutsche Bank National Trust Company,
a national banking association, as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Class C Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class C Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by the
transferor and an investment letter shall be executed by the transferee. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class C Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class C Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class C Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-19
FORM
OF
CLASS P CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$100.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$100.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
CUSIP
|
:
|
35729P
QN 3
|
|
Class
|
:
|
P
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
P
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class P Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class P Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, the Master Servicer, the Trust Administrator or the Trustee referred
to below or any of their respective affiliates.
This
certifies that Greenwich Capital Financial Products, Inc. is the registered
owner of the Percentage Interest evidenced by this Class P Certificate (obtained
by dividing the Denomination of this Class P Certificate by the Original Class
Certificate Principal Balance) in certain distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Fremont Investment & Loan as servicer (the “Servicer”), ▇▇▇▇▇
Fargo Bank, N.A. as master servicer and trust administrator (the “Master
Servicer” and “Trust Administrator”), and Deutsche Bank National Trust Company,
a national banking association, as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Class P Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class P Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
This
Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by the
transferor and an investment letter shall be executed by the transferee. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class P Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class P Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
||
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
||
|
By:
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
|||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class P Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-20
FORM
OF
CLASS R CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Percentage
Interest
|
:
|
100%
|
|
CUSIP
|
:
|
35729P
QP 8
|
|
Class
|
:
|
R
|
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
R
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Greenwich Capital Markets, Inc. is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2006 (the
“Agreement”) among the Depositor, Fremont Investment & Loan as servicer (the
“Servicer”), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust administrator
(the “Master Servicer” and “Trust Administrator”), and Deutsche Bank National
Trust Company, a national banking association, as trustee (the “Trustee”). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trust
Administrator.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by the
transferor and an investment letter shall be executed by the transferee. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trust Administrator
of
(a) a transfer affidavit of the proposed transferee and (b) a transfer
certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Certificate must agree to require a transfer affidavit and
to
deliver a transfer certificate to the Trust Administrator as required pursuant
to the Agreement, (iv) each person holding or acquiring an Ownership Interest
in
this Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not
a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be
absolutely null and void and will vest no rights in the purported transferee.
Pursuant to the Agreement, The Trust Administrator will provide the Internal
Revenue Service and any pertinent persons with the information needed to compute
the tax imposed under the applicable tax laws on transfers of residual interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class R Certificate in violation of the
restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 2006-2
|
|
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
||
|
By:
|
||
|
Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
|
||
[Reverse
of Class R Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2 Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-21
FORM
OF
CLASS R-X CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R-X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
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Certificate
No.
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:
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1
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Cut-off
Date
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:
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April
1, 2006
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First
Distribution Date
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:
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May
25, 2006
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Percentage
Interest
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:
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100.00%
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CUSIP
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:
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35729P
QQ 6
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Class
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:
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R-X
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Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
Series
2006-2
CLASS
R-X
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of second lien,
fixed rate mortgage loans (the “Mortgage Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Greenwich Capital Markets, Inc. is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2006 (the
“Agreement”) among the Depositor, Fremont Investment & Loan as servicer (the
“Servicer”), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust administrator
(the “Master Servicer” and “Trust Administrator”), and Deutsche Bank National
Trust Company, a national banking association, as trustee (the “Trustee”). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trust
Administrator.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by the
transferor and an investment letter shall be executed by the transferee. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trust Administrator
of
(a) a transfer affidavit of the proposed transferee and (b) a transfer
certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Certificate must agree to require a transfer affidavit and
to
deliver a transfer certificate to the Trust Administrator as required pursuant
to the Agreement, (iv) each person holding or acquiring an Ownership Interest
in
this Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not
a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be
absolutely null and void and will vest no rights in the purported transferee.
Pursuant to the Agreement, the Trust Administrator will provide the Internal
Revenue Service and any pertinent persons with the information needed to compute
the tax imposed under the applicable tax laws on transfers of residual interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class R-X Certificate in violation of the
restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
April __, 2006
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FREMONT
HOME LOAN TRUST 2006-2
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▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
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By:
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This
is one of the Certificates referenced
in
the within-mentioned Agreement
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By:
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Authorized
Signatory of
▇▇▇▇▇
Fargo Bank, N.A.,
as
Trust Administrator
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[Reverse
of Class R-X Certificate]
Fremont
Home Loan Trust 2006-2
Asset-Backed
Certificates,
SERIES
2006-2
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage of
the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the sum of (i) the aggregate
Stated Principal Balance of the Initial Mortgage Loans and the Additional
Mortgage Loans as of the related Cut-off Date and (ii) the Original Pre-Funded
Amounts, the Servicer may purchase, in whole, from the Trust the Mortgage Loans
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trust Administrator
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Servicer of the Mortgage Loans as described
in the Agreement and (iv) the Distribution Date in February 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
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FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
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unto
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(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
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Distributions
shall be made, by wire transfer or otherwise, in immediately available
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funds
to
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for
the account of
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Account
number
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or,
if mailed by check, to
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Applicable
statements should be mailed to
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This
information is provided by
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Assignee
named above, or
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its
agent.
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EXHIBIT
B
[RESERVED]
EXHIBIT
C
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated April 6, 2006, (“Agreement”)
among
Greenwich Capital Financial Products, Inc. (“Assignor”),
Financial Asset Securities Corp. (“Assignee”)
and
Fremont Investment & Loan (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser, in,
to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of December
1, 2005, as amended (the “Purchase
Agreement”),
between the Assignor, as initial purchaser (the “Purchaser”),
and
the Company, as seller and interim servicer, solely insofar as the Purchase
Agreement relates to the Mortgage Loans and (y) other than as provided below
with respect to the enforcement of representations and warranties, none of
the
obligations of the Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of
the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
2. From
and
after the date hereof, the Company shall and does hereby recognize that the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
Fremont Home Loan Trust 2006-2 (the “Trust”) created pursuant to a Pooling and
Servicing Agreement, dated as of April 1, 2006 (the “Pooling Agreement”),
among
the
Assignee, the Company as servicer (including its successors in interest and
any
successor servicers under the Pooling Agreement, the “Servicer”), ▇▇▇▇▇ Fargo
Bank, N.A. as master servicer and trust administrator (including its successors
in interest and any successor master servicers or trust administrators under
the
Pooling Agreement, the “Master Servicer” and “Trust Administrator”) and Deutsche
Bank National Trust Company, as trustee (including its successors in interest
and any successor trustees under the Pooling Agreement, the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trust Administrator, the Trustee and the Servicer acting
on
the Trust’s behalf) shall have all the rights and remedies available to the
Assignor, insofar as they relate to the Mortgage Loans, under the Purchase
Agreement, including, without limitation, the enforcement of the document
delivery requirements and remedies with respect to breaches of representations
and warranties set forth in the Purchase Agreement, and shall be entitled
to
enforce all of the obligations of the Company thereunder insofar as they
relate
to the Mortgage Loans, and (iv) all references to the Purchaser (insofar as
they relate to the rights, title and interest and, with respect to obligations
of the Purchaser, only insofar as they relate to the enforcement of the
representations, warranties and covenants of the Company) or the Custodian
under
the Purchase Agreement insofar as they relate to the Mortgage Loans, shall
be
deemed to refer to the Trust (including the Trust Administrator, the Trustee
and
the Servicer acting on the Trust’s behalf). Neither the Company nor the Assignor
shall amend or agree to amend, modify, waiver, or otherwise alter any of
the
terms or provisions of the Purchase Agreement which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans or
the
Company’s performance under the Purchase Agreement with respect to the Mortgage
Loans without the prior written consent of the Trust Administrator.
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company of
this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by
which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement;
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is solvent;
(e) With
respect any Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage nor the related Mortgage Note requires the borrower to submit
to arbitration to resolve any dispute arising out of or relating in any way
to
the Mortgage Loan transaction; and
(f) No
Mortgage Loan is a “high cost home”, “covered” (excluding home loans defined as
“covered home loans” in the New Jersey Home Ownership Security Act of 2002 that
were originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” mortgage loan or any other comparable term, no matter how defined
under any applicable federal, state or local law (or a similarly classified
loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees).
4. Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee and the Trust, that
the
representations and warranties set forth in Sections 7.01 and 7.02 of the
Purchase Agreement, are true and correct as of the date hereof and as of
the
Closing Date (as defined in the Pooling Agreement) as if such representations
and warranties were made on such date, except that the representation and
warranty set forth in Section 7.02(a) shall, for purposes of this Agreement,
relate to the Mortgage Loan Schedule attached hereto and except for the
limitations and qualifications set forth on Schedule 1 hereto.
5. The
Assignor hereby makes the following representations and warranties as of
the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(b) None
of
the mortgage loans are High Cost as defined by any applicable predatory and
abusive lending laws; and
(c) No
loan
is a High Cost Loan or Covered Loan, as applicable (as such terms are defined
in
the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.6b Revised, Appendix E);
(d) No
Mortgage Loans originated on or after
October
1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
and
(e) The
original principal balance of each Group I Mortgage Loan is within ▇▇▇▇▇▇▇
Mac’s
dollar amount limits for conforming one-to-four family mortgage
loans.
Remedies
for Breach of Representations and Warranties
6. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trust Administrator,
the
Trustee and the Servicer acting on the Trust’s behalf) in connection with any
breach of the representations and warranties made by the Company set forth
in
Sections 3 and 4 hereof shall be as set forth in Subsection 7.03 of the Purchase
Agreement as if they were set forth herein (including without limitation
the
repurchase and indemnity obligations set forth therein). In addition, the
Company hereby acknowledges and agrees that any breach of the representations
set forth in Section 7.02 (xliv(a)), (xliv(b)), (lviii), (xlvii), (lvi),
(lxi)
and (lxviii) of the Purchase Agreement and Section 1(e) hereof shall be deemed
to materially and adversely affect the value of the related mortgage loans
or
the interests of the Trust in the related mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available to the
Assignee and the Trust (including the Trust Administrator, the Trustee and
the
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Assignor set forth in Section
5
hereof shall be as set forth in Section 2.03 of the Pooling Agreement as
if they
were set forth herein. In addition, the Assignor hereby acknowledges and
agrees
that any breach of the representations set forth in Section 3(e) hereof shall
be
deemed to materially and adversely affect the value of the related mortgage
loans or the interests of the Trust in the related mortgage loans.
In
the
event that the first Monthly Payment on any Mortgage Loan due under the Purchase
Agreement is not made within forty-five (45) days of the date on which such
Monthly Payment was due, then such Mortgage Loan will be repurchased by the
Originator at the Purchase Price (as defined in the Pooling and Servicing
Agreement). Notwithstanding the foregoing, the Originator’s obligation to
repurchase any such Mortgage Loan pursuant to this paragraph shall expire
120
days following the date of the Purchase Agreement.
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation of
the
Company with respect to any breach of representation and warranty made by
the
Company regarding the Mortgage Loans.
Miscellaneous
7. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
8. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trust Administrator.
9. This
Agreement shall inure to the benefit of (i) the successors and assigns of
the
parties hereto and (ii) the Trust (including the Trust Administrator, the
Trustee and the Servicer acting on the Trust’s behalf). Any entity into which
Assignor, Assignee or Company may be merged or consolidated shall, without
the
requirement for any further writing, be deemed Assignor, Assignee or Company,
respectively, hereunder.
10. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of
the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
11. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
12. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
13. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their
duly authorized officers as of the date first above written.
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GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
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By:
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Name:
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Title:
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FINANCIAL
ASSET SECURITIES CORP.
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By:
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Name:
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Title:
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FREMONT
INVESTMENT & LOAN
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By:
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Name:
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Title:
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EXHIBIT
A
Mortgage
Loan Schedule
SCHEDULE
1
Representations
and Warranties
Capitalized
terms used in this Schedule 1 but not defined in this Agreement shall have
the
meanings given to such terms in the Purchase Agreement.
| 1. |
The
Mortgage Loan is in compliance with all requirements set forth
in the
related Confirmation, and the characteristics of the related Mortgage
Loan
Package as set forth in the related Confirmation are true and correct;
provided, however, that in the event of any conflict between the
terms of
any Confirmation and this Agreement, the terms of this Agreement
shall
control;
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| 2. |
All
payments required to be made up to the close of business on the
Closing
Date for such Mortgage Loan under the terms of the Mortgage Note
have been
made; the Seller has not advanced funds, or induced, solicited
or
knowingly received any advance of funds from a party other than
the owner
of the related Mortgaged Property, directly or indirectly, for
the payment
of any amount required by the Mortgage Note or Mortgage; no Mortgage
Loan
is thirty (30) or more days delinquent as of the Closing Date and,
except
as set forth on the related Assignment and Conveyance, there has
been no
delinquency, exclusive of any period of grace, in any payment by
the
Mortgagor thereunder since the origination of the Mortgage
Loan;
|
| 3. |
To
the best of the Seller’s knowledge, there are no delinquent taxes, ground
rents, water charges, sewer rents, assessments, insurance premiums,
leasehold payments, including assessments payable in future installments
or other outstanding charges affecting the related Mortgaged
Property;
|
| 4. |
The
terms of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written instruments,
recorded in the applicable public recording office if necessary
to
maintain the lien priority of the Mortgage, and which have been
delivered
to the Custodian; the substance of any such waiver, alteration
or
modification has been approved by the title insurer, to the extent
required by the related policy, and is reflected on the related
Mortgage
Loan Schedule. No instrument of waiver, alteration or modification
has
been executed, and no Mortgagor has been released, in whole or
in part,
except in connection with an assumption agreement approved by the
title
insurer, to the extent required by the policy, and which assumption
agreement has been delivered to the Custodian and the terms of
which are
reflected in the related Mortgage Loan
Schedule;
|
| 5. |
The
Mortgage Note and the Mortgage are not subject to any right of
rescission,
set-off, counterclaim or defense, including the defense of usury,
nor will
the operation of any of the terms of the Mortgage Note and the
Mortgage,
or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission,
set-off, counterclaim or defense, including the defense of usury
and no
such right of rescission, set-off, counterclaim or defense has
been
asserted with respect thereto. Each Prepayment Charge or penalty
with
respect to any Mortgage Loan is permissible, enforceable and collectible
under applicable federal, state and local
law;
|
| 6. |
All
buildings upon the Mortgaged Property are insured by a Qualified
Insurer
acceptable to prudent lenders in the secondary mortgage market
against
loss by fire, hazards of extended coverage and such other hazards
as are
customary in the area where the Mortgaged Property is located,
pursuant to
insurance policies providing coverage in an amount not less than
the
greatest of (i) 100% of the replacement cost of all improvements
to the
Mortgaged Property, (ii) either (A) the outstanding principal balance
of
the Mortgage Loan with respect to each first lien Mortgage Loan
or (B)
with respect to each second lien Mortgage Loan, the sum of the
outstanding
principal balance of the related first lien mortgage loan and the
outstanding principal balance of the second lien Mortgage Loan,
or (iii)
the amount necessary to avoid the operation of any co-insurance
provisions
with respect to the Mortgaged Property, and consistent with the
amount
that would have been required as of the date of origination in
accordance
with the Underwriting Guidelines. All such insurance policies contain
a
standard mortgagee clause naming the Seller, its successors and
assigns as
mortgagee and all premiums thereon have been paid. If the Mortgaged
Property is in an area identified on a Flood Hazard Map or Flood
Insurance
Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available)
a
flood insurance policy meeting the requirements of the current
guidelines
of the Federal Insurance Administration is in effect which policy
is
generally acceptable to prudent lenders in the secondary mortgage
market.
The Mortgage obligates the Mortgagor thereunder to maintain all
such
insurance at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain
such
insurance at Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor;
|
| 7. |
Any
and all requirements of any federal, state or local law including,
without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal
credit
opportunity, fair housing or disclosure laws applicable to the
origination
and servicing of mortgage loans of a type similar to the Mortgage
Loans
and applicable to any prepayment penalty associated with the Mortgage
Loans at origination have been complied
with;
|
| 8. |
The
Mortgage has not been satisfied, cancelled, subordinated or rescinded,
in
whole or in part, and the Mortgaged Property has not been released
from
the lien of the Mortgage, in whole or in part, nor has any instrument
been
executed that would effect any such satisfaction, cancellation,
subordination, rescission or
release;
|
| 9. |
The
Mortgage (including any Negative Amortization which may arise thereunder)
is a valid, existing and enforceable (A) first lien and first priority
security interest with respect to each Mortgage Loan which is indicated
by
the Seller to be a first lien (as reflected on the Mortgage Loan
Schedule), or (B) second lien and second priority security interest
with
respect to each Mortgage Loan which is indicated by the Seller
to be a
second lien (as reflected on the Mortgage Loan Schedule), in either
case,
on the Mortgaged Property, including all improvements on the Mortgaged
Property subject only to (a) the lien of current real property
taxes and
assessments not yet due and payable, (b) covenants, conditions
and
restrictions, rights of way, easements and other matters of the
public
record as of the date of recording being acceptable to mortgage
lending
institutions generally and specifically referred to in the lender's
title
insurance policy delivered to the originator of the Mortgage Loan
and
which do not adversely affect the Appraised Value of the Mortgaged
Property, (c) with respect to each Mortgage Loan which is indicated
by the
Seller to be a second lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule) a first lien on the Mortgaged Property; and (d)
other
matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended
to be
provided by the Mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property. Any security agreement, chattel
mortgage
or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, existing and enforceable
first or second lien and first or second priority security interest
(in
each case, as indicated on the Mortgage Loan Schedule) on the property
described therein and the Seller has full right to sell and assign
the
same to the Purchaser. The Mortgaged Property was not, as of the
date of
origination of the Mortgage Loan, subject to a mortgage, deed of
trust,
deed to secure debt or other security instrument creating a lien
subordinate to the lien of the
Mortgage;
|
| 10. |
The
Mortgage Note and the related Mortgage are genuine and each is
the legal,
valid and binding obligation of the maker thereof, enforceable
in
accordance with its terms;
|
| 11. |
All
parties to the Mortgage Note and the Mortgage had legal capacity
to enter
into the Mortgage Loan and to execute and deliver the Mortgage
Note and
the Mortgage, and the Mortgage Note and the Mortgage have been
duly and
properly executed by such parties. The Mortgagor is a natural
person;
|
| 12. |
The
proceeds of the Mortgage Loan have been fully disbursed to or for
the
account of the Mortgagor and there is no obligation for the Mortgagee
to
advance additional funds thereunder and any and all requirements
as to
completion of any on-site or off-site improvement and as to disbursements
of any escrow funds therefor have been complied with. All costs,
fees and
expenses incurred in making or closing the Mortgage Loan and the
recording
of the Mortgage have been paid, and the Mortgagor is not entitled
to any
refund of any amounts paid or due to the Mortgagee pursuant to
the
Mortgage Note or Mortgage;
|
| 13. |
The
Seller is the sole legal, beneficial and equitable owner of the
Mortgage
Note and the Mortgage and has full right to transfer and sell the
Mortgage
Loan to the Purchaser free and clear of any encumbrance, equity,
lien,
pledge, charge, claim or security
interest;
|
| 14. |
All
parties which have had any interest in the Mortgage Loan, whether
as
mortgagee, assignee, pledgee or otherwise, are (or, during the
period in
which they held and disposed of such interest, were) in compliance
with
any and all applicable “doing business” and licensing requirements of the
laws of the state wherein the Mortgaged Property is
located;
|
| 15. |
The
Mortgage Loan is covered by an American Land Title Association
(“ALTA”)
lender’s title insurance policy (which, in the case of an Adjustable Rate
Mortgage Loan has an adjustable rate mortgage endorsement in the
form of
ALTA 6.0 or 6.1) acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇
Mac,
issued by a title insurer acceptable to prudent lenders in the
secondary
mortgage market and qualified to do business in the jurisdiction
where the
Mortgaged Property is located, insuring (subject to the exceptions
contained in (x)(a) and (b), and with respect to any second lien
Mortgage
Loan (c), above) the Seller, its successors and assigns as to the
first or
second priority lien (as indicated on the Mortgage Loan Schedule)
of the
Mortgage in the original principal amount of the Mortgage Loan
(including,
if the Mortgage Loan provides for Negative Amortization, the maximum
amount of Negative Amortization in accordance with the Mortgage)
and, with
respect to any Adjustable Rate Mortgage Loan, against any loss
by reason
of the invalidity or unenforceability of the lien resulting from
the
provisions of the Mortgage providing for adjustment in the Mortgage
Interest Rate and Monthly Payment and Negative Amortization provisions
of
the Mortgage Note. Additionally, such lender's title insurance
policy
affirmatively insures ingress and egress to and from the Mortgaged
Property, and against encroachments by or upon the Mortgaged Property
or
any interest therein. The Seller is the sole insured of such lender's
title insurance policy, and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon
the
consummation of the transactions contemplated by this Agreement.
No claims
have been made under such lender's title insurance policy, and
no prior
holder of the related Mortgage, including the Seller, has done,
by act or
omission, anything which would impair the coverage of such lender's
title
insurance policy;
|
| 16. |
Other
than payment delinquencies of less than one calendar month, there
is no
default, breach, violation or event of acceleration existing under
the
Mortgage or the Mortgage Note and no event which, with the passage
of time
or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration,
and the
Seller has not waived any default, breach, violation or event of
acceleration. With respect to each second lien Mortgage Loan (i)
the first
lien mortgage loan is in full force and effect, (ii) other than
payment
delinquencies of less than one calendar month, there is no default,
breach, violation or event of acceleration existing under such
first lien
mortgage or the related mortgage note, (iii) no event which, with
the
passage of time or with notice and the expiration of any grace
or cure
period, would constitute a default, breach, violation or event
of
acceleration thereunder, (iv) either (A) the first lien mortgage
contains
a provision which allows or (B) applicable law requires, the mortgagee
under the second lien Mortgage Loan to receive notice of, and affords
such
mortgagee an opportunity to cure any default by payment in full
or
otherwise under the first lien mortgage, (v) the related first
lien does
not provide for or permit negative amortization under such first
lien
Mortgage Loan, and (vi) either no consent for the Mortgage Loan
is
required by the holder of the first lien or such consent has been
obtained
and is contained in the Mortgage
File;
|
| 17. |
As
of the date of origination of the Mortgage Loan and to the best
of the
Seller’s knowledge as of the Closing Date, except as insured against by
the related title insurance policy, there are no mechanics' or
similar
liens or claims which have been filed for work, labor or material
(and no
rights are outstanding that under law could give rise to such lien)
affecting the related Mortgaged Property which are or may be liens
prior
to, or equal or coordinate with, the lien of the related
Mortgage;
|
| 18. |
All
improvements which were considered in determining the Appraised
Value of
the related Mortgaged Property lay wholly within the boundaries
and
building restriction lines of the Mortgaged Property, and no improvements
on adjoining properties encroach upon the Mortgaged
Property;
|
| 19. |
The
Mortgage Loan was originated by the Seller or by a savings and
loan
association, a savings bank, a commercial bank or similar banking
institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved as such by the Secretary
of
HUD;
|
| 20. |
Principal
payments on the Mortgage Loan commenced no more than sixty (60)
days after
the proceeds of the Mortgage Loan were disbursed. The Mortgage
Loan bears
interest at the Mortgage Interest Rate. With respect to each Mortgage
Loan
which is not a Negative Amortization Loan, the Mortgage Note is
payable on
the first or fifteenth day of each month in Monthly Payments, which,
in
the case of a Fixed Rate Mortgage Loans, are sufficient to fully
amortize
the original principal balance over the original term thereof (other
than
with respect to a Mortgage Loan identified on the related Mortgage
Loan
Schedule as an interest-only Mortgage Loan during the interest-only
period
or a Mortgage Loan which is identified on the related Mortgage
Loan
Schedule as a Balloon Mortgage Loan) and to pay interest at the
related
Mortgage Interest Rate, and, in the case of an Adjustable Rate
Mortgage
Loan, are changed on each Adjustment Date, and in any case, are
sufficient
to fully amortize the original principal balance over the original
term
thereof (other than with respect to a Mortgage Loan identified
on the
related Mortgage Loan Schedule as an interest-only Mortgage Loan
during
the interest-only period or a Mortgage Loan which is identified
on the
related Mortgage Loan Schedule as a Balloon Mortgage Loan) and
to pay
interest at the related Mortgage Interest Rate. With respect to
each
Negative Amortization Mortgage Loan, the related Mortgage Note
requires a
Monthly Payment which is sufficient during the period following
each
Payment Adjustment Date, to fully amortize the outstanding principal
balance as of the first day of such period (including any Negative
Amortization) over the then remaining term of such Mortgage Note
and to
pay interest at the related Mortgage Interest Rate; provided, that
the
Monthly Payment shall not increase to an amount that exceeds 107.5%
of the
amount of the Monthly Payment that was due immediately prior to
the
Payment Adjustment Date; provided, further, that the payment adjustment
cap shall not be applicable with respect to the adjustment made
to the
Monthly Payment that occurs in a year in which the Mortgage Loan
has been
outstanding for a multiple of five (5) years and in any such year
the
Monthly Payment shall be adjusted to fully amortize the Mortgage
Loan over
the remaining term. With respect to each Mortgage Loan identified
on the
Mortgage Loan Schedule as an interest-only Mortgage Loan, the
interest-only period shall not exceed ten (10) years (or such other
period
specified on the Mortgage Loan Schedule) and following the expiration
of
such interest-only period, the remaining Monthly Payments shall
be
sufficient to fully amortize the original principal balance over
the
remaining term of the Mortgage Loan and to pay interest at the
related
Mortgage Interest Rate. With respect to each Balloon Mortgage Loan,
the
Mortgage Note requires a monthly payment which is sufficient to
fully
amortize the original principal balance over the original term
thereof and
to pay interest at the related Mortgage Interest Rate and requires
a final
Monthly Payment substantially greater than the preceding monthly
payment
which is sufficient to repay the remained unpaid principal balance
of the
Balloon Mortgage Loan as the Due Date of such monthly payment.
The Index
for each Adjustable Rate Mortgage Loan is as set forth on the Mortgage
Loan Schedule. No Mortgage Loan is a Convertible Mortgage Loan.
No Balloon
Mortgage Loan has an original stated maturity of less than seven
(7)
years;
|
| 21. |
The
origination, servicing and collection practices used with respect
to each
Mortgage Note and Mortgage including, without limitation, the
establishment, maintenance and servicing of the Escrow Accounts
and Escrow
Payments, if any, since origination, have been in all respects
legal,
proper, prudent and customary in the mortgage origination and servicing
industry. The Mortgage Loan has been serviced by the Seller and
any
predecessor servicer in accordance with the terms of the Mortgage
Note and
Accepted Servicing Practices. With respect to escrow deposits and
Escrow
Payments, if any, all such payments are in the possession of, or
under the
control of, the Seller and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof
have not
been made. No escrow deposits or Escrow Payments or other charges
or
payments due the Seller have been capitalized under any Mortgage
or the
related Mortgage Note and no such escrow deposits or Escrow Payments
are
being held by the Seller for any work on a Mortgaged Property which
has
not been completed;
|
| 22. |
To
the best of the Seller’s knowledge, the Mortgaged Property is free of
damage and waste and there is no proceeding pending for the total
or
partial condemnation thereof;
|
| 23. |
The
Mortgage and related Mortgage Note contain customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof
adequate for the realization against the Mortgaged Property of
the
benefits of the security provided thereby, including, (a) in the
case of a
Mortgage designated as a deed of trust, by trustee's sale, and
(b)
otherwise by judicial foreclosure. The Mortgaged Property is not
subject
to any bankruptcy proceeding or foreclosure proceeding and the
Mortgagor
is not subject to protection under applicable bankruptcy laws.
There is no
homestead or other exemption available to the Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage. The Mortgagor has
not
notified the Seller and the Seller has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers’ Civil
Relief Act;
|
| 24. |
The
Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines in effect at the time the Mortgage Loan was originated;
and the
Mortgage Note and Mortgage are on forms acceptable to ▇▇▇▇▇▇ ▇▇▇
and
▇▇▇▇▇▇▇
Mac;
|
| 25. |
The
Mortgage Note is not and has not been secured by any collateral
except the
lien of the corresponding Mortgage on the Mortgaged Property and
the
security interest of any applicable security agreement or chattel
mortgage
referred to in (x) above;
|
| 26. |
The
Mortgage File contains an appraisal of the related Mortgaged Property
which satisfied the standards of FIRREA, was on appraisal form
1004 or
form 2055 with an interior inspection and was made and signed,
prior to
the approval of the Mortgage Loan application, by a qualified appraiser,
duly appointed by the Seller, who had no interest, direct or indirect
in
the Mortgaged Property or in any loan made on the security thereof,
whose
compensation is not affected by the approval or disapproval of
the
Mortgage Loan and who satisfied the standards of FIRREA. Each appraisal
of
the Mortgage Loan was made in accordance with the relevant provisions
of
FIRREA;
|
| 27. |
In
the event the Mortgage constitutes a deed of trust, a trustee,
duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no
fees or expenses are or will become payable by the Purchaser to
the
trustee under the deed of trust, except in connection with a trustee's
sale after default by the
Mortgagor;
|
| 28. |
No
Mortgage Loan contains provisions pursuant to which Monthly Payments
are
(a) paid or partially paid with funds deposited in any separate
account
established by the Seller, the Mortgagor, or anyone on behalf of
the
Mortgagor, (b) paid by any source other than the Mortgagor or (c)
contains
any other similar provisions which may constitute a “buydown” provision.
The Mortgage Loan is not a graduated payment mortgage loan and
the
Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
|
| 29. |
The
Mortgagor has executed a statement to the effect that the Mortgagor
has
received all disclosure materials required by applicable law with
respect
to the making of fixed rate mortgage loans in the case of Fixed
Rate
Mortgage Loans, and adjustable rate mortgage loans in the case
of
Adjustable Rate Mortgage Loans and rescission materials with respect
to
Refinanced Mortgage Loans, and such statement is and will remain
in the
Mortgage File;
|
| 30. |
No
Mortgage Loan was made in connection with (a) the construction
or
rehabilitation of a Mortgaged Property or (b) facilitating the
trade-in or
exchange of a Mortgaged Property;
|
| 31. |
Taking
into account the credit standing of the related Mortgagors and
the
Underwriting Guidelines under which the Mortgage Loans were originated,
the Seller has no knowledge of any circumstances or condition with
respect
to the Mortgage, the Mortgaged Property or the Mortgagor that can
reasonably be expected to cause the Mortgage Loan to become delinquent
or
adversely affect the value of the Mortgage Loan as compared to
other
mortgage loans in the Seller’s portfolio meeting the requirements of the
Agreement and the related
Confirmation;
|
| 32. |
No
Mortgage Loan had an LTV or a CLTV at origination in excess of
100%. No
Mortgage Loan is subject to a lender paid primary mortgage insurance
policy;
|
| 33. |
As
of the date of origination of the Mortgage Loan and to the best
of the
Seller’s knowledge as of the Closing Date, the Mortgaged Property is
lawfully occupied under applicable law; all inspections, licenses
and
certificates required to be made or issued with respect to all
occupied
portions of the Mortgaged Property and, with respect to the use
and
occupancy of the same, including but not limited to certificates
of
occupancy, have been made or obtained from the appropriate
authorities;
|
| 34. |
No
error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the
part of
any person, including without limitation the Mortgagor, any appraiser,
any
builder or developer, or any other party involved in the origination
of
the Mortgage Loan or in the application of any insurance in relation
to
such Mortgage Loan;
|
| 35. |
The
Assignment of Mortgage, if required, is in recordable form, except
for the
name of the assignee which is blank, and is acceptable for recording
under
the laws of the jurisdiction in which the Mortgaged Property is
located;
|
| 36. |
Any
principal advances made to the Mortgagor prior to the Cut-off Date
have
been consolidated with the outstanding principal amount secured
by the
Mortgage, and the secured principal amount, as consolidated, bears
a
single interest rate and single repayment term. The lien of the
Mortgage
securing the consolidated principal amount is expressly insured
as having
first or second (as indicated on the Mortgage Loan Schedule) lien
priority
by a title insurance policy, an endorsement to the policy insuring
the
mortgagee's consolidated interest or by other title evidence acceptable
to
prudent lenders in the secondary mortgage market. The consolidated
principal amount does not exceed the original principal amount
of the
Mortgage Loan plus any Negative
Amortization;
|
| 37. |
If
the Residential Dwelling on the Mortgaged Property is a condominium
unit
or a unit in a planned unit development (other than a de minimis
planned
unit development) such condominium or planned unit development
project
meets the Seller’s eligibility
requirements;
|
| 38. |
The
source of the down payment with respect to each Mortgage Loan has
been
fully verified by the Seller pursuant to the Underwriting
Guidelines;
|
| 39. |
Interest
on each Mortgage Loan is calculated on the basis of a 360-day year
consisting of twelve 30-day months;
|
| 40. |
The
Mortgaged Property is in material compliance with all applicable
environmental laws pertaining to environmental hazards including,
without
limitation, asbestos, and neither the Seller nor, to the Seller’s
knowledge, the related Mortgagor, has received any notice of any
violation
or potential violation of such law;
|
| 41. |
The
Seller shall, at its own expense, cause each Mortgage Loan to be
covered
by a Tax Service Contract which is assignable to the Purchaser
or its
designee; provided however, that if the Seller fails to purchase
such Tax
Service Contract, the Seller shall be required to reimburse the
Purchaser
for all costs and expenses incurred by the Purchaser in connection
with
the purchase of any such Tax Service
Contract;
|
| 42. |
Each
Mortgage Loan is covered by a Flood Zone Service Contract which
is
assignable to the Purchaser or its designee or, for each Mortgage
Loan not
covered by such Flood Zone Service Contract, the Seller agrees
to purchase
such Flood Zone Service Contract;
|
| 43. |
No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership
and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an APR or
total points and fees that are equal to or exceeds the HOEPA thresholds
(as defined in 12 CFR 226.32 (a)(1)(i) and (ii)), (b) a “high cost”
mortgage loan, “covered” mortgage loan, “high risk home” mortgage loan, or
“predatory” mortgage loan or any other comparable term, no matter how
defined under any federal, state or local law, (c) subject to any
comparable federal, state or local statutes or regulations, or
any other
statute or regulation providing for heightened regulatory scrutiny
or
assignee liability to holders of such mortgage loans, or (d) a
High Cost
Loan or Covered Loan, as applicable (as such terms are defined
in the
current Standard & Poor’s LEVELS® Glossary Revised, Appendix
E);
|
| 44. |
No
predatory, abusive, or deceptive lending practices, including but
not
limited to, the extension of credit to a Mortgagor without regard
for the
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to a mortgagor which has no apparent benefit to the Mortgagor,
were
employed in connection with the origination of the Mortgage
Loan;
|
| 45. |
The
debt-to-income ratio of the related Mortgagor was not greater than
60% at
the origination of the related Mortgage
Loan;
|
| 46. |
No
Mortgagor was required to purchase any credit insurance product
(e.g.,
life, mortgage, disability, accident, unemployment or health insurance
product) or debt cancellation agreement as a condition of obtaining
the
extension of credit. No Mortgagor obtained a prepaid single premium
credit
insurance policy (e.g., life, mortgage, disability, accident, unemployment
or health insurance product) or debt cancellation agreement in
connection
with the origination of the Mortgage Loan. No proceeds from any
Mortgage
Loan were used to purchase single premium credit insurance policies
) or
debt cancellation agreements as part of the origination of, or
as a
condition to closing, such Mortgage Loan.
|
| 47. |
The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio at the related Closing Date, as
to which the representations and warranties set forth in this Agreement
could be made and as to which the stipulations in the Confirmation
could
be satisfied in a manner so as to affect adversely the interests
of the
Purchaser. The related Mortgagor under the Mortgage Loan had a
FICO Score
not less than 500 at the time of the origination of the Mortgage
Loan,
unless such Mortgage Loan was originated under an origination program
which does not require FICO scores to be obtained under the Seller’s
underwriting guidelines;
|
| 48. |
The
Mortgage contains an enforceable provision for the acceleration
of the
payment of the unpaid principal balance of the Mortgage Loan in
the event
that the Mortgaged Property is sold or transferred without the
prior
written consent of the mortgagee
thereunder;
|
| 49. |
The
Mortgage Loan complies with all applicable consumer credit statutes
and
regulations, including, without limitation, the respective Uniform
Consumer Credit Code laws in effect in Alabama, Colorado, Idaho,
Indiana,
Iowa, Kansas, Maine, Oklahoma, South Carolina, Utah, West Virginia
and
Wyoming, has been originated by a properly licensed entity, and
in all
other respects, complies with all of the material requirements
of any such
applicable laws;
|
| 50. |
The
information set forth in the Mortgage Loan Schedule as to Prepayment
Charges is complete, true and correct in all material respects
and each
Prepayment Charge is permissible, enforceable and collectable in
accordance with its terms upon the Mortgagor’s full and voluntary
principal payment under applicable
law;
|
| 51. |
The
Mortgage Loan was not prepaid in full prior to the Closing Date
and the
Seller has not received notification from a Mortgagor that a prepayment
in
full shall be made after the Closing
Date;
|
| 52. |
No
Mortgage Loan is secured by cooperative housing, commercial property
or
mixed use property, unless such mixed use property is subject to
de
minimis commercial use, such commercial use was not taken into
account in
valuing the related Mortgaged Property and the related Mortgaged
Property
was not modified for such commercial
use;
|
| 53. |
Each
Mortgage Loan is eligible for sale in the secondary market or for
inclusion in a Securitization Transaction without unreasonable
credit
enhancement;
|
| 54. |
Except
as set forth on the related Mortgage Loan Schedule, none of the
Mortgage
Loans are subject to a Prepayment Charge. For any Mortgage Loan
originated
prior to October 1, 2002 that is subject to a Prepayment Charge,
such
Prepayment Charge does not extend beyond five (5) years after the
date of
origination. For any Mortgage Loan originated on or following October
1,
2002 that is subject to a Prepayment Charge, such Prepayment Charge
does
not extend beyond three (3) years after the date of origination.
With
respect to any Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i)
prior to
the Mortgage Loan's origination, the Mortgagor agreed to such premium
in
exchange for a monetary benefit, including but not limited to a
rate or
fee reduction, (ii) prior to the Mortgage Loan's origination, the
Mortgagor was offered the option of obtaining a Mortgage Loan that
did not
require payment of such a premium, (iii) the prepayment premium
is
disclosed to the Mortgagor in the loan documents pursuant to applicable
state and federal law, and (iv) notwithstanding any state or federal
law
to the contrary, the Seller shall not impose such Prepayment Charge
in any
instance when the mortgage loan is accelerated or paid off in connection
with the workout of a delinquent Mortgage Loan as the result of
the
Mortgagor's default in making the loan
payments;
|
| 55. |
The
Seller has complied with all applicable anti-money laundering laws
and
regulations, including without limitation the USA Patriot Act of
2001
(collectively, the “Anti-Money Laundering Laws”); the Seller has
established an anti-money laundering compliance program as required
by the
Anti-Money Laundering Laws, has conducted the requisite due diligence
in
connection with the origination of each Mortgage Loan for purposes
of the
Anti-Money Laundering Laws, including with respect to the legitimacy
of
the applicable Mortgagor and the origin of the assets used by the
said
Mortgagor to purchase the Mortgaged Property, and maintains, and
will
maintain, sufficient information to identify the applicable Mortgagor
for
purposes of the Anti-Money Laundering Laws. No Mortgage Loan is
subject to
nullification pursuant to Executive Order 13224 (the “Executive Order”) or
the regulations promulgated by the Office of Foreign Assets Control
of the
United States Department of the Treasury (the “OFAC Regulations”) or in
violation of the Executive Order or the OFAC Regulations, and no
Mortgagor
is subject to the provisions of such Executive Order or the OFAC
Regulations nor listed as a “blocked person” for purposes of the OFAC
Regulations;
|
| 56. |
No
Mortgagor was encouraged or required to select a Mortgage Loan
product
offered by the Mortgage Loan's originator which is a higher cost
product
designed for less creditworthy borrowers, unless at the time of
the
Mortgage Loan's origination, such Mortgagor did not qualify taking
into
account credit history and debt to income ratios for a lower cost
credit
product then offered by the Mortgage Loan's originator or any affiliate
of
the Mortgage Loan's originator. If, at the time of loan application,
the
Mortgagor may have qualified for a for a lower cost credit product
then
offered by any mortgage lending affiliate of the Mortgage Loan's
originator, the Mortgage Loan's originator referred the Mortgagor's
application to such affiliate for underwriting consideration. With
respect
to any Mortgage Loan, the Mortgagor was assigned the highest credit
grade
available with respect to a mortgage loan product offered by such
Mortgage
Loan’s originator, based on a comprehensive assessment of risk factors,
including the Mortgagor’s credit history. Additionally, the Mortgage
Loan’s originator offered the Mortgagor mortgage loan products offered
by
such Mortgage Loan’s originator, or any affiliate of such Mortgage Loan’s
originator, for which the Mortgagor
qualified;
|
| 57. |
The
methodology used in underwriting the extension of credit for each
Mortgage
Loan employs objective mathematical principles which relate the
Mortgagor's income, assets and liabilities to the proposed payment
and
such underwriting methodology does not rely on the extent of the
Mortgagor's equity in the collateral as the principal determining
factor
in approving such credit extension. Such underwriting methodology
confirmed that at the time of origination (application/approval)
the
Mortgagor had a reasonable ability to make timely payments on the
Mortgage
Loan;
|
| 58. |
With
respect to each Mortgage Loan, the Seller has fully and accurately
furnished complete information (i.e., favorable and unfavorable)
on the
related borrower credit files to Equifax, Experian and Trans Union
Credit
Information Company, in accordance with the Fair Credit Reporting
Act and
its implementing regulations, on a monthly basis and, for each
Mortgage
Loan, the Seller will furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information on its borrower credit files to Equifax, Experian,
and Trans
Union Credit Information Company, on a monthly
basis;
|
| 59. |
All
points and fees related to each Mortgage Loan were disclosed in
writing to
the related Borrower in accordance with applicable state and federal
laws
and regulations. No related Borrower was charged “points and fees”
(whether or not financed) in an amount greater than (a) $1,000
or (b) 5%
of the principal amount of such loan, whichever is greater, such
5%
limitation is calculated in accordance with ▇▇▇▇▇▇ Mae’s anti-predatory
lending requirements as set forth in the ▇▇▇▇▇▇ Mae Guides. For
purposes
of this representation, “points and fees” (a) include origination,
underwriting, broker and finder’s fees and other charges that the lender
imposed as a condition of making the loan, whether they are paid
to the
lender or a third party, and (b) exclude bona fide discount points,
fees
paid for actual services rendered in connection with the origination
of
the mortgage (such as attorneys’ fees, notaries fees and fees paid for
property appraisals, credit reports, surveys, title examinations
and
extracts, flood and tax certifications, and home inspections);
the cost of
mortgage insurance or credit-risk price adjustments; the costs
of title,
hazard, and flood insurance policies; state and local transfer
taxes or
fees; escrow deposits for the future payment of taxes and insurance
premiums; and other miscellaneous fees and charges that, in total,
do not
exceed 0.25 percent of the loan amount. All points, fees and charges
(including finance charges) and whether or not financed, assessed,
collected or to be collected in connection with the origination
and
servicing of each Mortgage Loan were disclosed in writing to the
related
Mortgagor in accordance with applicable state and federal laws
and
regulations;
|
| 60. |
[Reserved];
|
| 61. |
With
respect to any Mortgage Loan which is secured by manufactured housing,
if
such Mortgage Loans are permitted hereunder, such Mortgage Loan
satisfies
the requirements for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's Ratings Services and such
manufactured housing will be the principal residence of the Mortgagor
upon
the origination of the Mortgage Loan. With respect to any second
lien
Mortgage Loan, such lien is on a one- to four-family residence
that is (or
will be) the principal residence of the Mortgagor upon the origination
of
the second lien Mortgage Loan;
|
| 62. |
Each
Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulation
Section 1.860G-2(a)(1);
|
| 63. |
No
Mortgage Loan is secured by real property or secured by a manufactured
home located in the state of Georgia unless (x) such Mortgage Loan
was
originated prior to October 1, 2002 or after March 6, 2003, or
(y) the
property securing the Mortgage Loan is not, nor will be, occupied
by the
Mortgagor as the Mortgagor’s principal dwelling. No Mortgage Loan is a
“High Cost Home Loan” as defined in the Georgia Fair Lending Act, as
amended (the “Georgia Act”). Each Mortgage Loan that is a “Home Loan”
under the Georgia Act complies with all applicable provisions of
the
Georgia Act. No Mortgage Loan secured by owner occupied real property
or
an owner occupied manufactured home located in the State of Georgia
was
originated (or modified) on or after October 1, 2002 through and
including
March 6, 2003;
|
| 64. |
No
Mortgage Loan is a “High-Cost” loan as defined under the New York Banking
Law Section 6-1, effective as of April 1,
2003;
|
| 65. |
No
Mortgage Loan (a) is secured by property located in the State of
New York;
(b) had an unpaid principal balance at origination of $300,000
or less,
and (c) has an application date on or after April 1, 2003, the
terms of
which Mortgage Loan equal or exceed either the APR or the points
and fees
threshold for “high-cost home loans”, as defined in Section 6-1 of
the New York State Banking Law;
|
| 66. |
No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home
Loan Protection Act effective July 16, 2003 (Act 1340 or
2003);
|
| 67. |
No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky
high-cost loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
|
| 68. |
No
Mortgage Loan secured by property located in the State of Nevada
is a
“home loan” as defined in the Nevada Assembly ▇▇▇▇ No.
284;
|
| 69. |
No
Mortgage Loan is a “manufactured housing loan” or “home improvement home
loan” pursuant to the New Jersey Home Ownership Act. No Mortgage Loan
is a
“High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case,
as defined in the New Jersey Home Ownership Act effective November
27,
2003 (N.J.S.A. 46;10B-22 et seq.);
|
| 70. |
No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home
Ownership and Equity protection
Act;
|
| 71. |
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home
Loan Protection Act effective January 1, 2004 (N.M. Stat. ▇▇▇.
§§ 58-21A-1
et seq.);
|
| 72. |
No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois
High-Risk Home Loan Act effective January 1, 2004 (815 Ill. Comp.
Stat.
137/1 et seq.);
|
| 73. |
No
Loan that is secured by property located within the State of Maine
meets
the definition of a (i) “high-rate, high-fee” mortgage loan under Article
VIII, Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home
Loan” as defined under the Maine House ▇▇▇▇ 383 ▇.▇. 494, effective as
of
September 13, 2003;
|
| 74. |
With
respect to any Loan for which a mortgage loan application was submitted
by
the Mortgagor after April 1, 2004, no such Loan secured by Mortgaged
Property in the State of Illinois which has a Loan Interest Rate
in excess
of 8.0% per annum has lender-imposed fees (or other charges) in
excess of
3.0% of the original principal balance of the
Loan;
|
| 75. |
No
Mortgage Loan is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November
7,
2004 (Mass. ▇▇▇. Laws Ch. 183C). No Mortgage Loan secured by a
Mortgaged
Property located in the Commonwealth of Massachusetts was made
to pay off
or refinance an existing loan or other debt of the related borrower
(as
the term “borrower” is defined in the regulations promulgated by the
Massachusetts Secretary of State in connection with Massachusetts
House
▇▇▇▇ 4880 (2004)) unless either (1) (a) the related Mortgage Interest
Rate
(that would be effective once the introductory rate expires, with
respect
to Adjustable Rate Mortgage Loans) did or would not exceed by more
than
2.25% the yield on United States Treasury securities having comparable
periods of maturity to the maturity of the related Mortgage Loan
as of the
fifteenth day of the month immediately preceding the month in which
the
application for the extension of credit was received by the related
lender
or (b) the Mortgage Loan is an “open-end home loan” (as such term is used
in the Massachusetts House ▇▇▇▇ 4880 (2004)) and the related Mortgage
Note
provides that the related Mortgage Interest Rate may not exceed
at any
time the Prime rate index as published in The Wall Street Journal
plus a
margin of one percent, or (2) such Mortgage Loan is in the "borrower's
interest," as documented by a "borrower's interest worksheet" for
the
particular Mortgage Loan, which worksheet incorporates the factors
set
forth in Massachusetts House ▇▇▇▇ 4880 (2004) and the regulations
promulgated thereunder for determining "borrower's interest," and
otherwise complies in all material respects with the laws of the
Commonwealth of Massachusetts;
|
| 76. |
No
Loan is a “High Cost Home Loan” as defined by the Indiana Home Loan
Practices Act, effective January 1, 2005 ( Ind. Code ▇▇▇. §§ 24-9-1 et
seq.);
|
| 77. |
The
Mortgagee has not made or caused to be made any payment in the
nature of
an “average” or “yield spread premium” to a mortgage broker or a like
Person which has not been fully disclosed to the
Mortgagor;
|
| 78. |
The
sale or transfer of the Mortgage Loan by the Seller complies with
all
applicable federal, state, and local laws, rules, and regulations
governing such sale or transfer, including, without limitation,
the Fair
and Accurate Credit Transactions Act (“FACT Act”) and the Fair Credit
Reporting Act, each as may be amended from time to time, and the
Seller
has not received any actual or constructive notice of any identity
theft,
fraud, or other misrepresentation in connection with such Mortgage
Loan or
any party thereto;
|
| 79. |
With
respect to each MOM Loan, a MIN has been assigned by MERS and such
MIN is
accurately provided on the Mortgage Loan Schedule. The related
Assignment
of Mortgage to MERS has been duly and properly recorded, or has
been
delivered for recording to the applicable recording
office;
|
| 80. |
With
respect to each MOM Loan, Seller has not received any notice of
liens or
legal actions with respect to such Mortgage Loan and no such notices
have
been electronically posted by MERS;
|
| 81. |
With
respect to each second lien Mortgage Loan, either no consent for
the
Mortgage Loan is required by the holder of the first lien or such
consent
has been obtained and is contained in the Mortgage File;
and
|
| 82. |
No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising
out of or relating in any way to the Mortgage Loan transaction.
No
Mortgage Loan is subject to any mandatory
arbitration.
|
EXHIBIT
D
MORTGAGE
LOAN SCHEDULE
[Available
Upon Request]
EXHIBIT
E
REQUEST
FOR RELEASE (DEUTSCHE BANK)
|
To:
|
Deutsche
Bank National Trust Company
▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2006, among Financial
Asset
Securities Corp. as Depositor, Fremont Investment & Loan as Servicer,
▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer and Trust Administrator
and
Deutsche Bank National Trust Company, a national banking association,
as
Trustee
|
In
connection with the administration of the Mortgage Loans held by you as Trustee
pursuant to the above-captioned Pooling and Servicing Agreement, we request
the
release, and hereby acknowledge receipt of the Trustee’s Mortgage File Or the
Mortgage Loan described below, for the reason indicated. Any payments received
in connection with this Request for Release of documents have been or will
be
deposited into the Collection Account for the benefit of the Trust.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
|
_________1.
|
Mortgage
Paid in Full
|
|
|
_________2.
|
Foreclosure
|
|
|
_________3.
|
Substitution
|
|
|
_________4.
|
Other
Liquidation (Repurchases, etc.)
|
|
|
_________5.
|
Nonliquidation
|
Reason:_____________________
|
Address
to which Trustee should deliver
the
Trustee’s Mortgage File:
|
By:
|
||
|
(authorized
signer)
|
||
|
Issuer:
|
||
|
Address:
|
||
|
Date:
|
||
Trustee
Deutsche
Bank National Trust Company
Please
acknowledge the execution of the above request by your signature and date
below:
|
Signature
|
Date
|
|
|
Documents
returned to Trustee:
|
||
|
Trustee
|
Date
|
EXHIBIT
F-1
FORM
OF
TRUSTEE’S INITIAL CERTIFICATION
April
__,
2006
Financial
Asset Securities Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2006, among Financial
Asset
Securities Corp. as Depositor, Fremont Investment & Loan as Servicer,
▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer and Trust Administrator
and
Deutsche Bank National Trust Company, a national banking association,
as
Trustee
|
Ladies
and Gentlemen:
Attached
is the Trustee’s preliminary exception report delivered in accordance with
Section 2.02 of the referenced Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”). Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Pooling and Servicing
Agreement.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File includes any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
|||||||
|
By:
|
|||||||
|
Name:
|
|||||||
|
Title:
|
|||||||
EXHIBIT
F-2
FORM
OF
TRUSTEE’S FINAL CERTIFICATION
|
________________
|
|||
|
[Date]
|
Financial
Asset Securities Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as
of April 1, 2006 among Financial Asset Securities Corp., as Depositor,
Fremont Investment & Loan as Servicer, ▇▇▇▇▇ Fargo Bank, N.A. as
Master Servicer and Trust Administrator and Deutsche Bank National
Trust
Company, as Trustee with respect to Fremont Home Loan Trust 2006-2,
Asset-Backed Certificates, Series
2006-2
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage loan paid in full or
listed on Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in items 1, 3, 10, 11 and 15 of the
definition of Mortgage Loan Schedule in the Pooling and Servicing Agreement
accurately reflects information in the Mortgage File.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
EXHIBIT
F-3
FORM
OF
RECEIPT OF MORTGAGE NOTE
Financial
Asset Securities Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Fremont
Home Loan Trust 2006-2,
Asset-Backed
Certificates Series 2006-2
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”), dated as of April 1, 2006 among Financial Asset
Securities Corp., as Depositor, Fremont Investment & Loan as Servicer, ▇▇▇▇▇
Fargo Bank, N.A. as Master Servicer and Trust Administrator and Deutsche Bank
National Trust Company, as Trustee, we hereby acknowledge the receipt of the
original Mortgage Notes (a copy of which is attached hereto as Exhibit 1) with
any exceptions thereto listed on Exhibit 2.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
|||||||
|
By:
|
|||||||
|
Name:
|
|||||||
|
Title:
|
|||||||
EXHIBIT
G
[RESERVED]
EXHIBIT
H
FORM
OF
LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
__________________ who first being duly sworn deposes and says: Deponent is
__________________________ of ____________________________, successor by merger
to _________________________ (“Seller”) and who has personal knowledge of the
facts set out in this affidavit.
On
_________________________________, _________________________________ did execute
and deliver a promissory note in the principal amount of
$____________________.
That
said
note has been misplaced or lost through causes unknown and is presently lost
and
unavailable after diligent search has been made. Seller’s records show that an
amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and Seller is still owner and holder in due course of said
lost
note.
Seller
executes this Affidavit for the purpose of inducing Deutsche Bank National
Trust
Company, as trustee on behalf of Fremont Home Loan Trust 2006-2, Asset-Backed
Certificates Series 2006-2, to accept the transfer of the above described loan
from Seller.
Seller
agrees to indemnify Deutsche Bank National Trust Company and Financial Asset
Securities Corp. harmless for any losses incurred by such parties resulting
from
the above described promissory note has been lost or misplaced.
|
By:
|
||
|
|
||
|
STATE
OF
|
)
|
|
|
) SS:
|
||
|
COUNTY
OF
|
)
|
On
this
______ day of ______________, 20_, before me, a Notary Public, in and for said
County and State, appeared , who acknowledged the extension of the foregoing
and
who, having been duly sworn, states that any representations therein contained
are true.
Witness
my hand and Notarial Seal this _________ day of 20__.
My
commission expires __________________________.
EXHIBIT
I
FORM
OF
LIMITED POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that [NAME OF MORTGAGEE, ASSIGNEE OR LAST ENDORSEE,
AS
APPLICABLE], [a ___________________ corporation][a national banking
organization], having its principal place of business at
__________________________, (the “Undersigned”), pursuant to that Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) among Financial
Asset Securities Corp. (the “Owner”), Fremont Investment & Loan (“Fremont”),
Deutsche Bank National Trust Company and ▇▇▇▇▇ Fargo Bank, N.A., hereby
constitutes and appoints Fremont, by and through Fremont’s officers, the
Undersigned's true and lawful Attorney-in-Fact, in the Undersigned's name,
place
and stead, as their interests may appear, and for the Undersigned's respective
benefit, in connection with all Mortgage Loans serviced by Fremont pursuant
to
the Pooling and Servicing Agreement, for the purpose of performing all acts
and
executing all documents in the name of the Undersigned as may be customarily
and
reasonably necessary and appropriate to effectuate the following enumerated
transactions in respect of any of the mortgages, deeds of trust or security
instrument (each a “Mortgage” or a “Deed of Trust” respectively) and promissory
notes secured thereby (each a “Mortgage Note”) for which the Undersigned is
acting as Servicer pursuant to the Pooling and Servicing Agreement (whether
the
Undersigned is named therein as mortgagee or beneficiary or has become mortgagee
by virtue of endorsement of the Mortgage Note secured by any such Mortgage
or
Deed of Trust) all subject to the terms of the related Pooling and Servicing
Agreement.
This
appointment shall apply to the following enumerated transactions
only:
1. The
modification or re-recording of a Mortgage or Deed of Trust, where said
modification or re-recording is for the purpose of correcting the Mortgage
or
Deed of Trust to conform same to the original intent of the parties thereto
or
to correct title errors discovered after such title insurance was issued and
said modification or re-recording, in either instance, does not adversely affect
the lien of the Mortgage or Deed of Trust as insured.
2. The
subordination of the lien of a Mortgage or Deed of Trust to an easement in
favor
of a public utility company or a governmental agency or authority thereunder
with powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfaction/release, partial reconveyances or the
execution of requests to trustees to accomplish same.
3. The
conveyance of the properties to the mortgage insurer, or the closing of the
title to the property to be acquired as real estate owned, or conveyance of
title to real estate owned.
4. The
completion of loan assumption agreements.
5. The
full
satisfaction/release of a Mortgage or Deed of Trust or full reconveyance upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related Mortgage Note.
6. The
assignment of any Mortgage or Deed of Trust and the related Mortgage Note,
in
connection with the repurchase of the mortgage loan secured and evidenced
thereby.
7. The
full
assignment of a Mortgage or Deed of Trust upon payment and discharge of all
sums
secured thereby in conjunction with the refinancing thereof, including, without
limitation, the assignment of the related Mortgage Note.
8. With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking of a deed
in
lieu of foreclosure, or the completion of judicial or non-judicial foreclosure
or termination, cancellation or rescission of any such foreclosure, including,
without limitation, any and all of the following acts:
a) the
substitution of trustee(s) serving under a Deed of Trust, in accordance with
state law and the Deed of Trust;
b) the
preparation and issuance of statements of breach or
non-performance;
c) the
preparation and filing of notices of default and/or notices of
sale;
d) the
cancellation/rescission of notices of default and/or notices of
sale;
e) the
taking of a deed in lieu of foreclosure; and
f) the
preparation and execution of such other documents and performance of such other
actions as may be necessary under the terms of the Mortgage, Deed of Trust
or
state law to expeditiously complete said transactions in paragraphs 8(a) through
8(e) above.
9. The
full
assignment of a Mortgage or Deed of Trust upon sale of a loan pursuant to a
mortgage loan sale agreement for the sale of a loan or pool of loans, including,
without limitation, the assignment of the related Mortgage Note.
The
Undersigned gives said Attorney-in-Fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney, each subject to the terms and conditions set forth in the
related Pooling and Servicing Agreement and in accordance with the standard
of
care applicable to the servicer in the Pooling and Servicing Agreement as fully
as the undersigned might or could do, and hereby does ratify and confirm to
all
that said Attorney-in-Fact shall lawfully do or cause to be done by authority
hereof. This Limited Power of Attorney shall be effective as of [SERVICING
TRANSFER EFFECTIVE DATE].
Nothing
contained herein shall (i) limit in any manner any indemnification provided
by
Fremont to the Owner under the Pooling and Servicing Agreement, or (ii) be
construed to grant Fremont the power to initiate or defend any suit, litigation
or proceeding in the name of the Undersigned except as specifically provided
for
herein or under the Pooling and Servicing Agreement.
Fremont
hereby agrees to indemnify and hold the Undersigned and its directors, officers,
employees and agents harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever incurred by reason
or
result of or in connection with the exercise by Fremont of the powers granted
to
it hereunder. The foregoing indemnity shall survive the termination of this
Limited Power of Attorney and the Pooling and Servicing Agreement or the earlier
resignation or removal of the Undersigned under the Pooling and Servicing
Agreement.
Any
third
party without actual notice of fact to the contrary may rely upon the exercise
of the power granted under this Limited Power of Attorney; and may be satisfied
that this Limited Power of Attorney shall continue in full force and effect
and
has not been revoked unless an instrument of revocation has been made in writing
by the undersigned, and such third party put on notice thereof. This Limited
Power of Attorney shall be in addition to and shall not revoke or in any way
limit the authority granted by any previous power of attorney executed by the
Undersigned.
IN
WITNESS WHEREOF, ____________________ pursuant to the Pooling and Servicing
Agreement, has caused its corporate seal to be hereto affixed and these presents
to be signed and acknowledged in its name and behalf by ______________________,
its duly elected and authorized _________________________ this ___ day of
_________________, 2006.
By:_____________________________________
Name:
______________________
Title:
___________________________
Acknowledged
and Agreed
Fremont
Investment & Loan
By:_________________________
Name:
Title:
EXHIBIT
J
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Financial
Asset Securities Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Trust Services—
Fremont
Home Loan Trust 2006-2
|
Re:
|
Fremont
Home Loan Trust 2006-2,
Asset-Backed
Certificates Series 2006-2
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring
the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Pooling and Servicing Agreement.
|
Very
truly yours,
|
|
|
[NAME
OF TRANSFEREE]
|
|
|
Authorized
Officer
|
FORM
OF
RULE 144A INVESTMENT LETTER
[DATE]
Financial
Asset Securities Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Trust Services—
Fremont
Home Loan Trust 2006-2
|
Re:
|
Fremont
Home Loan Trust 2006-2,
Asset-Backed
Certificates Series 2006-2
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(c)
we are not an employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended, or a plan that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended, nor are we acting on
behalf of any such plan, (d) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (e) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Securities Act and have completed either of
the
forms of certification to that effect attached hereto as Annex 1 or Annex 2.
We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged
or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of
a
qualified institutional buyer to whom notice is given that the resale, pledge
or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
|
Very
truly yours,
|
|
|
[NAME
OF TRANSFEREE]
|
|
|
Authorized
Officer
|
ANNEX
1 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
_________
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan association
or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
_________
Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Broker-Dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
_________
Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
_________
State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
_________
ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
_________
Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
_________
Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“SECURITIES” as used herein DOES NOT INCLUDE (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iv) bank
deposit notes and certificates of deposit (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
|
Print
Name of Buyer
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
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.
ANNEX
2 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyers Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
_________
The
Buyer
owned $_________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_________
The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$___________ in securities (other than the excluded securities referred to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“FAMILY OF INVESTMENT COMPANIES” as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The
term
“SECURITIES” as used herein does not include (i) securities of issuers that are
affiliated with the Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
|
Print
Name of Buyer or Adviser
|
|||||||
|
By:
|
|||||||
|
Name:
|
|||||||
|
Title:
|
|||||||
|
IF
AN ADVISER:
|
|||||||
|
Print
Name of Buyer
|
|||||||
|
Date:
|
|||||||
EXHIBIT
K
FORM
OF
TRANSFER AFFIDAVIT FOR RESIDUAL CERTIFICATES
PURSUANT
TO SECTION 5.02(D)
FREMONT
HOME LOAN TRUST 2006-2
ASSET-BACKED
CERTIFICATES, SERIES 2006-2
|
STATE
OF
|
)
|
|
|
)
ss:
|
||
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of, the proposed Transferee of an Ownership Interest
in a Residual Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement dated as of April 1, 2006 (the
“Agreement”),
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Fremont Investment & Loan (the “Servicer”),
▇▇▇▇▇
Fargo Bank, N.A. as master servicer and trust administrator (the “Master
Servicer” and “Trust Administrator”) and Deutsche Bank National Trust Company,
as trustee (the “Trustee”).
Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee for the benefit of the Depositor and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for
a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the
tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(d) of the Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions
on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by
the provisions of Section 5.02(d) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that
any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit L to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends to
pay
its debts as they come due in the future, and understands that the taxes payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is ___________.
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable to
a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
The
present value of the anticipated tax liabilities associated with holding the
Certificate, as applicable, does not exceed the sum of:
|
(i)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
|
(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to
the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by
the
Transferee.
The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United States;
|
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in
excess of $10 million;
|
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of
the U.S. Treasury Regulations; and
|
|
|
(iv)
|
the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including, but
not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
None
of the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
|
[NAME
OF TRANSFEREE]
|
|||||||
|
By:
|
|||||||
|
Name:
|
|||||||
|
Title:
|
|||||||
|
[Corporate
Seal]
|
|
|
ATTEST:
|
|
|
[Assistant]
Secretary
|
Personally
appeared before me the above-named __________, known or proved to me to be
the
same person who executed the foregoing instrument and to be the ___________
of
the Transferee, and acknowledged that he executed the same as his free act
and
deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
|
NOTARY
PUBLIC
|
|
|
My
Commission expires the __ day
of
_________, 20__
|
EXHIBIT
L
FORM
OF
TRANSFEROR CERTIFICATE
[DATE]
Financial
Asset Securities Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Trust Services—
Fremont
Home Loan Trust 2006-2
|
Re:
|
Fremont
Home Loan Trust, Series 2006-2
Asset
Backed Certificates, Series 2006-2
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, (b)
we
have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act, (c)
to
the extent we are disposing of a Class [ ] Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of a Class [ ] Certificate is to impede the assessment or collection
of tax.
|
Very
truly yours,
|
||
|
TRANSFEROR
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
M
FORM
OF
ERISA REPRESENTATION LETTER
_____________,
20__
|
Financial
Asset Securities Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Trust Services—
Fremont
Home Loan Trust 2006-2
|
|
Re:
|
Fremont
Home Loan Trust, Series 2006-2
Asset
Backed Certificates, Series 2006-2
|
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance Fremont Home
Loan Trust 2006-2, Asset-Backed Certificates Series 2006-2, Class [C][P][R[-X]]
(the “Certificates”), issued pursuant to a Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”) dated as of April 1, 2006 among Financial
Asset Securities Corp. as depositor (the “Depositor”), Fremont Investment &
Loan (the “Servicer”), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust
administrator (the “Master Servicer” and “Trust Administrator”) and Deutsche
Bank National Trust Company as trustee (the “Trustee”). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned thereto in
the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and
warrants to, and covenants with the Depositor, the Trustee and the Servicer
the
following:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
▇▇▇▇▇ plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R.ss.2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within
the meaning of the DOL regulation at 29 ▇.▇.▇.▇▇. 2510.3-101.
|
Very
truly yours,
|
||
|
[Transferee]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
N-1
FORM
CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER WITH FORM 10-K
|
Re:
|
Fremont
Home Loan Trust, Series 2006-2
Asset
Backed Certificates, Series 2006-2
|
Certification
I,
[identify the certifying individual], certify that:
1. I
have
reviewed this annual report on Form 10-K, and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K
[identify issuing entity] (i.e., the name of the specific deal to which this
certification relates rather than just the name of the Depositor)] (the
“Exchange Act periodic reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. Based
on
my knowledge and compliance statement required in this report under Item 1123
of
Regulation AB, and except as disclosed in the Exchange Act periodic reports,
the
servicer has fulfilled its obligations under the Pooling and Servicing Agreement
in all material respects; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated party: Deutsche Bank National Trust
Company.
|
▇▇▇▇▇
FARGO BANK, N.A.
|
|||
| By:____________________________________ | |||
|
Name:
|
|||
|
Title:
|
EXHIBIT
N-2
FORM
CERTIFICATION TO BE
PROVIDED
TO MASTER SERVICER BY THE SERVICER
|
Re:
|
Fremont
Home Loan Trust, Series 2006-2
Asset
Backed Certificates, Series 2006-2
|
I,
________________________________, the _______________________ of Fremont
Investment & Loan (“Fremont”), certify to Financial Asset Securities Corp.
and the Master Servicer, and their officers, with the knowledge and intent
that
they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the Master Servicer pursuant
to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to [the
Agreement], and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and Subcontractor pursuant to
the
Agreement, have been provided to Fremont. Any material instances of
noncompliance described in such reports have been disclosed to Fremont. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date:
By:_____________________
Name:
EXHIBIT
O
FORM
OF
CAP CONTRACT
Dated:
April 28, 2006
Rate
Cap Transaction
Re:
BNY
Reference No. 37729
Ladies
and Gentlemen:
The
purpose of this letter agreement (“Agreement”)
is to
confirm the terms and conditions of the rate Cap Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between The Bank of New York (“BNY”),
a
trust company duly organized and existing under the laws of the State of
New
York, and ▇▇▇▇▇ Fargo Bank, N.A., not in its individual capacity, but solely
as
trust administrator with respect to the Fremont Home Loan Trust 2006-2,
Asset-Backed Certificates, Series 2006-2 (in such capacity, the “Trust
Administrator”
or
the
“Counterparty”),
under
the Pooling and Servicing Agreement, dated as of April 1, 2006, among Financial
Asset Securities Corp. as depositor (the “Depositor”),
Fremont Investment & Loan as servicer (the “Servicer”),
▇▇▇▇▇
Fargo Bank, N.A. as master servicer (the “Master
Servicer”),
and
Deutsche Bank National Trust Company as Trustee (the “Trustee”) (the
“Pooling
and Servicing Agreement”).
This
Agreement, which evidences a complete and binding agreement between you and
us
to enter into the Transaction on the terms set forth below, constitutes a
“Confirmation”
as
referred to in the “ISDA
Form Master Agreement”
(as
defined below), as well as a “Schedule” as referred to in the ISDA Form Master
Agreement.
1. Form
of Agreement.
This
Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”),
as
published by the International Swaps and Derivatives Association, Inc.
(“ISDA”).
You
and we have agreed to enter into this Agreement in lieu of negotiating a
Schedule to the 1992 ISDA Master Agreement (Multicurrency—Cross Border) form
(the “ISDA
Form Master Agreement”).
An
ISDA Form Master Agreement, as modified by the Schedule terms in Paragraph
4 of
this Confirmation (the “Master
Agreement”),
shall
be deemed to have been executed by you and us on the date we entered into
the
Transaction. Except as otherwise specified, references herein to Sections
shall
be to Sections of the Master Agreement, and references to Paragraphs shall
be to
paragraphs of this Agreement. In the event of any inconsistency between the
provisions of this Agreement and the Definitions or the Master Agreement,
this
Agreement shall prevail for purposes of the Transaction. Capitalized terms
not
otherwise defined herein or in the Definitions or the Master Agreement shall
have the meaning defined for such term in the Pooling and Servicing
Agreement.
|
2.
|
Certain
Terms.
The terms of the particular Transaction to which this Confirmation
relates
are as follows:
|
Type
of
Transaction: Rate
Cap
Notional
Amount:
With respect to any Calculation Period, the lesser of: (i) the amount set
forth
on Schedule I attached hereto for such Calculation Period and (ii) the aggregate
Certificate Principal Balance of the Floating Rate Certificates and Fixed
Rate
Certificates (as defined in the Pooling and Servicing Agreement) for such
Floating Rate Payer Payment Date.
The
Trust
Administrator shall make available each month via the Trust Administrator’s
website a statement containing the aggregate Certificate Principal Balance
of
the Floating Rate Certificates and the Fixed Rate Certificates as of the
first
day of such Calculation Period and shall notify BNY at least five (5) Business
Days prior to the related Floating Rate Payer Payment Date of the aggregate
Certificate Principal Balance of the Floating Rate Certificates and the Fixed
Rate Certificates as of the first day of such Calculation Period and shall
send
such notification to BNY; provided, however, that if the Trust Administrator
shall not provide such notification, BNY is permitted to rely upon the statement
of aggregate Certificate Principal Balance of the Floating Rate Certificates
and
the Fixed Rate Certificates made available on the Trust Administrator’s website.
The Trust Administrator’s internet website shall initially be located at
▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and assistance in using the website can be obtained by calling
the Trust Administrator’s customer service line at ▇▇▇-▇▇▇-▇▇▇▇.
For
avoidance of doubt, CUSIP Numbers, ISIN Number and Issue Descriptions of
the
Floating Rate Certificates and the Fixed Rate Certificates, are set forth
on
Annex A attached hereto.
|
Trade
Date:
|
April
20, 2006
|
|
Effective
Date:
|
April
28, 2006
|
|
Termination
Date:
|
March
25, 2007, subject to adjustment in accordance with the Following
Business
Day Convention.
|
FIXED
AMOUNTS:
|
Fixed
Amount Payer:
|
Counterparty
|
|
Fixed
Amount:
|
USD
76.00
|
|
Fixed
Amount
|
|
|
Payment
Date:
|
April
28, 2006
|
FLOATING
AMOUNTS
|
Floating
Rate Payer:
|
BNY
|
|
Cap
Rate:
|
For
each Calculation Period, as set forth for such period on Schedule
I
attached hereto.
|
|
Floating
Rate for initial
|
|
|
Calculation
Period:
|
To
be determined
|
|
Floating
Rate Day Count
|
|
|
Fraction:
|
Actual/360
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, if the Floating Rate Option for a Calculation
Period is
greater than 10.50% then the Floating Rate Option for such Calculation
Period shall be deemed equal to 10.50%.
|
|
Designated
Maturity:
|
One
month
|
|
Spread:
|
Inapplicable
|
|
Floating
Rate Payer
|
|
|
Period
End Dates:
|
The
25th
day of each month, beginning on May 25, 2006 and ending on the
Termination
Date, subject to adjustment in accordance with the Following Business
Day
Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment Date
shall be
one (1) Business Day preceding each Floating Rate Payer Period
End
Date.
|
|
Reset
Dates:
|
The
first day of each Calculation Period or Compounding Period, if
Compounding
is applicable.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days for Payments
|
|
|
By
both parties:
|
New
York
|
|
Calculation
Agent:
|
BNY
|
3. Additional
Provisions:
Reliance.
Each
party hereto is hereby advised and acknowledges that the other party has
engaged
in (or refrained from engaging in) substantial financial transactions and
has
taken (or refrained from taking) other material actions in reliance upon
the
entry by the parties into the Transaction being entered into on the terms
and
conditions set forth herein.
|
4.
|
Provisions
Deemed Incorporated in a Schedule to the Master
Agreement:
|
| 1) |
No
Netting Between Transactions.
The parties agree that subparagraph (ii) of Section 2(c) will apply
to any
Transaction.
|
|
2)
|
Termination
Provisions.
Subject to the provisions of Paragraph 4(10) below, for purposes
of the
Master Agreement:
|
|
(a)
|
“Specified
Entity”
is not applicable to BNY or the Counterparty for any purpose.
|
|
(b)
|
The
“Breach
of Agreement”
provision of Section 5(a)(ii) will not apply to BNY or the
Counterparty.
|
|
(c)
|
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will not apply to BNY (except with
respect
to credit support furnished pursuant to Paragraph 4 (9) below)
or the
Counterparty.
|
|
(d)
|
The
“Misrepresentation”
provisions of Section 5(a)(iv) will not apply to BNY or the
Counterparty.
|
|
(e)
|
“Default
under Specified Transaction”
is not applicable to BNY or the Counterparty for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to BNY or the
Counterparty.
|
|
(f)
|
The
“Cross
Default”
provisions of Section 5(a)(vi) will not apply to BNY or to the
Counterparty.
|
|
(g)
|
The
“Bankruptcy”
provisions of Section 5(a)(vii)(2) will not apply to the Counterparty;
the
words “trustee” and “custodian” in Section 5(a)(vii)(6) will not include
the Trustee; and with respect to Counterparty only the words “specifically
authorized ” are inserted before the word “action” in Section
5(a)(vii)(9).
|
|
(h)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to BNY or the
Counterparty.
|
|
(i)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to BNY or to the
Counterparty.
|
|
(j)
|
Payments
on Early Termination.
For the purpose of Section 6(e):
|
(i) Market
Quotation will apply.
(ii) The
Second Method will apply.
|
(k)
|
“Termination
Currency”
means United States Dollars.
|
|
(l)
|
No
Additional Amounts Payable by Counterparty.
The Counterparty shall not be required to pay any additional amounts
pursuant to Section 2(d)(i)(4) or
2(d)(ii).
|
3) Tax
Representations.
|
(a)
|
Payer
Representations.
For the purpose of Section 3(e), BNY and the Counterparty make
the
following representations:
|
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e)) to be made by it to the
other party under this Agreement. In making this representation, it may rely
on:
|
(i)
|
the
accuracy of any representations made by the other party pursuant
to
Section 3(f);
|
|
(ii)
|
the
satisfaction of the agreement contained in Section 4 (a)(i) or
4(a)(iii)
and the accuracy and effectiveness of any document provided by
the other
party pursuant to Section 4 (a)(i) or 4(a)(iii);
and
|
|
(iii)
|
the
satisfaction of the agreement of the other party contained in Section
4(d), provided that it shall not be a breach of this representation
where
reliance is placed on clause (ii) and the other party does not
deliver a
form or document under Section 4(a)(iii) by reason of material
prejudice
of its legal or commercial position.
|
|
(b)
|
Payee
Representations.
For the purpose of Section 3(f), BNY and the Counterparty make
the
following representations.
|
(i) The
following representation will apply to BNY:
(x)
It is
a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of the
United States Treasury Regulations) for United States federal income tax
purposes, (y) it is a trust company duly organized and existing under the
laws
of the State of New York, and (y) its U.S. taxpayer identification number
is
▇▇▇▇▇▇▇▇▇.
(ii) The
following representation will apply to the Counterparty:
The
beneficial owner of the payments made to it under this Agreement is either
(i) a
"U.S. person" (as that term is used in section 1.1441-4(a)(3)(ii) of United
States Treasury Regulations) for United States federal income tax purposes
and
an "Exempt recipient" within the meaning of section 1.6049-4(c)(1)(ii) of
United
States Treasury Regulations, or (ii) a "non-U.S. branch of a foreign person"
as
that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury
Regulations (the "Regulations") for United States federal income tax purposes,
and it is a "foreign person" as that term is used in section 1.6041-4(a)(4)
of
the Regulations for United States federal income tax purposes.
4) Documents
to be delivered. For the purpose of Section 4(a):
(a) Tax
forms, documents or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) Representation
|
|
BNY
and Counterparty
|
Any
document required or
reasonably requested to allow the other party to make payments
under this
Agreement without any deduction or withholding for or on the account
of
any tax.
|
Upon
the execution and delivery of this Agreement
|
Yes
|
(b) Other
documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) Representation
|
|
BNY
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be.
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is required
|
Yes
|
|
Counterparty
|
(i)
a copy of the executed Pooling and Servicing Agreement, and (ii)
an
incumbency certificate verifying the true signatures and authority
of the
person or persons signing this letter agreement on behalf of the
Counterparty.
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
BNY
|
A
copy of the most recent publicly available regulatory call
report.
|
Promptly
after request by the other party
|
Yes
|
|
BNY
|
Legal
Opinion as to enforceability of this Agreement.
|
Upon
the execution and delivery of this Agreement.
|
Yes
|
|
Counterparty
|
Certified
copy of the Board of Directors resolution (or equivalent authorizing
documentation) which sets forth the authority of each signatory
to the
Confirmation signing on its behalf and the authority of such party
to
enter into Transactions contemplated and performance of its obligations
hereunder.
|
Upon
the execution and delivery of this Agreement.
|
Yes
|
5)
Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a):
|
Address
for notices or communications to BNY:
The
Bank
of New York
Swaps
and
Derivative Products Group
Global
Market Division
▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇
with
a
copy to:
The
Bank
of New York
Swaps
and
Derivative Products Group
▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tele:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇/5837
(For
all
purposes)
Address
for notices or communications to the Counterparty:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
Client Manager-Fremont 2006-2
Tele:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
(b) Process
Agent.
For the
purpose of Section 13(c):
BNY
appoints as its Process Agent: Not
Applicable
The
Counterparty appoints as its Process Agent: Not
Applicable
|
(c)
|
Offices.
The provisions of Section 10(a) will not apply to this Agreement;
neither
BNY nor the Counterparty have any Offices other than as set forth
in the
Notices Section and BNY agrees that, for purposes of Section 6(b),
it
shall not in future have any Office other than one in the United
States.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c):
|
BNY
is
not a Multibranch Party.
The
Counterparty is not a Multibranch Party.
|
(e)
|
Calculation
Agent.
The Calculation Agent is BNY.
|
(f) Credit
Support Document. Not
applicable for either BNY (except with respect to credit support furnished
pursuant to Paragraph 9) or the Counterparty.
|
(g)
|
Credit
Support Provider.
|
|
BNY:
|
Not
Applicable (except with respect to credit support furnished pursuant
to
Paragraph 9)
|
|
Counterparty:
|
Not
Applicable
|
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
conflict of law provisions thereof other than New York General
Obligations
Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) for any reason,
the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of
the
parties.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(j)
|
Recording
of Conversations.
Each party (i) consents to the recording of telephone conversations
between the trading, marketing and other relevant personnel of
the parties
in connection with this Agreement or any potential Transaction,
(ii)
agrees to obtain any necessary consent of, and give any necessary
notice
of such recording to, its relevant personnel and (iii) agrees,
to the
extent permitted by applicable law, that recordings may be submitted
in
evidence in any Proceedings.
|
|
(k)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in respect
of
any Proceedings relating to this Agreement or any Credit Support
Document.
|
|
(l)
|
[Reserved]
|
|
(m)
|
Limitation
on Institution of Bankruptcy Proceedings.
BNY shall not institute against or cause any other person to institute
against, or join any other person in instituting against the Counterparty,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, under any of the laws of the United States or any
other
jurisdiction, for a period of one year and one day (or, if longer,
the
applicable preference period) following indefeasible payment in
full of
the Certificates. This provision shall survive the expiration of
this
Agreement.
|
|
(n)
|
Remedy
of Failure to Pay or Deliver.
The ISDA Form Master Agreement is hereby amended by replacing the
word
“third” in the third line of Section 5(a)(i) by the word
“second”.
|
|
(o)
|
“Affiliate”
will have the meaning specified in Section 14 of the ISDA Form
Master
Agreement, provided that the Counterparty shall be deemed not to
have any
Affiliates for purposes of this Agreement, including for purposes
of
Section 6(b)(ii).
|
|
(p)
|
Trust
Administrator’s
Capacity.
It is expressly understood and agreed by the parties hereto that
insofar
as this Confirmation is executed by the Trust
Administrator
(i) this Confirmation is executed and delivered by
▇▇▇▇▇ Fargo Bank, N.A.,
not in its individual capacity but solely as Trust
Administrator
pursuant to the Pooling and Servicing Agreement in the exercise
of the
powers and authority conferred and vested in it thereunder and
pursuant to
instruction set forth therein (ii) each of the representations,
undertakings and agreements herein made on behalf of the trust
is made and
intended not as a personal representation, undertaking or agreement
of the
Trust
Administrator
but is made and intended for the purpose of binding only the Counterparty,
and (iii) under no circumstances ▇▇▇▇ ▇▇▇▇▇
Fargo Bank, N.A.,
in its individual capacity be personally liable for the payment
of any
indebtedness or expenses or be personally liable for the breach
or failure
of any obligation, representation, warranty or covenant made or
undertaken
under this Confirmation.
|
|
(q)
|
Trust
Administrator’s
Representation.
▇▇▇▇▇
Fargo Bank, N.A.,
as Trust
Administrator,
represents and warrants that:
|
It
has
been directed under the Pooling and Servicing Agreement to enter into this
letter agreement as Trust
Administrator
on
behalf of the Counterparty.
|
6)
|
Additional
Representations.
Section
3 is hereby amended, by substituting for the words “Section 3(f)” in the
introductory sentence thereof the words “Sections 3(f) and 3(i)” and by
adding, at the end thereof, the following Sections 3(g), 3(h) and
3(i):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
It
is not relying on any statement or representation of the other
party
regarding the Transaction (whether written or oral), other than
the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction.
|
(2) Evaluation
and Understanding.
Each
Party is acting for its own account and has the capacity to evaluate (internally
or through independent professional advice) the Transaction and has made
its own
decision to enter into the Transaction; it is not relying on any communication
(written or oral) of the other party as investment advice or as a recommendation
to enter into such transaction; it being understood that information and
explanations related to the terms and conditions of such transaction shall
not
be considered investment advice or a recommendation to enter into such
transaction. No communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the expected results
of
the transaction; and
|
(ii)
|
It
understands the terms, conditions and risks of the Transaction
and is
willing and able to accept those terms and conditions and to assume
(and
does, in fact assume) those risks, financially and otherwise.
|
|
(3)
|
Principal.
The
other party is not acting as a fiduciary or an advisor for it in
respect
of this Transaction.
|
|
(h)
|
Exclusion
from Commodities Exchange Act.
(A)
It is an “eligible contract participant” within the meaning of Section
1a(12) of the Commodity Exchange Act, as amended; (B) this Agreement
and
each Transaction is subject to individual negotiation by such party;
and
(C) neither this Agreement nor any Transaction will be executed
or traded
on a “trading facility” within the meaning of Section 1a(33) of the
Commodity Exchange Act, as amended.
|
|
(i)
|
ERISA
(Pension Plans).
It
is not a pension plan or employee benefits plan and it is not using
assets
of any such plan or assets deemed to be assets of such a plan in
connection with this Transaction.
|
|
7)
|
Set-off.
Notwithstanding any provision of this Agreement or any other existing
or
future agreement (but without limiting the provisions of Section
2(c) and
Section 6, except as provided in the next sentence), each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
The
last sentence of the first paragraph of Section 6(e) shall not
apply for
purposes of this Transaction.
|
| 8) |
Additional
Termination Events.
The following Additional Termination Events will apply, in each
case with
respect to the BNY as the sole Affected Party:
|
| (i) |
Downgrade.
BNY fails to comply with the Downgrade Provisions as set forth
in
Paragraph 4(9).
|
| (ii) |
Provision
of Information Required by Regulation AB.
BNY shall fail to comply with the provisions of Paragraph 4(11)
below
within the time provided for therein. BNY shall be the sole Affected
Party.
|
|
9)
|
Provisions
Relating to Downgrade of BNY Debt Ratings.
|
(i) For
purposes of this Transaction:
|
(a)
|
A
“Collateralization
Ratings Event”
shall occur with respect to BNY (or any applicable credit support
provider) if:
|
|
(x)
|
its
short-term unsecured and unsubordinated debt rating is reduced
to “P-1 on
watch for downgrade” or below, and its long-term unsecured and
unsubordinated debt is reduced to ”A1 on watch for downgrade” or below
(or, if it has no short-term unsecured and unsubordinated debt
rating, its
long term rating is reduced to “Aa3 on watch for downgrade” or below) by
▇▇▇▇▇’▇, or
|
|
(y)
|
its
short-term unsecured and unsubordinated debt rating is reduced
below “A-1”
by S&P.
|
Such
ratings are referred to herein as the “Qualifying
Ratings.”
|
(b)
|
A
“Ratings
Event”
shall occur with respect to BNY (or any applicable credit support
provider) if:
|
|
(x)
|
its
short-term unsecured and unsubordinated debt rating is withdrawn
or
reduced to “P-2” or below by ▇▇▇▇▇’▇ and its long-term unsecured and
unsubordinated debt is reduced to “A3” or below (or, if it has no
short-term unsecured and unsubordinated debt rating, its long term
rating
is reduced to “A2” or below) by ▇▇▇▇▇’▇, or
|
|
(y)
|
its
long-term unsecured and unsubordinated debt rating is withdrawn
or reduced
below “BBB-” by S&P.
|
For
purposes of (a) and (b) above, such events include those occurring in connection
with a merger, consolidation or other similar transaction by BNY or any
applicable credit support provider, but they shall be deemed not to occur
if,
within 30 days thereafter (provided,
that
this
shall not be construed to extend the period within which actions are to be
taken
as provided in Paragraph 4(9)(ii) below), each of ▇▇▇▇▇’▇ and S&P has
reconfirmed the ratings of the Certificates, as applicable, which were in
effect
immediately prior thereto. For the avoidance of doubt, a downgrade of the
rating
on the Certificates could occur in the event that BNY does not post sufficient
collateral.
(ii) (a) Collateralization
Ratings Event.
If a
Collateralization Ratings
Event
occurs with respect to BNY (or any applicable credit support provider), then
BNY
shall, at its own expense, within thirty (30) days of such Collateralization
Ratings Event:
|
(w)
|
post
collateral under agreements and other instruments approved by the
Counterparty, such approval not to be unreasonably withheld, and
satisfactory to ▇▇▇▇▇’▇ and S&P, which will be sufficient to restore
the immediately prior ratings of the
Certificates,
|
|
(x)
|
assign
this Transaction to a third party, the ratings of the debt of which
(or
the ratings of the debt of the credit support provider of which)
meet or
exceed the Qualifying Ratings, on terms substantially similar to
this
Confirmation, which party is approved by the Counterparty, such
approval
not to be unreasonably withheld,
|
|
(y)
|
obtain
a guaranty of, or a contingent agreement of, another person, the
ratings
of the debt of which (or the ratings of the debt of the credit
support
provider of which) meet or exceed the Qualifying Ratings, to honor
BNY’s
obligations under this Agreement, provided
that
such other person is approved by the Counterparty, such approval
not to be
unreasonably withheld, or
|
|
(z)
|
establish
any other arrangement approved by the Counterparty, such approval
not to
be unreasonably withheld and satisfactory to ▇▇▇▇▇’▇ and S&P which
will be sufficient to restore the immediately prior ratings of
their
Certificates.
|
|
(b)
|
Ratings
Event.
If
a Ratings Event occurs with respect to BNY (or any applicable credit
support provider), then BNY shall, at its own expense, within ten
(10)
Business Days of such Ratings Event:
|
|
(x)
|
assign
this Transaction to a third party, the ratings of the debt of which
(or
the ratings of the debt of the credit support provider of which)
meet or
exceed the Qualifying Ratings, on terms substantially similar to
this
Confirmation, which party is approved by the Counterparty, such
approval
not to be unreasonably withheld,
|
|
(y)
|
obtain
a guaranty of, or a contingent agreement of, another person, the
ratings
of the debt of which (or the ratings of the debt of the credit
support
provider of which) meet or exceed the Qualifying Ratings, to honor
BNY’s
obligations under this Agreement, provided
that
such other person is approved by the Counterparty, such approval
not to be
unreasonably withheld, or
|
|
(z)
|
establish
any other arrangement approved by the Counterparty, such approval
not to
be unreasonably withheld and satisfactory to ▇▇▇▇▇’▇ and S&P which
will be sufficient to restore the immediately prior ratings of
their
Certificates.
|
|
10)
|
Additional
Provisions.
Notwithstanding the terms of Sections 5 and 6 of the ISDA Form
Master
Agreement, if Counterparty has satisfied its payment obligations
under
Section 2(a)(i) of the ISDA Form Master Agreement, then unless
BNY is
required pursuant to appropriate proceedings to return to Counterparty
or
otherwise returns to Counterparty upon demand of Counterparty any
portion
of such payment, (a) the occurrence of an event described in Section
5(a)
of the ISDA Form Master Agreement with respect to Counterparty
shall not
constitute an Event of Default or Potential Event of Default with
respect
to Counterparty as the Defaulting Party and (b) BNY shall be entitled
to
designate an Early Termination Date pursuant to Section 6 of the
ISDA Form
Master Agreement only as a result of a Termination Event set forth
in
either Section 5(b)(i) or Section 5(b)(ii) of the ISDA Form Master
Agreement with respect to BNY as the Affected Party or Section
5(b)(iii)
of the ISDA Form Master Agreement with respect to BNY as the Burdened
Party. For purposes of the Transaction to which this Agreement
relates,
Counterparty’s only obligation under Section 2(a)(i) of the ISDA Form
Master Agreement is to pay the Fixed Amount on the Fixed Rate Payer
Payment Date.
|
|
11)
|
Compliance
with Regulation AB.
(i) For purposes of Item 1115 of Subpart 229.1100 - Asset Backed
Securities (Regulation AB) (17 C.F.R. ss.ss.229.1100 - 229.1123)
(“Regulation
AB”)
under the Securities Act of 1933, as amended, and the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”),
as amended and interpreted by the Securities and Exchange Commission
and
its staff, if the Depositor or the Counterparty makes a determination,
acting reasonably and in good faith, that (x) the applicable “significance
percentage” with respect to this Agreement has been reached, and (y) it
has a reporting obligation under the Exchange Act, then BNY shall,
within
five (5) Business Days after notice to that effect, at its sole
expense,
take one of the following actions (each subject to satisfaction
of the
applicable requirements of the Rating Agencies): (1) provide (including,
if permitted by Regulation AB, provision by reference to reports
filed
pursuant to the Exchange Act or otherwise publicly available information):
(A) the financial data required by Item 301 of Regulation S-K (17
C.F.R.
§229.301), pursuant
to Item 1115(b)(1); (B)
financial statements meeting the requirements of Regulation S-X
(17 C.F.R.
§§210.1-01 through 210.12-29, but excluding 17 C.F.R. ss. 210.3-05
and
Article 11 of Regulation S-X (17 C.F.R. ss. ss. 210.11-01 through
210.11-03)), pursuant
to Item 1115(b)(2); or
(C) such other financial information as may at the time be required
or
permitted to be provided in satisfaction of the requirements of
Item
1115(b), together with accountants consents and/or a procedure
letter
relating thereto; or (2) secure another entity able to comply with
the
requirements of Item 1115(b) of Regulation AB to replace BNY as
party to
this Agreement, on substantially similar terms, the debt rating
of which
entity (or credit support provider therefor) meets or exceeds the
applicable requirements of the applicable Rating
Agencies.
|
(ii) In
the
event that BNY provides financial data or financial statements in accordance
with Paragraph 4(11)(i) above, BNY will indemnify and hold harmless the
Depositor, its directors or officers and any person controlling the Depositor,
from and against any and all losses, claims, damages and liabilities caused
by
any untrue statement or alleged untrue statement of a material fact contained
therein or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Depositor will indemnify and hold harmless BNY, its directors
and officers and any person controlling BNY, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in any offering materials
filed with the Commission or delivered to investors in connection with the
offering of the Certificates or any filing under the Exchange Act in respect
of
the Certificates (other than said financial information and the description
of
BNY provided by BNY for inclusion in such offering materials or filings),
or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading. The
Depositor shall be an express third party beneficiary of, and assumes the
obligations set forth in, this Paragraph 4(11) as if a party hereto to the
extent of the Depositor’s rights and obligations explicitly specified
herein.
|
12)
|
BNY Payments
to be made to Trust
Administrator.
BNY will, unless otherwise directed by the Trust
Administrator,
make all payments hereunder to the Trust
Administrator.
Payment made to the Trust
Administrator
at
the account specified herein or to another account specified in
writing by
the Trust
Administrator
shall satisfy the payment obligations of BNY hereunder to the extent
of
such payment.
|
5. Account
Details and Settlement Information:
Payments
to BNY:
The
Bank
of New York
Derivative
Products Support Department
▇▇
▇▇▇
▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
ABA
#▇▇▇▇▇▇▇▇▇
Account
#▇▇▇-▇▇▇▇-▇▇▇
Reference:
Interest Rate Swap
Payments
to Counterparty:
▇▇▇▇▇
Fargo Bank, N.A.
ABA
▇▇▇-▇▇▇-▇▇▇
Account
Number ▇▇▇▇▇▇▇▇▇▇
FFC:
Fremont 2006-2 50915801
6.
Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be
deemed
an original but all of which together shall constitute one and the same
instrument.
Please
confirm that the foregoing correctly sets forth the terms of our agreement
by
executing this agreement and returning it via facsimile to Derivative Products
Support Dept., Attn: ▇▇▇▇▇ Au-▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇/5837. Once we receive
this
we will send you two original confirmations for execution.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
|
THE
BANK OF NEW YORK
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
The
Counterparty, acting through its duly authorized signatory, hereby agrees
to,
accepts and confirms the terms of the foregoing as of the Trade
Date.
▇▇▇▇▇
FARGO BANK, N.A., NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUST
ADMINISTRATOR WITH RESPECT TO THE FREMONT HOME LOAN TRUST 2006-2, ASSET-BACKED
CERTIFICATES, SERIES 2006-2
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Solely
for purposes of paragraph 4(11):
FINANCIAL
ASSET SECURITIES CORP.
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
SCHEDULE
I
All
dates
subject to adjustment in accordance with the Following Business Day
Convention.
|
Accrual
Start Date
|
Accrual
End Date
|
Notional
Amount (in USD)
|
Cap
Rate
|
|
28-Apr-06
|
25-May-06
|
$960,972,000
|
8.440660%
|
|
25-May-06
|
25-Jun-06
|
$951,905,587
|
7.351750%
|
|
25-Jun-06
|
25-Jul-06
|
$940,693,736
|
7.597110%
|
|
25-Jul-06
|
25-Aug-06
|
$927,349,555
|
7.352410%
|
|
25-Aug-06
|
25-Sep-06
|
$911,900,008
|
7.352860%
|
|
25-Sep-06
|
25-Oct-06
|
$894,386,227
|
7.598510%
|
|
25-Oct-06
|
25-Nov-06
|
$874,863,716
|
7.354040%
|
|
25-Nov-06
|
25-Dec-06
|
$853,405,263
|
7.599940%
|
|
25-Dec-06
|
25-Jan-07
|
$830,113,572
|
7.355600%
|
|
25-Jan-07
|
25-Feb-07
|
$805,434,218
|
7.356200%
|
|
25-Feb-07
|
25-Mar-07
|
$781,471,058
|
8.145030%
|
ANNEX
A
ISSUER:
FREMONT HOME LN TR
CUSIP
NUMBER: 35729P QK 9
ISIN
NUMBER: US35729PQK92
ISSUE
DESCRIPTION: 2006-2 ASSET BKD CTF CL B- 144A
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QL 7
ISIN
NUMBER: US35729PQL75
ISSUE
DESCRIPTION: 2006-2 ASSET BKD CTF CL B- 144A
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QM 5
ISIN
NUMBER: US35729PQM58
ISSUE
DESCRIPTION: 2006-2 ASSET BKD CTF CL C
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QN 3
ISIN
NUMBER: US35729PQN32
ISSUE
DESCRIPTION: 2006-2 ASSET BKD CTF CL P
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QP 8
ISIN
NUMBER: US35729PQP89
ISSUE
DESCRIPTION: 2006-2 ASSET BKD CTF CL R
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QQ 6
ISIN
NUMBER: US35729PQQ62
ISSUE
DESCRIPTION: 2006-2 ASSET BKD CTF CL R-X
RATE:
CUSIP
NUMBER: 35729P PU 8
ISIN
NUMBER: US35729PPU83
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL I-A-1 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P PV 6
ISIN
NUMBER: US35729PPV66
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF ▇▇ ▇▇-A1 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P PW 4
ISIN
NUMBER: US35729PPW40
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF ▇▇ ▇▇-A2 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P PX 2
ISIN
NUMBER: US35729PPX23
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF ▇▇ ▇▇-A3 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P PY 0
ISIN
NUMBER: US35729PPY06
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF ▇▇ ▇▇-A4 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P PZ 7
ISIN
NUMBER: US35729PPZ70
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-1 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QA 1
ISIN
NUMBER: US35729PQA11
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-2 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QB 9
ISIN
NUMBER: US35729PQB93
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-3 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QC 7
ISIN
NUMBER: US35729PQC76
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-4 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QD 5
ISIN
NUMBER: US35729PQD59
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-5 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QE 3
ISIN
NUMBER: US35729PQE33
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-6 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QF 0
ISIN
NUMBER: US35729PQF08
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-7 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QG 8
ISIN
NUMBER: US35729PQG80
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-8 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QH 6
ISIN
NUMBER: US35729PQH63
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-9 FLTG RATE
RATE:
MATURITY:
02/25/2036
CUSIP
NUMBER: 35729P QJ 2
ISIN
NUMBER: US35729PQJ20
ISSUE
DESCRIPTION: ▇▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇▇ CTF CL M-10 FLTG RATE
RATE:
MATURITY:
02/25/2036
MATURITY:
02/25/2036
EXHIBIT
P
ADDITIONAL
DISCLOSURE NOTIFICATION
**SEND
TO ▇▇▇▇▇ FARGO VIA FAX TO ▇▇▇-▇▇▇-▇▇▇▇ AND VIA EMAIL TO
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW. SEND TO THE DEPOSITOR AT THE ADDRESS
BELOW**
▇▇▇▇▇
Fargo Bank, N.A. as Trust Administrator
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Financial
Asset Securities Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Trust Services - Fremont Home Loan Trust 2006-2-SEC REPORT
PROCESSING
RE:
**Additional Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and Servicing Agreement, dated as
of
April 1, 2006, among the Depositor, Fremont Investment & Loan as servicer
(the “Servicer”), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust
administrator (the “Master Servicer” and “Trust Administrator”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). The Undersigned, as [ ], hereby notifies you that certain events
have come to our attention that [will][may] need to be disclosed on Form [
].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
[NAME
OF
PARTY]
as
[role]
By:
__________________
Name:
Title:
EXHIBIT
Q
FORM
OF
INTEREST RATE SWAP AGREEMENT
Dated:
April 28, 2006
Rate
Swap Transaction
Re:
BNY
Reference No. 37730
Ladies
and Gentlemen:
The
purpose of this letter agreement (“Agreement”)
is to
confirm the terms and conditions of the rate Cap Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between The Bank of New York (“BNY”),
a
trust company duly organized and existing under the laws of the State of
New
York, and ▇▇▇▇▇ Fargo Bank, N.A., not in its individual capacity, but solely
as
supplemental interest trust trustee for the supplemental interest trust with
respect to the Fremont Home Loan Trust 2006-2, Asset-Backed Certificates,
Series
2006-2 (in such capacity, the “Supplemental
Interest Trust Trustee”
or
the
“Counterparty”),
under
the Pooling and Servicing Agreement, dated as of April 1, 2006, among Financial
Asset Securities Corp. as depositor (the “Depositor”),
Fremont Investment & Loan as servicer (the “Servicer”),
▇▇▇▇▇
Fargo Bank, N.A. as master servicer (the “Master
Servicer”),
and
Deutsche Bank National Trust Company as Trustee (the “Trustee”) (the
“Pooling
and Servicing Agreement”).
This
Agreement, which evidences a complete and binding agreement between you and
us
to enter into the Transaction on the terms set forth below, constitutes a
“Confirmation”
as
referred to in the “ISDA
Form Master Agreement”
(as
defined below), as well as a “Schedule” as referred to in the ISDA Form Master
Agreement.
1. Form
of Agreement.
This
Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”),
as
published by the International Swaps and Derivatives Association, Inc.
(“ISDA”).
You
and we have agreed to enter into this Agreement in lieu of negotiating a
Schedule to the 1992 ISDA Master Agreement (Multicurrency—Cross Border) form
(the “ISDA
Form Master Agreement”).
An
ISDA Form Master Agreement, as modified by the Schedule terms in Paragraph
4 of
this Confirmation (the “Master
Agreement”),
shall
be deemed to have been executed by you and us on the date we entered into
the
Transaction. Except as otherwise specified, references herein to Sections
shall
be to Sections of the Master Agreement, and references to Paragraphs shall
be to
paragraphs of this Agreement. In the event of any inconsistency between the
provisions of this Agreement and the Definitions or the Master Agreement,
this
Agreement shall prevail for purposes of the Transaction. Capitalized terms
not
otherwise defined herein or in the Definitions or the Master Agreement shall
have the meaning defined for such term in the Pooling and Servicing
Agreement.
|
2.
|
Certain
Terms.
The terms of the particular Transaction to which this Confirmation
relates
are as follows:
|
|
Type
of Transaction:
|
Rate
Swap
|
|
Notional
Amount:
|
With
respect to any Calculation Period the amount set forth for such
period on
Schedule I attached hereto.
|
|
Trade
Date:
|
April
20, 2006
|
|
Termination
Date:
|
July
25, 2009, subject to adjustment in accordance with the Following
Business
Day Convention.
|
FIXED
AMOUNTS
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate Payer
|
|
|
Effective
Date:
|
March
25, 2007
|
|
Fixed
Rate:
|
5.20%
|
|
Fixed
Rate Day Count
|
|
|
Fraction:
|
30/360
|
|
Fixed
Rate Payer
|
|
|
Period
End Dates:
|
The
25th
day of each month, beginning on April 25, 2007 and ending on the
Termination Date, No Adjustment.
|
|
Fixed
Rate Payer
|
|
|
Payment
Dates:
|
Early
Payment shall be applicable. The Fixed Rate Payer Payment Date
shall be
one (1) Business Day preceding each Fixed Rate Payer Period End
Date.
|
|
Fixed
Amount:
|
To
be determined in accordance with the following formula: 250 * Fixed
Rate *
Notional Amount * Fixed Rate Day Count
Fraction.
|
FLOATING
AMOUNTS
|
Floating
Rate Payer:
|
BNY
|
|
Floating
Rate Payer
|
|
|
Effective
Date:
|
March
26, 2007
|
|
Floating
Rate for initial
|
|
|
Calculation
Period:
|
To
be determined
|
|
Floating
Rate Day Count
|
|
|
Fraction:
|
Actual/360
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
month
|
|
Spread:
|
Inapplicable
|
|
Floating
Rate Payer
|
|
|
Period
End Dates:
|
The
25th
day of each month, beginning on April 25, 2007 and ending on the
Termination Date, subject to adjustment in accordance with the
Following
Business Day Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment Date
shall be
one (1) Business Day preceding each Floating Rate Payer Period
End
Date.
|
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
|
|
250
* Floating Rate Option * Notional Amount * Floating Rate Day Count
Fraction.
|
|
|
Reset
Dates:
|
The
first day of each Calculation Period or Compounding Period, if
Compounding
is applicable.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days for Payments
|
|
|
By
both parties:
|
New
York
|
|
Calculation
Agent:
|
BNY
|
|
Additional
Payment:
|
Counterparty
shall pay BNY USD 261,924.00 for value April 28,
2006
|
3. Additional
Provisions:
1) Reliance.
Each
party hereto is hereby advised and acknowledges that the other party has
engaged
in (or refrained from engaging in) substantial financial transactions and
has
taken (or refrained from taking) other material actions in reliance upon
the
entry by the parties into the Transaction being entered into on the terms
and
conditions set forth herein.
2) Transfer,
Amendment and Assignment.
No
transfer, amendment, waiver, supplement, assignment or other modification
of
this Transaction shall be permitted by either party unless each of Standard
& Poor’s Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc
(“S&P”)
and
▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”),
has
been provided notice of the same and confirms in writing (including by facsimile
transmission) that it will not downgrade, qualify, withdraw or otherwise
modify
its then-current ratings on the Certificates issued under the Pooling and
Servicing Agreement (the “Certificates”).
|
4.
|
Provisions
Deemed Incorporated in a Schedule to the Master
Agreement:
|
| 1) |
The
parties agree that subparagraph (ii) of Section 2(c) of the ISDA
Form
Master Agreement will apply to this
Transaction.
|
|
2)
|
Termination
Provisions.
For purposes of the Master
Agreement:
|
|
(a)
|
“Specified
Entity”
is not applicable to BNY or the Counterparty for any purpose.
|
|
(b)
|
The
“Breach
of Agreement”
provision of Section 5(a)(ii) will not apply to BNY or the
Counterparty.
|
|
(c)
|
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will not apply to BNY (except with
respect
to credit support furnished pursuant to Paragraph 4 (9) below)
or the
Counterparty.
|
|
(d)
|
The
“Misrepresentation”
provisions of Section 5(a)(iv) will not apply to BNY or the
Counterparty.
|
|
(e)
|
“Default
under Specified Transaction”
is not applicable to BNY or the Counterparty for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to BNY or the
Counterparty.
|
|
(f)
|
The
“Cross
Default”
provisions of Section 5(a)(vi) will not apply to BNY or to the
Counterparty.
|
|
(g)
|
The
“Bankruptcy”
provisions of Section 5(a)(vii)(2) will not apply to the Counterparty;
the
words “trustee” and “custodian” in Section 5(a)(vii)(6) will not include
the Trustee; and with respect to Counterparty only the words “specifically
authorized ” are inserted before the word “action” in Section
5(a)(vii)(9).
|
|
(h)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to BNY or the
Counterparty.
|
|
(i)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to BNY or to the
Counterparty.
|
|
(j)
|
Payments
on Early Termination.
For the purpose of Section 6(e):
|
|
(i)
|
Market
Quotation will apply.
|
|
(ii)
|
The
Second Method will apply.
|
|
(k)
|
“Termination
Currency”
means United States Dollars.
|
3) Tax
Representations.
|
(a)
|
Payer
Representations.
For the purpose of Section 3(e), BNY and the Counterparty make
the
following representations:
|
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e)) to be made by it to the
other party under this Agreement. In making this representation, it may rely
on:
|
(i)
|
the
accuracy of any representations made by the other party pursuant
to
Section 3(f);
|
|
(ii)
|
the
satisfaction of the agreement contained in Section 4 (a)(i) or
4(a)(iii)
and the accuracy and effectiveness of any document provided by
the other
party pursuant to Section 4 (a)(i) or 4(a)(iii); and
|
|
(iii)
|
the
satisfaction of the agreement of the other party contained in Section
4(d), provided that it shall not be a breach of this representation
where
reliance is placed on clause (ii) and the other party does not
deliver a
form or document under Section 4(a)(iii) by reason of material
prejudice
of its legal or commercial position.
|
|
(b)
|
Payee
Representations.
For the purpose of Section 3(f), BNY and the Counterparty make
the
following representations.
|
(i) The
following representation will apply to BNY:
(x)
It is
a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of the
United States Treasury Regulations) for United States federal income tax
purposes, (y) it is a trust company duly organized and existing under the
laws
of the State of New York, and (y) its U.S. taxpayer identification number
is
▇▇▇▇▇▇▇▇▇.
(ii) The
following representation will apply to the Counterparty:
The
beneficial owner of the payments made to it under this Agreement is either
(i) a
"U.S. person" (as that term is used in section 1.1441-4(a)(3)(ii) of United
States Treasury Regulations) for United States federal income tax purposes
and
an "Exempt recipient" within the meaning of section 1.6049-4(c)(1)(ii) of
United
States Treasury Regulations, or (ii) a "non-U.S. branch of a foreign person"
as
that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury
Regulations (the "Regulations") for United States federal income tax purposes,
and it is a "foreign person" as that term is used in section 1.6041-4(a)(4)
of
the Regulations for United States federal income tax purposes.
4) Documents
to be delivered. For the purpose of Section 4(a):
(a) Tax
forms, documents or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) Representation
|
|
BNY
and Counterparty
|
Any
document required or
reasonably requested to allow the other party to make payments
under this
Agreement without any deduction or withholding for or on the
account of
any tax.
|
Promptly
after the earlier of (i) reasonable demand by either party or
(ii)
learning that such form or document is required
|
Yes
|
(b) Other
documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) Representation
|
|
BNY
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be.
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Counterparty
|
(i)
a copy of the executed Pooling and Servicing Agreement, and (ii)
an
incumbency certificate verifying the true signatures and authority
of the
person or persons signing this letter agreement on behalf of the
Counterparty.
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
BNY
|
A
copy of the most recent publicly available regulatory call
report.
|
Promptly
after request by the other party
|
Yes
|
|
BNY
|
Legal
Opinion as to enforceability of this Agreement.
|
Upon
the execution and delivery of this Agreement.
|
Yes
|
|
Counterparty
|
Certified
copy of the Board of Directors resolution (or equivalent authorizing
documentation) which sets forth the authority of each signatory
to the
Confirmation signing on its behalf and the authority of such party
to
enter into Transactions contemplated and performance of its obligations
hereunder.
|
Upon
the execution and delivery of this Agreement.
|
Yes
|
5)
Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a):
|
Address
for notices or communications to BNY:
The
Bank
of New York
Swaps
and
Derivative Products Group
Global
Market Division
▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇
with
a
copy to:
The
Bank
of New York
Swaps
and
Derivative Products Group
▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tele:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇/5837
(For
all
purposes)
Address
for notices or communications to the Counterparty:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
Client Manager-Fremont 2006-2
Tele:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
(b)
Process
Agent.
For the
purpose of Section 13(c):
BNY
appoints as its Process Agent: Not
Applicable
The
Counterparty appoints as its Process Agent: Not
Applicable
|
(c)
|
Offices.
The provisions of Section 10(a) will not apply to this Agreement;
neither
BNY nor the Counterparty have any Offices other than as set forth
in the
Notices Section and BNY agrees that, for purposes of Section 6(b),
it
shall not in future have any Office other than one in the United
States.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c):
|
BNY
is
not a Multibranch Party.
The
Counterparty is not a Multibranch Party.
|
(e)
|
Calculation
Agent.
The Calculation Agent is BNY.
|
(f) Credit
Support Document. Not
applicable for either BNY (except with respect to credit support furnished
pursuant to Paragraph 9) or the Counterparty.
|
(g)
|
Credit
Support Provider.
|
|
BNY:
|
Not
Applicable (except with respect to credit support furnished pursuant
to
Paragraph 9)
|
|
Counterparty:
|
Not
Applicable
|
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
conflict of law provisions thereof other than New York General
Obligations
Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) for any reason,
the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of
the
parties.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(j)
|
Recording
of Conversations.
Each party (i) consents to the recording of telephone conversations
between the trading, marketing and other relevant personnel of
the parties
in connection with this Agreement or any potential Transaction,
(ii)
agrees to obtain any necessary consent of, and give any necessary
notice
of such recording to, its relevant personnel and (iii) agrees,
to the
extent permitted by applicable law, that recordings may be submitted
in
evidence in any Proceedings.
|
|
(k)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in respect
of
any Proceedings relating to this Agreement or any Credit Support
Document.
|
|
(l)
|
Non-Recourse.
Notwithstanding any provision herein or in the Master Agreement
to the
contrary, the obligations of the Counterparty hereunder are limited
recourse obligations of the Counterparty, payable solely from the
Swap
Account and the proceeds thereof to satisfy the Counterparty's
obligations
hereunder. In the event that the Swap Account and proceeds thereof
should
be insufficient to satisfy all claims outstanding and following
the
realization of the Swap Account and the distribution of the proceeds
thereof in accordance with the Pooling and Servicing Agreement,
any claims
against or obligations of the Counterparty under the Master Agreement
or
any other confirmation thereunder, still outstanding shall be extinguished
and thereafter not revive. This provision shall survive the expiration
of
this Agreement.
|
|
(m)
|
Limitation
on Institution of Bankruptcy Proceedings.
BNY shall not institute against or cause any other person to institute
against, or join any other person in instituting against the Counterparty,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, under any of the laws of the United States or any
other
jurisdiction, for a period of one year and one day (or, if longer,
the
applicable preference period) following indefeasible payment in
full of
the Certificates. This provision shall survive the expiration of
this
Agreement.
|
|
(n)
|
Remedy
of Failure to Pay or Deliver.
The ISDA Form Master Agreement is hereby amended by replacing the
word
“third” in the third line of Section 5(a)(i) by the word
“second”.
|
|
(o)
|
“Affiliate”
will have the meaning specified in Section 14 of the ISDA Form
Master
Agreement, provided that the Counterparty shall be deemed not to
have any
Affiliates for purposes of this Agreement, including for purposes
of
Section 6(b)(ii).
|
|
(p)
|
Supplemental
Interest Trust Trustee’s
Capacity.
It is expressly understood and agreed by the parties hereto that
insofar
as this Confirmation is executed by the Supplemental Interest Trust
Trustee
(i) this Confirmation is executed and delivered by
▇▇▇▇▇ Fargo Bank, N.A.,
not in its individual capacity but solely as Supplemental Interest
Trust
Trustee
pursuant to the Pooling and Servicing Agreement in the exercise
of the
powers and authority conferred and vested in it thereunder and
pursuant to
instruction set forth therein (ii) each of the representations,
undertakings and agreements herein made on behalf of the trust
is made and
intended not as a personal representation, undertaking or agreement
of the
Supplemental Interest Trust Trustee
but is made and intended for the purpose of binding only the Counterparty,
and (iii) under no circumstances ▇▇▇▇ ▇▇▇▇▇
Fargo Bank, N.A.,
in its individual capacity be personally liable for the payment
of any
indebtedness or expenses or be personally liable for the breach
or failure
of any obligation, representation, warranty or covenant made or
undertaken
under this Confirmation.
|
|
(q)
|
Supplemental
Interest Trust Trustee’s
Representation.
▇▇▇▇▇
Fargo Bank, N.A.,
as Supplemental Interest Trust Trustee,
represents and warrants that:
|
It
has
been directed under the Pooling and Servicing Agreement to enter into this
letter agreement as Supplemental Interest Trust Trustee
on
behalf of the Counterparty.
|
(r)
|
Amendment
to Pooling and Servicing Agreement.
Notwithstanding any provisions to the contrary in the Pooling and
Servicing Agreement, none of the Depositor, the Trust Administrator
or the
Trustee
shall enter into any amendment thereto which could have a material
adverse
affect on BNY without the prior written consent of
BNY.
|
|
6)
|
Additional
Representations.
Section
3 is hereby amended, by substituting for the words “Section 3(f)” in the
introductory sentence thereof the words “Sections 3(f) and 3(i)” and by
adding, at the end thereof, the following Sections 3(g), 3(h) and
3(i):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
It
is not relying on any statement or representation of the other
party
regarding the Transaction (whether written or oral), other than
the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction.
|
(2)
Evaluation
and Understanding.
|
(i)
|
Each
Party is acting for its own account and has the capacity to evaluate
(internally or through independent professional advice) the Transaction
and has made its own decision to enter into the Transaction; it
is not
relying on any communication (written or oral) of the other party
as
investment advice or as a recommendation to enter into such transaction;
it being understood that information and explanations related to
the terms
and conditions of such transaction shall not be considered investment
advice or a recommendation to enter into such transaction. No
communication (written or oral) received from the other party shall
be
deemed to be an assurance or guarantee as to the expected results
of the
transaction; and
|
|
(ii)
|
Each
Party understands the terms, conditions and risks of the Transaction
and
is willing and able to accept those terms and conditions and to
assume
(and does, in fact assume) those risks, financially and otherwise.
|
|
(3)
|
Principal.
The
other party is not acting as a fiduciary or an advisor for it in
respect
of this Transaction.
|
|
(h)
|
Exclusion
from Commodities Exchange Act.
(A)
It is an “eligible contract participant” within the meaning of Section
1a(12) of the Commodity Exchange Act, as amended; (B) this Agreement
and
each Transaction is subject to individual negotiation by such party;
and
(C) neither this Agreement nor any Transaction will be executed
or traded
on a “trading facility” within the meaning of Section 1a(33) of the
Commodity Exchange Act, as amended.
|
|
(i)
|
ERISA
(Pension Plans).
It
is not a pension plan or employee benefits plan and it is not using
assets
of any such plan or assets deemed to be assets of such a plan in
connection with this Transaction.
|
|
7)
|
Set-off.
Notwithstanding any provision of this Agreement or any other existing
or
future agreement (but without limiting the provisions of Section
2(c) and
Section 6, except as provided in the next sentence), each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
The
last sentence of the first paragraph of Section 6(e) shall not
apply for
purposes of this Transaction.
|
| 8) |
Additional
Termination Events.
The following Additional Termination Events will apply, in each
case with
respect to the Counterparty as the sole Affected Party (unless
otherwise
provided below):
|
| (i) |
Downgrade.
BNY fails to comply with the Downgrade Provisions as set forth
in
Paragraph 4(9). BNY shall be the sole Affected
Party.
|
| (ii) |
Termination
of Trust Fund.
The Trust Fund shall be terminated pursuant to any provision of
the
Pooling and Servicing Agreement. The Early Termination Date shall
be the
Distribution Date upon which final payment is made in respect of
the
Certificates; provided, further, that notwithstanding Section 6(b)(iv)
of
the Master Agreement, both BNY and Counterparty shall have the
right to
designate an Early Termination Date in respect of this Additional
Termination Event.
|
| (iii) |
Inability
to Pay Class
A Certificates. The Trustee is unable to pay the Class A Certificates
or
fails or admits in writing its inability to pay the Class A Certificates
as they become due.
|
| (iv) |
Amendment
without Consent.
The Trustee permits the Pooling and Servicing Agreement to be amended
in a
manner which could have a material adverse affect on BNY without
first
obtaining the prior written consent of BNY, where such consent
is required
under the Pooling and Servicing
Agreement.
|
| (v) |
Provision
of Information Required by Regulation AB.
BNY shall fail to comply with the provisions of Paragraph 4(11)
below
within the time provided for therein. BNY shall be the sole Affected
Party.
|
|
9)
|
Provisions
Relating to Downgrade of BNY Debt Ratings.
|
(i) For
purposes of this Transaction:
|
(a)
|
A
“Collateralization
Ratings Event”
shall occur with respect to BNY (or any applicable credit support
provider) if:
|
|
(x)
|
its
short-term unsecured and unsubordinated debt rating is reduced
to “P-1 on
watch for downgrade” or below, and its long-term unsecured and
unsubordinated debt is reduced to ”A1 on watch for downgrade” or below
(or, if it has no short-term unsecured and unsubordinated debt
rating, its
long term rating is reduced to “Aa3 on watch for downgrade” or below) by
▇▇▇▇▇’▇, or
|
|
(y)
|
its
short-term unsecured and unsubordinated debt rating is reduced
below “A-1”
by S&P.
|
Such
ratings are referred to herein as the “Qualifying
Ratings.”
|
(b)
|
A
“Ratings
Event”
shall occur with respect to BNY (or any applicable credit support
provider) if:
|
|
(x)
|
its
short-term unsecured and unsubordinated debt rating is withdrawn
or
reduced to “P-2” or below by ▇▇▇▇▇’▇ and its long-term unsecured and
unsubordinated debt is reduced to “A3” or below (or, if it has no
short-term unsecured and unsubordinated debt rating, its long term
rating
is reduced to “A2” or below) by ▇▇▇▇▇’▇, or
|
|
(y)
|
its
long-term unsecured and unsubordinated debt rating is withdrawn
or reduced
below “BBB-” by S&P.
|
For
purposes of (a) and (b) above, such events include those occurring in connection
with a merger, consolidation or other similar transaction by BNY or any
applicable credit support provider, but they shall be deemed not to occur
if,
within 30 days thereafter (provided,
that
this
shall not be construed to extend the period within which actions are to be
taken
as provided in Paragraph 4(9)(ii) below), each of ▇▇▇▇▇’▇ and S&P has
reconfirmed the ratings of the Certificates, as applicable, which were in
effect
immediately prior thereto. For the avoidance of doubt, a downgrade of the
rating
on the Certificates could occur in the event that BNY does not post sufficient
collateral.
|
(c)
|
“Rating
Agency Condition”
means, with respect to any particular proposed act or omission
to act
hereunder, that the Trustee
shall have received prior written confirmation from each of ▇▇▇▇▇’▇ and
S&P, and shall have provided notice thereof to BNY, that the proposed
action or inaction would not cause a downgrade or withdrawal of
their
then-current ratings of the
Certificates.
|
|
(ii)
|
Subject,
in each case set forth in (a) and (b) below, to satisfaction of
the Rating
Agency Condition:
|
|
(a)
|
Collateralization
Ratings Event.
If
a Collateralization Ratings Event occurs with respect to BNY (or
any
applicable credit support provider), then BNY shall, at its own
expense,
within thirty (30) days of such Collateralization Ratings
Event:
|
|
(w)
|
post
collateral under agreements and other instruments approved by the
Counterparty, such approval not to be unreasonably withheld, and
satisfactory to ▇▇▇▇▇’▇ and S&P, which will be sufficient to restore
the immediately prior ratings of the
Certificates,
|
|
(x)
|
assign
this Transaction to a third party, the ratings of the debt of which
(or
the ratings of the debt of the credit support provider of which)
meet or
exceed the Qualifying Ratings, on terms substantially similar to
this
Confirmation, which party is approved by the Counterparty, such
approval
not to be unreasonably withheld,
|
|
(y)
|
obtain
a guaranty of, or a contingent agreement of, another person, the
ratings
of the debt of which (or the ratings of the debt of the credit
support
provider of which) meet or exceed the Qualifying Ratings, to honor
BNY’s
obligations under this Agreement, provided
that
such other person is approved by the Counterparty, such approval
not to be
unreasonably withheld, or
|
|
(z)
|
establish
any other arrangement approved by the Counterparty, such approval
not to
be unreasonably withheld and satisfactory to ▇▇▇▇▇’▇ and S&P which
will be sufficient to restore the immediately prior ratings of
their
Certificates.
|
|
(b)
|
Ratings
Event.
If
a Ratings Event occurs with respect to BNY (or any applicable credit
support provider), then BNY shall, at its own expense, within ten
(10)
Business Days of such Ratings Event:
|
|
(x)
|
assign
this Transaction to a third party, the ratings of the debt of which
(or
the ratings of the debt of the credit support provider of which)
meet or
exceed the Qualifying Ratings, on terms substantially similar to
this
Confirmation, which party is approved by the Counterparty, such
approval
not to be unreasonably withheld,
|
|
(y)
|
obtain
a guaranty of, or a contingent agreement of, another person, the
ratings
of the debt of which (or the ratings of the debt of the credit
support
provider of which) meet or exceed the Qualifying Ratings, to honor
BNY’s
obligations under this Agreement, provided
that
such other person is approved by the Counterparty, such approval
not to be
unreasonably withheld, or
|
|
(z)
|
establish
any other arrangement approved by the Counterparty, such approval
not to
be unreasonably withheld and satisfactory to ▇▇▇▇▇’▇ and S&P which
will be sufficient to restore the immediately prior ratings of
their
Certificates.
|
|
10)
|
BNY Payments
to be made to Supplemental Interest Trust Trustee.
BNY will, unless otherwise directed by the Supplemental Interest
Trust
Trustee,
make all payments hereunder to the Supplemental Interest Trust
Trustee.
Payment made to the Supplemental Interest Trust Trustee
at
the account specified herein or to another account specified in
writing by
the Supplemental Interest Trust Trustee
shall satisfy the payment obligations of BNY hereunder to the extent
of
such payment.
|
|
11)
|
Compliance
with Regulation AB.
(i) For purposes of Item 1115 of Subpart 229.1100 - Asset Backed
Securities (Regulation AB) (17 C.F.R. ss.ss.229.1100 - 229.1123)
(“Regulation
AB”)
under the Securities Act of 1933, as amended, and the Securities
Exchange
Act of 1934, as amended (the “Exchange
Act”),
as amended and interpreted by the Securities and Exchange Commission
and
its staff, if the Depositor or the Counterparty makes a determination,
acting reasonably and in good faith, that (x) the applicable “significance
percentage” with respect to this Agreement has been reached, and (y) it
has a reporting obligation under the Exchange Act, then BNY shall,
within
five (5) Business Days after notice to that effect, at its sole
expense,
take one of the following actions (each subject to satisfaction
of the
applicable requirements of the Rating Agencies): (1) provide (including,
if permitted by Regulation AB, provision by reference to reports
filed
pursuant to the Exchange Act or otherwise publicly available information):
(A) the financial data required by Item 301 of Regulation S-K (17
C.F.R.
§229.301), pursuant
to Item 1115(b)(1); (B)
financial statements meeting the requirements of Regulation S-X
(17 C.F.R.
§§210.1-01 through 210.12-29, but excluding 17 C.F.R. ss. 210.3-05
and
Article 11 of Regulation S-X (17 C.F.R. ss. ss. 210.11-01 through
210.11-03)), pursuant
to Item 1115(b)(2); or
(C) such other financial information as may at the time be required
or
permitted to be provided in satisfaction of the requirements of
Item
1115(b), together with accountants consents and/or a procedure
letter
relating thereto; or (2) secure another entity able to comply with
the
requirements of Item 1115(b) of Regulation AB to replace BNY as
party to
this Agreement, on substantially similar terms, the debt rating
of which
entity (or credit support provider therefor) meets or exceeds the
applicable requirements of the applicable Rating
Agencies.
|
(ii) In
the
event that BNY provides financial data or financial statements in accordance
with Paragraph 4(11)(i) above, BNY will indemnify and hold harmless the
Depositor, its directors or officers and any person controlling the Depositor,
from and against any and all losses, claims, damages and liabilities caused
by
any untrue statement or alleged untrue statement of a material fact contained
therein or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Depositor will indemnify and hold harmless BNY, its directors
and officers and any person controlling BNY, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in any offering materials
filed with the Commission or delivered to investors in connection with the
offering of the Certificates or any filing under the Exchange Act in respect
of
the Certificates (other than said financial information and the description
of
BNY provided by BNY for inclusion in such offering materials or filings),
or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading. The
Depositor shall be an express third party beneficiary of, and assumes the
obligations set forth in, this Paragraph 4(11) as if a party hereto to the
extent of the Depositor’s rights and obligations explicitly specified
herein.
5. Account
Details and Settlement Information:
Payments
to BNY:
The
Bank
of New York
Derivative
Products Support Department
▇▇
▇▇▇
▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
ABA
#▇▇▇▇▇▇▇▇▇
Account
#▇▇▇-▇▇▇▇-▇▇▇
Reference:
Interest Rate Swap
Payments
to Counterparty:
▇▇▇▇▇
Fargo Bank, N.A.
ABA
▇▇▇-▇▇▇-▇▇▇
Account
Number ▇▇▇▇▇▇▇▇▇▇
FFC:
Fremont 2006-2 50915802
6.
Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be
deemed
an original but all of which together shall constitute one and the same
instrument.
Please
confirm that the foregoing correctly sets forth the terms of our agreement
by
executing this agreement and returning it via facsimile to Derivative Products
Support Dept., Attn: ▇▇▇▇▇ Au-▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇/5837. Once we receive
this
we will send you two original confirmations for execution.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
|
THE
BANK OF NEW YORK
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
The
Counterparty, acting through its duly authorized signatory, hereby agrees
to,
accepts and confirms the terms of the foregoing as of the Trade
Date.
▇▇▇▇▇
FARGO BANK, N.A., NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS SUPPLEMENTAL
INTEREST TRUST TRUSTEE FOR THE SUPPLEMENTAL INTEREST TRUST WITH RESPECT TO
THE
FREMONT HOME LOAN TRUST 2006-2, ASSET-BACKED CERTIFICATES, SERIES
2006-2
|
By:
|
|
|
Name:
|
|
|
Title:
|
Solely
for purposes of paragraph 4(11):
FINANCIAL
ASSET SECURITIES CORP.
|
By:
|
|
|
Name:
|
|
|
Title:
|
SCHEDULE
I
(With
respect to each Fixed Rate Payer Period End Date, all such dates are with
No
Adjustment,
and with respect to each Floating Rate Payer Period End Date, all
such
dates
are
subject to adjustment in accordance with the Following Business Day
Convention)
|
Accrual
Start Date
|
Accrual
End Date
|
Notional
Amount (in USD)
|
|
25-Mar-07
|
25-Apr-07
|
2,707,077.69468
|
|
25-Apr-07
|
25-May-07
|
2,578,331.85320
|
|
25-May-07
|
25-Jun-07
|
2,455,748.87420
|
|
25-Jun-07
|
25-Jul-07
|
2,339,032.29608
|
|
25-Jul-07
|
25-Aug-07
|
2,227,899.97004
|
|
25-Aug-07
|
25-Sep-07
|
2,122,083.36728
|
|
25-Sep-07
|
25-Oct-07
|
2,021,326.91984
|
|
25-Oct-07
|
25-Nov-07
|
1,924,943.58088
|
|
25-Nov-07
|
25-Dec-07
|
1,822,929.23140
|
|
25-Dec-07
|
25-Jan-08
|
1,516,957.66712
|
|
25-Jan-08
|
25-Feb-08
|
243,169.11316
|
|
25-Feb-08
|
25-Mar-08
|
229,168.58664
|
|
25-Mar-08
|
25-Apr-08
|
216,666.94124
|
|
25-Apr-08
|
25-May-08
|
205,719.82380
|
|
25-May-08
|
25-Jun-08
|
197,857.34676
|
|
25-Jun-08
|
25-Jul-08
|
190,306.98832
|
|
25-Jul-08
|
25-Aug-08
|
183,055.66336
|
|
25-Aug-08
|
25-Sep-08
|
176,090.87388
|
|
25-Sep-08
|
25-Oct-08
|
169,400.68048
|
|
25-Oct-08
|
25-Nov-08
|
162,704.78776
|
|
25-Nov-08
|
25-Dec-08
|
156,230.54628
|
|
25-Dec-08
|
25-Jan-09
|
148,860.44560
|
|
25-Jan-09
|
25-Feb-09
|
135,221.72772
|
|
25-Feb-09
|
25-Mar-09
|
130,345.73572
|
|
25-Mar-09
|
25-Apr-09
|
125,646.54168
|
|
25-Apr-09
|
25-May-09
|
121,117.64528
|
|
25-May-09
|
25-Jun-09
|
116,752.79128
|
|
25-Jun-09
|
25-Jul-09
|
112,545.96004
|
EXHIBIT
R-1
FORM
OF DELINQUENCY REPORT
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
|
·
|
ASUM-
|
Approved
Assumption
|
||
|
·
|
BAP-
|
Borrower
Assistance Program
|
|
|
|
·
|
CO-
|
Charge
Off
|
||
|
·
|
DIL-
|
Deed-in-Lieu
|
||
|
·
|
FFA-
|
Formal
Forbearance Agreement
|
||
|
·
|
MOD-
|
Loan
Modification
|
||
|
·
|
PRE-
|
Pre-Sale
|
||
|
·
|
SS-
|
Short
Sale
|
||
|
·
|
MISC-
|
Anything
else approved by the PMI or Pool Insurer
|
|
NOTE:
▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field should show the current status of the property code as
follows:
|
·
|
Mortgagor
|
|
·
|
Tenant
|
|
·
|
Unknown
|
|
·
|
Vacant
|
The
Property
Condition
field should show the last reported condition of the property as follows:
|
·
|
Damaged
|
|
|
·
|
Excellent
|
|
|
·
|
Fair
|
|
|
·
|
Gone
|
|
|
·
|
Good
|
|
|
·
|
Poor
|
|
|
·
|
Special
Hazard
|
|
|
·
|
Unknown
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
EXHIBIT
R-2
FORM
OF MONTHLY REMITTANCE ADVICE
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
|
|
|
Action
Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|
|
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
EXHIBIT
R-3
FORM
OF REALIZED LOSS REPORT
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1. The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation, an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
2. The
Total
Interest Due less the aggregate amount of servicing fee that would have been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
3.
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12. Complete
as applicable. Required documentation:
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and WFB’s approved
Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
Credits:
14-21. Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow Agent / Attorney
Letter
of
Proceeds Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain):
23. The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show
the
amount in parenthesis ( ).
Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email
Address:_____________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
||||
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
||||
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
||||
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
||||
|
(5)
|
Taxes
|
________________
|
(5)
|
||||
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
||||
|
(7)
|
MI/Hazard
Insurance Premiums
|
________________
|
(7)
|
||||
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
||||
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
||||
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
||||
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
||||
|
(12)
|
Other
(itemize)
|
$________________
|
(12)
|
||||
|
Cash
for Keys__________________________
|
________________
|
||||||
|
HOA/Condo
Fees_______________________
|
________________
|
||||||
|
______________________________________
|
________________
|
||||||
|
______________________________________
|
________________
|
||||||
|
Total
Expenses
|
$
_______________
|
(13)
|
|||||
|
Credits:
|
|||||||
|
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
||||
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
||||
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
||||
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
||||
|
(18)
|
Primary
Mortgage Insurance Proceeds
|
________________
|
(18)
|
||||
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
||||
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
||||
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
||||
|
_________________________________________
|
_________________
|
||||||
|
_________________________________________
|
_________________
|
||||||
|
Total
Credits
|
$________________
|
(22)
|
|||||
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
(23)
|
|||||
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer - transaction party having borrower contact
Master
Servicer - aggregator of pool assets
Securities
Administrator - waterfall calculator (may be the Trustee, or may be the Master
Servicer)
Back-up
Servicer - named in the transaction (in the event a Back up Servicer becomes
the
Primary Servicer, follow Primary Servicer obligations)
Custodian
- safe keeper of pool assets
Paying
Agent - distributor of funds to ultimate investor
Trustee
-
fiduciary of the transaction
Note:
The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular transaction, the
trustee may perform the “paying agent” and “securities administrator” functions,
while in another transaction, the securities administrator may perform these
functions.
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key: X
- obligation
[X]
- under consideration for obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Master
Servicer
|
Trust
Admin.
|
Trustee/
Custodian
|
|
General
Servicing Considerations
|
|||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
||||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
||
|
Cash
Collection and Administration
|
|||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
|||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
|||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
X
|
|
|
Pool
Asset Administration
|
|||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
|
X
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
EXHIBIT
T
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trust
Administrator pursuant to Section 4.07(a)(iv).
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator/Trustee
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
SCHEDULE
I
PREPAYMENT
CHARGE SCHEDULE
Available
Upon Request