MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-NC4 AMENDMENT NO. 1 TO POOLING AND SERVICING AGREEMENT Dated as of November 7, 2006 Morgan Stanley ABS Capital I Inc. Trust 2006-NC4 Mortgage Pass-Through Certificates, Series 2006-NC4 AMENDMENT NO. 1
XXXXXX
XXXXXXX ABS CAPITAL I INC. TRUST 2006-NC4
_____________________
AMENDMENT
NO. 1 TO POOLING AND SERVICING AGREEMENT
Dated
as
of November 7, 2006
_________________________
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2006-NC4
Mortgage
Pass-Through Certificates, Series 2006-NC4
AMENDMENT
NO. 1
AMENDMENT
NO. 1 (this “Amendment”) effective as of June 1, 2006, among Xxxxxx Xxxxxxx ABS
Capital I Inc., as depositor (the “Depositor”), Xxxxx Fargo Bank, N.A., as a
servicer (“Xxxxx Fargo”), New Century Mortgage Corporation, as a servicer (“New
Century” and together with Xxxxx Fargo, the “Servicers”), NC Capital
Corporation, as responsible party (the “Responsible Party”) and Deutsche Bank
National Trust Company, as trustee (the “Trustee”).
PRELIMINARY
STATEMENT
WHEREAS,
the Depositor, the Servicers, the Responsible Party and the Trustee, are parties
to the Pooling and Servicing Agreement, dated as of June 1, 2006 (the
“Agreement”);
WHEREAS,
Section 10.01 of the Agreement provides that the Agreement may be amended by
the
Depositor, the Servicers, the Responsible Party and the Trustee;
and
NOW,
THEREFORE, in consideration of the foregoing and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1. Capitalized
terms used but not defined herein shall have the meanings ascribed to such
terms
in the Agreement.
2. Amendment:
In
consideration of the mutual agreements herein contained, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree to amend
the Agreement as provided in Exhibit A, attached hereto. Language appearing
double underlined on Exhibit A will be added to the Agreement and language
appearing in strikethrough will be removed from the Agreement.
3. Except
as
expressly modified or amended in this Amendment, all of the terms, covenants,
provisions, agreements and conditions of the Agreement are hereby ratified
and
confirmed in every respect and shall remain unmodified and unchanged and shall
continue in full force and effect.
4. The
Depositor certifies that all conditions for the execution of this Amendment
have
been satisfied.
5. This
Amendment shall become effective as of the date hereof when, and only when,
the
Agent shall have received executed counterparts of this Amendment from the
parties hereto.
6. This
Amendment may be executed in counterparts, each of which shall be an original
but all of which, taken together, shall constitute one and the same instrument.
This Amendment shall be construed in accordance with the laws of the State
of
New York (excluding provisions regarding conflicts of laws) and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
IN
WITNESS WHEREOF, the parties have duly executed this Amendment No. 1 as of
the
date first above written.
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XXXXXX
XXXXXXX ABS CAPITAL I INC.,
as
Depositor
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By:
/s/
Xxxxxx Xxxxxxx
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Name:
Xxxxxx
Xxxxxxx
Title:
Managing
Director
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NC
CAPITAL CORPORATION, as Responsible
Party
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By:
/s/
Xxxxx Xxxxx
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Name:
Xxxxx
Xxxxx
Title:
President
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NEW
CENTURY MORTGAGE
CORPORATION,
as a Servicer
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By:
/s/
Xxxxx Xxxxx
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Name:
Xxxxx
Xxxxx
Title:
President
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XXXXX
FARGO BANK, N.A., as a Servicer
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By:
/s/
Xxxxxx XxXxxxxx
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Name:
Xxxxxx
XxXxxxxx
Title:
Vice
President
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DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
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By:
/s/
Xxxxxxx Xxxxxxxx
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Name:
Xxxxxxx
Xxxxxxxx
Title:
Vice
President
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By:
/s/
Xxxxxxx Xxxxxx
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Name:
Xxxxxxx
Xxxxxx
Title:
Vice
President
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Exhibit
A
Section
10.07 Assignment;
Sales; Advance Facilities162
Section
10.08 Limitation
on Rights of Certificateholders163
Section
10.09 Inspection
and Audit Rights164
Section
10.10 Certificates
Nonassessable and Fully Paid164
Section
10.11 Rule
of
Construction164
Section
10.12 Waiver
of
Jury Trial164
Section
10.13 Rights
of
the Swap Provider164
Section
10.14 Regulation
AB Compliance; Intent of the Parties; Reasonableness.164
SCHEDULES
| Schedule I |
Mortgage
Loan Schedule
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| Schedule II |
Representations
and Warranties of New Century Mortgage Corporation, as
Servicer
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| Schedule III |
Representations
and Warranties of the Responsible Party as to the Mortgage
Loans
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| Schedule IV |
Representations
and Warranties of the Responsible Party as to the Responsible
Party
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| Schedule V |
Representations
and Warranties of Xxxxxx Xxxxxxx ABS Capital I Inc. as to the Mortgage
Loans
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| Schedule VI |
Representations
and Warranties of Xxxxx Fargo Bank, N.A., as
Servicer
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EXHIBITS
| Exhibit A |
Form
of Class A, Class M and Class B
Certificate
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| Exhibit B |
Form
of Class P Certificate
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| Exhibit C |
Form
of
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Exhibit
D
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Form
of Class X Certificate
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| Exhibit E |
Form
of Initial Certification of Trustee
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| Exhibit F |
Form
of Document Certification and Exception Report of
Trustee
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| Exhibit G |
Form
of Residual Transfer Affidavit
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| Exhibit H |
Form
of Transferor Certificate
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| Exhibit I |
Form
of Rule 144A Letter
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| Exhibit J |
Form
of Request for Release
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| Exhibit K |
Form
of Contents for Each Mortgage File
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| Exhibit L |
Form
of Certification to be provided with Form
10-K
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| Exhibit M |
Form
of Certification to be provided by the Trustee to be provided to
Depositor
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| Exhibit N |
Form
of Certification of the Servicer to be provided by the applicable
Servicer
to Depositor
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| Exhibit O |
Form
of Servicer Power of Attorney
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| Exhibit P |
Servicing
Criteria
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| Exhibit Q |
Additional
Form 10-D Disclosure
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| Exhibit R |
Additional
Form 10-K Disclosure
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| Exhibit S |
Form
8-K Disclosure Information
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REMIC
III
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated
as
“REMIC III”. The R-III Interest will represent the sole class of “residual
interests” in REMIC III for purposes of the REMIC Provisions. The following
table irrevocably sets forth the Class designation, Pass-Through Rate and
Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC III created
hereunder:
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Class
Designation
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Initial
Certificate
Principal
Balance
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Pass-Through
Rate
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Assumed
Final
Distribution
Date(1)
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Class
A-1
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$ 536,150,000.00
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(2)
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March
25, 2036
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Class
A-2a
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$ 575,060,000.00
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(2)
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March
25, 2036
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Class
A-2b
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$ 182,020,000.00
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(2)
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March
25, 2036
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Class
A-2c
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$ 234,060,000.00
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(2)
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March
25, 2036
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Class
A-2d
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$ 145,570,000.00
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(2)
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March
25, 2036
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Class
M-1
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$ 102,464,000.00
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(2)
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March
25, 2036
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Class
M-2
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$ 100,307,000.00
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(2)
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March
25, 2036
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Class
M-3
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$
34,514,000.00
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(2)
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March
25, 2036
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Class
M-4
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$
38,829,000.00
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(2)
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March
25, 2036
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Class
M-5
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$
34,514,000.00
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(2)
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March
25, 2036
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Class
M-6
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$
30,200,000.00
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(2)
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March
25, 2036
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Class
B-1
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$
31,279,000.00
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(2)
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March
25, 2036
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Class
B-2
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$
23,729,000.00
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(2)
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March
25, 2036
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Class
B-3
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$
22,650,000.00
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(2)
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March
25, 2036
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Class
XInterest(3)
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$
65,793,943.63
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(2)
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March
25, 2036
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Class
PInterest
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$
100.00
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N/A(4)
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March
25, 2036
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Class
IO Interest
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(5)
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(6)
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March
25, 2036
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Class
IO
Interest (5) (6) March
25,
2036
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
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| (2) |
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
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| (3) |
The
Class X
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(4)
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The
Class P
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(5)
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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 II Regular Interest LT-IO.
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| (6) |
For
federal income tax purposes, the Class IO Interest will not have
an
Uncertificated Principal Balance, but will have a notional amount
equal to
the Uncertificated Notional Amount of REMIC II Regular Interest
IO.
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REMIC
IV
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the Class X Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC IV”.
The R-IV Interest will represent the sole class of “residual interests” in REMIC
IV for purposes of the REMIC Provisions. The following table irrevocably
sets
forth the Class designation, Pass-Through Rate and Initial Certificate
Principal
Balance for each Class of Certificates that represents one or more of the
“regular interests” in REMIC IV created hereunder:
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Class
Designation
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Initial
Certificate
Principal
Balance
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Pass-Through
Rate
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Assumed
Final Distribution Date(1)
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Class
X
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$ 65,793,943.63
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(2)
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March
25, 2036
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(1)
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the second month following the maturity
date for the
Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for the Class X
Certificates.
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(2)
The
Class X Certificates will be entitled to 100% of amounts distributed
on
the Class X
Interest.
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REMIC
V
As
provided herein, the Trustee will 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 V”.
The R-V Interest will represent the sole class of “residual interests” in REMIC
V for purposes of the REMIC Provisions. The following table irrevocably
sets
forth the Class designation, Pass-Through Rate and Initial Certificate
Principal
Balance for each Class of Certificates that represents one or more of the
“regular interests” in REMIC V created hereunder:
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Class
Designation
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Initial
Certificate
Principal
Balance
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Pass-Through
Rate
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Assumed
Final Distribution Date(1)
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Class
P
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$ 100
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(2)
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March
25, 2036
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(1)
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the second month following the maturity
date for the
Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for the Class P
Certificates.
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(2)
The
Class P Certificates will be entitled to 100% of amounts distributed
on
the Class P Interest.
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REMIC
VI
As
provided herein, the Trustee will 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 will be designated as “REMIC VI”.
The R-VI Interest will represent the sole class of “residual interests” in REMIC
VI for purposes of the REMIC Provisions. The following table irrevocably
sets
forth the Class designation, Pass-Through Rate and Initial Certificate
Principal
Balance for each Class of Certificates that represents one or more of the
“regular interests” in REMIC VI created hereunder:
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Class
Designation
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Initial
Certificate
Principal
Balance
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Pass-Through
Rate
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Assumed
Final Distribution Date(1)
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Swap-IO
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$ (2)
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(3)
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March
25, 2036
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(1)
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the second month following the maturity
date for the
Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for the REMIC VI Regular Interest
Swap-IO.
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(2)
REMIC
VI Regular Interest Swap-IO will not have a Certificate Notional
Balance
but will be entitled to 100% of amounts distributed on the
Class IO
Interest.
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(3)
REMIC
VI Regular Interest Swap-IO will be entitled to 100% of amounts
distributed on the Class IO Interest.
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The
minimum denomination for each Class of Certificates, other than the Class
P,
Class R,
Class R-X
and the
Class X Certificates, will be $25,000 with integral multiples of $1 in
excess
thereof. The minimum denomination for the Class P and the Class X Certificates
will each be a 1% Percentage Interest in such Class. The Class R Certificateand
Class R-X Certificates
will
represent a 100% Percentage Interest in such Class.
It
is
expected that each Class of Certificates will receive its final distribution
of
principal and interest on or prior to the Final Scheduled Distribution
Date.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
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Book-Entry
Certificates
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All
Classes of Certificates other than the Physical
Certificates.
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Class
A Certificates
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Class
A-1, Class A-2a, Class A-2b, Class A-2c and Class
A-2d.
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Delay
Certificates
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None.
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ERISA-Restricted
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Certificates
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Non-Delay
Certificates
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Class
A, Class X and Subordinated
Certificates.
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Offered
Certificates
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All
Classes of Certificates other than the Private
Certificates.
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Physical
Certificates
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Class
P, Class X and
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Private
Certificates
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Class
P, Class X and
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Rating
Agencies
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Xxxxx’x,
Fitch and Standard & Poor’s.
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Regular
Certificates
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All
Classes of Certificates other than the Class P and
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Residual
Certificates
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Class
R
Certificates and Class R-X
Certificates.
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Subordinated
Certificates
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Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
B-1,
Class B-2 and Class B-3
Certificates.
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Certificates
pursuant to Section 4.05; provided, however, that immediately following
the
Distribution Date on which a Subsequent Recovery is distributed, the Class
Certificate Balances of any Class or Classes of Certificates that have
been
previously reduced by Applied Realized Loss Amounts will be increased,
in order
of seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of the Unpaid Realized Loss Amount
for such
Class or Classes for such Distribution Date). With respect to the Class
X
Certificates and any Distribution Date, the excess, if any, of (i) the
then
Stated Principal Balance of the Mortgage Loans over (ii) the then aggregate
Certificate Balance of the Class A Certificates, Class M Certificates and
the
Class P Certificates. The Class
RResidual
Certificates have no Certificate Balance.
“Certificate
Owner”: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Book-Entry Certificate.
“Certificate
Register”: The register maintained pursuant to Section 5.02.
“Certificateholder”
or “Holder”: The person in whose name a Certificate is registered in the
Certificate Register, except that, solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or any Affiliate of the Depositor shall be deemed not to be
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that
if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to
be
Outstanding for purposes of any provision hereof that requires the consent
of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Trustee is entitled to rely conclusively on
a
certification of the Depositor or any Affiliate of the Depositor in determining
which Certificates are registered in the name of an Affiliate of the
Depositor.
“Class”:
All Certificates bearing the same class designation as set forth in the
Preliminary Statement.
“Class
A
Certificates”:
As
specified in the Preliminary Statement.
“Class
A
Certificate Group”: The Group I Class A Certificates or the Group II Class A
Certificates, as applicable.
“Class
A
Principal Allocation Percentage”: With respect to any Distribution Date, the
percentage equivalent of a fraction, determined as follows: (A) with respect
to
the Group I Class A Certificates, a fraction, the numerator of which is (x)
the
portion of the Principal Remittance Amount for such Distribution Date that
is
attributable to the principal received or advanced on the Group I Mortgage
Loans
and the denominator of which is (y) the Principal Remittance Amount for such
Distribution Date and (B) with respect to the Group II Class A Certificates,
a
fraction, the numerator of which is (x) the portion of the Principal Remittance
Amount for such Distribution Date that is attributable to the principal received
or advanced on the Group II Mortgage Loans and the denominator of which is
(y)
the Principal Remittance Amount for such Distribution Date.
aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date
and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over
$10,785,700.22.
“Class
M-6 Certificates”:
All
Certificates bearing the class designation of “Class M-6,” and evidencing (i) a
REMIC Regular Interest in REMIC III, (ii) the right to receive the related
Basis
Risk CarryForward Amount and (iii) the obligation to pay any Class IO
Distribution Amount.
“Class
M-6 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class Certificate Balances of
the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount for such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount for such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount for such Distribution Date), (F) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account
the
distribution of the Class M-5 Principal Distribution Amount for such
Distribution Date) and (G) the Class Certificate Balance of the Class M-6
Certificates immediately prior to such Distribution Date over (ii) the lesser
of
(A) 86.70% of the aggregate Stated Principal Balance of the Mortgage Loans
for
such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over
$10,785,700.22.
“Class
P
Certificates”: All Certificates bearing the class designation of “Class
P”.
“Class
P Interest”: An uncertificated interest in the Trust Fund held by Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular
Interest
in REMIC III for the purposes of the REMIC provisions.
“Class
R
Certificates”: All Certificates bearing the class designation of “Class R,” and
evidencing ownership of the Class R-I Interest, the Class R-II Interest and
the
Class R-III Interest.
“Class
R-X Certificates”: All Certificates bearing the class designation of “Class
R-X,” and evidencing the ownership of the Class R-IV Interest, the Class R-V
Interest and the Class R-VI Interest.
“Class
R-I Interest”: The uncertificated residual interest in REMIC I.
“Class
R-II Interest”: The uncertificated residual interest in REMIC II.
“Class
R-III Interest”: The uncertificated residual interest in REMIC III.
“Class
R-IV Interest”: The uncertificated residual interest in REMIC
IV.
“Class
R-V Interest”: The uncertificated residual interest in REMIC
V.
“Class
R-VI Interest”: The uncertificated residual interest in REMIC
VI.
“Class
X
Certificate”: All Certificates bearing the designation “Class X” and evidencing
(i) a REMIC Regular Interest in REMIC IIIIV,
(ii)
the obligation to pay Basis Risk Shortfall and (iii) the obligation to
pay any
Class IO Distribution Amount.
“Class
X
Distributable Amount”: On any Distribution Date, the sum of (i) as a
distribution in respect of interest, the amount of interest that has accrued
on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication (ii)
as a
distribution in respect of principal, any portion of the principal balance
of
the Class X Certificates which is distributable as a Subordination Reduction
Amount, minus (iii) any amounts paid from the Excess Reserve Fund Account
to pay
any Basis Risk CarryForward Amount or any Swap Termination Payment.
“Class
X Interest”: An uncertificated interest in the Trust Fund held by the trustee on
behalf of the Holders of the Class X Certificates, evidencing a Regular
Interest
in REMIC III for purposes of the REMIC Provisions.
“Closing
Date”: June 23, 2006.
“Closing
Date Deposit Amount”: $196.61 deposited by the Depositor into the Distribution
Account on the Closing Date. $0.29 of the Closing Date Deposit Amount shall
be
attributable to interest in respect of the Group I Mortgage Loans and $42.05
of
the Closing Date Deposit Amount shall be attributable to principal in respect
of
the Group I Mortgage Loans. $1.08 of the Closing Date Deposit amount shall
be
attributable to interest in respect of the Group II Mortgage Loans and $154.56
of the Closing Date Deposit Amount shall be attributable to principal in
respect
of the Group II Mortgage Loans.
“Code”:
The Internal Revenue Code of 1986, including any successor or amendatory
provisions.
“Collection
Account”: As defined in Section 3.10(a).
“Combined
Loan to Value Ratio” or “CLTV”: As of any date and as to any Second Lien
Mortgage Loan, the ratio, expressed as a percentage, of the (a) sum of (i)
the
outstanding principal balance of the Second Lien Mortgage Loan and (ii) the
outstanding principal balance as of such date of any mortgage loan or mortgage
loans that are senior or equal in priority to the Second Lien Mortgage Loan
and
which are secured by the same Mortgaged Property to (b) the Appraised Value
as
determined pursuant to the Underwriting Guidelines of the related Mortgaged
Property as of the origination of the Second Lien Mortgage Loan.
“Commission”:
The
United States Securities and Exchange Commission.
appear
on
Telerate Page 3750, the rate for such date will be determined on the basis
of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks
in
the London interbank market. In such event, the Trustee shall request the
principal London office of each of the Reference Banks to provide a quotation
of
its rate. If at least two such quotations are provided, the rate for that
date
will be the arithmetic mean of the quotations (rounded upwards if necessary
to
the nearest whole multiple of 1/16%). If fewer than two quotations are provided
as requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar loans to leading European
banks.
“LIBOR
Determination Date”: With respect to any Interest Accrual Period for the Offered
Certificates, the second London Business Day preceding the commencement of
such
Interest Accrual Period.
“Liquidated
Mortgage Loan”: With respect to any Distribution Date, a defaulted Mortgage Loan
(including any REO Property) which either (a) was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the
applicable Servicer has certified to the Trustee that it has received all
amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property, or (b)
is a
Second Lien Mortgage Loan (1) that is delinquent 180 days or longer, (2)
for
which the related first lien mortgage loan is not a Mortgage Loan, and (3)
as to
which the applicable Servicer has certified to the Trustee that it does not
believe there is a reasonable likelihood that any further net proceeds will
be
received or recovered with respect to such Second Lien Mortgage
Loan.
“Liquidation
Proceeds”: Cash received in connection with the liquidation of a Liquidated
Mortgage Loan, whether through a trustee’s sale, foreclosure sale or otherwise,
including any Subsequent Recoveries.
“Loan
Group”: The Group I Mortgage Loans or the Group II Mortgage Loans, as
applicable.
“Loan
Group Cap”: The Group I Loan Cap or the Group II Loan Cap, as
applicable.
“Loan-to-Value
Ratio” or “LTV”: With respect to any First Lien Mortgage Loan, the ratio
(expressed as a percentage) of the original outstanding principal amount
of the
First Lien Mortgage Loan as of the Cut-off Date (unless otherwise indicated),
to
the lesser of (a) the Appraised Value of the Mortgaged Property at origination,
and (b) if the First Lien Mortgage Loan was made to finance the acquisition
of
the related Mortgaged Property, the purchase price of the Mortgaged
Property.
“London
Business Day”: Any day on which dealings in deposits of United States dollars
are transacted in the London interbank market.
“Marker
Rate”: With respect to the Class A Certificates, Class M Certificates and Class
B
CertificatesX
Interest
and any
Distribution Date, a per annum rate equal to two (2)
times
(xiii) the
Class
B-2 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap;
(xiv) the
Class
B-3 Certificates, the lesser of (i) LIBOR plus the applicable Pass-Through
Margin and (ii) the WAC Cap; and
(xv) the
Class
X CertificatesInterest,
a per
annum rate equal to the percentage equivalent of a fraction, the numerator
of
which is the sum of the amounts calculated pursuant to clauses (A) through
(Q)
below, and the denominator of which is the aggregate Uncertificated Principal
Balance of REMIC II Regular Interest LT-AA, REMIC II Regular Interest LT-A1,
REMIC II Regular Interest LT-A2a, REMIC II Regular Interest LT-A2b, REMIC
II
Regular Interest LT-A2c, REMIC II Regular Interest LT-A2d, REMIC II Regular
Interest LT-M1, REMIC II Regular Interest LT-M2, REMIC II Regular Interest
LT-M3, REMIC II Regular Interest LT-M4, REMIC II Regular Interest LT-M5,
REMIC
II Regular Interest LT-M6, REMIC II Regular Interest LT-B1, REMIC II Regular
Interest LT-B2, REMIC II Regular Interest LT-B3 and REMIC II Regular Interest
LT-ZZ. For purposes of calculating the Pass-Through Rate for the Class
X
CertificatesInterest,
the
numerator is equal to the sum of the following components:
(A) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-AA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-AA;
(B) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A1;
(C) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A2a,
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A2a;
(D) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A2b,
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A2b;
(E) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A2c,
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A2c;
(F) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-A2d,
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-A2d;
(G) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M1;
(H) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M2;
(I) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M3;
(J) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M4;
(K) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M5
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M5;
(L) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-M6
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-M6;
(M) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-B1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-B1;
(N) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-B2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-B2;
(O) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-B3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-B3;
(P) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LT-ZZ
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LT-ZZ; and
(Q) 100%
of
the interest on REMIC II Regular Interest LT-P.
(xvi) the
Class X Certificates, 100% of the interest distributable to the Class X
Interest, expressed as a per annum rate.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”: As to any Certificate, the percentage interest evidenced thereby in
distributions required to be made on the related Class, such percentage interest
being set forth on the face thereof or equal to the percentage obtained by
dividing the Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
REMIC
II
Regular Interest LT-A2d, REMIC II Regular Interest LT-M1, REMIC II Regular
Interest LT-M2, REMIC II Regular Interest LT-M3, REMIC II Regular Interest
LT-M4, REMIC II Regular Interest LT-M5, REMIC II Regular Interest LT-M6,
REMIC
II Regular Interest LT-B1, REMIC II Regular Interest LT-B2 and REMIC II Regular
Interest LT-B3 for such Distribution Date, with the rate on each such REMIC
II
Regular Interest subject to a cap equal to the related Pass-Through
Rate.
“REMIC
II
Sub WAC Allocation Percentage”: 50% of any amount payable or loss attributable
from the Mortgage Loans, which shall be allocated to REMIC II Regular Interest
LT-1SUB, REMIC II Regular Interest LT-1GRP, REMIC II Regular Interest LT-2SUB,
REMIC II Regular Interest LT-2GRP and REMIC II Regular Interest
LT-XX.
“REMIC
II
Subordinated Balance Ratio”: The ratio among the Uncertificated Principal
Balances of each REMIC II Regular Interest ending with the designation “SUB”,
equal to the ratio between, with respect to each such REMIC II Regular Interest,
the excess of (x) the aggregate Stated Principal Balance of the Group I Mortgage
Loans and the Group II Mortgage Loans, as applicable, over (y) the current
Certificate Principal Balance of the related Senior Certificates.
“REMIC
II
Targeted Overcollateralization Amount”: 0.50% of the Targeted
Overcollateralization Amount.
“REMIC
III”: The
segregated pool of assets consisting of all of the REMIC II Regular Interests
conveyed in trust to the Trustee, for the benefit of the REMIC III
Certificateholders
pursuant to Section 2.07,,
and all
amounts deposited therein, with respect to which a separate REMIC election
is to
be made.
“REMIC
III
Certificate”: Any Regular Certificate or Class R Certificate.
“REMIC
III Certificateholder”: The Holder of any REMIC III Certificate.
“REMIC
III Regular Interest”: Any of the Class X Interest, Class P Interest, Class IO
Interest and any “regular interest” in REMIC III the ownership of which is
represented by a Senior Certificate or Subordinate
Certificate.
“REMIC
IV”: The segregated pool of assets consisting of all the Class X Interest
conveyed in trust to the Trustee, for the benefit of the Holders of the
Regular
Certificates and the Holders of the Class R-X Certificates (in respect
of the
Class R-IV Interest), and all amounts deposited therein, with respect to
which a
separate REMIC election is to be made.
“REMIC
V”: The segregated pool of assets consisting of all of the Class P Interest
conveyed in trust to the Trustee, for the benefit of the Holders of the
Class P
Certificates and the Holders of the Class R-X Certificates (as holders
of the
Class R-V Interest), and all amounts deposited therein, with respect to
which a
separate REMIC election is to be made.
“REMIC
VI”: The segregated pool of assets consisting of all of the Class IO Interest
conveyed in trust to the Trustee, for the benefit of the Holders of REMIC
VI
Regular Interest IO and the Holders of the Class R-X Certificates (as holders
of
the Class R-VI Interest), and all amounts deposited therein, with respect
to
which a separate REMIC election is to be made.
“REMIC
VI Regular Interest IO”: An uncertificated interest in the Trust Fund held by
the Trustee, evidencing a Regular Interest in REMIC VI for purposes of
the REMIC
Provisions.
“REMIC
Opinion”: Shall mean an Opinion of Counsel to the effect that the proposed
action will not have an adverse affect on any REMIC created
hereunder.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits, which appear at Sections 860A through 860G
of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time
as
well as provisions of applicable state laws.
“REMIC
Regular Interest”: Any REMIC I Regular Interest, REMIC II Regular Interest,
Class
X Interest, Class P Interest, Regular
Certificate or Class IO Interest.
“Remittance
Date”: With respect to any Distribution Date, the third Business Day immediately
preceding such Distribution Date.
“REO
Disposition”: The final sale by the applicable Servicer of any REO
Property.
“REO
Imputed Interest”: As to any REO Property, for any period, an amount equivalent
to interest (at the Mortgage Rate net of the Servicing Fee Rate that would
have
been applicable to the related Mortgage Loan had it been outstanding) on
the
unpaid principal balance of the Mortgage Loan as of the date of acquisition
thereof (as such balance is reduced pursuant to Section 3.17 by any income
from
the REO Property treated as a recovery of principal).
“REO
Mortgage Loan”: A Mortgage Loan where title to the related Mortgaged Property
has been obtained by the applicable Servicer in the name of the Trustee on
behalf of the Certificateholders.
“REO
Property”: A Mortgaged Property acquired by the Trust Fund through foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
“Replacement
Swap Provider Payment”:
Any
payments that have been received by the Supplemental Interest Trust as a
result
of entering into a replacement interest rate swap agreement following an
Additional Termination Event described in Part 1(h)(ii) of the Interest Rate
Swap Agreement.
“Reportable
Event”:
As
defined in Section 8.12(g).
“Repurchase
Price”: With respect to any Mortgage Loan repurchased by the Depositor or the
Responsible Party, an amount equal to the sum of (i) the unpaid principal
balance of such Mortgage Loan as of the date of repurchase, (ii) interest
on
such unpaid principal
“Startup
Day”: The Closing
DateStartup
Date for REMIC I, REMIC II and REMIC III shall be the Closing Date. The
Startup
Day for REMIC IV, REMIC V and REMIC VI shall be November
7, 2006.
“Stated
Principal Balance”: As to each Mortgage Loan and as of any date of
determination, (i) the principal balance of the Mortgage Loan at the Cut-off
Date after giving effect to payments of principal due on or before such date
(whether or not received), minus (ii) all amounts previously remitted to
the
Trustee with respect to the related Mortgage Loan representing payments or
recoveries of principal including advances in respect of scheduled payments
of
principal. For purposes of any Distribution Date, the Stated Principal Balance
of any Mortgage Loan will give effect to any scheduled payments of principal
received by the related Servicer on or prior to the related Determination
Date
or advanced by the related Servicer for the related Remittance Date and any
unscheduled principal payments and other unscheduled principal collections
received during the related Prepayment Period, and the Stated Principal Balance
of any Mortgage Loan that has prepaid in full or has become a Liquidated
Mortgage Loan during the related Prepayment Period shall be zero.
“Stepdown
Date”: The later to occur of (i) the earlier to occur of (a) the Distribution
Date in July 2009 and (b) the Distribution Date following the Distribution
Date
on which the aggregate Class Certificate Balances of the Class A Certificates
have been reduced to zero and (ii) the first Distribution Date on which the
Senior Enhancement Percentage (calculated for this purpose only after taking
into account payments of principal on the Mortgage Loans applied to reduce
the
Stated Principal Balances of the Mortgage Loans for the applicable Distribution
Date but prior to any allocation of the Principal Distribution Amount and
principal payments from the Swap Account to the Certificates on such
Distribution Date) is greater than or equal to the Senior Specified Enhancement
Percentage.
“Subcontractor”:
Any
third-party or Affiliated vendor, subcontractor or other Person utilized
by a
Servicer, a Subservicer or the Trustee, as applicable, that is not responsible
for the overall servicing (as “servicing” is commonly understood by participants
in the mortgage-backed securities market) of Mortgage Loans but performs
one or
more discrete functions identified in Item 1122(d) of Regulation AB with
respect
to Mortgage Loans.
“Subordinated
Amount”: With respect to any Distribution Date, the excess, if any, of (a) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over (b) the aggregate of the Class Certificate Balances of the Offered
Certificates and the Class P Certificates as of such Distribution Date (after
giving effect to the payment of the Principal Remittance Amount on such
Certificates on such Distribution Date).
“Subordinated
Certificates”: As specified in the Preliminary Statement.
“Subordination
Deficiency”: With respect to any Distribution Date, the excess, if any, of (a)
the Specified Subordinated Amount applicable to such Distribution Date over
(b)
the Subordinated Amount applicable to such Distribution Date.
“Swap
Assets”:
Collectively, the Swap Account, the Interest Rate Swap Agreement, the Class
IO
Interest and the right to receive Class IO Shortfalls, subject to the obligation
to pay amounts specified in Section 4.06.
“Swap
LIBOR”: With respect to any Distribution Date (and the related Interest Accrual
Period), the product of (i) USD-LIBOR-BBA (as used in the Interest Swap
Agreement), (ii) two, and (iii) the quotient of (a) the actual number of
days in
the Interest Accrual Period for the Offered Certificates divided by (b)
30.
“Swap
Payment Allocation”: For any Class of Certificates and any Distribution Date,
that Class’s pro
rata
share of
the Net Swap Receipts, if any, for that Distribution Date, based on the Class
Certificate Balances of the Classes of Certificates.
“Swap
Payment Rate”: For any Distribution Date, a fraction, the numerator of which is
any Net Swap Payment or Swap Termination Payment owed to the Swap Provider
for
such Distribution Date and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans at the beginning of the related Due
Period, multiplied by 12.
“Swap
Provider”: Xxxxxx Xxxxxxx Capital Services Inc., a Delaware corporation, and its
successors in interest.
“Swap
Termination Payment”:
Any
payment payable by the Supplemental Interest Trust or the Swap Provider upon
termination of the Interest Rate Swap Agreement as a result of an Event of
Default (as defined in the Interest Rate Swap Agreement) or a Termination
Event
(as defined in the Interest Rate Swap Agreement).
“Tax
Matters Person”:
The
Holder of the Class R Certificates designated as “tax matters person” of
each
Trust REMIC
I,
REMIC II and REMIC III in the manner provided under Treasury Regulations
Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1. The Holder
of the
Class R-X Certificates designated as “tax matters person” of REMIC IV, REMIC V
and REMIC VI
in the
manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1.
“Tax
Service Contract”: As defined in Section 3.09(a).
“Telerate
Page 3750”: The display page currently so designated on the Bridge Telerate
Service (or such other page as may replace that page on that service for
displaying comparable rates or prices).
“Total
Monthly Excess Spread”: As to any Distribution Date, an amount equal to the
excess if any, of (i) the interest on the Mortgage Loans received by the
Servicers on or prior to the related Determination Date (other than Prepayment
Interest Excesses) or advanced by the Servicers for the related Remittance
Date
(net of Expense Fees) over (ii) the sum of (A) the amounts payable to the
Certificates pursuant to Section 4.02(a)(i) on such Distribution Date, (B)
any
Net Swap Payments to the Swap Provider and (C) any Swap Termination Payment
(other than a Defaulted Swap Termination Payment that is not a Senior Defaulted
Swap Termination Payment) to the Swap Provider.
“Transfer”:
Any direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
“Transfer
Affidavit”: As defined in Section 5.02(c).
“Transferor
Certificate”: As defined in Section 5.02(b).
“Trigger
Event”: Either a Cumulative Loss Trigger Event or a Delinquency Trigger
Event.
“Trust”:
The express trust created hereunder in Section 2.01(c).
“Trust
Fund”: The corpus of the trust created hereunder consisting of (i) the Mortgage
Loans and all interest and principal with respect thereto received on or
after
the related Cut-off Date, other than such amounts which were due on the Mortgage
Loans on or prior to the related Cut-off Date; (ii) the Collection Accounts,
Excess Reserve Fund Account, the Distribution Account, and all amounts deposited
therein pursuant to the applicable provisions of this Agreement; (iii) property
that secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu
of foreclosure or otherwise; (iv) the Closing Date Deposit Amount; (v) the
Interest Rate Swap Agreement; (vi) the Swap Assets; and (vii) all proceeds
of
the conversion, voluntary or involuntary, of any of the foregoing.
“Trust
REMIC”: Any of REMIC I, REMIC II
or,
REMIC
III,
REMIC IV, REMIC V and REMIC VI.
“Trustee”:
Deutsche Bank National Trust Company, a national banking association, and
its
successors in interest and, if a successor trustee is appointed hereunder,
such
successor.
“Trustee
Fee”: As to any Distribution Date, an amount equal to the product of (a)
one-twelfth of the Trustee Fee Rate and (b) (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the first day of the related Interest
Accrual Period and (ii) with respect to the Distribution Date in July 2006
only,
the portion of the Closing Date Deposit Amount allocable to
principal.
“Trustee
Fee Rate”: With respect to each Mortgage Loan, 0.0021% per annum.
“Trustee
Float Period”: With respect to the Distribution Date and the related amounts in
the Distribution Account, the period commencing on the Business Day immediately
preceding such Distribution Date and ending on such Distribution
Date.
“Uncertificated
Accrued Interest”: With respect to each Uncertificated REMIC Regular Interest on
each Distribution Date, an amount equal to one month’s interest at the related
Uncertificated Pass-Through Rate on the Uncertificated Principal Balance
of such
REMIC Regular Interest. In each case, Uncertificated Accrued Interest will
be
reduced by any Prepayment Interest Shortfalls and shortfalls resulting from
application of the Relief Act (allocated to such REMIC Regular Interests
as set
forth in Section 8.14).
(R) to
the
Excess Reserve Fund Account, the amount of any Basis Risk Payment (without
regard to Net Swap Receipts) for such Distribution Date;
(S) from
funds on deposit in the Excess Reserve Fund Account with respect to such
Distribution Date, an amount equal to any remaining Basis Risk CarryForward
Amount with respect to the Offered Certificates for such Distribution Date,
allocated to the Offered Certificates in the same order and priority in which
the Accrued Certificate Interest Distribution Amount is allocated among such
Classes of Certificates, with the allocation to the Class A Certificates
being
(a) first, among the Class A Certificates, pro
rata,
based
on their respective Class Certificate Balances and (b) second, any remaining
amounts to the Class A Certificates, pro
rata,
based
on any Basis Risk CarryForward Amounts remaining unpaid, in order to reimburse
such unpaid amounts;
(T) to
the
Swap Account, the amount of any remaining Defaulted Swap Termination Payment
owed to the Swap Provider;
(U) to
the
Class X Certificates, the remainder of the Class X Distributable Amount not
distributed pursuant to Sections 4.02(a)(iii)(A)-(U); and
(V) 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 Loan, to the Class P Certificates, in reduction of the Class
Certificate Balance thereof; and
(W) to
the
Class
RResidual
Certificates, any remaining amount in the Trust REMICs.
(ii) Solely
for purposes of interest allocation calculations, the Interest Remittance
Amount
attributable to Group I Mortgage Loans will be allocated:
(1) first,
to
the Class A-1 Certificates, the Accrued Certificate Interest Distribution
Amount
and any Unpaid Interest Amount for the Class A-1 Certificates; and
(2) second,
concurrently, to the Class A-2a, Class A-2b, Class A-2c, and Class A-2d
Certificates, pro rata (based on the amounts distributable or payable under
Section 4.02(a)(i)(B) to such Classes of Certificates), the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest Amount for the Class
A-2a,
Class A-2b, Class A-2c and Class A-2d Certificates, respectively, to the
extent
not otherwise previously paid from the Interest Remittance Amount attributable
to Group II Mortgage Loans.
(iii) Solely
for purposes of interest allocation calculations, the Interest Remittance
Amount
attributable to Group II Mortgage Loans will be allocated:
first,
concurrently, to the Class A-2a, Class A-2b, Class A-2c and Class A-2d
Certificates, pro rata (based on the amounts distributable or
payable
Trustee
shall deposit the Swap Termination Payment into the reserve account that
is a
sub-account of the Swap Account. On each subsequent Distribution Date (so
long
as funds are available in the reserve account), the Supplemental Interest
Trust
Trustee shall withdraw from the reserve account and deposit into the Swap
Account an amount equal to the amount of any Net Swap Receipt due the
Supplemental Interest Trust (calculated in accordance with the terms of the
original Interest Rate Swap Agreement) and treat such amount as a Net Swap
Receipt for purposes of determining the distributions from the Swap Account.
In
no event shall the Supplemental Interest Trust Trustee be responsible for
the
selection of any successor or replacement swap provider or any shortfalls
caused
by a failure to enter into a replacement interest rate swap
agreement.
Upon
termination of the Trust, any amounts remaining in the Swap Account shall
be
distributed pursuant to the priorities set forth in this Section
4.06.
In
the
event that, upon the Supplemental Interest Trust entering into a replacement
interest rate swap following the occurrence of an Additional Termination
Event
of the type described in Part 1(h)(ii) of the Interest Rate Swap Agreement,
the
Supplemental Interest Trust is entitled to receive a payment from a replacement
swap provider, the Supplemental Interest Trust Trustee shall direct the
replacement swap provider to make such payment to the Swap Account. Any Senior
Defaulted Swap Termination Payment shall be made from the Swap Account to
the
Swap Provider immediately upon receipt of such payment, regardless of whether
the date of receipt thereof is a Distribution Date. To the extent that any
Replacement Swap Provider Payment is made to an account other than the Swap
Account, then, notwithstanding anything to the contrary contained in this
Agreement, any Senior Defaulted Swap Termination Payment shall be paid to
the
Swap Provider immediately upon receipt of such Replacement Swap Provider
Payment, regardless of whether the date of receipt thereof is a Distribution
Date and without regard to anything to the contrary contained in this Agreement.
For the avoidance of doubt, the parties agree that the Swap Provider shall
have
first priority to any Replacement Swap Provider Payment over the payment
by the
Trust to Certificateholders, the Servicer, the Responsible Party, the Trustee
or
any other Person.
The
beneficial owners of the Swap Account are the Class X Certificateholders.
For
federal income tax purposes, Net Swap Payments and Swap Termination Payments
payable to the Swap Provider shall be deemed to be paid to the Swap Account
from
REMIC IIIVI,
first,
by the Class IO Interest and second, other than any Defaulted Swap Termination
Payment, from REMIC III by the Holders of the applicable Class or Classes
of
Offered Certificates (in respect of Class IO Shortfalls) as and to the
extent
provided in Section 8.13.
Any
Basis
Risk CarryForward Amounts distributed by the Trustee to the Offered
Certificateholders shall be accounted for by the Trustee, for federal income
tax
purposes, as amounts paid first to the Holders of the Class X Certificates,
and
then to the respective Class or Classes of Offered Certificates. In addition,
the Trustee shall account for the rights of Holders of each Class of Offered
Certificates to receive payments of Basis Risk CarryForward Amounts from
the
Swap Account (along with Basis Risk CarryForward Amounts payable from the
Excess
Reserve Fund Account) as rights in a separate limited recourse interest rate
cap
contract written by the Class X Certificateholders in favor of Holders of
each
such Class.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest upon surrender of the Certificates to
be
exchanged at the office or agency of the Trustee. Whenever any Certificates
are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange
is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the Holder thereof or
his
attorney duly authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but 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 may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
No
transfer of a Private Certificate shall be made unless such transfer is
made
pursuant to an effective registration statement under the Securities Act
and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In determining whether a
transfer
is being made pursuant to an effective registration statement, the Trustee
shall
be entitled to rely solely upon a written notice to such effect from the
Depositor. Except with respect to (i) the transfer of the Class X, Class
P or
Class
RResidual
Certificates to the Depositor or
an
Affiliate of the Depositor or, in the case of the Class R-X Certificates,
the
initial 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 the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer
of the
Class X or Class P Certificates from the NIM Issuer or the NIM Trustee
to the
Depositor or an Affiliate of the Depositor, in the event that a transfer
of a
Private Certificate which is a Physical Certificate is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder
desiring
to effect such transfer shall certify to the Trustee in writing the facts
surrounding the transfer in substantially the form set forth in Exhibit
H (the
“Transferor
Certificate”)
and
either (i) there shall be delivered to the Trustee a letter in substantially
the
form of Exhibit I (the “Rule
144A Letter”)
or
(ii) there shall be delivered to the Trustee at the expense of the transferor
an
Opinion of Counsel that such transfer may be made without registration
under the
Securities Act. In the event that a transfer of a Private Certificate which
is a
Book-Entry Certificate is to be made in reliance upon an exemption from
the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer
will
be deemed to have made as of the transfer date each of the certifications
set
forth in the Transferor Certificate in respect of such Certificate and
the
transferee will be deemed to have made as of the transfer date each of
the
certifications set forth in the Rule 144A Letter in respect of such Certificate,
in each case as if such Certificate were evidenced by a Physical Certificate.
The Depositor shall provide to any Holder of a Private Certificate and
any
prospective transferee designated by any such Holder, information regarding
the
related Certificates and the Mortgage
Loans
and
such other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the Servicers
shall cooperate with the Depositor in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Depositor
such
information regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet
its
obligation under the preceding sentence. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee, the Depositor and each Servicer against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
Except
with respect to (A) the transfer of the Class R,
Class X orX,
Class P
or
Residual Certificates
to the Depositor or
an
Affiliate of the Depositor or, in the case of the Class R-X Certificates,
the
initial transfer by an Affiliate of the Depositor or the first ransfer
by the
initial transferee of
an
Affiliate of the Depositor, (B) the transfer of the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (C) a transfer of
the
Class X or Class P Certificates from the NIM Issuer or the NIM Trustee
to the
Depositor or an Affiliate of the Depositor, no transfer of an ERISA-Restricted
Certificate shall be made unless the Trustee shall have received either
(i) a
representation from the transferee of such Certificate acceptable to and
in form
and substance satisfactory to the Trustee (in the event such Certificate
is a
Class P Certificate or a Residual Certificate, such requirement is satisfied
only by the Trustee’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that such transferee
is
not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a
plan subject to Section 4975 of the Code or a plan subject to any Federal,
state
or local law (“Similar
Law”)
materially similar to the foregoing provisions of ERISA or the Code, nor
a
Person acting on behalf of any such plan or arrangement nor using the assets
of
any such plan or arrangement to effect such transfer, or (ii) in the case
of an
ERISA-Restricted Certificate other than a Residual Certificate or a Class
P
Certificate that has been the subject of an ERISA-Qualifying Underwriting,
and
the purchaser is an insurance company, a representation that the purchaser
is an
insurance company that is purchasing such Certificates with funds contained
in
an “insurance company general account” (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 (“PTCE
95-60”))
and
that it is eligible for exemptive relief under PTCE 95-60 prior to termination
of the Supplemental Interest Trust and the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 after
termination of the Supplemental Interest Trust or (iii) in the case of
any such
ERISA-Restricted Certificate other than a Residual Certificate or Class
P
Certificate presented for registration in the name of an employee benefit
plan
subject to Title I of ERISA, a plan or arrangement subject to Section 4975
of
the Code (or comparable provisions of any subsequent enactments), or a
plan
subject to Similar Law, or a trustee of any such plan or any other person
acting
on behalf of any such plan or arrangement or using such plan’s or arrangement’s
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion
of
Counsel shall not be an expense of the Servicers, the Depositor, the Trustee
or
the Trust Fund, addressed to the Trustee, to the effect that the purchase
or
holding of such ERISA-Restricted Certificate will not constitute or result
in a
non-exempt prohibited transaction within the meaning of ERISA, Section
4975 of
the Code or any Similar Law and will not subject the Depositor, the Trustee
or
the Servicers to any obligation in addition to those expressly undertaken
in
this Agreement or to any liability. For purposes of the preceding sentence,
with
respect to an ERISA-Restricted Certificate that is not a Class P Certificate
or
a
(b) the
Trustee from withholding payment of such tax, if permitted by law, pending
the
outcome of such proceedings);
(c) cause
federal, state or local income tax or information returns to be signed by
the
Trustee or such other Person as may be required to sign such returns by the
Code
or state or local laws, regulations or rules; and
(d) maintain
records relating to each Trust REMIC created hereunder, including the income,
expenses, assets, and liabilities thereof on a calendar year basis and on
the
accrual method of accounting and the fair market value and adjusted basis
of the
assets determined at such intervals as may be required by the Code, as may
be
necessary to prepare the foregoing returns, schedules, statements or
information.
The
Holder of the largest Percentage Interest of the Class R Certificates shall
act
as Tax Matters Person for each
Trust REMIC
I,
REMIC II and REMIC III,
within
the meaning of Treasury Regulations Section 1.860F-4(d),
and the.
The
Holder of the largest Percentage Interest of the Class R-X Certificates
shall
act as Tax Matters Person for REMIC IV, REMIC V and REMIC VI, within the
meaning
of Treasury Regulations Section 1.860F-4(d). The
Trustee
is hereby designated as agent of such Certificateholder for such purpose
(or if
the Trustee is not so permitted, such Holder shall be the Tax Matters Person
in
accordance with the REMIC Provisions). In such capacity, the Trustee shall,
as
and when necessary and appropriate, represent each Trust REMIC created
hereunder
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 each Trust REMIC created hereunder, enter into
settlement agreements with any governmental taxing agency, extend any statute
of
limitations relating to any tax item of each Trust REMIC created hereunder,
and
otherwise act on behalf of each Trust REMIC in relation to any tax matter
or
controversy involving it.
To
enable
the Trustee to perform its duties under this Agreement, the Depositor shall
provide to the Trustee within ten days after the Closing Date all information
or
data that the Trustee requests in writing and determines to be relevant for
tax
purposes to the valuations and offering prices of the Certificates, including
the price, yield, prepayment assumption, and projected cash flows of the
Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Trustee concerning the value, if any, to each Class of
Certificates of the right to receive Basis Risk CarryForward Amounts from
the
Excess Reserve Fund Account and Basis Risk CarryForward Amounts from the
Swap
Account. Thereafter, the Depositor shall provide to the Trustee promptly
upon
written request therefor any additional information or data that the Trustee
may, from time to time, reasonably request to enable the Trustee to perform
its
duties under this Agreement; provided,
however,
that
the Depositor shall not be required to provide any information regarding
the
Mortgage Loans that the Servicer is required to provide to the Trustee pursuant
to this Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any
errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide pursuant to this paragraph accurate information or data to the
Trustee on a timely basis.
Neither
the Servicers nor the Trustee shall (i) permit the creation of any interests
in
any Trust REMIC other than the regular and residual interests set forth in
the
Preliminary
cancellation,
shall be given promptly by the Trustee by letter to Certificateholders mailed
not earlier than the 10th day and not later than the 15th day of the month
of
such final distribution. Any such Notice of Final Distribution shall specify
(a)
the Distribution Date upon which final distribution on the Certificates will
be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of
the
office or agency at which such presentation and surrender must be made, and
(d)
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 therein specified. The Trustee will give such
Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In
the
event such Notice of Final Distribution is given, Xxxxx Fargo shall cause
all
funds in its Collection Account to be remitted to the Trustee for deposit
in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and
the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to Xxxxx Fargo, the Custodial Files for the Mortgage
Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class (after reimbursement
of all
amounts due to Xxxxx Fargo, the Depositor and the Trustee hereunder), in
each
case on the final Distribution Date and in the order set forth in Section
4.02,
in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, up to an amount equal to (i) as to
each
Class of Regular Certificates (except the Class X Certificates), the Certificate
Balance thereof plus for each such Class and the Class X Certificates accrued
interest thereon in the case of an interest-bearing Certificate and all other
amounts to which such Classes are entitled pursuant to Section 4.02 and (ii)
as
to the Residual Certificates, the amount, if any, which remains on deposit
in
the Distribution Account (other than the amounts retained to meet claims)
after
application pursuant to clause (i) above.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six months after the date specified in the above mentioned
written notice, the Trustee 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 six months after
the
second notice all the applicable Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, or may appoint
an
agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall
be paid
out of the funds and other assets which remain a part of the Trust Fund.
If
within one year after the second notice all Certificates shall not have
been
surrendered for cancellation, the Class
RResidual
Certificateholders shall be entitled to all unclaimed funds and other assets
of
the Trust Fund which remain subject hereto.
Additional
Termination Requirements.
In the
event Xxxxx Fargo exercises its purchase option with respect to the Mortgage
Loans as provided in Section 9.01, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee
has
been supplied with an Opinion of Counsel, at the expense Xxxxx Fargo, to
the
effect that the failure to comply with the requirements of this Section 9.03
will not (i) result in
XXXXXX
XXXXXXX ABS CAPITAL I INC.
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2006-NC4
Mortgage
Pass-Through Certificates, Series 2006-NC4
CLASS
[R][R-X]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Distributions
in respect of this Certificate is distributable monthly as set forth herein.
This Class [R][R-X]
Certificate has no Certificate Balance and is not entitled to distributions
in
respect of principal or interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Trustee or any other party to the Agreement referred to below or any of
their
respective affiliates. Neither this Certificate nor the Mortgage Loans
are
guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ______________________ is the registered owner of the Percentage
Interest specified above of any monthly distributions due to the Class R
Certificates pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the “Agreement”)
among
Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor (the “Depositor”),
Xxxxx
Fargo Bank, N.A., as a servicer, New Century Mortgage Corporation, as a
servicer, NC Capital Corporation, as responsible party, and Deutsche Bank
National Trust Company, 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.
Any
distribution of the proceeds of any remaining assets of the Trust Fund
will be
made only upon presentment and surrender of this Class [R][R-X]
Certificate at the offices designated by the Trustee for such purposes
or such
other location specified in the notice to Certificateholders.
No
transfer of a Class [R][R-X]
Certificate shall be made unless the Trustee shall have received a
representation letter from the transferee of such Certificate, acceptable
to and
in form and substance satisfactory to the Trustee, to the effect that such
transferee is not an employee benefit plan or arrangement subject to Section
406
of ERISA, a plan or arrangement subject to Section 4975 of the Code or
a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such
transfer, which representation letter shall not be an expense of the Trustee,
the Servicers or the Trust Fund. In the event that such representation
is
violated, or any attempt is made to transfer to a plan or arrangement subject
to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or a
plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
Each
Holder of this Class [R][R-X]
Certificate shall be deemed by the acceptance or acquisition an Ownership
Interest in this Class [R][R-X]
Certificate to have agreed to be bound by the following provisions, and
the
rights of each Person acquiring any Ownership Interest in this Class
[R][R-X]
Certificate are expressly subject to the following provisions: (i) each
Person
holding or acquiring any Ownership Interest in this Class [R][R-X]
Certificate shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee, (ii) no Ownership Interest in this Class [R][R-X]
Certificate may be registered on the Closing Date or thereafter transferred,
and
the Trustee shall not register the Transfer of this Certificate unless,
in
addition to the certificates required to be delivered to the Trustee under
Section 5.02(b) of the Agreement, the Trustee shall have been furnished
with a
Transfer Affidavit of the initial owner or the proposed transferee in the
form
attached as Exhibit G to the Agreement, (iii) each Person holding or acquiring
any Ownership Interest in this Class [R][R-X]
Certificate shall agree (A) to obtain a Transfer Affidavit from any other
Person
to whom such Person attempts to Transfer its Ownership Interest this Class
[R][R-X]
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
this Class [R][R-X]
Certificate, (C) not to cause income with respect to the Class [R][R-X]
Certificate to be attributable to a foreign permanent establishment or
fixed
base, within the meaning of an applicable income tax treaty, of such Person
or
any other U.S. Person and (D) not to Transfer the Ownership Interest in
this
Class [R][R-X]
Certificate or to cause the Transfer of the Ownership Interest in this
Class
[R][R-X]
Certificate to any other Person if it has actual knowledge that such Person
is a
Non-Permitted Transferee and (iv) any attempted or purported Transfer of
the
Ownership Interest in this Class [R][R-X]
Certificate in violation of the provisions herein shall be absolutely null
and
void and shall vest no rights in the purported Transferee.
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 authenticated by an authorized signatory
of the
Trustee.
* * *
EXHIBIT
G
RESIDUAL
TRANSFER AFFIDAVIT
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust 2006-NC4,
Mortgage
Pass-Through Certificates,
Series
2006-NC4
|
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 Class [R][R-X]
Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement (the “Agreement”),
relating to the above-referenced Series, by and among Xxxxxx Xxxxxxx ABS
Capital
I Inc., as Depositor, Xxxxx Fargo Bank, N.A., as a Servicer, New Century
Mortgage Corporation, as a Servicer, NC Capital Corporation, as Responsible
Party, and Deutsche Bank National Trust Company, as Trustee (the “Trustee”).
Capitalized terms used, but not defined herein, 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 Non-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 a
Non-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 a Non-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.)
