FINANCIAL ASSET SECURITIES CORP., Depositor OPTION ONE MORTGAGE CORPORATION Servicer and DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee POOLING AND SERVICING AGREEMENT Dated as of May 1, 2006 Soundview Home Loan Trust 2006-OPT4 Asset-Backed...
FINANCIAL
ASSET SECURITIES CORP.,
Depositor
OPTION
ONE MORTGAGE CORPORATION
Servicer
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
Dated
as
of May 1, 2006
___________________________
Asset-Backed
Certificates, Series 2006-OPT4
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
SECTION
1.01 Defined
Terms
SECTION
1.02 Accounting
SECTION
1.03 Allocation
of Certain Interest Shortfalls
SECTION
1.04 Rights
of
the NIMS Insurer.
ARTICLE
II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION
2.01 Conveyance
of Mortgage Loans
SECTION
2.02 Acceptance
by Trustee
SECTION
2.03 Repurchase
or Substitution of Mortgage Loans by the Originator
SECTION
2.04 Intentionally
Omitted
SECTION
2.05 Representations,
Warranties and Covenants of the Servicer
SECTION
2.06 Representations
and Warranties of the Depositor
SECTION
2.07 Issuance
of Certificates
SECTION
2.08 [Reserved]
SECTION
2.09 Acceptance
of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC 5 and REMIC 6 by the Trustee;
Conveyance of REMIC 1 Regular Interests, Class C Interest and Class P Interest;
Issuance of Certificates
ARTICLE
III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION
3.01 Servicer
to Act as Servicer
SECTION
3.02 Sub-Servicing
Agreements Between Servicer and Sub-Servicers
SECTION
3.03 Successor
Sub-Servicers
SECTION
3.04 Liability
of the Servicer
SECTION
3.05 No
Contractual Relationship Between Sub-Servicers and the NIMS Insurer, the Trustee
or Certificateholders
SECTION
3.06 Assumption
or Termination of Sub-Servicing Agreements by Trustee
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; Escrow Accounts
SECTION
3.10 Collection
Account and Distribution Account
SECTION
3.11 Withdrawals
from the Collection Account and Distribution Account
SECTION
3.12 Investment
of Funds in the Collection Account and the Distribution 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
to the Trustee; 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; Filing of Reports by Trustee
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 [Reserved]
SECTION
3.26 Obligations
of the Servicer in Respect of Mortgage Rates and Monthly Payments
SECTION
3.27 Solicitations
SECTION
3.28 [Reserved]
SECTION
3.29 Advance
Facility
SECTION
3.30 Pool
Policy
ARTICLE
IV
FLOW OF
FUNDS
SECTION
4.01 Distributions
SECTION
4.02 [Reserved]
SECTION
4.03 Statements
SECTION
4.04 Remittance
Reports; Advances
SECTION
4.05 Swap
Account
SECTION
4.06 Tax
Treatment of Swap Payments and Swap Termination Payments
SECTION
4.07 Commission
Reporting
SECTION
4.08 Net
WAC
Rate Carryover Reserve Account
SECTION
4.09 Distributions
on the REMIC Regular Interests
SECTION
4.10 Allocation
of Realized Losses
ARTICLE
V
THE
CERTIFICATES
SECTION
5.01 The
Certificates
SECTION
5.02 Registration
of Transfer and Exchange of Certificates
SECTION
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates
SECTION
5.04 Persons
Deemed Owners
SECTION
5.05 Appointment
of Paying Agent
ARTICLE
VI
THE
SERVICER, THE DEPOSITOR AND THE CREDIT RISK MANAGER
SECTION
6.01 Liability
of the Servicer and the Depositor
SECTION
6.02 Merger
or
Consolidation of, or Assumption of the Obligations of, the Servicer or the
Depositor
SECTION
6.03 Limitation
on Liability of the Servicer and Others
SECTION
6.04 Servicer
Not to Resign
SECTION
6.05 Delegation
of Duties
SECTION
6.06 [Reserved]
SECTION
6.07 Inspection
SECTION
6.08 Credit
Risk Manager
ARTICLE
VII
DEFAULT
SECTION
7.01 Servicer
Events of Termination
SECTION
7.02 Trustee
to Act; Appointment of Successor
SECTION
7.03 Waiver
of
Defaults
SECTION
7.04 Notification
to Certificateholders
SECTION
7.05 Survivability
of Servicer Liabilities
ARTICLE
VIII
THE
TRUSTEE
SECTION
8.01 Duties
of
Trustee
SECTION
8.02 Certain
Matters Affecting the Trustee
SECTION
8.03 Trustee
Not Liable for Certificates or Mortgage Loans
SECTION
8.04 Trustee
May Own Certificates
SECTION
8.05 Trustee
Compensation, Custodial Fee and Expenses
SECTION
8.06 Eligibility
Requirements for Trustee
SECTION
8.07 Resignation
or Removal of Trustee
SECTION
8.08 Successor
Trustee
SECTION
8.09 Merger
or
Consolidation of Trustee
SECTION
8.10 Appointment
of Co-Trustee or Separate Trustee
SECTION
8.11 Limitation
of Liability
SECTION
8.12 Trustee
May Enforce Claims Without Possession of Certificates
SECTION
8.13 Suits
for
Enforcement
SECTION
8.14 Waiver
of
Bond Requirement
SECTION
8.15 Waiver
of
Inventory, Accounting and Appraisal Requirement
SECTION
8.16 Appointment
of the Custodian
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, the Swap Provider and the NIMS Insurer
SECTION
11.09 Further
Assurances
SECTION
11.10 Third
Party Rights
SECTION
11.11 Benefits
of Agreement
SECTION
11.12 Acts
of
Certificateholders
SECTION
11.13 Intention
of the Parties and Interpretation
Exhibits:
|
Exhibit
A-1
|
Form
of Class I-A-1 Certificates
|
|
Exhibit
A-2
|
Form
of Class II-A-1 Certificates
|
|
Exhibit
A-3
|
Form
of Class II-A-2 Certificates
|
|
Exhibit
A-4
|
Form
of Class II-A-3 Certificates
|
|
Exhibit
A-5
|
Form
of Class II-A-4 Certificates
|
|
Exhibit
A-6
|
Form
of Class M-1 Certificates
|
|
Exhibit
A-7
|
Form
of Class M-2 Certificates
|
|
Exhibit
A-8
|
Form
of Class M-3 Certificates
|
|
Exhibit
A-9
|
Form
of Class M-4 Certificates
|
|
Exhibit
A-10
|
Form
of Class M-5 Certificates
|
|
Exhibit
A-11
|
Form
of Class M-6 Certificates
|
|
Exhibit
A-12
|
Form
of Class M-7 Certificates
|
|
Exhibit
A-13
|
Form
of Class M-8 Certificates
|
|
Exhibit
A-14
|
Form
of Class M-9 Certificates
|
|
Exhibit
A-15
|
Form
of Class C Certificates
|
|
Exhibit
A-16
|
Form
of Class P Certificates
|
|
Exhibit
A-17
|
Form
of Class R Certificates
|
|
Exhibit
A-18
|
Form
of Class R-X Certificates
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
D
|
Mortgage
Loan Schedule
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Trustee’s/Custodian’s Initial Certification
|
|
Exhibit
F-2
|
Form
of Trustee’s/Custodian’s Final Certification
|
|
Exhibit
F-3
|
Form
of Receipt of Mortgage Note
|
|
Exhibit
G
|
Form
of Custodial Agreement
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
|
Exhibit
I
|
Form
of Limited Power of Attorney
|
|
Exhibit
J
|
Form
of Investment Letter
|
|
Exhibit
K
|
Form
of Transfer Affidavit for Residual Certificates
|
|
Exhibit
L
|
Form
of Transferor Certificate
|
|
Exhibit
M
|
Form
of ERISA Representation Letter
|
|
Exhibit
N-1
|
Form
Certification to be Provided by the Depositor with Form
10-K
|
|
Exhibit
N-2
|
Form
Certification to be Provided to the Depositor by the
Trustee
|
|
Exhibit
N-3
|
Form
Certification to be Provided to the Depositor by the
Servicer
|
|
Exhibit
O
|
Form
of Pool Policy
|
|
Exhibit
P
|
Form
of Annual Statement as to Compliance
|
|
Exhibit
Q
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
R
|
Form
of Swap Administration Agreement
|
|
Exhibit
S
|
Servicing
Criteria
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Schedule
I
|
Prepayment
Charge Schedule
|
|
Schedule
II
|
Swap
Payment Schedule
|
This
Pooling and Servicing Agreement is dated as of May 1, 2006 (the “Agreement”),
among FINANCIAL ASSET SECURITIES CORP., as depositor (the “Depositor”), OPTION
ONE MORTGAGE CORPORATION, as servicer (the “Servicer”) and DEUTSCHE BANK
NATIONAL TRUST COMPANY, as trustee and supplemental interest trust trustee
(the
“Trustee” and the “Supplemental Interest Trust 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 eighteen classes of
certificates, designated as (i) the Class I-A-1 Certificates, (ii) the Class
II-A-1 Certificates, (iii) the Class II-A-2 Certificates, (iv) Class II-A-3
Certificates, (v) the Class II-A-4 Certificates, (vi) the Class M-1 Certificates
(vii) the Class M-2 Certificates, (viii) the Class M-3 Certificates, (ix) the
Class M-4 Certificates, (x) the Class M-5 Certificates, (xi) the Class M-6
Certificates, (xii) the Class M-7 Certificates, (xiii) the Class M-8
Certificates, (xiv) the Class M-9 Certificates, (xv) the Class C Certificates,
(xvi) the Class P Certificates, (xvii) the Class R Certificates and (xviii)
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, the
Swap Account, the Serivicer Prepayment Charge Payment Amounts, the Supplemental
Interest Trust and the Interest Rate Swap Agreement) subject to this 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)
|
$
17,496,713.97
|
June
25, 2036
|
|||||
|
I-1-A
|
Variable
(2)
|
$
5,753,132.50
|
June
25, 2036
|
|||||
|
I-1-B
|
Variable
(2)
|
$
5,753,132.50
|
June
25, 2036
|
|||||
|
I-2-A
|
Variable
(2)
|
$
7,256,463.75
|
June
25, 2036
|
|||||
|
I-2-B
|
Variable
(2)
|
$
7,256,463.75
|
June
25, 2036
|
|||||
|
I-3-A
|
Variable
(2)
|
$
9,701,115.00
|
June
25, 2036
|
|||||
|
I-3-B
|
Variable
(2)
|
$
9,701,115.00
|
June
25, 2036
|
|||||
|
I-4-A
|
Variable
(2)
|
$
10,627,846.25
|
June
25, 2036
|
|||||
|
I-4-B
|
Variable
(2)
|
$
10,627,846.25
|
June
25, 2036
|
|||||
|
I-5-A
|
Variable
(2)
|
$
11,524,808.75
|
June
25, 2036
|
|||||
|
I-5-B
|
Variable
(2)
|
$
11,524,808.75
|
June
25, 2036
|
|||||
|
I-6-A
|
Variable
(2)
|
$
12,391,703.75
|
June
25, 2036
|
|||||
|
I-6-B
|
Variable
(2)
|
$
12,391,703.75
|
June
25, 2036
|
|||||
|
I-7-A
|
Variable
(2)
|
$
13,217,382.50
|
June
25, 2036
|
|||||
|
I-7-B
|
Variable
(2)
|
$
13,217,382.50
|
June
25, 2036
|
|||||
|
I-8-A
|
Variable
(2)
|
$
13,966,521.25
|
June
25, 2036
|
|||||
|
I-8-B
|
Variable
(2)
|
$
13,966,521.25
|
June
25, 2036
|
|||||
|
I-9-A
|
Variable
(2)
|
$
14,469,140.00
|
June
25, 2036
|
|||||
|
I-9-B
|
Variable
(2)
|
$
14,469,140.00
|
June
25, 2036
|
|||||
|
I-10-A
|
Variable
(2)
|
$
14,107,172.50
|
June
25, 2036
|
|||||
|
I-10-B
|
Variable
(2)
|
$
14,107,172.50
|
June
25, 2036
|
|||||
|
I-11-A
|
Variable
(2)
|
$
13,588,531.25
|
June
25, 2036
|
|||||
|
I-11-B
|
Variable
(2)
|
$
13,588,531.25
|
June
25, 2036
|
|||||
|
I-12-A
|
Variable
(2)
|
$
13,323,730.00
|
June
25, 2036
|
|||||
|
I-12-B
|
Variable
(2)
|
$
13,323,730.00
|
June
25, 2036
|
|||||
|
I-13-A
|
Variable
(2)
|
$
12,853,521.25
|
June
25, 2036
|
|||||
|
I-13-B
|
Variable
(2)
|
$
12,853,521.25
|
June
25, 2036
|
|||||
|
I-14-A
|
Variable
(2)
|
$
12,713,747.50
|
June
25, 2036
|
|||||
|
I-14-B
|
Variable
(2)
|
$
12,713,747.50
|
June
25, 2036
|
|||||
|
I-15-A
|
Variable
(2)
|
$
14,447,738.75
|
June
25, 2036
|
|||||
|
I-15-B
|
Variable
(2)
|
$
14,447,738.75
|
June
25, 2036
|
|||||
|
I-16-A
|
Variable
(2)
|
$
13,561,303.75
|
June
25, 2036
|
|||||
|
I-16-B
|
Variable
(2)
|
$
13,561,303.75
|
June
25, 2036
|
|||||
|
I-17-A
|
Variable
(2)
|
$
12,785,518.75
|
June
25, 2036
|
|||||
|
I-17-B
|
Variable
(2)
|
$
12,785,518.75
|
June
25, 2036
|
|||||
|
I-18-A
|
Variable
(2)
|
$
11,908,905.00
|
June
25, 2036
|
|||||
|
I-18-B
|
Variable
(2)
|
$
11,908,905.00
|
June
25, 2036
|
|||||
|
I-19-A
|
Variable
(2)
|
$
10,348,202.50
|
June
25, 2036
|
|||||
|
I-19-B
|
Variable
(2)
|
$
10,348,202.50
|
June
25, 2036
|
|||||
|
I-20-A
|
Variable
(2)
|
$
11,540,486.25
|
June
25, 2036
|
|||||
|
I-20-B
|
Variable
(2)
|
$
11,540,486.25
|
June
25, 2036
|
|||||
|
I-21-A
|
Variable
(2)
|
$
19,189,106.25
|
June
25, 2036
|
|||||
|
I-21-B
|
Variable
(2)
|
$
19,189,106.25
|
June
25, 2036
|
|||||
|
I-22-A
|
Variable
(2)
|
$
18,921,380.00
|
June
25, 2036
|
|||||
|
I-22-B
|
Variable
(2)
|
$
18,921,380.00
|
June
25, 2036
|
|||||
|
I-23-A
|
Variable
(2)
|
$
16,867,867.50
|
June
25, 2036
|
|||||
|
I-23-B
|
Variable
(2)
|
$
16,867,867.50
|
June
25, 2036
|
|||||
|
I-24-A
|
Variable
(2)
|
$
14,284,730.00
|
June
25, 2036
|
|||||
|
I-24-B
|
Variable
(2)
|
$
14,284,730.00
|
June
25, 2036
|
|||||
|
I-25-A
|
Variable
(2)
|
$
8,340,720.00
|
June
25, 2036
|
|||||
|
I-25-B
|
Variable
(2)
|
$
8,340,720.00
|
June
25, 2036
|
|||||
|
I-26-A
|
Variable
(2)
|
$
6,974,502.50
|
June
25, 2036
|
|||||
|
I-26-B
|
Variable
(2)
|
$
6,974,502.50
|
June
25, 2036
|
|||||
|
I-27-A
|
Variable
(2)
|
$
6,670,391.25
|
June
25, 2036
|
|||||
|
I-27-B
|
Variable
(2)
|
$
6,670,391.25
|
June
25, 2036
|
|||||
|
I-28-A
|
Variable
(2)
|
$
6,384,757.50
|
June
25, 2036
|
|||||
|
I-28-B
|
Variable
(2)
|
$
6,384,757.50
|
June
25, 2036
|
|||||
|
I-29-A
|
Variable
(2)
|
$
6,112,287.50
|
June
25, 2036
|
|||||
|
I-29-B
|
Variable
(2)
|
$
6,112,287.50
|
June
25, 2036
|
|||||
|
I-30-A
|
Variable
(2)
|
$
5,852,255.00
|
June
25, 2036
|
|||||
|
I-30-B
|
Variable
(2)
|
$
5,852,255.00
|
June
25, 2036
|
|||||
|
I-31-A
|
Variable
(2)
|
$
5,603,773.75
|
June
25, 2036
|
|||||
|
I-31-B
|
Variable
(2)
|
$
5,603,773.75
|
June
25, 2036
|
|||||
|
I-32-A
|
Variable
(2)
|
$
5,366,286.25
|
June
25, 2036
|
|||||
|
I-32-B
|
Variable
(2)
|
$
5,366,286.25
|
June
25, 2036
|
|||||
|
I-33-A
|
Variable
(2)
|
$
5,139,355.00
|
June
25, 2036
|
|||||
|
I-33-B
|
Variable
(2)
|
$
5,139,355.00
|
June
25, 2036
|
|||||
|
I-34-A
|
Variable
(2)
|
$
4,922,025.00
|
June
25, 2036
|
|||||
|
I-34-B
|
Variable
(2)
|
$
4,922,025.00
|
June
25, 2036
|
|||||
|
I-35-A
|
Variable
(2)
|
$
4,714,528.75
|
June
25, 2036
|
|||||
|
I-35-B
|
Variable
(2)
|
$
4,714,528.75
|
June
25, 2036
|
|||||
|
I-36-A
|
Variable
(2)
|
$
4,516,440.00
|
June
25, 2036
|
|||||
|
I-36-B
|
Variable
(2)
|
$
4,516,440.00
|
June
25, 2036
|
|||||
|
I-37-A
|
Variable
(2)
|
$
4,327,101.25
|
June
25, 2036
|
|||||
|
I-37-B
|
Variable
(2)
|
$
4,327,101.25
|
June
25, 2036
|
|||||
|
I-38-A
|
Variable
(2)
|
$
4,146,092.50
|
June
25, 2036
|
|||||
|
I-38-B
|
Variable
(2)
|
$
4,146,092.50
|
June
25, 2036
|
|||||
|
I-39-A
|
Variable
(2)
|
$
3,973,048.75
|
June
25, 2036
|
|||||
|
I-39-B
|
Variable
(2)
|
$
3,973,048.75
|
June
25, 2036
|
|||||
|
I-40-A
|
Variable
(2)
|
$
3,807,596.25
|
June
25, 2036
|
|||||
|
I-40-B
|
Variable
(2)
|
$
3,807,596.25
|
June
25, 2036
|
|||||
|
I-41-A
|
Variable
(2)
|
$
3,649,391.25
|
June
25, 2036
|
|||||
|
I-41-B
|
Variable
(2)
|
$
3,649,391.25
|
June
25, 2036
|
|||||
|
I-42-A
|
Variable
(2)
|
$
3,498,125.00
|
June
25, 2036
|
|||||
|
I-42-B
|
Variable
(2)
|
$
3,498,125.00
|
June
25, 2036
|
|||||
|
I-43-A
|
Variable
(2)
|
$
3,353,476.25
|
June
25, 2036
|
|||||
|
I-43-B
|
Variable
(2)
|
$
3,353,476.25
|
June
25, 2036
|
|||||
|
I-44-A
|
Variable
(2)
|
$
3,215,138.75
|
June
25, 2036
|
|||||
|
I-44-B
|
Variable
(2)
|
$
3,215,138.75
|
June
25, 2036
|
|||||
|
I-45-A
|
Variable
(2)
|
$
3,082,832.50
|
June
25, 2036
|
|||||
|
I-45-B
|
Variable
(2)
|
$
3,082,832.50
|
June
25, 2036
|
|||||
|
I-46-A
|
Variable
(2)
|
$
2,956,283.75
|
June
25, 2036
|
|||||
|
I-46-B
|
Variable
(2)
|
$
2,956,283.75
|
June
25, 2036
|
|||||
|
I-47-A
|
Variable
(2)
|
$
2,835,231.25
|
June
25, 2036
|
|||||
|
I-47-B
|
Variable
(2)
|
$
2,835,231.25
|
June
25, 2036
|
|||||
|
I-48-A
|
Variable
(2)
|
$
2,719,432.50
|
June
25, 2036
|
|||||
|
I-48-B
|
Variable
(2)
|
$
2,719,432.50
|
June
25, 2036
|
|||||
|
I-49-A
|
Variable
(2)
|
$
2,608,693.75
|
June
25, 2036
|
|||||
|
I-49-B
|
Variable
(2)
|
$
2,608,693.75
|
June
25, 2036
|
|||||
|
I-50-A
|
Variable
(2)
|
$
2,502,832.50
|
June
25, 2036
|
|||||
|
I-50-B
|
Variable
(2)
|
$
2,502,832.50
|
June
25, 2036
|
|||||
|
I-51-A
|
Variable
(2)
|
$
2,401,787.50
|
June
25, 2036
|
|||||
|
I-51-B
|
Variable
(2)
|
$
2,401,787.50
|
June
25, 2036
|
|||||
|
I-52-A
|
Variable
(2)
|
$
2,305,307.50
|
June
25, 2036
|
|||||
|
I-52-B
|
Variable
(2)
|
$
2,305,307.50
|
June
25, 2036
|
|||||
|
I-53-A
|
Variable
(2)
|
$
2,212,431.25
|
June
25, 2036
|
|||||
|
I-53-B
|
Variable
(2)
|
$
2,212,431.25
|
June
25, 2036
|
|||||
|
I-54-A
|
Variable
(2)
|
$
2,123,461.25
|
June
25, 2036
|
|||||
|
I-54-B
|
Variable
(2)
|
$
2,123,461.25
|
June
25, 2036
|
|||||
|
I-55-A
|
Variable
(2)
|
$
2,038,327.50
|
June
25, 2036
|
|||||
|
I-55-B
|
Variable
(2)
|
$
2,038,327.50
|
June
25, 2036
|
|||||
|
I-56-A
|
Variable
(2)
|
$
1,957,076.25
|
June
25, 2036
|
|||||
|
I-56-B
|
Variable
(2)
|
$
1,957,076.25
|
June
25, 2036
|
|||||
|
I-57-A
|
Variable
(2)
|
$
51,590,613.75
|
June
25, 2036
|
|||||
|
I-57-B
|
Variable
(2)
|
$
51,590,613.75
|
June
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 I 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 represent the sole class of “residual interests” in
REMIC 2 for purposes of the REMIC Provisions under federal 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)
|
$
|
979,999,932.84
|
June
25, 2036
|
|||
|
LTIA1
|
Variable(2)
|
$
|
3,212,260.00
|
June
25, 2036
|
|||
|
LTIIA1
|
Variable(2)
|
$
|
2,607,890.00
|
June
25, 2036
|
|||
|
LTIIA2
|
Variable(2)
|
$
|
757,580.00
|
June
25, 2036
|
|||
|
LTIIA3
|
Variable(2)
|
$
|
1,085,170.00
|
June
25, 2036
|
|||
|
LTIIA4
|
Variable(2)
|
$
|
377,100.00
|
June
25, 2036
|
|||
|
LTM1
|
Variable(2)
|
$
|
725,000.00
|
June
25, 2036
|
|||
|
LTM2
|
Variable(2)
|
$
|
215,000.00
|
June
25, 2036
|
|||
|
LTM3
|
Variable(2)
|
$
|
185,000.00
|
June
25, 2036
|
|||
|
LTM4
|
Variable(2)
|
$
|
175,000.00
|
June
25, 2036
|
|||
|
LTM5
|
Variable(2)
|
$
|
175,000.00
|
June
25, 2036
|
|||
|
LTM6
|
Variable(2)
|
$
|
120,000.00
|
June
25, 2036
|
|||
|
LTM7
|
Variable(2)
|
$
|
100,000.00
|
June
25, 2036
|
|||
|
LTM8
|
Variable(2)
|
$
|
70,000.00
|
June
25, 2036
|
|||
|
LTM9
|
Variable(2)
|
$
|
95,000.00
|
June
25, 2036
|
|||
|
LTZZ
|
Variable(2)
|
$
|
10,099,998.63
|
June
25, 2036
|
|||
|
LTP
|
Variable(2)
|
$
|
100.00
|
June
25, 2036
|
|||
|
LTIO
|
Variable(2)
|
(3)
|
June
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
|
$
|
321,226,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
II-A-1
|
$
|
260,789,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
II-A-2
|
$
|
75,758,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
II-A-3
|
$
|
108,517,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
II-A-4
|
$
|
37,710,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-1
|
$
|
72,500,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-2
|
$
|
21,500,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-3
|
$
|
18,500,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-4
|
$
|
17,500,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-5
|
$
|
17,500,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-6
|
$
|
12,000,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-7
|
$
|
10,000,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-8
|
$
|
7,000,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
M-9
|
$
|
9,500,000.00
|
Variable(2)
|
June
25, 2036
|
|||
|
Class
C Interest
|
$
|
9,999,931.47
|
Variable(4)
|
June
25, 2036
|
|||
|
Class
P Interest
|
$
|
100.00
|
Variable(5)
|
June
25, 2036
|
|||
|
Class
IO Interest
|
(6)
|
(7)
|
June
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 of the Uncertificated Principal Balance of the REMIC
2
Regular Interests (other than REMIC 2 Regular Interest LTP). The Class C
Interest will not accrue interest on its Certificate Principal
Balance.
(5) The
Class
P Interest will not accrue interest.
(6) For
federal income tax purposes, the Class IO Interest will not have 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
|
$
9,999,931.47
|
Variable(2)
|
June
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)
|
June
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.
|
Class
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
SWAP
IO
|
N/A
|
Variable(2)
|
June
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 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.
“1933
Act”: The Securities Act of 1933, as amended.
“Account”:
Either of the Collection Account or Distribution Account.
“Accrual
Period”: With respect to the Class C Certificates and each Distribution Date,
the calendar month prior to the month of such Distribution Date. With respect
to
the Floating Rate Certificates and each Distribution Date, the period commencing
on the preceding Distribution Date (or in the case of the first such Accrual
Period, commencing on the Closing Date) and ending on the day preceding the
current Distribution Date.
“Adjustable-Rate
Mortgage Loan”: A first lien Mortgage Loan which provides at any period during
the life of such loan for the adjustment of the Mortgage Rate payable in respect
thereto. The Adjustable-Rate Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the applicable Maximum Mortgage Rate for such Mortgage Loan (or the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the first
day
of the month preceding the month in which the related Distribution Date occurs
minus the sum of (i) the Servicing Fee Rate, (ii) the Custodial 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 the sum of (i) the Servicing Fee Rate, (ii) the Custodial 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.
“Advance”:
As to any Mortgage Loan or REO Property, any advance made by the Servicer in
respect of any Distribution Date pursuant to Section 4.04.
“Advance
Facility”: As defined in Section 3.29 hereof.
“Advance
Facility Trustee”: As defined in Section 3.29 hereof.
“Advancing
Person”: As defined in Section 3.29 hereof.
“Advance
Reimbursement Amounts”: As defined in Section 3.29 hereof.
“Adverse
REMIC Event”: As defined in Section 9.01(f) hereof.
“Affiliate”:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and any Class of
Mezzanine Certificates, 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.
“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.
“Assumed
Final Maturity Date”: As to each Class of Certificates, the date set forth as
such in the Prospectus Supplement.
“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 (including those received with respect
to the Pool Policy), Subsequent Recoveries, Principal Prepayments, proceeds
from
repurchases of and substitutions for such Mortgage Loans and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans received
during the related Prepayment Period, (c) the aggregate of any amounts received
in respect of a related REO Property withdrawn from any REO Account and
deposited in the Collection Account for such Distribution Date, (d) the
aggregate of any amounts deposited in the Collection Account by the Servicer
in
respect of related Prepayment Interest Shortfalls for such Distribution Date,
(e) the aggregate of any Advances made by the Servicer for such Distribution
Date in respect of the Mortgage Loans, (f) the aggregate of any related advances
made by the Trustee in respect of the Mortgage Loans for such Distribution
Date
pursuant to Section 7.02 and (g) the amount of any Prepayment Charges collected
by the Servicer in connection with the full or partial prepayment of any of
the
Mortgage Loans and any Servicer Prepayment Charge Payment Amount over (ii)
the
sum of (a) amounts reimbursable or payable to the Servicer pursuant to Section
3.11(a) or the Trustee pursuant to Section 3.11(b), (b) amounts deposited in
the
Collection Account or the Distribution Account pursuant to clauses (a) through
(g) above, as the case may be, in error, (c) the amount of any Prepayment
Charges collected by the Servicer in connection with the full or partial
prepayment of any of the Mortgage Loans and any Servicer Prepayment Charge
Payment Amount, (d) the fees of the Custodian payable from the Distribution
Account pursuant to Section 8.05, (e) any indemnification payments or expense
reimbursements made by the Trust Fund pursuant to Section 8.05 and (f) any
Net
Swap Payment or Swap Termination Payment owed to the Swap Provider (other than
any Swap Termination Payment owed to the Swap Provider resulting from a Swap
Provider Trigger Event).
“Balloon
Mortgage Loan”: A Mortgage Loan that provides for the payment of the unamortized
Stated Principal Balance of such Mortgage Loan in a single payment at the
maturity of such Mortgage Loan that is substantially greater than the preceding
monthly payment.
“Balloon
Payment”: A payment of the unamortized Stated Principal Balance of a Mortgage
Loan in a single payment at the maturity of such Mortgage Loan that is
substantially greater than the preceding Monthly Payment.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Base
Rate”: For any Distribution Date and the Floating Rate Certificates, the sum of
(i) LIBOR plus (ii) the related Certificate Margin.
“Book-Entry
Certificates”: Any of the Certificates that shall be registered in the name of
the Depository or its nominee, the ownership of which is reflected on the books
of the Depository or on the books of a Person maintaining an account with the
Depository (directly, as a “Depository Participant”, or indirectly, as an
indirect participant in accordance with the rules of the Depository and as
described in Section 5.02 hereof). On the Closing Date, the Class A and
Mezzanine Certificates shall be Book-Entry Certificates.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings institutions in the State of Delaware, the State of Florida, the State
of New York, the State of Texas, the State of California, the Commonwealth
of
Pennsylvania, or in the city in which the Corporate Trust Office of the Trustee
is located are authorized or obligated by law or executive order to be
closed.
“Certificate”:
Any Regular Certificate or Residual Certificate.
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that a Disqualified Organization or non-U.S. Person
shall not be a Holder of a Residual Certificate for any purpose hereof and,
solely for the purposes of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor or the Servicer or any
Affiliate thereof shall be deemed not to be outstanding and the Voting Rights
to
which it is entitled shall not be taken into account in determining whether
the
requisite percentage of Voting Rights necessary to effect any such consent
has
been obtained, except as otherwise provided in Section 11.01. The Trustee and
the NIMS Insurer may conclusively rely upon a certificate of the Depositor
or
the Servicer in determining whether a Certificate is held by an Affiliate
thereof. All references herein to “Holders” or “Certificateholders” shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trustee and the NIMS
Insurer shall be required to recognize as a “Holder” or “Certificateholder” only
the Person in whose name a Certificate is registered in the Certificate
Register.
“Certificate
Margin”: With respect to each Class of Floating Rate Certificates and for
purposes of the Marker Rate and the Maximum Uncertificated Accrued Interest
Deferral Amount, the specified REMIC 2 Regular Interest, as
follows:
|
Class
|
REMIC
2
Regular
Interest
|
Certificate
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
I-A-1
|
LTIA1
|
0.1500%
|
0.3000%
|
|
XX-X-0
|
XXXXX0
|
0.0300%
|
0.0600%
|
|
XX-X-0
|
XXXXX0
|
0.0900%
|
0.1800%
|
|
XX-X-0
|
XXXXX0
|
0.1500%
|
0.3000%
|
|
XX-X-0
|
XXXXX0
|
0.2300%
|
0.4600%
|
|
M-1
|
LTM1
|
0.2800%
|
0.4200%
|
|
M-2
|
LTM2
|
0.3100%
|
0.4650%
|
|
M-3
|
LTM3
|
0.3600%
|
0.5400%
|
|
M-4
|
LTM4
|
0.3900%
|
0.5850%
|
|
M-5
|
LTM5
|
0.4600%
|
0.6900%
|
|
M-6
|
LTM6
|
0.9000%
|
1.3500%
|
|
M-7
|
LTM7
|
1.2000%
|
1.8000%
|
|
M-8
|
LTM8
|
2.0000%
|
3.0000%
|
|
M-9
|
LTM9
|
2.5000%
|
3.7500%
|
__________
(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, Realized Losses allocated thereto on all prior
Distribution Dates. With respect to the Class C Certificates as of any date
of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Class A and Mezzanine
Certificates and the Class P Certificates then outstanding.
“Certificate
Register” and “Certificate Registrar”: The register maintained and registrar
appointed pursuant to Section 5.02 hereof.
“Certification”.
As defined in Section 3.22(b)(ii).
“Class”:
Collectively, Certificates which have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
A
Certificates”: Any Class I-A-1 Certificate, Class II-A-1 Certificate, Class
II-A-2 Certificate, Class II-A-3 Certificate or Class II-A-4 Certificate.
“Class
C
Certificates”: Any one of the Class C Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-15, 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 REMIC Regular
Interest in REMIC 3.
“Class
I-A-1 Certificate”: Any one of the Class I-A-1 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-1, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-1 Certificate”: Any one of the Class II-A-1 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-2, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-2 Certificate”: Any one of the Class II-A-2 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-3, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-3 Certificate”: Any one of the Class II-A-3 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-4, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-4 Certificate”: Any one of the Class II-A-4 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-5, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-6, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-1/M-2 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date) and (ii) the aggregate Certificate Principal Balance
of the Class M-1 Certificates and the Class M-2 Certificates immediately prior
to such Distribution Date over (y) the lesser of (A) the product of (i) 79.60%
and (ii) the Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-7, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-8, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-3 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 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-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date) and (iv) the Certificate Principal Balance of the Class
M-3 Certificates immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) 83.30% and (ii) the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the related Overcollateralization Floor.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-9, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-4 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 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-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date) (iv) the Certificate Principal Balance of the Class
M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date) and (v) the Certificate
Principal Balance of the Class M-4 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 86.80% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-10, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-5 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 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-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date), (iv) the Certificate Principal Balance of the Class
M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (vi) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 90.30% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-11, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-6 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 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-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date), (iv) the Certificate Principal Balance of the Class
M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (vii) the Certificate
Principal Balance of the Class M-6 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 92.70% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-12, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-7 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 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-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date), (iv) the Certificate Principal Balance of the Class
M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (viii) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 94.70% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
M-8 Certificate”: Any one of the Class M-8 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-13, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-8 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 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-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date), (iv) the Certificate Principal Balance of the Class
M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and (ix) the Certificate
Principal Balance of the Class M-8 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 96.10% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-14, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-9 Principal Distribution Amount”: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Senior Principal Distribution Amount
on such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1 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-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date), (iv) the Certificate Principal Balance of the Class
M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account
the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date) and (x) the Certificate Principal Balance of the Class M-9 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 98.00% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
P
Certificate”: Any one of the Class P Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-16, representing a Regular Interest in REMIC
5.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
R
Certificate”: The Class R Certificate executed by the Trustee, and authenticated
and delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit A-17 and evidencing the ownership of the Class R-1 Interest,
the Class R-2 Interest and the Class R-3 Interest.
“Class
R-1 Interest”: The uncertificated Residual Interest in REMIC 1.
“Class
R-2 Interest”: The uncertificated Residual Interest in REMIC 2.
“Class
R-3 Interest”: The uncertificated Residual Interest in REMIC 3.
“Class
R-4 Interest”: The uncertificated Residual Interest in REMIC 4.
“Class
R-5 Interest”: The uncertificated Residual Interest in REMIC 5.
“Class
R-6 Interest”: The uncertificated Residual Interest in REMIC 6.
“Class
R-X Certificate”: The Class R-X Certificate executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-18 and evidencing the ownership of the Class
R-4 Interest, the Class R-5 Interest and the Class R-6 Interest.
“Close
of
Business”: As used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Closing
Date”: May 26, 2006.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The account or accounts created and maintained by the Servicer
pursuant to Section 3.10(a), which shall be entitled “Deutsche Bank National
Trust Company, as Trustee, in trust for registered Holders of Soundview Home
Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4,” which must
be an Eligible Account.
“Compensating
Interest”: As defined in Section 3.24 hereof.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee at which at
any particular time its corporate trust business in connection with this
Agreement shall be administered, which office at the date of the execution
of
this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, XX
00000-0000, Attention: Trust Administration- GC06O4, or at such other address
as
the Trustee may designate from time to time by notice to the Certificateholders,
the Depositor, the Servicer and the Originator.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest set forth below, the
corresponding Regular Certificate set forth in the table below:
|
REMIC
2 Regular Interest
|
Regular
Certificate
|
|
LTIA1
|
Class
I-A-1
|
|
LTIIA1
|
Class
II-A-1
|
|
LTIIA2
|
Class
II-A-2
|
|
LTIIA3
|
Class
II-A-3
|
|
LTIIA4
|
Class
II-A-4
|
|
LTM1
|
Class
M-1
|
|
LTM2
|
Class
M-2
|
|
LTM3
|
Class
M-3
|
|
LTM4
|
Class
M-4
|
|
LTM5
|
Class
M-5
|
|
LTM6
|
Class
M-6
|
|
LTM7
|
Class
M-7
|
|
LTM8
|
Class
M-8
|
|
LTM9
|
Class
M-9
|
|
LTP
|
Class
P
|
“Credit
Risk Management Agreement”: The Credit Risk Management Agreement, dated May 26,
2006, between the Servicer and the Credit Risk Manager.
“Credit
Risk Manager”: Xxxxxxx Fixed Income Services Inc., formerly known as The
Murrayhill Company, its successors and assigns.
“Credit
Risk Manager Fee”: for
any
Distribution Date is the premium payable to the Credit Risk Manager at the
Credit Risk Manager Fee Rate on the then current aggregate principal balance
of
the Mortgage Loans.
“Credit
Risk Manager Fee Rate”: for any Distribution Date is 0.0125% per
annum.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred from the Cut-off Date to the last day of the preceding
calendar month and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
“Custodial
Agreement”: The Custodial Agreement, dated as of May 1, 2006, among the
Custodian, the Trustee and the Servicer.
“Custodian”:
Xxxxx Fargo Bank, N.A., as custodian of the Mortgage Files, or any successor
thereto, pursuant to the Custodial Agreement.
“Custodial
Fee”: The amount payable to the Custodian on each Distribution Date as
compensation for all services rendered by it under the Custodial Agreement
which
amount shall equal one twelfth of the product of (i) the Custodial Fee Rate
(without regard to the words “per annum”), multiplied by (ii) the aggregate
Principal Balance of the Mortgage Loans (after giving effect to scheduled
payments of principal due during the Due Period relating to the previous
Distribution Date, to the extent received or advanced and prepayments collected
during the Prepayment Period relating to the previous Distribution
Date).
“Custodial
Fee Rate”: for any Distribution Date is 0.0050% per annum.
“Cut-off
Date”: With respect to each Mortgage Loan, May 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
Servicer Termination Trigger”: A Delinquency Servicer Termination Trigger will
have occurred with respect to the Certificates on a Distribution Date if the
Three Month Rolling Delinquency Percentage for the Mortgage Loans exceeds
18.00%.
“Delinquency
Percentage”: For any Distribution Date, the percentage obtained by dividing (x)
the aggregate Stated Principal Balance of Mortgage Loans that are Delinquent
60
days or more (including Mortgage Loans that are in foreclosure, that have been
converted to REO Properties or that have been discharged by reason of bankruptcy
and are Delinquent 60 days or more) by (y) the aggregate Stated Principal
Balance of the Mortgage Loans, in each case, as of the last day of the previous
calendar month.
“Delinquent”:
With respect to any Mortgage Loan and related Monthly Payment, the Monthly
Payment due on a Due Date which is not made by the Close of Business on the
next
scheduled Due Date for such Mortgage Loan. For example, a Mortgage Loan is
60 or
more days Delinquent if the Monthly Payment due on a Due Date is not made by
the
Close of Business on the second scheduled Due Date after such Due
Date.
“Depositor”:
Financial Asset Securities Corp., a Delaware corporation, or any successor
in
interest.
“Depository”:
The initial Depository shall be The Depository Trust Company, whose nominee
is
Cede & Co., or any other organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
The
Depository shall initially be the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing corporation” as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of
New
York.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by the REMIC other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicer on behalf
of
the Trustee) shall not be considered to Directly Operate an REO Property solely
because the Trustee (or the Servicer on behalf of the Trustee) establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
“Disqualified
Organization”: A “disqualified organization” under Section 860E of the Code,
which as of the Closing Date is any of: (i) the United States, any state or
political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any
organization (other than a cooperative described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the Code, (iii)
any
organization described in Section 1381(a)(2)(C) of the Code or (iv) an “electing
large partnership” within the meaning of Section 775 of the Code. A corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof, if all of its activities are subject to tax
and, a majority of its board of directors is not selected by a governmental
unit. The term “United States”, “state” and “international organizations” shall
have the meanings set forth in Section 7701 of the Code.
“Distribution
Account”: The trust account or accounts created and maintained by the Trustee
pursuant to Section 3.10(b) which shall be entitled “Distribution Account,
Deutsche Bank National Trust Company, as Trustee, in trust for the registered
Certificateholders of Soundview Home Loan Trust 2006-OPT4, Asset-Backed
Certificates, Series 2006-OPT4” 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 June 2006.
“Due
Date”: With respect to each Mortgage Loan and any Distribution Date, the first
day of the calendar month in which such Distribution Date occurs on which the
Monthly Payment for such Mortgage Loan was due (or, in the case of any Mortgage
Loan under the terms of which the Monthly Payment for such Mortgage Loan was
due
on a day other than the first day of the calendar month in which such
Distribution Date occurs, the day during the related Due Period on which such
Monthly Payment was due), exclusive of any days of grace.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month in which such Distribution Date
occurs and ending on the first day of the month in which such Distribution
Date
occurs.
“Eligible
Account”: Any of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1+ by S&P,
F-1 by Fitch and P-1 by Xxxxx’x (or comparable ratings if S&P, Fitch and
Xxxxx’x are not the Rating Agencies) at the time any amounts are held on deposit
therein, (ii) an account or accounts the deposits in which are fully insured
by
the FDIC up to the insured amount, (iii) a trust account or accounts maintained
with the trust department of a federal or state chartered depository
institution, national banking association or trust company acting in its
fiduciary capacity or (iv) an account otherwise acceptable to each Rating Agency
without reduction or withdrawal of their then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the Trustee
and
the NIMS Insurer. Eligible Accounts may bear interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Escrow
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Escrow
Payments”: The amounts constituting ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums and other payments required to be
escrowed by the Mortgagor with the mortgagee pursuant to any Mortgage
Loan.
“Excess
Overcollateralized Amount”: With respect to the Class A and Mezzanine
Certificates and any Distribution Date, the excess, if any, of the sum of (i)
the Overcollateralized Amount for such Distribution Date, assuming that 100%
of
the Principal Remittance Amount is applied as a principal payment on such
Distribution Date and (ii) any amounts received under the Interest Rate Swap
Agreement for such purpose over (iii) the Overcollateralization Target Amount
for such Distribution Date.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the Monthly Interest Distributable Amount payable on the Class
C
Certificates on such Distribution Date as reduced by Realized Losses allocated
thereto with respect to such Distribution Date pursuant to Section 4.08 and
(y)
the Overcollateralization Deficiency Amount for such Distribution
Date.
“Xxxxxx
Xxx”: Federal National Mortgage Association or any successor
thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by the Originator
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
Mortgage Loan”: A first lien or second lien Mortgage Loan which provides for a
fixed Mortgage Rate payable with respect thereto. The Fixed-Rate Mortgage Loans
are identified as such on the Mortgage Loan Schedule.
“Fixed
Swap Payment”: With respect to any Distribution Date, a fixed amount equal to
the related amount set forth in the Interest Rate Swap Agreement.
“Floating
Rate Certificates”: Any Class A Certificate or Mezzanine
Certificate.
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) Swap LIBOR, (ii) a notional amount equal to the lesser of
(a)
the related Base Calculation Amount (as
defined in the Interest Rate Swap Agreement)
and (b)
1/250 multiplied by the aggregate Certificate Principal Balance of the Floating
Rate Certificates for such Distribution Date, (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 Date (or,
for the first Floating Rate Payer Payment Date, the actual number of days
elapsed from the Closing Date to but excluding the first Floating Rate Payer
Payment Date), and the denominator of which is 360.
“Formula
Rate”: For any Distribution Date and any Class of the Floating Rate
Certificates, the lesser of (i) the Base Rate and (ii) the Maximum Cap
Rate.
“Xxxxxxx
Mac”: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
“Group
I
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group I Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
I
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group I Principal Remittance Amount for such Distribution
Date
over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group I Allocation
Percentage.
“Group
I
Certificates”: The Class I-A-1 Certificates.
“Group
I
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group I Mortgage Loans.
“Group
I
Mortgage Loan”: A Mortgage Loan assigned to Loan Group I with a Stated Principal
Balance at origination that conforms to Xxxxxx Xxx and Xxxxxxx Mac loan limits.
The aggregate principal balance of the Group I Mortgage Loans as of the Cut-off
Date is equal to $399,534,521.12.
“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) 60.80% and
(ii)
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) minus the related Overcollateralization
Floor.
“Group
II
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group II Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
II
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group II Principal Remittance Amount for such Distribution
Date over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group II Allocation
Percentage.
“Group
II
Certificates”: Any Class II-A-1 Certificate, Class II-A-2 Certificate, Class
II-A-3 Certificate or Class II-A-4 Certificate.
“Group
II
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group II Mortgage Loans.
“Group
II
Mortgage Loan”: A Mortgage Loan assigned to Loan Group II with a Stated
Principal Balance at origination that may or may not conform to Xxxxxx Mae
and
Xxxxxxx Mac loan limits. The aggregate principal balance of the Group II
Mortgage Loans as of the Cut-off Date is equal to $600,465,510.35.
“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) 60.80%
and
(ii) the aggregate Stated Principal Balance of the Group II Mortgage Loans
as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of
the
Group II Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Highest
Priority”: As
of any
date of determination, the Class of Mezzanine Certificates then outstanding
with
a Certificate Principal Balance greater than zero, with the highest priority
for
payments pursuant to Section 4.01, in the following order of decreasing
priority: Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8 and Class M-9 Certificates.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class C
Certificates, the Class P Certificates and/or Residual Certificates (or any
portion thereof) which may or may not be guaranteed by the NIMS
Insurer.
“Independent”:
When used with respect to any specified Person, any such Person who (a) is
in
fact independent of the Depositor, the Servicer and their respective Affiliates,
(b) does not have any direct financial interest in or any material indirect
financial interest in the Depositor or the Servicer or any Affiliate thereof,
and (c) is not connected with the Depositor or the Servicer or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Depositor or the Servicer or
any
Affiliate thereof merely because such Person is the beneficial owner of 1%
or
less of any class of securities issued by the Depositor or the Servicer or
any
Affiliate thereof, as the case may be.
“Independent
Contractor”: Either (i) any Person (other than the Servicer) that would be an
“independent contractor” with respect to any of the REMICs created hereunder
within the meaning of Section 856(d)(3) of the Code if such REMIC were a real
estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as each such
REMIC does not receive or derive any income from such Person and provided that
the relationship between such Person and such REMIC is at arm’s length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Servicer) if the Trustee has received an Opinion
of
Counsel to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that
is
otherwise herein contemplated to be taken by an Independent Contractor will
not
cause such REO Property to cease to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause
any
income realized in respect of such REO Property to fail to qualify as Rents
from
Real Property.
“Index”:
With respect to each Adjustable-Rate Mortgage Loan and with respect to each
related Adjustment Date, the index as specified in the related Mortgage
Note.
“Initial
Certificate Principal Balance”: With respect to any Regular Certificate, the
amount designated “Initial Certificate Principal Balance” on the face
thereof.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance policy
(including the Pool Policy) covering a Mortgage Loan to the extent such proceeds
are received by the Servicer and are not to be applied to the restoration of
the
related Mortgaged Property or released to the Mortgagor in accordance with
the
procedures that the Servicer would follow in servicing mortgage loans held
for
its own account, subject to the terms and conditions of the related Mortgage
Note and Mortgage.
“Interest
Determination Date”: With respect to the Class A and Mezzanine 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 May 26, 2006 (together with the schedule thereto, the Master
Agreement) between the Swap Provider and the Trustee (in its capacity as
Supplemental Interest Trust Trustee).
“Late
Collections”: With respect to any Mortgage Loan, all amounts received subsequent
to the Determination Date immediately following any related Due Period, whether
as late payments of Monthly Payments or as Insurance Proceeds, Liquidation
Proceeds or otherwise, which represent late payments or collections of principal
and/or interest due (without regard to any acceleration of payments under the
related Mortgage and Mortgage Note) but delinquent on a contractual basis for
such Due Period and not previously recovered.
“LIBOR”:
With respect to each Accrual Period, the rate determined by the Trustee on
the
related Interest Determination Date on the basis of the London interbank offered
rate for one-month United States dollar deposits, as such rate appears on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date. If such rate does not appear on Telerate Page 3750, the
rate
for such Interest Determination Date will be determined on the basis of the
offered rates of the Reference Banks for one-month United States dollar
deposits, as of 11:00 a.m. (London time) on such Interest Determination Date.
The Trustee will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. On such Interest Determination Date,
LIBOR for the related Accrual Period will be established by the Trustee as
follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16 of 1%); and
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(i) LIBOR as determined on the previous Interest Determination Date and (ii)
the
Reserve Interest Rate.
Notwithstanding
the foregoing, LIBOR for the Class A and Floating Rate Certificates for the
first Accrual Period will be 5.0837% per annum.
“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 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.
“Maximum
Cap Rate”: For any Distribution Date and any Class of the Floating Rate
Certificates, a per annum rate (which rate 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 sum of (i) the
weighted average of the Adjusted Net Maximum Mortgage Rates of the Mortgage
Loans and (ii) 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 minus (a) an amount, expressed as a
percentage, equal to the product of (i) 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 (ii) 12 and (b) 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.
“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 and REMIC 2 Regular Interest LTM9
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
LTZZ)
shall be multiplied by a fraction, the numerator of which is the actual number
of days elapsed in the related Accrual Period and the denominator of which
is
30.
“Maximum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Mezzanine
Certificate”: Any Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate or Class M-9
Certificate.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“MOM
Loan”: With respect to any applicable Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination
thereof.
“Monthly
Interest Distributable Amount”: With respect to any Class of the Class A
Certificates, Mezzanine Certificates and Class C Certificates and any
Distribution Date, the amount of interest accrued during the related Accrual
Period at the related Pass-Through Rate on the Certificate Principal Balance
(or
Notional Amount in the case of the Class C Certificates) of such Class
immediately prior to such Distribution Date, in each case, reduced by any Net
Prepayment Interest Shortfalls, Relief Act Interest Shortfalls (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
Section 3.07; and (c) on the assumption that all other amounts, if any, due
under such Mortgage Loan are paid when due.
“Moody’s”:
Xxxxx’x Investors Service, Inc., or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on, or first or second priority security interest in, a Mortgaged Property
securing a Mortgage Note.
“Mortgage
File”: The mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”: Each mortgage loan transferred and assigned to the Trustee pursuant to
Section 2.01 or Section 2.03(d) as from time to time held as a part of the
Trust
Fund, the Mortgage Loans so held being identified in the Mortgage Loan
Schedule.
“Mortgage
Loan Purchase Agreement”: The Mortgage Loan Purchase Agreement, dated as of May
16, 2006, among the Originator, the Sellers and the Depositor.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in REMIC 2
on such date, separately identifying the Group I Mortgage Loans and the Group
II
Mortgage Loans, attached hereto as Exhibit D. The Mortgage Loan Schedule shall
be prepared by the Depositor and shall set forth the following information
with
respect to each Mortgage Loan, as applicable:
(1) the
Mortgage Loan identifying number;
(2) [reserved];
(3) the
state
and zip code of the Mortgaged Property;
|
(4)
|
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
|
(5) the
type
of Residential Dwelling constituting the Mortgaged Property;
(6) the
original months to maturity;
|
(7)
|
the
stated remaining months to maturity from the Cut-off Date based on
the
original amortization schedule;
|
(8) the
Loan-to-Value Ratio at origination;
(9) the
Mortgage Rate in effect immediately following the Cut-off Date;
|
(10)
|
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
(11) the
stated maturity date;
(12) the
amount of the Monthly Payment at origination;
|
(13)
|
the
amount of the Monthly Payment due on the first Due Date after the
Cut- off
Date;
|
|
(14)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
(15) the
original principal amount of the Mortgage Loan;
|
(16)
|
the
Stated Principal Balance of the Mortgage Loan as of the Close of
Business
on the Cut-off Date;
|
|
(17)
|
a
code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, rate/term refinancing, cash-out
refinancing);
|
(18) the
Mortgage Rate at origination;
|
(19)
|
a
code indicating the documentation program (i.e., full documentation,
limited income verification, no income verification, alternative
income
verification);
|
(20) the
risk
grade;
(21) the
Value
of the Mortgaged Property;
(22) the
sale
price of the Mortgaged Property, if applicable;
|
(23)
|
the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
|
(24) the
type
and term of the related Prepayment Charge;
|
(25)
|
with
respect to any Adjustable-Rate Mortgage Loan, the rounding code,
the
Minimum Mortgage Rate, the Maximum Mortgage Rate, the Gross Margin,
the
next Adjustment Date and the Periodic Rate
Cap;
|
(26) the
program code;
(27) the
Loan
Group; and
(28) the
lien
priority.
The
Mortgage Loan Schedule shall set forth the following information, with respect
to the Mortgage Loans in the aggregate and for each Loan Group as of the Cut-off
Date: (1) the number of Mortgage Loans (separately identifying the number of
Fixed-Rate Mortgage Loans and the number of Adjustable-Rate Mortgage Loans);
(2)
the current Principal Balance of the Mortgage Loans; (3) the weighted average
Mortgage Rate of the Mortgage Loans and (4) the weighted average remaining
term
to maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended
from time to time by the Servicer in accordance with the provisions of this
Agreement. With respect to any Qualified Substitute Mortgage Loan, Cut-off
Date
shall refer to the related Cut-off Date for such Mortgage Loan, determined
in
accordance with the definition of Cut-off Date herein. On the Closing Date,
the
Depositor will deliver to the Servicer, as of the Cut-off Date, an electronic
copy of the Mortgage Loan Schedule.
“Mortgage
Note”: The original executed note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on Exhibit D from time to time,
and any REO Properties acquired in respect thereof.
“Mortgage
Rate”: With respect to each Fixed-Rate Mortgage Loan, the rate set forth in the
related Mortgage Note. With respect to each Adjustable-Rate Mortgage Loan,
the
annual rate at which interest accrues on such Mortgage Loan from time to time
in
accordance with the provisions of the related Mortgage Note, which rate (A)
as
of any date of determination until the first Adjustment Date following the
Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as the
Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any
date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date, to equal the sum, rounded to the next highest or nearest
0.125% (as provided in the Mortgage Note), of the Index, determined as set
forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the
annual rate determined in accordance with the immediately preceding sentence
as
of the date such Mortgage Loan became an REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of a fee simple estate in a parcel of real property
improved by a Residential Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan or any other
disposition of related Mortgaged Property (including REO Property) the related
Liquidation Proceeds and Insurance Proceeds net of Advances, Servicing Advances,
Servicing Fees and any other accrued and unpaid servicing fees or ancillary
income received and retained in connection with the liquidation of such Mortgage
Loan or Mortgaged Property.
“Net
Monthly Excess Cashflow”: With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and (b)
the
excess of (x) Available Funds for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Monthly Interest Distributable Amounts for
the
Class A and Mezzanine Certificates, (B) the Unpaid Interest Shortfall Amounts
for the Class A Certificates and (C) the Principal Remittance
Amount.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property),
as of any date of determination, a per annum rate of interest equal to the
then
applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate.
“Net
Prepayment Interest Shortfall”: With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: For any Distribution Date with respect to any Class of Class A or
Mezzanine 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 1
Regular Interest.
“Net
WAC
Rate Carryover Amount”: With respect to any Class of Class A or Mezzanine
Certificates and any Distribution Date, the sum of (A) the positive excess
of
(i) the amount of interest accrued on such Class of Certificates on such
Distribution Date calculated at the related Pass-Through Rate (without regard
to
the related Net WAC Rate), over (ii) the amount of interest accrued on such
Class of Certificates at the Net WAC Rate for such Distribution Date and (B)
the
Net WAC Rate Carryover Amount for the previous Distribution Date not previously
paid, together with interest thereon at a rate equal to the related Pass-Through
Rate (without regard to the Net WAC Rate) for the most recently ended Accrual
Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 4.08.
“New
Lease”: Any lease of REO Property entered into on behalf of the Trust, including
any lease renewed or extended on behalf of the Trust if the Trust has the right
to renegotiate the terms of such lease.
“NIMS
Insurer”: Any insurer that is guaranteeing certain payments under notes secured
by collateral which includes all or a portion of the Class C Certificates,
the
Class P Certificates and/or the Residual Certificates.
“Nonrecoverable
Advance”: Any Advance or Servicing Advance previously made or proposed to be
made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Servicer, will not be ultimately recoverable from
Late
Collections, Insurance Proceeds, Liquidation Proceeds or condemnation proceeds
on such Mortgage Loan or REO Property as provided herein.
“Notional
Amount”: Immediately prior to any Distribution Date with respect to the Class C
Interest, the aggregate Uncertificated Principal Balance of the REMIC Regular
1
Interests (other than REMIC 2 Regular Interest LTP).
“Offered
Certificates”: The Class A Certificates and the Mezzanine Certificates offered
to the public pursuant to the Prospectus Supplement.
“Officers’
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president (however denominated),
or by the Treasurer, the Secretary, or one of the assistant treasurers or
assistant secretaries of the Servicer, the Originator or the Depositor, as
applicable.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor or the Servicer, acceptable to the Trustee,
except that any opinion of counsel relating to (a) the qualification of any
REMIC as a REMIC or (b) compliance with the REMIC Provisions must be an opinion
of Independent counsel.
“Optional
Termination Date”: The first Distribution Date on which the Terminator may opt
to terminate the Trust Fund pursuant to Section 10.01.
“Original
Class Certificate Principal Balance”: With respect to the Class A Certificates,
the Mezzanine Certificates, the Class C Certificates, the Class C Interest,
the
Class IO Interest, REMIC 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”:
Option One Mortgage Corporation., 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, $1,997,672.61. With respect to
the Group II Certificates, $3,002,327.55. With respect to the Mezzanine
Certificates, $5,000,000.16.
“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 (x) prior to the Stepdown
Date, an amount equal to 1.00% of the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date and (y) on or after the Stepdown Date
provided a Trigger Event is not in effect, the greater of (A) 2.00% 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) 0.50% of the aggregate Principal Balance of the Mortgage Loans
as of the Cut-off Date; and (z) 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 Class A and
Mezzanine Certificates to zero, the Overcollateralization Target Amount shall
be
zero.
“Overcollateralized
Amount”: For any Distribution Date, the amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
(ii) the sum of the aggregate Certificate Principal Balance of the Class A
and
Mezzanine Certificates and the Class P Certificates as of such Distribution
Date
after giving effect to distributions to be made on such Distribution
Date.
“Ownership
Interest”: As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
“Pass-Through
Rate”: With respect to the 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 XXXX, XXXX0,
XXXXX0, LTIIA2, LTIIA3, LTIIA4, LTM1, LTM2, LTM3, LTM4, LTM5, LTM6, LTM7, LTM8,
LTM9 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.
“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 NIMS Insurer, the Trustee
or any of their respective Affiliates or for which an Affiliate of the NIMS
Insurer or Trustee serves as an advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in one of the two highest
available ratings of Moody’s 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
Moody’s and rated A-1+ or higher by S&P, provided, however, that collateral
transferred pursuant to such repurchase obligation must be of the type described
in clause (i) above and must (A) be valued daily at current market prices plus
accrued interest, (B) pursuant to such valuation, be equal, at all times, to
105% of the cash transferred by the Trustee in exchange for such collateral
and
(C) be delivered to the Trustee or, if the Trustee is supplying the collateral,
an agent for the Trustee, in such a manner as to accomplish perfection of a
security interest in the collateral by possession of certificated
securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by S&P (and if rated by any other Rating Agency, also by
such other Rating Agency) in its highest long-term unsecured rating category
at
the time of such investment or contractual commitment providing for such
investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by S&P
(and if rated by any other Rating Agency, also by such other Rating Agency)
in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds, including those money market funds managed or advised by
the
Trustee or its Affiliates, that have been rated “AAA” by Fitch (if rated by
Fitch), “Aaa” by Moody’s and “AAAm” or “AAAm-G” by S&P; and
(vii) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to the Rating Agencies in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial rating
of
the Class A Certificates;
provided,
that no instrument described hereunder shall evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
“Permitted
Transferee”: Any transferee of a Residual Certificate other than a Disqualified
Organization or a non-U.S. Person.
“Person”:
Any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Pool
Balance”: As of any date of determination, the aggregate Stated Principal
Balance of the Mortgage Loans in both Loan Groups as of such date.
“Pool
Insurer”: MGIC Insurance Corporation, a Wisconsin private mortgage insurance
corporation, or any successor in interest.
“Pool
Policy”: The mortgage pool insurance policy dated the Closing Date and issued by
the Pool Insurer.
“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:
(viii) the
Mortgage Loan identifying number;
(ix) a
code
indicating the type of Prepayment Charge;
(x) the
state
of origination of the related Mortgage Loan;
(xi) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(xii) the
term
of the related Prepayment Charge; and
(xiii) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
The
Prepayment Charge Schedule shall be amended from time to time by the Servicer
in
accordance with the provisions of this Agreement and a copy of such amended
Prepayment Charge Schedule shall be furnished by the Servicer to the NIMS
Insurer.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full during the portion of
the
related Prepayment Period occurring between the first day and the 15th
day of
the calendar month in which such Distribution Date occurs, an amount equal
to
interest (to the extent received) at the applicable Net Mortgage Rate on the
amount of such Principal Prepayment for the number of days commencing on the
first day of the calendar month in which such Distribution Date occurs and
ending on the date on which such prepayment is so applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a Principal Prepayment in full 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 month in which the related Distribution Date
occurs (or, in the case of the first Distribution Date, from May 1, 2006) and
ending on the 15th
day of
the calendar month in which such Distribution Date occurs.
“Principal
Balance”: As to any Mortgage Loan other than a Liquidated Mortgage Loan, and any
day, the related Cut-off Date Principal Balance, minus all collections credited
against the Cut-off Date Principal Balance of any such Mortgage Loan. For
purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have
a Principal Balance equal to the Principal Balance of the related Mortgage
Loan
as of the final recovery of related Liquidation Proceeds and a Principal Balance
of zero thereafter. As to any REO Property and any day, the Principal Balance
of
the related Mortgage Loan immediately prior to such Mortgage Loan becoming
REO
Property minus any REO Principal Amortization received with respect thereto
on
or prior to such day.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount of scheduled
interest due on any Due Date in any month or months subsequent to the month
of
prepayment.
“Principal
Remittance Amount”: With respect to any Distribution Date, the sum of the Group
I Principal Remittance Amount and the Group II Principal Remittance
Amount.
“Prospectus
Supplement”: That certain Prospectus Supplement dated May 16, 2006 relating to
the public offering of the Class A Certificates and the Mezzanine Certificates
(other than the Class M-9 Certificates).
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased by the
Originator or the Servicer pursuant to or as contemplated by Section 2.03,
Section 3.16(c) or Section 10.01, and as confirmed by an Officers’ Certificate
from the Originator or the Servicer to the Trustee, an amount equal to the
sum
of (i) 100% of the Stated Principal Balance thereof as of the date of purchase
(or such other price as provided in Section 10.01), (ii) in the case of (x)
a
Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable Mortgage Rate in effect from time to time from the Due Date as to
which interest was last covered by a payment by the Mortgagor or an Advance
by
the Servicer, which payment or Advance had as of the date of purchase been
distributed pursuant to Section 4.01, through the end of the calendar month
in
which the purchase is to be effected, and (y) an REO Property, the sum of (1)
accrued interest on such Stated Principal Balance at the applicable Mortgage
Rate in effect from time to time from the Due Date as to which interest was
last
covered by a payment by the Mortgagor or an advance by the Servicer through
the
end of the calendar month immediately preceding the calendar month in which
such
REO Property was acquired, plus (2) REO Imputed Interest for such REO Property
for each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such purchase
is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances that as of the date of purchase
had
been distributed as or to cover REO Imputed Interest pursuant to Section 4.04,
(iii) any unreimbursed Servicing Advances and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan or REO Property pursuant to Section 3.23 and (v) in the case of a Mortgage
Loan required to be purchased pursuant to Section 2.03, expenses reasonably
incurred or to be incurred by the Servicer, the NIMS Insurer or the Trustee
in
respect of the breach or defect giving rise to the purchase obligation including
any costs and damages incurred by the Trust Fund in connection with any
violation by such loan of any predatory or abusive lending law.
“Qualified
Insurer”: Any insurance company acceptable to Xxxxxx Xxx.
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan by the Originator pursuant to the terms of this Agreement and the Mortgage
Loan Purchase 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) [reserved], (viii)
have a remaining term to maturity not greater than (and not more than one year
less than) that of the Deleted Mortgage Loan, (ix) be current as of the date
of
substitution, (x) 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, (xi) have a risk grading determined by the Originator at least
equal to the risk grading assigned on the Deleted Mortgage Loan, (xii) have
been
underwritten or reunderwritten by the Originator in accordance with the same
underwriting criteria and guidelines as the Deleted Mortgage Loan, (xiii) be
a
first lien mortgage loan if the Deleted Mortgage Loan is a first lien mortgage
loan and (xiv) conform
to each representation and warranty assigned to the Depositor pursuant to the
Assignment Agreement. 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 clauses (ii) through (vi) 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 (viii) 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 (x) hereof shall be satisfied as to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xiv) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
“Rating
Agency or Rating Agencies”: Xxxxx’x and S&P or their successors. If such
agencies or their successors are no longer in existence, “Rating Agencies” shall
be such nationally recognized statistical rating agencies, or other comparable
Persons, designated by the Depositor, notice of which designation shall be
given
to the Trustee and Servicer.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage Loan.
If
the Servicer receives Subsequent Recoveries with respect to any Mortgage Loan,
the amount of the Realized Loss with respect to that Mortgage Loan will be
reduced to the extent such recoveries are applied to principal distributions
on
any Distribution Date.
“Record
Date”: With respect to the Floating Rate Certificates, the Close of Business on
the Business Day immediately preceding the related Distribution Date; provided,
however, that following the date on which Definitive Certificates for any of
the
Floating Rate Certificates are available pursuant to Section 5.02, the Record
Date for such Certificates that are Definitive Certificates shall be the last
Business Day of the calendar month preceding the month in which the related
Distribution Date occurs.
“Reference
Banks”: Those banks (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with
the Originator or the Servicer or any Affiliate thereof and (iii) which have
been designated as such by the Trustee after consultation with the Depositor;
provided, however, that if fewer than two of such banks provide a LIBOR rate,
then any leading banks selected by the Trustee after consultation with the
Depositor which are engaged in transactions in United States dollar deposits
in
the international Eurocurrency market.
“Refinanced
Mortgage Loan”: A Mortgage Loan the proceeds of which were not used to purchase
the related Mortgaged Property.
“Regular
Certificate”: Any of the Class A Certificates, Mezzanine Certificates, Class C
Certificates or Class P Certificates.
“Reimbursement
amount”: As defined in Section 3.29.
“Relief
Act”: The Servicemembers Civil Relief Act, as amended, or any state law
providing for similar relief.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date, for any Mortgage
Loan with respect to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Due Period as a result of the
application of the Relief Act or any similar state or local laws, the amount
by
which (i) interest collectible on such Mortgage Loan during such Due Period
is
less than (ii) one month’s interest on the Principal Balance of such Mortgage
Loan at the Mortgage Rate for such Mortgage Loan before giving effect to the
application of the Relief Act or such state or local laws.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
1”: The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made consisting of: (i) such Mortgage Loans as from time
to
time are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof, (ii)
any REO Property, together with all collections thereon and proceeds thereof,
(iii) the Trustee’s rights with respect to the Mortgage Loans under all
insurance policies required to be maintained pursuant to this Agreement and
any
proceeds thereof, (iv) the Depositor’s rights under the Mortgage Loan Purchase
Agreement (including any security interest created thereby) and (v) the
Collection Account, the Distribution Account (subject to the last sentence
of
this definition) and any REO Account and such assets that are deposited therein
from time to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto. Notwithstanding the foregoing,
however, REMIC 1 specifically excludes the Net WAC Rate Carryover Reserve
Account, the Swap Account, the Servicer Prepayment Charge Payment Amounts,
the
Interest Rate Swap Agreement, and all payments and other collections of
principal and interest due on the Mortgage Loans on or before the Cut-off Date
and all Prepayment Charges payable in connection with Principal Prepayments
made
before the Cut-off Date.
“REMIC
1
Regular Interests”: Any of the separate non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and designated as a “regular interest” in
REMIC 1. Each REMIC 1 Regular Interest shall accrue interest at the 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
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 and REMIC 2 Regular
Interest LTM9 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 and REMIC 2 Regular Interest LTM9
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 and REMIC 2 Regular Interest LTM9 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 (other than REMIC 2 Regular Interest
LTIO), subject to the terms and conditions hereof, in an aggregate amount equal
to its initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The following is a list of each of the REMIC 2 Regular
Interests: REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1, REMIC
2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTZZ and REMIC 2 Regular Interest
LTP.
“REMIC
3”: The segregated pool of assets consisting of all of the REMIC 2 Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates and Class P
Certificates), the Class C Interest, the Class P Interest, the Class IO Interest
and the Class R Certificates (in respect of the Class R-3 Interest), pursuant
to
Article II hereunder, and all amounts deposited therein, with respect to which
a
separate REMIC election is to be made.
“REMIC
3
Regular Interest”: The Class C Interest, Class P Interest, Class IO Interest and
any “regular interest” in REMIC 3 the ownership of which is represented by a
Class A Certificate or Class M Certificate.
“REMIC
4”: The segregated pool of assets consisting of the Class C Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class C Certificates
and the Class R-X Certificates (in respect of the Class R-4 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
4
Regular Interest”: Any “regular interest” in REMIC 4 the ownership of which is
represented by a Class C Certificate.
“REMIC
5”: The segregated pool of assets consisting of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class P Certificates
and the Class R-X Certificates (in respect of the Class R-5 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
5
Regular Interest”: Any “regular interest” in REMIC 5 the ownership of which is
represented by a Class P Certificate.
“REMIC
6”: The segregated pool of assets consisting of the SWAP IO Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the REMIC 6 Regular
Interest Class IO and the Class R-X Certificates (in respect of the Class R-6
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits which appear at Section 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
and rulings promulgated thereunder, as the foregoing may be in effect from
time
to time.
“REMIC
Regular Interest”: A REMIC 1 Regular Interest, REMIC 2 Regular Interest, REMIC 3
Regular Interest, REMIC 4 Regular Interest or REMIC 5 Regular
Interest.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Trustee and the
NIMS Insurer pursuant to Section 4.04.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code.
“REO
Account”: The account or accounts maintained by the Servicer in respect of an
REO Property pursuant to Section 3.23.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of the
Trust Fund.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of the Trust Fund, one month’s interest
at the applicable Net Mortgage Rate on the Stated Principal Balance of such
REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.23 in respect of the proper operation, management and maintenance
of such REO Property or (ii) payable or reimbursable to the Servicer pursuant
to
Section 3.23 for unpaid Servicing Fees in respect of the related Mortgage Loan
and unreimbursed Servicing Advances and Advances in respect of such REO Property
or the related Mortgage Loan, over (b) the REO Imputed Interest in respect
of
such REO Property for such calendar month.
“REO
Property”: A Mortgaged Property acquired by the Servicer on behalf of the Trust
Fund through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23.
“Request
for Release”: A release signed by a Servicing Officer, in the form of Exhibit E
attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/16 of 1%) of the
one-month United States dollar lending rates which banks in The City of New
York
selected by the Depositor are quoting on the relevant Interest Determination
Date to the principal London offices of leading banks in the London interbank
market or (ii) in the event that the Trustee can determine no such arithmetic
mean, in the case of any Interest Determination Date after the initial Interest
Determination Date, the lowest one-month United States dollar lending rate
which
such New York banks selected by the Depositor are quoting on such Interest
Determination Date to leading European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
Xxxxxx Xxx eligible condominium project, (iv) a manufactured home, or (v) a
detached one-family dwelling in a planned unit development, none of which is
a
co-operative or mobile home.
“Residual
Certificate”: The Class R Certificates and the Class R-X
Certificates.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee, any director, any vice
president, any assistant vice president, the Secretary, any assistant secretary,
the Treasurer, any assistant treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and, with respect to a particular matter, to whom such
matter is referred because of such officer’s knowledge of and familiarity with
the particular subject.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or its successor in interest.
“SEC”:
Securities and Exchange Commission.
“Seller”:
Any one or all of: (i) Option One Mortgage Corporation, a California corporation
or (ii) Option One Owner Trust 2001-1A, Option One Owner Trust 2001-1B, Option
One Owner Trust 2001-2, Option One Owner Trust 2002-3, Option One Owner Trust
2003-4, Option One Owner Trust 2003-5, Option One Owner Trust 2005-6, Option
One
Owner Trust 2005-7, Option One Owner Trust 2005-8 and/or Option One Owner Trust
2005-9, each a Delaware statutory trust.
“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 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”:
Option One Mortgage Corporation, or any successor servicer appointed as herein
provided, in its capacity as Servicer hereunder.
“Servicer
Certification”: As defined in Section 3.22(b) hereof.
“Servicer
Event of Termination”: One or more of the events described in
Section 7.01.
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by the Servicer in
respect of any waived Prepayment Charges pursuant to Section 2.05 or Section
3.01.
“Servicer
Remittance Date”: With respect to any Distribution Date, the Business Day prior
to such Distribution Date.
“Servicing
Advance Reimbursement Amount”: As defined in Section 3.29.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and expenses) incurred by the
Servicer in the performance of its servicing obligations, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of
the
REO Property, (iv) obtaining broker price opinions, (v) locating missing
Mortgage Loan documents and (vi) compliance with the obligations under Sections
3.01, 3.09, 3.14, 3.16, and 3.23. Servicing Advances also include any reasonable
“out-of-pocket” costs and expenses (including legal fees) incurred by the
Servicer in connection with executing and recording instruments of satisfaction,
deeds of reconveyance or Assignments of Mortgage in connection with any
foreclosure in respect of any Mortgage Loan to the extent not recovered from
the
related Mortgagor or otherwise payable under this Agreement. The Servicer shall
not be required to make any Servicing Advance that would be a Nonrecoverable
Advance.
“Servicing
Fee”: With respect to each Mortgage Loan and for any Due Period, an amount equal
to one month’s interest (or in the event of any payment of interest which
accompanies a Principal Prepayment in full made by the Mortgagor during such
calendar month, interest for the number of days covered by such payment of
interest) at the related Servicing Fee Rate on the same principal amount on
which interest on such Mortgage Loan accrues for such calendar month. A portion
of such Servicing Fee may be retained by any Sub-Servicer as its servicing
compensation.
“Servicing
Fee Rate”: 0.30%
per
annum for the first 10 Due Periods; 0.40% per annum for Due Periods 11 through
30; and 0.65% per annum for Due Period 31 and thereafter.
“Servicing
Officer”: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Servicer
to
the Trustee and the Depositor on the Closing Date, as such list may from time
to
time be amended.
“Servicing
Standard”: As defined in Section 3.01.
“Servicing
Transfer Costs”: Shall mean all reasonable costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a predecessor
servicer, including, without limitation, any reasonable costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee (or any successor servicer appointed pursuant
to
Section 7.02) to service the Mortgage Loans properly and effectively and any
fees associated with MERS.
“Startup
Day”: As defined in Section 9.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the outstanding principal balance of such Mortgage Loan
as
of the Cut-off Date as shown in the Mortgage Loan Schedule, minus the sum of
(i)
the principal portion of each Monthly Payment due on a Due Date subsequent
to
the Cut-off Date to the extent received from the Mortgagor or advanced by the
Servicer and distributed pursuant to Section 4.01 on or before such date of
determination, (ii) all Principal Prepayments received after the Cut-off Date
to
the extent distributed pursuant to Section 4.01 on or before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds to the
extent distributed pursuant to Section 4.01 on or before such date of
determination, and (iv) any Realized Loss incurred with respect thereto as
a
result of a Deficient Valuation made during or prior to the Due Period for
the
most recent Distribution Date coinciding with or preceding such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed,
zero.
With respect to any REO Property: (a) as of any date of determination up to
but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the related
Mortgage Loan as of the date on which such REO Property was acquired on behalf
of the Trust Fund, minus the aggregate amount of REO Principal Amortization
in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
“Stepdown
Date”: The earlier to occur of (i) the Distribution Date on which the aggregate
Certificate Principal Balance of the Class A Certificates have been reduced
to
zero and (ii) the later to occur of (x) the Distribution Date occurring in
June
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 39.20%.
“Sub-Servicer”:
Any Person with which the Servicer has entered into a Sub- Servicing Agreement
and which meets the qualifications of a Sub-Servicer pursuant to Section
3.02.
“Sub-Servicing
Account”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer
relating to servicing and administration of certain Mortgage Loans as provided
in Section 3.02.
“Subsequent
Recoveries”:
As
of any Distribution Date, amounts received by the Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.11) specifically
related to a Mortgage Loan that was the subject of a liquidation or an REO
Disposition prior to the related Prepayment Period that resulted in a Realized
Loss.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Supplemental
Interest Trust”: As defined in Section 4.05(a).
“Swap
Administration Agreement”: As defined in Section 4.05(b).
“Supplemental
Interest Trust Trustee”: Deustsche Bank National Trust Company, 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
Administrator”: Deutsche Bank National Trust Company, a national banking
association, or any successor in interest, or any successor Swap Administrator
appointed pursuant to the Swap Administration Agreement.
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due to a
discrepancy between the Uncertificated Notional Amount of REMIC 6 Regular
Interest SWAP IO and the scheduled notional amount pursuant to the Swap
Administration Agreement.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by the Swap Provider under
the Swap Agreement.
“Swap
Provider”: Wachovia Bank, N.A..
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party.
“Swap
Termination Payment”: The payment due to either party under the Interest Rate
Swap Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Tax
Matters Person”: The tax matters person appointed pursuant to Section 9.01(e)
hereof.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of the REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
by
the Trustee on behalf of each REMIC, together with any and all other information
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
“Termination
Price”: As defined in Section 10.01(a) hereof.
“Terminator”:
As defined in Section 10.01(a) hereof.
“Three
Month Rolling Delinquency Percentage”: With respect to the Mortgage Loans and
any Distribution Date, the average for the three most recent calendar months
of
the fraction, expressed as a percentage, the numerator of which is (x) the
sum
(without duplication) of the aggregate of the Stated Principal Balances of
all
Mortgage Loans that are (i) 60 or more days Delinquent, (ii) in bankruptcy
and
60 or more days Delinquent, (iii) in foreclosure and 60 or more days Delinquent
or (iv) REO Properties, and the denominator of which is (y) the sum of the
Stated Principal Balances of the Mortgage Loans, in the case of both (x) and
(y), as of the Close of Business on the last Business Day of each of the three
most recent calendar months.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date on or
after the Stepdown Date if:
(b) the
Delinquency
Percentage exceeds
39.20% of the Senior Credit Enhancement Percentage; or
(c) 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”):
|
Distribution
Date Occurring In
|
Percentage
|
|
June
2008 through May 2009
|
1.75%
for the first month, plus an additional 1/12th
of
2.20% for each month thereafter.
|
|
June
2009 through May 2010
|
3.95%
for the first month, plus an additional 1/12th
of
2.25% for each month thereafter.
|
|
June
2010 through May 2011
|
6.20%
for the first month, plus an additional 1/12th
of
1.80% for each month thereafter.
|
|
June
2011 through May 2012
|
8.00%
for the first month, plus an additional 1/12th
of
0.95% for each month thereafter.
|
|
June
2012 through May 2013
|
8.95%
for the first month, plus an additional 1/12th
of
0.05% for each month thereafter.
|
|
June
2013 and thereafter
|
9.00%
for each month.
|
“Trust”:
Soundview Home Loan Trust 2006-OPT4, the trust created hereunder.
“Trust
Fund”: All of the assets of the Trust, which is the trust created hereunder
consisting of REMIC 2, REMIC 2, REMIC 3, REMIC 4, REMIC 5, REMIC 6,
distributions made to the Trust Administrator by the Swap Administrator under
the Swap Administration Agreement and the Swap Account, the right to receive
any
amounts from the Net WAC Rate Carryover Reserve Account and any Servicer
Prepayment Charge Payment Amounts.
“Trustee”:
Deutsche Bank National Trust Company, a national banking association, or any
successor trustee appointed as herein provided.
“Trustee
Compensation”: The amount payable to the Trustee on each Distribution Date
pursuant to Section 8.05 as compensation for all services rendered by it in
the
execution of the trust hereby created and in the exercise and performance of
any
of the powers and duties of the Trustee hereunder.
“Uncertificated
Accrued Interest”: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated REMIC Pass-Through Rate on the Uncertificated Principal Balance
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
1 Regular Interests
|
|
1st
through 2nd
|
I-1-A
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through I-57-A
|
|
11
|
I-10-A
through I-57-A
|
|
12
|
I-11-A
through I-57-A
|
|
13
|
I-12-A
through I-57-A
|
|
14
|
I-13-A
through I-57-A
|
|
15
|
I-14-A
through I-57-A
|
|
16
|
I-15-A
through I-57-A
|
|
17
|
I-16-A
through I-57-A
|
|
18
|
I-17-A
through I-57-A
|
|
19
|
I-18-A
through I-57-A
|
|
20
|
I-19-A
through I-57-A
|
|
21
|
I-20-A
through I-57-A
|
|
22
|
I-21-A
through I-57-A
|
|
23
|
I-22-A
through I-57-A
|
|
24
|
I-23-A
through I-57-A
|
|
25
|
I-24-A
through I-57-A
|
|
26
|
I-25-A
through I-57-A
|
|
27
|
I-26-A
through I-57-A
|
|
28
|
I-27-A
through I-57-A
|
|
29
|
I-28-A
through I-57-A
|
|
30
|
I-29-A
through I-57-A
|
|
31
|
I-30-A
through I-57-A
|
|
32
|
I-31-A
through I-57-A
|
|
33
|
I-32-A
through I-57-A
|
|
34
|
I-33-A
through I-57-A
|
|
35
|
I-34-A
through I-57-A
|
|
36
|
I-35-A
through I-57-A
|
|
37
|
I-36-A
through I-57-A
|
|
38
|
I-37-A
through I-57-A
|
|
39
|
I-38-A
through I-57-A
|
|
40
|
I-39-A
through I-57-A
|
|
41
|
I-40-A
through I-57-A
|
|
42
|
I-41-A
through I-57-A
|
|
43
|
I-42-A
through I-57-A
|
|
44
|
I-43-A
through I-57-A
|
|
45
|
I-44-A
through I-57-A
|
|
46
|
I-45-A
through I-57-A
|
|
47
|
I-46-A
through I-57-A
|
|
48
|
I-47-A
through I-57-A
|
|
49
|
I-48-A
through I-57-A
|
|
50
|
I-49-A
through I-57-A
|
|
51
|
I-50-A
through I-57-A
|
|
52
|
I-51-A
through I-57-A
|
|
53
|
I-52-A
through I-57-A
|
|
54
|
I-53-A
through I-57-A
|
|
55
|
I-54-A
through I-57-A
|
|
56
|
I-55-A
through I-57-A
|
|
57
|
I-56-A
and I-57-A
|
|
58
|
I-57-A
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC 2 Regular Interest
LTIO.
“Uncertificated
Principal Balance”: With
respect to each REMIC Regular Interest, 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 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, a per
annum rate equal to the weighted average Net Mortgage Rate of the Mortgage
Loans. With respect to each REMIC 1 Regular Interest ending with the designation
“A”, a per annum rate equal to the weighted average Net Mortgage Rate of the
Mortgage Loans multiplied by 2, subject to a maximum rate of 10.9100%. 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 Net Mortgage Rate of the Mortgage Loans over (ii)
10.9100% 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
LTZZ and REMIC 2 Regular Interest LTP, a
per
annum rate (but not less than zero) equal to the weighted average of (v) with
respect to REMIC 1 Regular Interest I, the Uncertificated REMIC 1 Pass-Through
Rate for such REMIC 1 Regular Interest for each such Distribution Date, (w)
with
respect to REMIC 1 Regular Interests ending with the designation “B”, the
weighted average of the Uncertificated REMIC 1 Pass-Through Rates for such
REMIC
1 Regular Interests, weighted on the basis of the Uncertificated Principal
Balance of such REMIC 1 Regular Interests for each such Distribution Date and
(x) with respect to REMIC 1 Regular Interests ending with the designation “A”,
for each Distribution Date listed below, the weighted average of the rates
listed below for each such REMIC 1 Regular Interest listed below, weighted
on
the basis of the Uncertificated Principal Balance of each such REMIC 1 Regular
Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-57-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
2
|
I-1-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
3
|
I-2-A
through I-57-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
|
|
|
4
|
I-3-A
through I-57-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
|
|
|
5
|
I-4-A
through I-57-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
|
|
|
6
|
I-5-A
through I-57-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
|
|
|
7
|
I-6-A
through I-57-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
|
|
|
8
|
I-7-A
through I-57-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
|
|
|
9
|
I-8-A
through I-57-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
|
|
|
10
|
I-9-A
through I-57-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
|
|
|
11
|
I-10-A
through I-57-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
|
|
|
12
|
I-11-A
through I-57-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
|
|
|
13
|
I-12-A
through I-57-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
|
|
|
14
|
I-13-A
through I-57-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
|
|
|
15
|
I-14-A
through I-57-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
|
|
|
16
|
I-15-A
through I-57-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
|
|
|
17
|
I-16-A
through I-57-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
|
|
|
18
|
I-17-A
through I-57-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
|
|
|
19
|
I-18-A
through I-57-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
|
|
|
20
|
I-19-A
through I-57-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
|
|
|
21
|
I-20-A
through I-57-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
|
|
|
22
|
I-21-A
through I-57-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
|
|
|
23
|
I-22-A
through I-57-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
|
|
|
24
|
I-23-A
through I-57-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
|
|
|
25
|
I-24-A
through I-57-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
|
|
|
26
|
I-25-A
through I-57-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
|
|
|
27
|
I-26-A
through I-57-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
|
|
|
28
|
I-27-A
through I-57-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
|
|
|
29
|
I-28-A
through I-57-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
|
|
|
30
|
I-29-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
31
|
I-30-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
32
|
I-31-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
33
|
I-32-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
34
|
I-33-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
35
|
I-34-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
36
|
I-35-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
37
|
I-36-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
38
|
I-37-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
39
|
I-38-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
40
|
I-39-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
41
|
I-40-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
42
|
I-41-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
43
|
I-42-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
44
|
I-43-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
45
|
I-44-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
46
|
I-45-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
47
|
I-46-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
48
|
I-47-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
49
|
I-48-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
50
|
I-49-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
51
|
I-50-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
52
|
I-51-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
53
|
I-52-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
54
|
I-53-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
55
|
I-54-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
56
|
I-55-A
through I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
57
|
I-56-A
and I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
58
|
I-57-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-57-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
With
respect to REMIC 2 Regular Interest LTIO and (a) the first Distribution Date,
the excess of (i) the weighted average of the Uncertificated REMIC 1
Pass-Through Rates for REMIC 1 Regular Interests ending with the designation
“A”
over (ii) the weighted average of the Uncertificated REMIC 1 Pass-Through Rates
for REMIC 1 Regular Interests ending with the designation “A” and (b) the second
Distribution Date through the 58th 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 any Class of the Class A or
Mezzanine Certificates and (i) the first Distribution Date, zero, and (ii)
any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such Class
in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not paid
on
the Certificates of such Class on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate for such Class for the related
Accrual Period.
“Value”:
With respect to any Mortgaged Property, the lesser of (i) the lesser of (a)
the
value thereof as determined by an appraisal made for the originator of the
Mortgage Loan at the time of origination of the Mortgage Loan by an appraiser
who met the minimum requirements of Xxxxxx Xxx and Xxxxxxx Mac, and (b) the
value thereof as determined by a review appraisal conducted by the Originator
in
the event any such review appraisal determines an appraised value ten percent
or
more lower than the value thereof as determined by the appraisal referred to
in
clause (i)(a) above and (ii) the purchase price paid for the related Mortgaged
Property by the Mortgagor with the proceeds of the Mortgage Loan, provided,
however, in the case of a Refinanced Mortgage Loan, such value of the Mortgaged
Property is based solely upon the lesser of (1) the value determined by an
appraisal made for the Originator of such Refinanced Mortgage Loan at the time
of origination of such Refinanced Mortgage Loan by an appraiser who met the
minimum requirements of Xxxxxx Mae and Xxxxxxx Mac and (2) the value thereof
as
determined by a review appraisal conducted by the Originator in the event any
such review appraisal determines an appraised value ten percent or more lower
than the value thereof as determined by the appraisal referred to in clause
(ii)(1) above.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times the Class A and Mezzanine
Certificates and the Class C Certificates shall have 98% of the Voting Rights
(allocated among the Holders of the Class A Certificates, Mezzanine Certificates
and the Class C Certificates in proportion to the then outstanding Certificate
Principal Balances of their respective Certificates), the Class P Certificates
shall have 1% of the Voting Rights and the Residual Certificates shall have
1%
of the Voting Rights. The Voting Rights allocated to any Class of Certificates
(other than the Class P Certificates and the Residual Certificates) shall be
allocated among all Holders of each such Class in proportion to the outstanding
Certificate Principal Balance of such Certificates, and the Voting Rights
allocated to the Class P Certificates and the Residual Certificates shall be
allocated among all Holders of each such Class in proportion to such Holders’
respective Percentage Interest; provided, however that when none of the Regular
Certificates are outstanding, 100% of the Voting Rights shall be allocated
among
Holders of the Residual Certificates in accordance with such Holders’ respective
Percentage Interests in the Certificates of such Class.
SECTION
1.02 Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
SECTION
1.03 Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of the Monthly Interest Distributable Amount
for the Class A Certificates, Mezzanine Certificates and the Class C
Certificates for any Distribution Date, (1) the aggregate amount of any Net
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans for any Distribution Date shall be allocated
first, among the Class C Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate and,
thereafter, among the Class A and Mezzanine Certificates on a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate and (2) the aggregate amount of any Realized Losses and
Net WAC Rate Carryover Amounts shall be allocated among the Class C Certificates
on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to REMIC
1
Regular Interest I and to the REMIC 1 Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest, and then, to REMIC
1
Regular Interests ending with the designation “A”, pro rata based on, and to the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC 1 Pass-Through Rates on the respective Uncertificated Principal Balances
of each such REMIC 1 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1,
REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC
2
Regular Interest LTIIA3, REMIC
2
Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest
LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2
Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9 and REMIC
2
Regular Interest LTZZ pro
rata based
on,
and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 2 Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC 2 Regular Interest.
SECTION
1.04 Rights
of
the NIMS Insurer.
Each
of
the rights of the NIMS Insurer set forth in this Agreement shall exist so long
as (i) the NIMS Insurer has undertaken to guarantee certain payments of notes
issued pursuant to an Indenture and (ii) any series of notes issued pursuant
to
one or more Indentures remain outstanding or the NIMS Insurer is owed amounts
in
respect of its guarantee of payment on such notes; provided, however, the NIMS
Insurer shall not have any rights hereunder (except pursuant to Section 11.01
in
the case of clause (ii) below) so long as (i) the NIMS Insurer has not
undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01 Conveyance
of Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse for the benefit of the Certificateholders all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in and to (i) each Mortgage Loan identified on the
Mortgage Loan Schedule, including the related Cut-off Date Principal Balance,
all interest accruing thereon on and after the Cut-off Date and all collections
in respect of interest and principal due after the Cut-off Date; (ii) property
which secured each such Mortgage Loan and which has been acquired by foreclosure
or deed in lieu of foreclosure; (iii) its interest in any insurance policies
in
respect of the Mortgage Loans; (iv) the rights of the Depositor under the
Mortgage Loan Purchase Agreement, (v) payments made to the Trustee by the Swap
Administrator under the Swap Administration Agreement and the Swap Account,
(vi)
all other assets included or to be included in the Trust Fund and (vii) all
proceeds of any of the foregoing. Such assignment includes all interest and
principal due and collected by the Depositor or the Servicer after the Cut-off
Date with respect to the Mortgage Loans.
In
connection with such transfer and assignment, the Depositor, does hereby deliver
to, and deposit with the Custodian on behalf of the Trustee, the following
documents or instruments with respect to each Mortgage Loan so transferred
and
assigned (with respect to each Mortgage Loan, a “Mortgage File”):
(i) the
original Mortgage Note, endorsed either (A) in blank or (B) in the following
form: “Pay to the order of Deutsche Bank National Trust Company, as Trustee,
without recourse” or with respect to any lost Mortgage Note, an original Lost
Note Affidavit stating that the original mortgage note was lost, misplaced
or
destroyed, together with a copy of the related mortgage note; provided, however,
that such substitutions of Lost Note Affidavits for original Mortgage Notes
may
occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal
Balance of which is less than or equal to 1.00% of the Pool Balance as of the
Cut-off Date;
(ii) the
original Mortgage (noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is
a MOM Loan), with evidence of recording thereon, and the original recorded
power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon or, if such Mortgage or power of attorney has
been
submitted for recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a copy of such
Mortgage or power of attorney, as the case may be, certified to be a true and
complete copy of the original submitted for recording;
(iii) unless
the Mortgage Loan is a MERS® loan, an original Assignment, in form and substance
acceptable for recording. The Mortgage shall be assigned either (A) in blank
or
(B) to “Deutsche Bank National Trust Company, as Trustee, without
recourse”;
(iv) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments (or to MERS if the Mortgage Loan is a MERS loan;
(v) the
original or a 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 Mortgage
Loan Purchase Agreement.
The
Trustee agrees to execute and deliver (or cause the Custodian to execute and
deliver) and to the Depositor on or prior to the Closing Date an acknowledgment
of receipt of the original Mortgage Note (with any exceptions noted),
substantially in the form attached as Exhibit F-3 hereto.
If
any of
the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of
the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Custodian on behalf of the Trustee no later than the Closing
Date, of a copy of each such document certified by the Originator in the case
of
(x) above or the applicable public recording office in the case of (y) above
to
be a true and complete copy of the original that was submitted for recording
and
(2) if such copy is certified by the Originator, delivery to the Custodian
on
behalf of the Trustee, promptly upon receipt thereof of either the original
or a
copy of such document certified by the applicable public recording office to
be
a true and complete copy of the original. If the original lender’s title
insurance policy, or a certified copy thereof, was not delivered pursuant to
Section 2.01(v) above, the Depositor shall deliver or cause to be delivered
to
the Custodian on behalf of the Trustee, the original or a copy of a written
commitment or interim binder or preliminary report of title issued by the title
insurance or escrow company, with the original or a certified copy thereof
to be
delivered to the Custodian on behalf of the Trustee, promptly upon receipt
thereof. The Servicer or the Depositor shall deliver or cause to be delivered
to
the Custodian on behalf of the Trustee promptly upon receipt thereof any other
documents constituting a part of a Mortgage File received with respect to any
Mortgage Loan, including, but not limited to, any original documents evidencing
an assumption or modification of any Mortgage Loan.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Trustee (or the Custodian
on
behalf of the Trustee) shall notify the Servicer and the Servicer shall enforce
the obligations of the Originator under the Mortgage Loan Purchase Agreement
to
cure such defect or deliver such missing document to the Trustee or the
Custodian within 120 days. If the Originator does not cure such defect or
deliver such missing document within such time period, the Servicer shall use
commercially reasonable efforts to attempt to enforce the obligations of the
Originator to either repurchase or substitute for such Mortgage Loan in
accordance with Section 2.03; provided, however, that the Servicer shall not
be
under any obligation to take any action pursuant to this paragraph unless
directed by the Depositor and provided, further, the Depositor hereby agrees
to
assist the Servicer in enforcing any obligations of the Originator to repurchase
or substitute for a Mortgage Loan which has breached a representation or
warranty under the Mortgage Loan Purchase Agreement. In connection with the
foregoing, it is understood that the Custodian on behalf of the Trustee shall
have no duty to discover any such defects except in the course of performing
its
review of the Mortgage Files to the extent set forth herein.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage,
the Trustee shall enforce the obligations of the Originator under the Mortgage
Loan Purchase 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 Mortgage Loan Purchase
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 Mortgage Loan Purchase Agreement to
promptly have a substitute Assignment prepared or have such defect cured, as
the
case may be, and thereafter cause each such Assignment to be duly
recorded.
Notwithstanding
the foregoing, for administrative convenience and facilitation of servicing
and
to reduce closing costs, the Assignments of Mortgage shall not be required
to be
submitted for recording (except with respect to any Mortgage Loan located in
Maryland) unless the Trustee (or the Custodian on behalf of the Trustee) and
the
Depositor receive notice that such failure to record would result in a
withdrawal or a downgrading by any Rating Agency of the rating on any Class
of
Certificates; provided, however, each Assignment, except with respect to any
Mortgage Loan for which MERS is identified on the Mortgage, shall be submitted
for recording in the manner described above, at no expense to the Trust Fund
or
Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders
of Certificates entitled to at least 25% of the Voting Rights, (ii) the
occurrence of a Servicer Event of Termination, (iii) the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Originator, (iv) the
occurrence of a servicing transfer as described in Section 7.02 hereof, (v)
upon
receipt of notice from the Servicer, the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Mortgagor under the related Mortgage, (vi) upon
receipt of notice from the Servicer, any Mortgage Loan that is 90 days or more
Delinquent and such recordation would be necessary to facilitate conversion
of
the Mortgaged Property in accordance with Section 3.16 and (vii) reasonable
direction by the NIMS Insurer. In the event of (i) through (vii) set forth
in
the immediately preceding sentence, the Trustee shall enforce the obligations
of
the Originator to deliver such Assignments for recording as provided above,
promptly and in any event within 30 days following receipt of notice by the
Originator. Notwithstanding the foregoing, if the Originator fails to pay the
cost of recording the Assignments, such expense will be paid by the Trustee
(if
it reasonably believes it will be reimbursed) and the Trustee shall be
reimbursed for such expenses by the Trust.
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Servicer shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 365
days
of its submission for recordation. In the event that the Servicer cannot provide
a copy of such document certified by the public recording office within such
365
day period, the Servicer shall deliver to the Custodian, within such 365 day
period, an Officers’ Certificate of the Servicer which shall (A) identify the
recorded document, (B) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(C) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, if known
and
(D) specify the date the applicable recorded document is expected to be
delivered to the Custodian, and, upon receipt of a copy of such document
certified by the public recording office, the Servicer shall immediately deliver
such document to the Custodian. In the event the appropriate public recording
office will not certify as to the accuracy of such document, the Servicer shall
deliver a copy of such document certified by an officer of the Servicer to
be a
true and complete copy of the original to the Custodian.
The
parties hereto understand and agree that it is not intended that any Mortgage
Loan be included in the Trust that is a high-cost home loan as defined by the
Homeownership and Equity Protection Act of 1994 or any other applicable
predatory or abusive lending laws.
The
Depositor hereby directs the Trustee to execute, deliver and perform its
obligations under the Interest Rate Swap Agreement (in its capacity as
Supplemental Interest Trust Trustee) and to assign any rights to receive
payments from the Swap Provider to the Swap Administrator pursuant to the Swap
Administration Agreement and the Depositor further directs the Trustee to
execute, deliver and perform its obligations under the Swap Administration
Agreement. The Depositor, the Servicer and the Holders of the Class A and
Mezzanine Certificates by their acceptance of such Certificates acknowledge
and
agree that the Trustee shall execute, deliver and perform its obligations under
the Interest Rate Swap Agreement (in its capacity as Supplemental Interst Trust
Trustee) and the Swap Administration Agreement and shall do so solely in its
capacity as Trustee, Supplemental Interst Trust Trustee or as Swap
Administrator, as the case may be, and not in its individual capacity. Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Trustee’s execution
of the Interest Rate Swap Agreement and the Swap Administration Agreement,
and
the performance of its duties and satisfaction of its obligations
thereunder.
SECTION
2.02 Acceptance
by Trustee.
Subject
to the provisions of Section 2.01 and subject to the review described below
and
any exceptions noted on the exception report described in the next paragraph
below, the Trustee acknowledges receipt by it or the Custodian on its behalf
of
the documents referred to in Section 2.01 above and all other assets included
in
the definition of “Trust Fund” and declares that it (or the Custodian on its
behalf) holds and will hold such documents and the other documents delivered
to
it constituting a Mortgage File, and that it holds or will hold all such assets
and such other assets included in the definition of “Trust Fund” in trust for
the exclusive use and benefit of all present and future
Certificateholders.
The
Trustee agrees that it (or a Custodian will agree on its behalf) shall, for
the
benefit of the Certificateholders, review, or that it or a Custodian on its
behalf has reviewed pursuant to Section 2.01 each Mortgage File on or prior
to
the Closing Date, with respect to each Mortgage Loan (or, with respect to any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage Loan, within 45 days after the
assignment thereof). The Trustee further agrees that it or a Custodian on its
behalf shall, for the benefit of the Certificateholders, certify to the
Depositor and the Servicer (with
a
copy to the NIMS Insurer)
in
substantially the form attached hereto as Exhibit F-1, within 45 days after
the
Closing Date, with respect to each Mortgage Loan (or, with respect to any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage, within 45 days after the
assignment thereof) that, as to each Mortgage Loan listed in the respective
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto
as
not being covered by such certification), (i) all documents required to be
delivered to it (or the Custodian on its behalf) pursuant to Section 2.01 of
this Agreement are in its possession, (ii) such documents have been reviewed
by
it (or the Custodian on its behalf) and have not been mutilated, damaged or
torn
and appear on their face to relate to such Mortgage Loan and (iii) based on
its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (1) and (3) of the Mortgage
Loan Schedule accurately reflects information set forth in the Mortgage File.
It
is herein acknowledged that, in conducting such review, the Trustee (or the
Custodian, as applicable) is under no duty or obligation to inspect, review
or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, legally enforceable, valid or binding or
appropriate for the represented purpose or that they have actually been recorded
or that they are other than what they purport to be on their face.
Prior
to
the first anniversary date of this Agreement the Trustee (or the Custodian
on
its behalf) shall deliver to the Depositor and the Servicer, with a copy to
the
NIMS Insurer a final certification in the form annexed hereto as Exhibit F-2,
with any applicable exceptions noted thereon.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the case
may
be, the certifications referred to above, the Trustee (or the Custodian, as
applicable) finds any document or documents constituting a part of a Mortgage
File to be missing or not to conform with respect to any characteristics which
are within the scope of the Trustee’s (or the Custodian’s, as applicable) review
as provided herein, at the conclusion of its review, the Trustee shall so notify
the Originator, the Depositor, the NIMS Insurer and the Servicer. In addition,
upon the discovery by the Depositor, the NIMS Insurer or the Servicer (or upon
receipt by the Trustee of written notification of such breach) of a breach
of
any of the representations and warranties made by the Originator in the Mortgage
Loan Purchase Agreement in respect of any Mortgage Loan which materially
adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the NIMS Insurer and the other parties
to
this Agreement.
Notwithstanding
anything to the contrary in this Agreement, in no event shall the Trustee be
liable to any party hereto or to any third party for the performance of any
custody-related functions, including without limitation with respect to which
the Custodian shall fail to take action on behalf of the Trustee or failure
by
the Custodian to perform any custody related functions in the event the
Custodian shall fail to satisfy all the related requirements under this
Agreement or the Custodial Agreement.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee in trust for the
benefit of the Certificateholders and that such property not be part of the
Depositor’s estate or property of the Depositor in the event of any insolvency
by the Depositor. In the event that such conveyance is deemed to be, or to
be
made as security for, a loan, the parties intend that the Depositor shall be
deemed to have granted and does hereby grant to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in and to the Mortgage Loans, the related Mortgage Notes and the related
documents, and that this Agreement shall constitute a security agreement under
applicable law.
SECTION
2.03 Repurchase
or Substitution of Mortgage Loans by the Originator.
(a) Upon
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
Originator of any representation, warranty or covenant under the Mortgage Loan
Purchase Agreement, as applicable, in respect of any Mortgage Loan which
materially adversely affects the value of such Mortgage Loan or the interest
therein of the Certificateholders, the Trustee (or the Custodian on its behalf)
shall promptly notify the NIMS Insurer and the Servicer of such defect, missing
document or breach and the Servicer shall request that the Originator deliver
such missing document or that the Originator cure such defect or breach within
90 days from the date the Originator was notified of such missing document,
defect or breach, and if the Originator does not deliver such missing document
or cure such defect or breach in all material respects during such period,
the
Servicer shall use commercially reasonable efforts to attempt to enforce the
Originator’s obligation under the Mortgage Loan Purchase Agreement and notify
the Originator of its obligation to repurchase such Mortgage Loan from the
Trust
Fund at the Purchase Price on or prior to the Determination Date following
the
expiration of such 90 day period (subject to Section 2.03(e)); provided,
however, that the Servicer shall not be under any obligation to take any action
pursuant to this paragraph unless directed by the Depositor and provided,
further, the Depositor hereby agrees to assist the Servicer in enforcing any
obligations of the Originator to repurchase or substitute for a Mortgage Loan
which has breached a representation or warranty under the Mortgage Loan Purchase
Agreement. 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
the related Mortgage File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Originator shall
furnish to it and as shall be necessary to vest in the Originator any Mortgage
Loan released pursuant hereto and the Trustee shall have no further
responsibility with regard to such Mortgage File (it being understood that
neither the Trustee nor the Custodian shall have any responsibility for
determining the sufficiency of such assignment for its intended purpose). In
lieu of repurchasing any such Mortgage Loan as provided above, the Originator
may cause such Mortgage Loan to be removed from the Trust Fund (in which case
it
shall become a Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the limitations set
forth
in Section 2.03(d); provided, however, the Originator may not substitute for
any
Mortgage Loan which breaches a representation or warranty regarding abusive
or
predatory lending laws. In furtherance of the foregoing, if the Originator
is
not a member of MERS and repurchases a Mortgage Loan which is registered on
the
MERS® System, the Originator, 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
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 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 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. It is understood by the parties
hereto that a breach of the representations and warranties made in Section
2.06
(x), (xi), (xii), (xiii) and (xiv) shall be deemed to materially and adversely
affect the interests of the Certificateholders in the related Mortgage Loan.
(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 substitutes a Qualified Substitute Mortgage Loan or
Loans, such substitution shall be effected by the Originator delivering to
the
Trustee (or the Custodian on behalf of the Trustee), for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage and the
Assignment to the Trustee in blank, and such other documents and agreements,
with all necessary endorsements thereon, as are required by Section 2.01,
together with an Officers’ Certificate providing that each such Qualified
Substitute Mortgage Loan satisfies the definition thereof and specifying the
Substitution Adjustment (as described below), if any, in connection with such
substitution. The Trustee (or the Custodian on behalf of the Trustee) shall
acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and,
within 45 days thereafter, shall review such documents as specified in Section
2.02 and deliver, with respect to such Qualified Substitute Mortgage Loan or
Loans, a certification substantially in the form attached
hereto as Exhibit F-1
(with a
copy to the NIMS Insurer), with any applicable exceptions noted thereon. Within
one year of the date of substitution, the Trustee (or the Custodian on behalf
of
the Trustee) shall deliver to the Servicer a certification substantially in
the
form of Exhibit F-2 hereto (with a copy to the NIMS Insurer) with respect to
such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions
noted thereon. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution are not part of the Trust Fund
and
will be retained by the Originator. 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 shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Depositor
shall give or cause to be given written notice to the NIMS Insurer and the
Trustee, who shall forward such notice to the Certificateholders, that such
substitution has taken place, shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the NIMS Insurer and
the Trustee. Upon such substitution by the Originator, such Qualified Substitute
Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall
be
subject in all respects to the terms of this Agreement and the Mortgage Loan
Purchase Agreement, including all applicable representations and warranties
thereof included in the Mortgage Loan Purchase Agreement as of the date of
substitution.
For
any
month in which the Originator 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 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 the related Mortgage File or Files and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as the Originator shall deliver to it and as shall be necessary to
vest therein any Deleted Mortgage Loan released pursuant hereto.
In
addition, the Originator shall obtain at its own expense and deliver to the
Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such
substitution will not cause (a) any federal tax to be imposed on the Trust
Fund,
including without limitation, any federal tax imposed on “prohibited
transactions” under Section 860F(a)(I) of the Code or on “contributions after
the startup date” under Section 860G(d)(I) of the Code or (b) any REMIC to fail
to qualify as a REMIC at any time that any Certificate is outstanding. If such
Opinion of Counsel can not be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
(e) Upon
discovery by the Depositor, the Servicer, the NIMS Insurer or the Trustee that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code, the party discovering such fact shall within
two Business Days give written notice thereof to the other parties hereto.
In
connection therewith, the Originator or the Depositor, as the case may be,
shall
repurchase or, subject to the limitations set forth in Section 2.03(d),
substitute one or more Qualified Substitute Mortgage Loans for the affected
Mortgage Loan within 90 days of the earlier of discovery or receipt of such
notice with respect to such affected Mortgage Loan. Such repurchase or
substitution shall be made (i) by the Originator if the affected Mortgage Loan’s
status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Originator under the Mortgage
Loan Purchase Agreement or (ii) the Depositor, if the affected Mortgage Loan’s
status as a non-qualified mortgage is a breach of any representation or warranty
of the Depositor set forth in Section 2.06, or if its status as a non-qualified
mortgage is a breach of no representation or warranty. Any such repurchase
or
substitution shall be made in the same manner as set forth in Section 2.03(a)
or
2.03(d), if made by the Originator, or Section 2.03(b), if made by the
Depositor. The Trustee (or the Custodian on behalf of the Trustee) shall
reconvey to the Depositor or the Originator, as the case may be, the Mortgage
Loan to be released pursuant hereto in the same manner, and on the same terms
and conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty.
(f) In
addition to the foregoing, to the extent of a breach of the representation
of
the Depositor set forth in Section 2.06(x), the Depositor 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. The Depositor acknowledges that a breach of the
representation set forth in Section 2.06(x) will be deemed to materially
adversely affect the interests of the Certificateholders and shall require
a
repurchase of the affected Mortgage Loan.
SECTION
2.04 Intentionally
Omitted.
SECTION
2.05 Representations,
Warranties and Covenants of the Servicer.
The
Servicer hereby represents, warrants and covenants to the Trustee, for the
benefit of each of the Trustee and the Certificateholders, and to the Depositor,
that as of the Closing Date or as of such date specifically provided
herein:
(i) The
Servicer is duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in the states where the Mortgaged Property is located (or is
otherwise exempt under applicable law from such qualification) if the laws
of
such state require licensing or qualification in order to conduct business
of
the type conducted by the Servicer or to ensure the enforceability or validity
of each Mortgage Loan; the Servicer has the power and authority to execute
and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) and all documents and
instruments contemplated hereby which are executed and delivered by the Servicer
and the consummation of the transactions contemplated hereby have been duly
and
validly authorized; this Agreement and all documents and instruments
contemplated hereby which are executed and delivered by the Servicer, assuming
due authorization, execution and delivery by the other parties hereto, evidences
the valid, binding and enforceable obligation of the Servicer, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally; and all requisite
corporate action has been taken by the Servicer to make this Agreement and
all
documents and instruments contemplated hereby which are executed and delivered
by the Servicer valid and binding upon the Servicer in accordance with its
terms;
(ii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer and will not result in the material
breach of any term or provision of the charter or by-laws of the Servicer or
result in the breach of any term or provision of, or conflict with or constitute
a default under or result in the acceleration of any obligation under, any
agreement, indenture or loan or credit agreement or other instrument to which
the Servicer or its property is subject, or result in the violation of any
law,
rule, regulation, order, judgment or decree to which the Servicer or its
property is subject;
(iii) The
execution and delivery of this Agreement by the Servicer and the performance
and
compliance with its obligations and covenants hereunder do not require the
consent or approval of any governmental authority or, if such consent or
approval is required, it has been obtained;
(iv) [Reserved];
(v) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vi) There
is
no action, suit, proceeding or investigation pending or, to its knowledge,
threatened against the Servicer that, either individually or in the aggregate,
which would reasonably be expected to (A) result in any change in the business,
operations, financial condition, properties or assets of the Servicer that
might
prohibit or materially and adversely affect the performance by such Servicer
of
its obligations under, or the validity or enforceability of, this Agreement,
or
(B) result in any material impairment of the right or ability of the Servicer
to
carry on its business substantially as now conducted, or (C) draw into question
the validity or enforceability of this Agreement or of any action taken or
to be
taken in connection with the obligations of the Servicer contemplated herein,
or
(D) impair materially the ability of the Servicer to perform under the terms
of
this Agreement;
(vii) Neither
this Agreement nor any information, certificate of an officer, statement
furnished in writing or report delivered to the Trustee by the Servicer in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact;
(viii) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section 3.01; 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 (i.e., favorable and unfavorable) on its borrower
credit files to Equifax, Experian, and Trans Union Credit Information Company
(three of the credit repositories), on a monthly basis.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trustee (or the Custodian on behalf of the Trustee) and shall inure to the
benefit of the Trustee, the Depositor and the Certificateholders. Upon discovery
by any of the Depositor, the NIMS Insurer, the Servicer or the Trustee of a
breach of any of the foregoing representations, warranties and covenants which
materially and adversely affects the value of any Mortgage Loan, Prepayment
Charge or the interests therein of the Certificateholders, the party discovering
such breach shall give prompt written notice (but in no event later than two
Business Days following such discovery) to the Servicer, the NIMS Insurer and
the Trustee. Notwithstanding the foregoing, within 90 days of the earlier of
discovery by the Servicer or receipt of notice by the Servicer of the breach
of
the representation or covenant of the Servicer set forth in Section 2.05(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 or the Trustee on behalf of the
Certificateholders, pursuant to the Mortgage Loan Purchase Agreement respecting
a breach of the representations, warranties and covenants of the
Originator.
SECTION
2.06 Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trust, the Servicer and the Trustee
on
behalf of the Certificateholders as follows:
(i) This
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) Immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust of each Mortgage Loan, the Depositor had good and marketable title
to
each Mortgage Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage, security
interest, pledge, charge or other encumbrance or other interest of any
nature;
(iii) As
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust;
(iv) The
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its
creditors;
(v) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) The
Depositor is not in violation of its articles of incorporation or by-laws or
in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is a party
or
by which it or its properties may be bound, which default might result in any
material adverse changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) The
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated thereby, do not and will not
result in a material breach or violation of any of the terms or provisions
of,
or, to the knowledge of the Depositor, constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor is subject, nor
will
such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or, to the best of the Depositor’s
knowledge without independent investigation, any statute or any order, rule
or
regulation of any court or governmental agency or body having jurisdiction
over
the Depositor or any of its properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a material adverse effect
on
the ability of the Depositor to perform its obligations under this
Agreement);
(viii) To
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or Blue Sky laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
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 (or the Custodian on behalf of the Trustee) acknowledges the assignment
to it of the Mortgage Loans and the delivery to it (or the Custodian on behalf
of the Trustee) of the Mortgage Files, subject to any exceptions noted by the
Custodian in its exception report delivered pursuant to Section 2.02, together
with the assignment to it of all other assets included in the Trust Fund,
receipt of which is hereby acknowledged. Concurrently with such assignment
and
delivery and in exchange therefor, the Trustee, pursuant to the written request
of the Depositor executed by an officer of the Depositor, has executed,
authenticated and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations. The interests evidenced by the
Certificates constitute the entire beneficial ownership interest in the Trust
Fund.
SECTION
2.08 [Reserved].
SECTION
2.09 Acceptance
of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC 5 and REMIC 6 by the Trustee;
Conveyance of REMIC 1 Regular Interests, Class C Interest and Class P Interest;
Issuance of Certificates.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 Regular Interests
(which are uncertificated) and declares that it holds and will hold the same
in
trust for the exclusive use and benefit of the holders of the REMIC 1 Regular
Interests and the Class R Certificates (in respect of the Class R-1 Interest).
The interests evidenced by the Class R-1 Interest, together with the REMIC
1
Regular Interests, constitute the entire beneficial ownership interest in REMIC
1.
(b) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
1 Regular Interests for the benefit of the holders of the REMIC 2 Regular
Interests and the Class R Certificates (in respect of the Class R-2 Interest).
The Trustee acknowledges receipt of the REMIC 1 Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the holders of the REMIC 2 Regular Interests and the Class R Certificates
(in
respect of the Class R-2 Interest). The interests evidenced by the Class R-2
Interest, together with the REMIC 2 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 2.
(c) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
2 Regular Interests for the benefit of the holders of the Class A Certificates,
Mezzanine Certificates, the Class C Interest, the Class P Interest, the Class
IO
Interest and the Class R Certificates (in respect of the Class R-3 Interest).
The Trustee acknowledges receipt of the REMIC 2 Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the holders of the Class A Certificates, Mezzanine Certificates, the Class
C
Interest, the Class P Interest, the Class IO Interest and the Class R
Certificates (in respect of the Class R-3 Interest). The interests evidenced
by
the Class R-3 Interest, together with the Class A Certificates, Mezzanine
Certificates, the Class C Interest, the Class P Interest and the Class IO
Interest, constitute the entire beneficial ownership interest in REMIC
3.
(d) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
C Interest (which is uncertificated) for the benefit of the Holders of the
Class
C Certificates and the Class R-X Certificates (in respect of the Class R-4
Interest). The interests evidenced by the Class R-4 Interest, together with
the
Class C Certificates, constitute the entire beneficial ownership interest in
REMIC 4.
(e) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
P Interest (which is uncertificated) for the benefit of the Holders of the
Class
P Certificates and the Class R-X Certificates (in respect of the Class R-5
Interest). The interests evidenced by the Class R-5 Interest, together with
the
Class P Certificates, constitute the entire beneficial ownership interest in
REMIC 5.
(f) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the SWAP
IO Interest (which is uncertificated) for the benefit of the Holders of the
REMIC 6 Regular Interest SWAP IO and the Class R-X Certificates (in respect
of
the Class R-6 Interest). The interests evidenced by the Class R-6 Interest,
together with the REMIC 6 Regular Interest SWAP IO, constitute the entire
beneficial ownership interest in REMIC 6.
(g) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC 1 Regular Interests and the Class R Certificates (in
respect of the Class R-1 Interest). The interests evidenced by the Class R-1
Interest, together with the REMIC 1 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 1.
(h) In
exchange for the REMIC 2 Regular Interests and, concurrently with the assignment
to the Trustee thereof, pursuant to the written request of the Depositor
executed by an officer of the Depositor, the Trustee has executed, authenticated
and delivered to or upon the order of the Depositor, the Regular Certificates
(other than the Class C Certificates and Class P Certificates) in authorized
denominations, which Certificates, together with the Class C Interests and
Class
P Interests and the Class R Certificates (in respect of the Class R-3 Interest),
evidence the entire beneficial ownership interest in REMIC 3.
(i) In
exchange for the Class C Interest and, concurrently with the assignment to
the
Trustee thereof, pursuant to the written request of the Depositor executed
by an
officer of the Depositor, the Trustee has executed, authenticated and delivered
to or upon the order of the Depositor, the Class C Certificates in authorized
denominations, which Certificates, together with the Class R-X Certificates
(in
respect of the Class R-4 Interest), evidence the entire beneficial ownership
interest in REMIC 4.
(j) In
exchange for the Class P Interest and, concurrently with the assignment to
the
Trustee thereof, pursuant to the written request of the Depositor executed
by an
officer of the Depositor, the Trustee has executed, authenticated and delivered
to or upon the order of the Depositor, the Class P Certificates in authorized
denominations, which Certificates, together with the Class R-X Certificates
(in
respect of the Class R-5 Interest), evidence the entire beneficial ownership
interest in REMIC 5.
(k) In
exchange for REMIC 6 Regular Interest SWAP IO and, concurrently with the
assignment to the Trustee thereof, pursuant to the written request of the
Depositor executed by an officer of the Depositor, the Trustee has executed,
authenticated and delivered to or upon the order of the Depositor, REMIC 6
Regular Interest SWAP IO (which shall be uncertificated) in authorized
denominations, which, together with the Class R-X Certificates (in respect
of
the Class R-6 Interest), evidence the entire beneficial ownership interest
in
REMIC 6.
(l) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 (including the
Residual Interest therein represented by the Class R-1 Interest) and the
acceptance by the Trustee thereof, pursuant to Section 2.01, Section 2.02 and
Section 2.09(a), (ii) the assignment and delivery to the Trustee of REMIC 2
(including the Residual Interest therein represented by the Class R-2 Interest)
and the acceptance by the Trustee thereof, pursuant to Section 2.09(b), (iii)
the assignment and delivery to the Trustee of REMIC 3 (including the Residual
Interest therein represented by the Class R-3 Interest) and the acceptance
by
the Trustee thereof, pursuant to Section 2.09(c), (iv) the assignment and
delivery to the Trustee of REMIC 4 (including the Residual Interest therein
represented by the Class R-4 Interest) and the acceptance by the Trustee
thereof, pursuant to Section 2.09(d), (v) the assignment and delivery to the
Trustee of REMIC 5 (including the Residual Interest therein represented by
the
Class R-5 Interest) and the acceptance by the Trustee thereof, pursuant to
Section 2.09(e) and (vi) the assignment and delivery to the Trustee of REMIC
6
(including the Residual Interest therein represented by the Class R-6 Interest)
and the acceptance by the Trustee thereof, pursuant to Section 2.09(f), the
Trustee, pursuant to the written request of the Depositor executed by an officer
of the Depositor, has executed, authenticated and delivered to or upon the
order
of the Depositor, the Class R Certificates (evidencing the Class R-1 Interest,
the
Class
R-2 Interest
and the
Class R-3 Interest) and the Class R-X Certificates (evidencing the Class R-4
Interest, the Class R-5 Interest and the Class R-6 Interest) in authorized
denominations.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
SECTION
3.01 Servicer
to Act as Servicer.
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
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 (the “Servicing
Standard”).
To
the
extent consistent with the foregoing, the Servicer (a) shall seek the timely
and
complete recovery of principal and interest on the Mortgage Notes and (b) shall
waive
(or
permit a Sub-Servicer to waive) a Prepayment Charge only
under the following circumstances: (i) such waiver is standard and customary
in
servicing similar Mortgage Loans and (ii) such waiver 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, (iii) the collection
of
such Prepayment Charge would be in violation of applicable laws or (iv) the
Servicer has not received information and documentation sufficient to confirm
the existence or amount of such Prepayment Charge. If a Prepayment Charge is
waived as permitted by meeting the standard described in clauses (iii) or (iv)
above, then the Servicer shall make commercially reasonable efforts to attempt
to enforce the obligations of the Originator under the Mortgage Loan Purchase
Agreement to pay the amount of such waived Prepayment Charge, for the benefit
of
the Holders of the Class P Certificates; provided, however, that the Servicer
shall not be under any obligation to take any action pursuant to this paragraph
unless directed by the Depositor and provided, further, the Depositor hereby
agrees to assist the Servicer in enforcing any obligations of the Originator
to
repurchase or substitute for a Mortgage Loan which has breached a representation
or warranty under the Mortgage Loan Purchase Agreement. If the Servicer makes
a
good faith determination as evidenced by an officer’s certificate delivered by
the Servicer to the Trustee, that the Servicer’s efforts are not reasonably
expected to be successful in enforcing such rights, it shall notify the Trustee
of such failure and the Trustee, with the cooperation of the Servicer, shall
enforce the obligation of the Originator under the Mortgage Loan Purchase
Agreement to pay to the Servicer the amount of such waived Prepayment Charge.
If
the Originator fails to pay the amount of such waived Prepayment Charge in
accordance with its obligations under the Mortgage Loan Purchase Agreement,
the
Trustee, the Servicer and the Depositor shall consult on further actions to
be
taken against the Originator. The Servicer hereby acknowledges that for the
purposes of clause (iii) above, the law applicable to the enforcement of
Prepayment Charges is the law applicable to the originator of the related
Mortgage Loan. In the event the Servicer determines that (i) the foregoing
acknowledgement is no longer accurate and (ii) applicable state law would
prevent it from fully enforcing any Prepayment Charge, the Servicer shall (i)
provide notice to the Depositor at least 30 days prior to waiving any such
Prepayment Charge and (ii) provide a written opinion of counsel from a
nationally recognized law firm experienced in regulatory matters concluding
that
fully enforcing such Prepayment Charge would violate applicable
law.
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 the name of the Trust Fund, is
hereby authorized and empowered by the Trustee when the Servicer believes it
appropriate in its best judgment in accordance with the Servicing Standard,
to
execute and deliver, on behalf of the Certificateholders and the Trustee, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to
the
Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and Certificateholders. The Servicer shall
service and administer the Mortgage Loans in accordance with applicable state
and federal law and shall provide to the Mortgagors any reports required to
be
provided to them thereby. The Servicer shall also comply in the performance
of
this Agreement with all reasonable rules and requirements of each insurer under
any standard hazard insurance policy. Subject to Section 3.17, within five
(5)
days of the Closing Date, the Trustee shall execute and furnish to the Servicer
and any Sub-Servicer any special or limited powers of attorney and other
documents necessary or appropriate to enable the Servicer or any Sub-Servicer
to
carry out their servicing and administrative duties hereunder; 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 by the Servicer or any Sub-Servicers under such powers of
attorney.
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 incurred in connection with
the
actions described in the preceding sentence or as a result of MERS discontinuing
or becoming unable to continue operations in connection with the MERS® System,
shall be reimbursable to the Servicer by withdrawal from the Collection Account
pursuant to Section 3.11.
Subject
to Section 3.09 hereof, in accordance with the standards of the preceding
paragraph, the Servicer, on escrowed accounts, shall advance or cause to be
advanced funds as necessary for the purpose of effecting the 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 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.
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.
The
Servicer shall also undertake to defend, with respect to a claim against the
Trustee or the Trust, any claims against the Trust, the Trustee or itself by
a
Mortgagor which relate to or affect the servicing of any Mortgage Loan. This
shall not be construed as an assumption of liability in such matters. The
Trustee shall notify the Servicer of any such claim as soon as practicable
after
receiving notice of such claim. The Servicer shall not be liable for any delay
in responding to any claim of which it has not received timely notice. The
Trustee shall cooperate with the Servicer in all aspects of the defense of
such
claims, including the timely delivery of all relevant litigation files and
other
related information. In the event the Servicer acts on behalf of the Trustee,
the Trust or itself in any such litigation, the Trust shall pay all costs and
expenses (including attorneys’ fees, court costs, settlements and judgments)
associated with the defense and management of such claim; provided, however,
that the Servicer shall not be indemnified for any such cost or expense relating
to claims against the Servicer and incurred by reason of its willful
misfeasance, bad faith or negligence in the performance of its duties
hereunder.
Within
180 days of the Closing Date, with respect to the Mortgage Loans set forth
on
Schedule III of the Mortgage Loan Purchase Agreement, the Servicer shall deliver
to the Trustee a written field report from the Servicer or from an independent
contractor (which, in either case, need not be a qualified appraiser but who
cannot be the related Mortgagor) certifying that, based on a visual exterior
inspection conducted by such person, such related Mortgaged Property appears
not
to have been damaged materially by the recent Hurricane Xxxxxxx or Xxxx or
their
after effects.
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. The Servicer may, in connection with its duties
as Servicer hereunder, enter into transactions with any of its Affiliates
relating to the Mortgage Loans; provided, that (i) such transaction is in the
ordinary course of business of the Servicer, and (ii) the terms of such
transaction are no less favorable to the Servicer than it would obtain in a
comparable arm’s-length transaction with a person that is not an Affiliate of
the Servicer.
Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
where the related Mortgaged Properties it is to service are situated, if and
to
the extent required by applicable law to enable the Sub-Servicer to perform
its
obligations hereunder and under the Sub-Servicing Agreement and (ii) a Xxxxxxx
Mac or Xxxxxx Mae approved mortgage servicer. Each Sub-Servicing Agreement
must
impose on the Sub-Servicer requirements conforming to the provisions set forth
in Section 3.08 and provide for servicing of the Mortgage Loans consistent
with
the terms of this Agreement. The Servicer will examine each Sub-Servicing
Agreement and will be familiar with the terms thereof. The terms of any
Sub-Servicing Agreement will not be inconsistent with any of the provisions
of
this Agreement. Any variation in any Sub-Servicing Agreements from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Sub-Servicing Accounts, or credits and charges to the
Sub-Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
NIMS
Insurer and the Trustee copies of all Sub-Servicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer’s execution and
delivery of such instruments.
(b) As
part
of its servicing activities hereunder, the Servicer, for the benefit of the
Trustee and the Certificateholders, shall enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement, including, without
limitation, any obligation 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.
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 Servicer or the Trustee (if the Trustee is acting
as Servicer) without fee, in accordance with the terms of this Agreement, in
the
event that the Servicer (or the Trustee, if such party 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 or the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Sub-Servicer or reference
to actions taken through a Sub-Servicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee and the Certificateholders for
the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability
by
virtue of such Sub-Servicing Agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the
same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with a Sub-Servicer for indemnification of the Servicer by such Sub-Servicer
and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
SECTION
3.05 No
Contractual Relationship Between Sub-Servicers and the NIMS Insurer, the Trustee
or Certificateholders.
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer alone,
and the NIMS Insurer, the Trustee or 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 Trustee.
In
the
event the Servicer shall for any reason no longer be the servicer (including
by
reason of the occurrence of a Servicer Event of Termination), the Trustee,
in
addition to its duties under Section 7.02, shall thereupon assume all of the
rights and obligations of the Servicer under each Sub-Servicing Agreement that
the Servicer may have entered into, unless the Trustee elects to terminate
any
Sub-Servicing Agreement in accordance with its terms as provided in Section
3.03. Upon such assumption, the Trustee (or the successor servicer appointed
pursuant to Section 7.02) shall be deemed, subject to Section 3.03, to have
assumed all of the departing Servicer’s interest therein and to have replaced
the departing 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 that arose before
it ceased to be the Servicer and (ii) neither the Trustee nor any successor
Servicer shall be deemed to have assumed any liability or obligation of the
Servicer that arose before it ceased to be the Servicer.
The
Servicer at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreements to the assuming party. All Servicing Transfer Costs shall be paid
by
the predecessor Servicer upon presentation of reasonable documentation of such
costs, and if such predecessor Servicer is the Trustee or it defaults in its
obligation to pay such costs, such costs shall be paid by the successor Servicer
or the Trustee (in which case the successor Servicer or the Trustee, as
applicable, shall be entitled to reimbursement therefor from the assets of
the
Trust).
SECTION
3.07 Collection
of Certain Mortgage Loan Payments.
The
Servicer shall make reasonable efforts, in accordance with the Servicing
Standard, to collect all payments called for under the terms and provisions
of
the Mortgage Loans and the provisions of any applicable insurance policies
provided to the Servicer. Consistent with the foregoing, 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 the Monthly Payments due on a Mortgage Note
for
a period of not greater than 180 days; provided, however, that any extension
pursuant to clause (ii) above shall not affect the amortization schedule of
any
Mortgage Loan for purposes of any computation hereunder, except as provided
below. In the event of any such arrangement pursuant to clause (ii) above,
the
Servicer shall make timely Advances on such Mortgage Loan during such extension
pursuant to Section 4.04 and in accordance with the amortization schedule of
such Mortgage Loan without modification thereof by reason of such arrangement.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or, in the judgment of the Servicer, such default is reasonably foreseeable,
the
Servicer, consistent with the standards set forth in Section 3.01, may also
waive, modify or vary any term of such Mortgage Loan (including modifications
that would change the Mortgage Rate, forgive the payment of principal or
interest or extend the final maturity date of such Mortgage Loan), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of such Mortgage Loan, 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 number of Mortgage Loans as of
the
Cut-off Date. The Servicer's analysis supporting any forbearance and the
conclusion that any forbearance meets the standards of Section 3.01 and the
Loss
Mitigation Procedures 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; Escrow 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 and Distribution Account.
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (such account or accounts,
the
“Collection Account”), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deposit
or
cause to be deposited in the Collection Account, in no event more than two
Business Days after the Servicer’s receipt thereof, as and when received or as
otherwise required hereunder, the following payments and collections received
or
made by it subsequent to the Cut-off Date (other than in respect of principal
or
interest on the 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) on each Mortgage
Loan;
(iii) all
Insurance Proceeds, Net Liquidation Proceeds, Subsequent Recoveries and
condemnation proceeds (other than proceeds collected in respect of any
particular REO Property and amounts paid in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section 10.01);
(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 10.01;
(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 Trustee shall establish and maintain one or more
segregated, non-interest bearing trust accounts (such account or accounts,
the
“Distribution Account”), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deliver
to
the Trustee in immediately available funds for deposit in the Distribution
Account on or before 1:00 p.m. New York time on the Servicer Remittance Date,
that portion of the Available Funds (calculated without regard to the references
in the definition thereof to amounts that may be withdrawn from the Distribution
Account) 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, the amount of any funds reimbursable to
an
Advancing Person pursuant to Section 3.29 (unless such amounts are to be
remitted in another manner as specified in the documentation establishing the
related Advance Facility).
If,
by
1:00 p.m. New York time, on the Servicer Remittance Date, the Servicer fails
to
remit to the Trustee for deposit into the Distribution Account any amounts
required to be so remitted by the Servicer pursuant to this Agreement, the
Servicer shall pay to the Trustee, for its own account, interest on such amounts
at the prime rate for such date (as set forth in the Wall
Street Journal)
for the
period commencing on the Servicer Remittance Date through the Business Day
on
which such failure is remedied.
(c) Funds
in
the Collection Account and the Distribution Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give written notice to the NIMS Insurer and the Trustee of the
location of the Collection Account maintained by it when established and prior
to any change thereof. The Trustee shall give notice to the NIMS Insurer, the
Servicer and the Depositor of the location of the Distribution Account when
established and prior to any change thereof.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
to
the Trustee for deposit in an account (which may be the Distribution Account
and
must satisfy the standards for the Distribution Account as set forth in the
definition thereof) and for all purposes of this Agreement shall be deemed
to be
a part of the Collection Account; provided, however, that the Trustee shall
have
the sole authority to withdraw any funds held pursuant to this subsection (d).
In the event the Servicer shall deliver to the Trustee for deposit in the
Distribution Account any amount not required to be deposited therein, it may
at
any time request that the Trustee withdraw such amount from the Distribution
Account and remit to it any such amount, any provision herein to the contrary
notwithstanding. In addition, the Servicer, with respect to items (i) through
(iv) below, shall deliver to the Trustee from time to time for deposit, and
the
Trustee, with respect to items (i) through (iv) below, 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 10.01;
(iv) any
Compensating Interest to be deposited pursuant to Section 3.24 in connection
with any Prepayment Interest Shortfall;
(v) any
amounts required to be paid to the Trustee pursuant to the Agreement, including,
but not limited to Section 3.06 and Section 7.02; and
(vi) any
other
amounts deposited hereunder which are required to be deposited in the
Distribution Account.
SECTION
3.11 Withdrawals
from the Collection Account and Distribution Account.
(a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.04:
(i) to
remit
to the Trustee for deposit in the Distribution Account the amounts required
to
be so remitted pursuant to Section 3.10(b) or permitted to be so remitted
pursuant to the first sentence of Section 3.10(d);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for (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; or (c) subject to 4.04(b), any
unreimbursed Advances to the extent of funds held in the Collection Account
for
future distribution that were not included in Available Funds for the preceding
Distribution Date;
(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 and Insurance Proceeds 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
Servicing Advances;
(iv) to
pay to
the Servicer as additional servicing compensation (in addition to the Servicing
Fee) on the Servicer Remittance Date any interest or investment income earned
on
funds deposited in the Collection Account;
(v) to
pay
itself, the NIMS Insurer or the Originator, as applicable, 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 any enforcement expenses
reasonably incurred in respect of such breach or defect, including any expenses
arising out of the enforcement of such purchase obligations;
(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 for expenses incurred by or reimbursable to the Servicer
pursuant to Section 6.03;
(ix) to
pay
itself any Prepayment Interest Excess;
(x) to
clear
and terminate the Collection Account pursuant to Section 10.01; and
(xi) to
withdraw any amount deposited in the Collection Account and not required to
be
deposited therein.
The
foregoing requirements for withdrawal from the Collection Account shall be
exclusive. 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.
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) and (vii) above. The Servicer shall
provide written notification to the NIMS Insurer and the Trustee, 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.
(b) The
Trustee shall, from time to time, make withdrawals from the Distribution
Account, for any of the following purposes, without priority:
(i) to
make
distributions in accordance with Section 4.01;
(ii) [Reserved];
(iii) to
pay
any amounts in respect of taxes pursuant to Section 9.01(g);
(iv) to
clear
and terminate the Distribution Account pursuant to Section 10.01;
(v) to
pay
any amounts required to be paid to the Trustee pursuant to this Agreement,
including but not limited to funds required to be paid pursuant to Section
3.06,
Section 4.01, Section 7.02 and Section 8.05;
(vi) to
pay to
the Trustee, any interest or investment income earned on funds deposited in
the
Distribution Account;
(vii) to
pay to
an Advancing Person reimbursements for Advances and/or Servicing Advances
pursuant to Section 3.29; and
(viii) to
pay to
the Custodian, the Custodial Fee.
SECTION
3.12 Investment
of Funds in the Collection Account and the Distribution Account.
(a) The
Servicer may direct any depository institution maintaining the Collection
Account and any REO Account to invest the funds on deposit in such accounts
and
the Trustee may invest the funds on deposit in the Distribution Account or
hold
such funds uninvested (each such account, for the purposes of this Section
3.12,
an “Investment Account”). All investments pursuant to this Section 3.12 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 Trustee
is the obligor thereon or if such investment is managed or advised by a Person
other than the Trustee or an Affiliate of the Trustee, and (ii) no later than
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement, if the Trustee is the obligor thereon or if such
investment is managed or advised by the Trustee or any Affiliate. All such
Permitted Investments shall be held to maturity, unless payable on demand.
Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such), or in the name of a nominee of the Trustee.
The Trustee shall be entitled to sole possession (except with respect to
investment direction of funds held in the Collection Account and any REO
Account, and any income and gain realized thereon) over each such investment,
and any certificate or other instrument evidencing any such investment shall
be
delivered directly to the Trustee or its agent, together with any document
of
transfer necessary to transfer title to such investment to the Trustee or its
nominee. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Trustee
shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on deposit
in
the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account and any REO Account held by or on behalf of the Servicer
shall be for the benefit of the Servicer and shall be subject to its withdrawal
in accordance with Section 3.11, Section 3.29 or Section 3.23, as applicable.
The Servicer shall deposit in the Collection Account or any REO Account, as
applicable, the amount of any loss of principal incurred in respect of any
such
Permitted Investment made with funds in such Account immediately upon
realization of such loss.
(c) All
income and gain realized from the investment of funds deposited in the
Distribution Account shall be for the benefit of the Trustee. The Trustee 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. Notwithstanding the foregoing, the
Trustee may at its discretion, and without liability, hold the funds in the
Distribution Account uninvested.
(d) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
may and, subject to Section 8.01 and Section 8.02(a)(v), upon the request of
the
NIMS Insurer or 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.
(e) The
Trustee or its Affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments, (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 to the Trustee
pursuant to Section 3.11 or 3.12 or otherwise payable in respect of
extraordinary Trust Fund expenses.
SECTION
3.13 [Reserved].
SECTION
3.14 Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity Coverage.
(a) The
Servicer shall cause to be maintained for each Mortgage Loan hazard insurance
with extended coverage on the Mortgaged Property in an amount which is at least
equal to the lesser of (i) the current Principal Balance of such Mortgage Loan
and (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 hazard 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 unpaid
Principal Balance of the related Mortgage Loan and (ii) the maximum amount
of
such insurance available for the related Mortgaged Property under the national
flood insurance program (assuming that the area in which such Mortgaged Property
is located is participating in such program).
In
the
event that the Servicer shall obtain and maintain a blanket policy 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
Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall 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 Xxxxxx Xxx or Xxxxxxx Mac, unless the Servicer has obtained
a
waiver of such requirements from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall
be deemed to have complied with this provision if an Affiliate of the Servicer
has such errors and omissions and fidelity bond coverage and, by the terms
of
such insurance policy or fidelity bond, the coverage afforded thereunder extends
to the Servicer. Any such errors and omissions policy and fidelity bond shall
by
its terms not be cancelable without thirty days’ prior written notice to the
Trustee 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.
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 current
underwriting criteria of the Servicer for a mortgage loan similar to the related
Mortgage Loan. In connection with any assumption, modification 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, modification or substitution of liability agreement shall
be
retained by the Servicer as additional servicing compensation. In connection
with any such assumption, no material term of the Mortgage Note (including
but
not limited to the related Mortgage Rate and the amount of the Monthly Payment)
may be amended or modified, except as otherwise required pursuant to the terms
thereof. The Servicer shall notify the Trustee that any such substitution,
modification or assumption agreement has been completed by forwarding to the
Trustee the executed original of such substitution, modification or assumption
agreement, which document shall be added to the related Mortgage File and shall,
for all purposes, be considered a part of such Mortgage File to the same extent
as all other documents and instruments constituting a part thereof.
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 use its reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 3.07. Title to any such property
shall be taken in the name of the Trustee or its nominee, on behalf of the
Certificateholders, subject to applicable law. 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(a) and Section 3.23. The
foregoing is subject to the provision that, in any case in which a 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 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:
(A) 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
(B) 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)(vii), 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, clean-up 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)(vii), 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 shall deliver to the Custodian,
in
written (with two executed copies) or electronic format, a Request for Release
in the form of Exhibit E hereto (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) signed by a
Servicing Officer (or in a mutually agreeable electronic format that will,
in
lieu of a signature on its face, originate from a Servicing Officer) and shall
request delivery to it or its designee of the Mortgage File. Upon receipt of
such certification and request, the Custodian, pursuant to the Custodial
Agreement, shall release the related Mortgage File to the Servicer or its
designee (which, shall be sent by overnight mail 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 Loan, if applicable. Except as otherwise
provided herein, 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, pursuant tot eh Custodial
Agreement, shall, upon any request made by or on behalf of the Servicer and
delivery to the Custodian of two executed copies of a written Request for
Release in the form of Exhibit E hereto signed by a Servicing Officer (or in
a
mutually agreeable electronic format that will, in lieu of a signature on its
face, originate from a Servicing Officer), release the related Mortgage File
to
the Servicer or its designee within three Business Days, which, shall be sent
by
overnight mail, at the expense of the Servicer or the related Mortgagor, and
the
Trustee (or the Custodian on behalf of the Trustee) shall, at the written
direction of the Servicer, execute such documents provided to it by the Servicer
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 Trustee (or the Custodian
on
behalf of the Trustee) 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, or caused to be delivered, to the Custodian an additional Request
for
Release certifying as to such liquidation or action or proceedings. Upon the
request of the Trustee (or the Custodian on behalf of the Trustee), the Servicer
shall provide notice to the Trustee (or the Custodian on behalf of the Trustee)
of the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a Request for Release, in written (with two executed copies) or
electronic format (or in a mutually agreeable electronic format that will,
in
lieu of a signature on its face, originate from a Servicing Officer), from
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, such Mortgage Loan shall
be
released by the Trustee (or the Custodian on behalf of the Trustee) to the
Servicer or its designee within three Business Days.
(c) Upon
written certification of a Servicing Officer, the Trustee (or the Custodian
on
behalf of the Trustee) shall execute and deliver to the Servicer or the
Sub-Servicer, as the case may be, copies of any court pleadings, requests for
trustee’s sale or other documents necessary to the foreclosure or trustee’s sale
in respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain
a
deficiency judgment, or to enforce any other remedies or rights provided by
the
Mortgage Note or Mortgage or otherwise available at law or in equity. Each
such
certification shall include a request that such pleadings or documents be
executed by the Trustee (or the Custodian on behalf of 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 (or the Custodian on behalf of
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 its activities 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 3.29, 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
to the Trustee; Collection Account Statements.
Not
later
than twenty days after each Distribution Date, the Servicer shall forward to
the
NIMS Insurer and, upon request, to the Trustee and the Depositor the most
current available bank statement for the Collection Account. Copies of such
statement shall be provided by the Trustee to any Certificateholder and to
any
Person identified to the Trustee as a prospective transferee of a Certificate,
upon request at the expense of the requesting party, provided such statement
is
delivered by the Servicer to the Trustee.
SECTION
3.20 Statement
as to Compliance.
The
Servicer will deliver to the Trustee not later than March 15th
of each
calendar year, commencing in 2007, an Officers’ Certificate (an “Annual
Statement of Compliance”) stating, as to each signatory thereof, that (i) a
review of the activities of the Servicer during the preceding calendar year
and
of performance under this Agreement has been made under such officers’
supervision and (ii) to the best of such officers’ knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
in all material respects throughout such year, 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 of cure provisions
thereof. Such Annual Statement of Compliance shall contain no restrictions
or
limitations on its use. The Servicer shall deliver a similar Annual Statement
of
Compliance by any Sub-Servicer to which the Servicer has delgated any servicing
responsibilities with respect to the Mortgage Loans, to the Trustee as described
above as and when required with respect to the Servicer.
If
the
Servicer cannot deliver the related Annual Statement of Compliance by March
15th
of such
year, the Depositor, may permit a cure period for the Servicer to deliver such
Annual Statement of Compliance, but in no event later than March 20th
of such
year.
Failure
of the Servicer to timely comply with this Section 3.20 (taking into account
the
cure period if permitted as set forth in the preceding paragraph) shall be
deemed an Event of Default, and the Trustee may, in addition to whatever rights
the Trustee may have under this Agreement and at law or equity or to damages,
including injunctive relief and specific performance give notice to Noteholders
that they have ten Business Days to object. If no such objection is received,
the Trustee shall immediately terminate all the rights and obligations of the
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Servicer for the same (other than as provided
herein with respect to unreimbursed Advances or Servicing Advances or accrued
and unpaid Servicing Fees). This paragraph shall supercede any other provision
in this Agreement or any other agreement to the contrary.
The
Servicer shall indemnify and hold harmless the Depositor and the Trustee and
their respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses that such Person
may sustain based upon a breach of the Servicer's obligations under this Section
3.20.
SECTION
3.21 Assessments
of Compliance and Attestation Reports.
Pursuant
to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB,
the Servicer shall deliver to the Trustee on or before March 15th
of each
calendar year beginning in 2007, a report regarding the Servicer’s assessment of
compliance (an “Assessment of Compliance”) with the applicable Servicing
Criteria (as set forth in Exhibit S) during the preceding calendar year. The
Assessment of Compliance must contain the following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria, and
which will also be attached to the Assement of Compliance, to assess compliance
with the Servicing Criteria applicable to the Servicer;
(c) An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit S hereto which are indicated as applicable to the Servicer.
On
or
before March 15th
of each
calendar year beginning in 2007, the Servicer shall furnish to the Trustee
a
report (an “Attestation Report”) by a registered public accounting firm that
attests to, and reports on, the Assessment of Compliance made by the Servicer,
as required by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b)
of
Regulation AB, which Attestation Report must be made in accordance with
standards for attestation reports issued or adopted by the Public Company
Accounting Oversight Board.
The
Servicer shall cause and any Sub-Servicer, and each subcontractor determined
by
the Servicer to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the Trustee and the Depositor
an
Assessment of Compliance and Attestation Report as and when provided
above.
Such
Assessment of Compliance, as to any Sub-Servicer, shall address each of the
Servicing Criteria applicable to the Sub-Servicer. Notwithstanding the
foregoing, as to any subcontractor determined by the Servicer to be
“participating in the servicing function,” an Assessment of Compliance is not
required to be delivered unless it is required as part of a Form 10-K with
respect to the Trust Fund.
If
the
Servicer cannot deliver any Assessment of Compliance or Attestation Report
by
March 15th
of such
year, the Depositor, may permit a cure period for the Servicer to deliver such
Assessment of Compliance or Attestation Report, but in no event later than
March
25th
of such
year.
Failure
of the Servicer to timely comply with this Section 3.21 (taking into account
the
cure period if permitted as set forth in the preceding paragraph) shall be
deemed an Event of Default, and the Trustee may, in addition to whatever rights
the Trustee may have under this Agreement and at law or equity or to damages,
including injunctive relief and specific performance, give notice to Noteholders
that they have ten Business Days to object. If no such objection is received,
the Indenture Trustee shall immediately terminate all the rights and obligations
of the Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof without compensating the Servicer for the same (other than
as
provided herein with respect to unreimbursed Advances or Servicing Advances
or
accrued and unpaid Servicing Fees). This paragraph shall supercede any other
provision in this Agreement or any other agreement to the contrary.
The
Trustee shall also provide an Assessment of Compliance (with respect to items
(a) - (d) but not (e) above) and Attestation Report, as and when provided above,
which shall at a minimum address each of the Servicing Criteria specified on
Exhibit S hereto which are indicated as applicable to the “trustee”.
Notwithstanding the foregoing, as to any trustee, an Assessment of Compliance
is
not required to be delivered unless it is required as part of a Form 10-K with
respect to the Trust Fund.
Each
of
the Servicer and the Trustee shall indemnify and hold harmless the Depositor
and
the Trustee, as applicable and its 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 Servicer’s or
the Trustee’s obligations, as applicable, under this Section 3.21.
SECTION
3.22 Access
to
Certain Documentation; Filing of Reports by Trustee.
(a) The
Servicer shall provide to the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, 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 will be
provided to the Trustee, the NIMS Insurer and to any Person identified to the
Servicer as a prospective transferee of a Certificate, 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.
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
and the NIMS Insurer an Opinion of Counsel acceptable to the NIMS Insurer and
addressed to the Trustee, 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 separately account for all funds collected and received in
connection with the operation of any REO Property and shall establish and
maintain, or cause to be established and maintained, with respect to REO
Properties an account held in trust for the Trustee for the benefit of the
Certificateholders (the “REO Account”), which shall be an Eligible Account. The
Servicer shall be permitted to allow the 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 (subject to the
requirement of prompt disposition set forth in Section 3.23(a)) 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 REO
Account, in no event more than two Business Days after the Servicer’s receipt
thereof, all revenues received by it with respect to an REO Property and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of such REO Property including, without limitation:
(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, operate and dispose of 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, neither the Servicer nor the Trustee shall:
(A) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property, if the New Lease by its terms will give rise to any income that
does not constitute Rents from Real Property;
(B) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(C) authorize
any construction on any REO Property, other than the completion of a building
or
other improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed before default
on the related Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(D) authorize
any Person to Directly Operate any REO Property on any date more than 90 days
after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel, provided
to
the Trustee and the NIMS Insurer, to the effect that such action will not cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code at any time that it is held by the
REMIC, 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:
(E) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(F) 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;
(G) 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
(H) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.18 is sufficient to pay such fees; provided,
however, that to the extent that any payments made by such Independent
Contractor would constitute Servicing Advances if made by the Servicer, such
amounts shall be reimbursable as Servicing Advances made by the
Servicer.
(d) In
addition to the withdrawals permitted under Section 3.23(c), the Servicer may
from time to time make withdrawals from the REO Account for any REO Property:
(i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect of the
related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, the
Servicer shall withdraw from each REO Account maintained by it and deposit
into
the Distribution Account in accordance with Section 3.10(d)(ii), for
distribution on the related Distribution Date in accordance with Section 4.01,
the income from the related REO Property received during the prior calendar
month, net of any withdrawals made pursuant to Section 3.23(c) or this Section
3.23(d).
(e) Subject
to the time constraints set forth in Section 3.23(a), each REO Disposition
shall
be carried out by the Servicer in a manner, at such price and upon such terms
and conditions as shall be normal and usual in the Servicing
Standard.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above, shall
be
deposited in the 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 the Code. Such reports
shall be in form and substance sufficient to meet the reporting requirements
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 remit to 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 Trustee 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 [Reserved].
SECTION
3.26 Obligations
of the Servicer in Respect of Mortgage Rates and Monthly Payments.
In
the
event that a shortfall in any collection on or liability with respect to the
Mortgage Loans in the aggregate 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 deposit in the Collection Account from its
own
funds the amount of any such shortfall and shall indemnify and hold harmless
the
Trust Fund, the Trustee, the Depositor and any successor servicer in respect
of
any such liability. Such indemnities shall survive the termination or discharge
of this Agreement. Notwithstanding the foregoing, this Section 3.26 shall not
limit the ability of the Servicer to seek recovery of any such amounts from
the
related Mortgagor under the terms of the related Mortgage Note, as permitted
by
law.
SECTION
3.27 Solicitations.
From
and
after the Closing Date, the Servicer agrees that it will not take any action
or
permit or cause any action to be taken by any of its agents and Affiliates,
or
by any independent contractors or independent mortgage brokerage companies
on
the Servicer's behalf, to personally, by telephone, mail or electronic mail,
solicit the Mortgagor under any Mortgage Loan for the purpose of refinancing
such Mortgage Loan; provided,
that
the Servicer may solicit any Mortgagor for whom the Servicer has received a
request for verification of mortgage, a request for demand for payoff, a
mortgagor initiated written or verbal communication indicating a desire to
prepay the related Mortgage Loan, another mortgage company has pulled a credit
report on the mortgagor or the mortgagor initiates a title search; provided
further, it is understood and agreed that promotions undertaken by the Servicer
or any of its Affiliates which (i) concern optional insurance products or other
additional products or (ii) are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section, nor is the Servicer prohibited
from
responding to unsolicited requests or inquiries made by a Mortgagor or an agent
of a Mortgagor. Furthermore, the Servicer shall be permitted to include in
its
monthly statements to borrowers or otherwise, statements regarding the
availability of the Servicer's counseling services with respect to refinancing
mortgage loans.
Notwithstanding
the foregoing, with respect to any Fixed Rate Mortgage Loan, the Servicer may
solicit the Mortgagor for the purpose of refinancing such Mortgage Loan,
beginning 60 days prior to the later of (i) the expiration of the related
Prepayment Charge term, if applicable and (ii) 24 months following origination
of such Mortgage Loan and with respect to any Adjustable Rate Mortgage Loan,
the
Servicer may solicit the Mortgagor for the purpose of refinancing such Mortgage
Loan, beginning 60 days prior to the later of (i) the expiration of the related
Prepayment Charge term, if applicable and (ii) the expiration of any applicable
fixed rate period.
SECTION
3.28 [Reserved].
SECTION
3.29 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 or 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 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
3.29.
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 3.29 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 3.29, 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
with
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 Advances 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
3.30 Pool
Policy
The
Servicer shall prepare and file on a timely basis with the Pool Insurer, all
claims which may be made under the Pool Policy with respect to the covered
Mortgage Loans. The Servicer shall enforce the obligations of the Servicer
to
take all actions required under the Pool Policy as a condition to the payment
of
any such claim. The Trustee agrees to hold the Pool Policy, substantially in
the
form attached as Exhibit O hereto. Upon termination of the Trust Fund pursuant
to Section 10.01 or expiration of the Pool Policy, the Trustee will return
the
Pool Policy to the Pool Insurer.
ARTICLE
IV
FLOW
OF
FUNDS
SECTION
4.01 Distributions.
(a) (I)
On
each Distribution Date, the Trustee shall, first, withdraw from the Distribution
Account an amount equal to the Credit Risk Manager Fee for such Distribution
Date and shall pay such amount to the Credit Risk Manager and, then, withdraw
that portion of Available Funds for such Distribution Date consisting of the
Group I Interest Remittance Amount for such Distribution Date, and make the
following disbursements and transfers in the order of priority described below,
in each case to the extent of the Group I Interest Remittance Amount remaining
for such Distribution Date:
(i) to
the
Holders of the Group I Certificates, the Monthly Interest Distributable Amount
and the Unpaid Interest Shortfall Amount, if any, for such Class;
and
(ii) concurrently,
to the Holders of the Group II Certificates, on a pro
rata basis
based on the entitlement of each such Class, an amount equal to the excess,
if
any, of (x) the amount required to be distributed pursuant to Section
4.01(a)(II)(i) below for such Distribution Date over (y) the amount actually
distributed pursuant to such clause from the Group II Interest Remittance
Amount.
(II) On
each
Distribution Date the Trustee shall withdraw from the Distribution Account
that
portion of Available Funds for such Distribution Date consisting of the Group
II
Interest Remittance Amount for such Distribution Date, and make the following
disbursements and transfers in the order of priority described below, in each
case to the extent of the Group II Interest Remittance Amount remaining for
such
Distribution Date.
(iii) 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
(iv) 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
and the Class M-9 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:
(iii) 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
(iv) 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 and the Class M-9 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:
(v) 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
(vi) 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:
(vii) 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
(viii) 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:
(ix) 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;
(x) 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;
(xi) 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;
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) 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;
and
(xvi) 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.
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 and the Class C Certificates
has
been reduced to zero, all principal distributions will be distributed
concurrently, to the Holders of the Class A Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class.
(c) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed as
follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Group I Principal Distribution Amount and/or the Group II Principal Distribution
Amount as described under Section 4.01(b) above;
(ii) sequentially,
to the Holders of the Class M-1 Certificates, Class M-2 Certificates, Class
M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates and Class M-9
Certificates in that order, in each case, first, up to the Unpaid Interest
Shortfall Amount for each such Class and second, up to the Allocated Realized
Loss Amount, for each such Class;
(iii) to
the
Net WAC Rate Carryover Reserve Account, the amount of any Net WAC Rate Carryover
Amounts, without taking into account amounts, if any, received under the
Interest Rate Swap Agreement;
(iv) to
the
Supplemental Interest Trust Trustee for payment 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 Class A and Mezzanine Certificates have
been reduced to zero, any remaining amounts in reduction of the Certificate
Principal Balance of the Class C Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(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 Trustee shall withdraw from the Net WAC Rate Carryover Reserve
Account, to the extent of amounts remaining on deposit therein, the aggregate
of
any Net WAC Rate Carryover Amounts for such Distribution Date and distribute
such amount in the following order of priority:
(i) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, on a pro
rata
basis
based on the Net WAC Rate Carryover Amount for each such Class; and
(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 and Class M-9 Certificates in that order, the related Net WAC
Rate
Carryover Amount.
(e) On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow and amounts on deposit in the Net WAC Rate Carryover
Reserve Account as set forth above, the Trustee shall distribute the amount
on
deposit in the Swap Account as follows:
(i) to
the
Supplemental Interest Trust Trustee for payment 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
Supplemental Interest Trust Trustee for payment to the Swap Provider, any Swap
Termination Payment owed to the Swap Provider not due to a Swap Provider Trigger
Event pursuant to the Interest Rate Swap Agreement;
(iii) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed after the distributions of the Group I Interest Remittance Amount
and the Group II Interest Remittance Amount, on a pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(iv) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, the related Monthly
Interest Distributable Amount and Unpaid Interest Shortfall Amount, to the
extent remaining undistributed after the distributions of the Group I Interest
Remittance Amount, the Group II Interest Remittance Amount and the Net Monthly
Excess Cashflow;
(v) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Group I Principal Distribution Amount and/or the Group II Principal Distribution
Amount, after taking into account distributions made pursuant to Section
4.01(a)(4)(i);
(vi) sequentially
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, in each case up to
the
related Allocated Realized Loss Amount related to such Certificates for such
Distribution Date remaining undistributed after distribution of the Net Monthly
Excess Cashflow;
(vii) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, to the extent remaining undistributed after distributions are made
from
the Net WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(viii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates, in that order, the related Net WAC
Rate Carryover Amount, to the extent remaining undistributed after distributions
are made from the Net WAC Rate Carryover Reserve Account; and
(ix) any
remaining amounts to the Holders of the Class C Certificates.
(f) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and any Servicer
Prepayment Charge Payment Amounts paid by the Servicer during the related
Prepayment Period will be withdrawn from the Distribution Account and
distributed by the Trustee to the Holders of the Class P Certificates and shall
not be available for distribution to the Holders of any other Class of
Certificates. The payment of the foregoing amounts to the Holders of the Class
P
Certificates shall not reduce the Certificate Principal Balances
thereof.
(g) The
Trustee shall make distributions in respect of a Distribution Date to each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 respecting the final distribution), in the case of
Certificateholders of the Regular Certificates, by check or money order mailed
to such Certificateholder at the address appearing in the Certificate Register,
or by wire transfer. Distributions among Certificateholders shall be made in
proportion to the Percentage Interests evidenced by the Certificates held by
such Certificateholders.
(h) Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit the amount of such distribution to the accounts
of its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Depositor or the Servicer shall have
any
responsibility therefor except as otherwise provided by applicable
law.
On
each
Distribution Date, following the foregoing distributions, an amount equal to
the
amount of Subsequent Recoveries deposited into the Collection Account pursuant
to Section 3.10 shall be applied to increase the Certificate Principal Balance
of the Class of Certificates with the Highest Priority up to the extent of
such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.08. An amount equal to the amount of any remaining Subsequent
Recoveries shall be applied to increase the Certificate Principal Balance of
the
Class of Certificates with the next Highest Priority, up to the amount of such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.08. Holders of such Certificates will not be entitled to any
distribution in respect of interest on the amount of such increases for any
Interest Accrual Period preceding the Distribution Date on which such increase
occurs. Any such increases shall be applied to the Certificate Principal Balance
of each Certificate of such Class in accordance with its respective Percentage
Interest.
(i) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests and that the Residual Certificates are to receive no principal
and interest. If the Trustee determines that the Residual Certificates are
entitled to any distributions, the Trustee, prior to any such distribution
to
any Residual Certificate, shall notify the Depositor of such impending
distribution but shall make such distribution in accordance with the terms
of
this Agreement until this Agreement is amended as specified in the following
sentence. Upon such notification, the Depositor will request an amendment to
the
Pooling and Servicing Agreement to revise such mistake in the distribution
provisions. The Residual Certificate Holders, by acceptance of their
Certificates, and the Servicer(s), hereby agree to any such amendment and no
further consent shall be necessary, notwithstanding anything to the contrary
in
Section 11.01 of this Pooling and Servicing Agreement; provided, however, that
such amendment shall otherwise comply with Section 11.01 hereof.
SECTION
4.02 [Reserved].
SECTION
4.03 Statements.
(a) On
each
Distribution Date, based, as applicable, on information provided to it by the
Servicer, the Trustee shall prepare and make available to each Holder of the
Regular Certificates, the NIMS Insurer, the Servicer, the Swap Provider 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 and the Senior Credit
Enhancement Percentage as of such Distribution Date and the Excess
Overcollateralized Amount for the Mortgage Pool for such Distribution
Date;
(iv) the
fees
and expenses of the Trust Fund accrued and paid on such Distribution Date and
to
whom such fees and expenses were paid;
(v) the
aggregate amount of Advances for the related Due Period (including the general
purpose of such Advances);
(vi) the
aggregate Principal Balance of the Mortgage Loans and any REO Properties as
of
the end of the relted Due Period;
(vii) the
number, aggregate Stated Principal Balance, weighted average remaining term
to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of the
related Determination Date;
(viii) the
number and aggregate unpaid Stated Principal Balance of Mortgage Loans that
were
(A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and
REO
Properties) 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
Delinquency Percentage and the Realized Loss Percentage;
(xii) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period and the cumulative amount of Realized Losses and the aggregate amount
of
Subsequent Recoveries received during the related Prepayment Period and the
cumulative amount of Subsequent Recoveries received since the Closing
Date;
(xiii) the
aggregate amount of extraordinary Trust Fund expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(xiv) the
Certificate Principal Balance of each Class of Class A Certificates, Mezzanine
Certificates and the Class C Certificates, before and after giving effect to
the
distributions, and allocations of Realized Losses, made on such Distribution
Date;
(xv) the
Monthly Interest Distributable Amount in respect of each Class of Class A
Certificates, Mezzanine Certificates and the Class C Certificates for such
Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect
to each Class of Class A Certificates, Mezzanine Certificates and the Class
C
Certificates for such Distribution Date;
(xvi) the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to Section
3.24;
(xvii) the
Net
WAC Rate Carryover Amount for each Class of Class A and Mezzanine Certificates,
if any, for such Distribution Date and the amount remaining unpaid after
reimbursements therefor on such Distribution Date;
(xviii) whether
the Stepdown Date or a Trigger Event has occurred;
(xix) the
total
cashflows received and the general sources thereof;
(xx) the
respective Pass-Through Rates applicable to each Class of Class A Certificates,
Mezzanine Certificates and the Class C Certificates for such Distribution Date
and the Pass-Through Rate applicable to each Class of Class A and Mezzanine
Certificates for the immediately succeeding Distribution Date;
(xxi) the
amount of any Net Swap Payments or Swap Termination Payments; and
(xxii) the
applicable Record Dates, Accrual Periods and Determination Dates for calculating
distributions for such Distribution Date.
The
Trustee will make such statement (and, at its option, any additional files
containing the same information in an alternative format) available each month
to Certificateholders, the NIMS Insurer, the Credit Risk Manager and the Rating
Agencies via the Trustee’s internet website. The Trustee’s internet website
shall initially be located at “xxxxx://xxx.xxx.xx.xxx/xxxx”. Assistance in using
the website can be obtained by calling the Trustee’s customer service desk at
(000) 000-0000. Parties that are unable to use the above distribution option
are
entitled to have a paper copy mailed to them via first class mail by calling
the
customer service desk and indicating such. The Trustee shall have the right
to
change the way such statements are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
the
Trustee shall provide timely and adequate notification to all above parties
regarding any such changes. As a condition to access to the Trustee’s internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee will not be liable for the dissemination of information
in accordance with this Agreement. The Trustee shall also be entitled to rely
on
but shall not be responsible for the content or accuracy of any information
provided by third parties for purposes of preparing the Distribution Date
statement and may affix thereto any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party thereto).
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Cut-off
Date.
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.
(b) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall, upon written request, furnish to the NIMS Insurer and each Person who
at
any time during the calendar year was a Certificateholder of a Regular
Certificate, if requested in writing by such Person, such information as is
reasonably necessary to provide to such Person a statement containing the
information set forth in subclauses (i) and (ii) above, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
prepared and furnished by the Trustee to Certificateholders pursuant to any
requirements of the Code as are in force from time to time.
(c) On
each
Distribution Date, the Trustee shall make available to the NIMS Insurer and
the
Residual Certificateholders a copy of the reports forwarded to the Regular
Certificateholders in respect of such Distribution Date with such other
information as the Trustee deems necessary or appropriate.
(d) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
deliver to the NIMS Insurer, upon request, and each Person who at any time
during the calendar year was a Residual Certificateholder, if requested in
writing by such Person, such information as is reasonably necessary to provide
to such Person a statement containing the information provided pursuant to
the
previous paragraph aggregated for such calendar year or applicable portion
thereof during which such Person was a Residual Certificateholder. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be prepared and furnished to
Certificateholders by the Trustee pursuant to any requirements of the Code
as
from time to time in force.
(e) On
each
Distribution Date, the Trustee 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.
SECTION
4.04 Remittance
Reports; Advances.
(a) By
the
third Business Day following each Determination Date, but in no event later
than
the earlier of (i) such date which would allow the indenture trustee to submit
a
claim to the NIMS Insurer under the Indenture so as to allow a timely payment
by
the NIMS Insurer under the insurance policy related to the notes insured by
the
NIMS Insurer and (ii) the 20th
day of
each month (or if such 20th
day is
not a Business Day, the preceding Business Day), the Servicer shall deliver
to
the Trustee and the Trustee shall make available to the NIMS Insurer, by
telecopy or electronic mail (or by such other means as the Servicer and the
Trustee may agree from time to time) a Remittance Report with respect to the
related Distribution Date, which Remittance Reports the Trustee shall use in
preparing the statement pursuant to Section 4.03. No later than the 20th day
of
each month, the Servicer shall deliver or cause to be delivered to the Trustee
in addition to the information provided on the Remittance Report, such other
information reasonably available to it with respect to the Mortgage Loans as
the
Trustee may reasonably require to perform the calculations necessary to (i)
make
the distributions contemplated by Section 4.01, (ii) to prepare the statements
to Certificateholders contemplated by Section 4.03 and (iii) to prepare the
Form
10-D contemplated by Section 4.07. The Trustee shall not be responsible to
recompute, recalculate or verify any information provided to it by the
Servicer.
(b) The
amount of Advances to be made by the Servicer for any Distribution Date shall
equal, subject to Section 4.04(d), the sum of (i) the aggregate amount of
Monthly Payments (net of the related Servicing Fee), due during the related
Due
Period in respect of the Mortgage Loans, which Monthly Payments were delinquent
on a contractual basis as of the Close of Business on the related Determination
Date and (ii) with respect to each REO Property, which REO Property was acquired
during or prior to the related Due Period and as to which REO Property an REO
Disposition did not occur during the related Due Period, an amount equal to
the
excess, if any, of the REO Imputed Interest on such REO Property for the most
recently ended calendar month, over the net income from such REO Property
transferred to the Distribution Account pursuant to Section 3.23 for
distribution on such Distribution Date. For purposes of the preceding sentence,
the Monthly Payment on each Balloon Mortgage Loan with a delinquent Balloon
Payment is equal to the assumed monthly payment that would have been due on
the
related Due Date based on the original principal amortization schedule for
such
Balloon Mortgage Loan.
On
or
before 1:00 p.m. New York time on the Servicer Remittance Date, the Servicer
shall remit in immediately available funds to the Trustee for deposit in the
Distribution Account an amount equal to the aggregate amount of Advances, if
any, to be made in respect of the Mortgage Loans and REO Properties for the
related Distribution Date either (i) from its own funds or (ii) from the
Collection Account, to the extent of funds held therein for future distribution
(in which case it will cause to be made an appropriate entry in the records
of
Collection Account that amounts held for future distribution have been, as
permitted by this Section 4.04, used by the Servicer in discharge of any such
Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the
total amount of Advances to be made by the Servicer with respect to the Mortgage
Loans and REO Properties. Any amounts held for future distribution used by
the
Servicer to make an Advance as permitted in the preceding sentence or withdrawn
by the Servicer as permitted in Section 3.11(a)(ii) in reimbursement for
Advances previously made shall be appropriately reflected in the Servicer’s
records and replaced by the Servicer by deposit in the Collection Account on
or
before any future Servicer Remittance Date to the extent that the Available
Funds for the related Distribution Date (determined without regard to Advances
to be made on the Servicer Remittance Date) shall be less than the total amount
that would be distributed to the Classes of Certificateholders pursuant to
Section 4.01 on such Distribution Date if such amounts held for future
distributions had not been so used to make Advances. The Trustee will provide
notice to the NIMS Insurer and the Servicer by telecopy by the Close of Business
on any Servicer Remittance Date in the event that the amount remitted by the
Servicer to the Trustee on such date is less than the Advances required to
be
made by the Servicer for the related Distribution Date, as set forth in the
related Remittance Report.
(c) The
obligation of the Servicer to make such Advances is mandatory, notwithstanding
any other provision of this Agreement but subject to (d) below, and, with
respect to any Mortgage Loan, shall continue until the Mortgage Loan is paid
in
full or until all Liquidation Proceeds thereon have been recovered, or a Final
Recovery Determination has been made thereon.
(d) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by the Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance or Servicing Advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officers’ Certificate of the Servicer
delivered to the NIMS Insurer, the Depositor and the Trustee.
SECTION
4.05 Swap
Account.
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit: (i) the Interest Rate
Swap Agreement and (ii) the Swap Administration Agreement. The Supplemental
Interest Trust shall be maintained by the Supplemental Interest Trust Trustee,
who initially, shall be the Trustee. No later than the Closing Date, the
Supplemental Interest Trust Trustee shall establish and maintain a separate,
segregated trust account to be held in the Supplemental Interest Trust, titled,
“Swap Account, Deutsche Bank National Trust Company, as Supplemental Interest
Trust Trustee, in trust for the registered Certificateholders of Soundview
Home
Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4.” Such account
shall be an Eligible Account and funds on deposit therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Trustee held pursuant to this Agreement.
Amounts therein shall be held uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the 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
distribution in accordance with Section 4.01(e) hereof and (ii) amounts received
by the Supplemental Interest Trust Trustee from the Swap Administrator, for
distribution in accordance with Section 4.01(e) hereof, pursuant to the Swap
Administration Agreement, dated as of the Closing Date (the “Swap Administration
Agreement”), among Deutsche Bank National Trust Company, in its capacity as
Supplemental Interest Trust Trustee, Deutsche Bank National Trust Company,
in
its capacity as Swap Administrator and the majority Holder of the Class C
Certificates. For federal income tax purposes, any amounts paid to the Swap
Provider on each Distribution Date shall first be deemed paid to the Swap
Provider in respect of REMIC 6 Regular Interest SWAP IO to the extent of the
amount distributable on REMIC 6 Regular Interest SWAP IO on such Distribution
Date, and any remaining amount shall be deemed paid to the Swap Provider in
respect of a Class IO Distribution Amount (as defined below).
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the Holder of the Class C Certificates unless and until
the date when either (a) there is more than one Class C Certificateholder or
(b)
any Class of Certificates in addition to the Class C Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Supplemental Interest Trust be treated as a partnership. The
Supplemental Interest Trust will be an “outside reserve fund” within the meaning
of Treasury Regulation Section 1.860G-2(h).
(d) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Supplemental Interest Trust Trustee, any obligation of the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
shall
be deemed to be an obligation of the Supplemental Interest Trust.
(e) The
Trustee shall treat the Holders of Certificates (other than the Class P, Class
C, Class R and Class R-X Certificates) as having entered into a notional
principal contract with respect to the Holders of the Class C Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class C, Class R and Class R-X Certificates) shall
be
treated as having agreed to pay, on each Distribution Date, to the Holder of
the
Class C Certificates an aggregate amount equal to the excess, if any, of (i)
the
amount payable on such Distribution Date on the REMIC 3 Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on
such
Class of Certificates on such Distribution Date (such excess, a “Class IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the excess of (a) the amount of interest otherwise
payable to such Certificates over (ii) the amount of interest payable to such
Certificates at a per annum rate equal to the Net WAC Rate, and a Class IO
Distribution Amount payable from principal collections shall be allocated to
the
most subordinate Class of Certificates with an outstanding principal balance
to
the extent of such balance. In addition, pursuant to such notional principal
contract, the Holder of the Class C Certificates shall be treated as having
agreed to pay Net WAC Rate Carryover Amounts to the Holders of the Certificates
(other than the Class CE, Class P and Class R Certificates) in accordance with
the terms of this Agreement. Any payments to the Certificates from amounts
deemed received in respect of this notional principal contract shall not be
payments with respect to a Regular Interest in a REMIC within the meaning of
Code Section 860G(a)(1). However, any payment from the Certificates (other
than
the Class CE, Class P, Class R and Class R-X Certificates) of a Class IO
Distribution Amount shall be treated for tax purposes as having been received
by
the Holders of such Certificates in respect of their interests in REMIC 3 and
as
having been paid by such Holders to the Swap Administrator pursuant to the
notional principal contract. Thus, each Certificate (other than the Class P,
Class R and Class R-X Certificates) shall be treated as representing not only
ownership of Regular Interests in REMIC 3, but also ownership of an interest
in,
and obligations with respect to, a notional principal contract.
SECTION
4.06 Tax
Treatment of Swap Payments and Swap Termination Payments.
For
federal income tax purposes, each holder of a Class A and Mezzanine Certificate
is deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Net WAC Rate
Carryover Reserve Account or the Swap Account in respect of the Net WAC Rate
Carryover Amount or the obligation to make payments to the Swap Account. For
federal income tax purposes, the Trustee will account for payments to each
Class
A and Mezzanine Certificates as follows: each Class A and Mezzanine Certificate
will be treated as receiving their entire payment from REMIC 3 (regardless
of
any Swap Termination Payment or obligation under the Interest Rate Swap
Agreement) and subsequently paying their portion of any Swap Termination Payment
in respect of each such Class’ obligation under the Interest Rate Swap
Agreement. In the event that any such Class is resecuritized in a REMIC, the
obligation under the Interest Rate Swap Agreement to pay any such Swap
Termination Payment (or any shortfall in the Net Swap Payment), will be made
by
one or more of the REMIC Regular Interests issued by the resecuritization REMIC
subsequent to such REMIC Regular Interest receiving its full payment from any
such Class A or Mezzanine Certificate.
The
REMIC
regular interest corresponding to a Class A or Mezzanine Certificate will be
entitled to receive interest and principal payments at the times and in the
amounts equal to those made on the certificate to which it corresponds, except
that (i) the maximum interest rate of that REMIC regular interest will equal
the
Net WAC Rate computed for this purpose by limiting the Base Calculation Amount
of the Interest Rate Swap Agreement to the aggregate Stated Principal Balance
of
the Mortgage Loans and (ii) any Swap Termination Payment will be treated as
being payable solely from Net Monthly Excess Cashflow. As a result of the
foregoing, the amount of distributions and taxable income on the REMIC regular
interest corresponding to a Class A or Mezzanine Certificate may exceed the
actual amount of distributions on such Certificate
SECTION
4.07 Commission
Reporting.
(a) The
Trustee and the Servicer shall reasonably cooperate with the Depositor in
connection with the Trust’s satisfying the reporting requirements under the
Exchange Act.
(b) (i)
Within 12 calender days after each Distribution Date, the Trustee shall, in
accordance with industry standards, file with the Commission via the Electronic
Data Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form
10-D, signed by the Depositor, with a copy of the monthly statement to be
furnished by the Trustee to the Certificateholders for such Distribution Date.
Any disclosure in addition to the monthly statement required to be included
on
the Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and
prepared by the entity that is indicated in Exhibit T as the responsible party
for providing that information, if other than the Trustee, and the Trustee
will
have no duty or liability to verify the accuracy or sufficiency of any such
Additional Form 10-D Disclosure and the Trustee shall have no liability with
respect to any failure to properly prepare or file such Form 10-D resulting
from
or relating to the Trustee’s inability or failure to obtain any information in a
timely manner from the party responsible for delivery of such Additional Form
10-D Disclosure.
Within
3
calendar days after the related Distribution Date, each entity that is indicated
in Exhibit T as the responsible party for providing Additional Form 10-D
Disclosure shall be required to provide to the Trustee and the Depositor, to
the
extent known, clearly identifying which item of Form 10-D the information
relates to, any Additional Form 10-D Disclosure, if applicable. The Trustee
shall compile the information provided to it, prepare the Form 10-D and forward
the Form 10-D to the Depositor for verification. The Depositor will approve,
as
to form and substance, or disapprove, as the case may be, the Form 10-D. No
later than three Business Days prior to the 10th
calendar
day after the related Distribution Date, an officer of the Depositor shall
sign
the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the
Trustee. The
Indenture Trustee shall have no liability with respect to any failure to
properly file any Form 10-D resulting from or relating to the Depositor’s
failure to timely comply with the provisions of this section.
(ii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare
and file any Form 8-K, as required by the Exchange Act, in addition to the
initial Form 8-K in connection with the issuance of the Certificates. Any
disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be
determined and prepared by the entity that is indicated in Exhibit T as the
responsible party for providing that information.
For
so
long as the Trust is subject to the Exchange Act reporting requirements, no
later than the end of business on the second Business Day after the occurrence
of a Reportable Event, the entity that is indicated in Exhibit T as the
responsible party for providing Form 8-K Disclosure Information shall be
required to provide to the Depositor, to the extent known, the form and
substance of any Form 8-K Disclosure Information, if applicable. The Depositor
shall compile the information provided to it, and prepare and file the Form
8-K,
which shall be signed by an officer of the Depositor.
(iii) Prior
to
January 30 of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall, in accordance with industry standards, file
a
Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On
or
before (x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice
shall have been filed, on or before March 15 of each year thereafter, the
Servicer shall provide the Trustee with an Annual Compliance Statement, together
with a copy of the Assessment of Compliance and Attestation Report to be
delivered by the Servicer pursuant to Sections 3.20 and 3.21 (including with
respect to any Sub-Servicer or any subcontractor, if required to be filed).
Prior to (x) March 31, 2007 and (y) unless and until a Form 15 Suspension Notice
shall have been filed, March 31 of each year thereafter, the Trustee shall
file
a Form 10-K, in substance as required by applicable law or applicable Securities
and Exchange Commission staff’s interpretations and conforming to industry
standards, with respect to the Trust Fund. Such Form 10-K shall include the
Assessment of Compliance, Attestation Report, Annual Compliance Statements
and
other documentation provided by the Servicer pursuant to Sections 3.20 and
3.21
(including with respect to any Sub-Servicer or subcontractor, if required to
be
filed) and Section 3.21 with respect to the Trustee, and the Form 10-K
certification in the form attached hereto as Exhibit N-1 (the “Certification”)
signed by the senior officer of the Depositor in charge of securitization.
The
Trustee shall receive the items described in the preceding sentence no later
than March 15 of each calendar year prior to the filing deadline for the Form
10-K.
Any
disclosure or information in addition to that described in the preceding
paragraph that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be determined and prepared by the entity that is indicated in
Exhibit T as the responsible party for providing that information, if other
than
the Trustee, and the Trustee will have no duty or liability to verify the
accuracy or sufficiency of any such Additional Form 10-K
Disclosure.
If
information, data and exhibits to be included in the Form 10-K are not so timely
delivered, the Trustee shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the
Trustee. The Trustee shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to
the
Trustee’s inability or failure to timely obtain any information from any other
party.
Prior
to
(x) March 1, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 1 of each year thereafter, each entity that
is
indicated in Exhibit T as the responsible party for providing Additional Form
10-K Disclosure shall be required to provide to the Trustee and the Depositor,
to the extent known, the form and substance of any Additional Form 10-K
Disclosure Information, if applicable. The Trustee shall compile the information
provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor
for verification. The Depositor will approve, as to form and substance, or
disapprove, as the case may be, the Form 10-K by no later than March 25 of
the
relevant year (or the immediately preceding Business Day if March 25 is not
a
Business Day), an officer of the Depositor shall sign the Form 10-K and return
an electronic or fax copy of such signed Form 10-K (with an original executed
hard copy to follow by overnight mail) to the Trustee.
The
Servicer shall be responsible for determining the pool concentration applicable
to any Sub-Servicer to which the Servicer delegated any of its responsibilities
with respect to the Mortgage Loans at any time, for purposes of disclosure
as
required by Items 1117 and 1119 of Regulation AB. The Trustee will provide
electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge
to any Certificateholder upon request. Any expenses incurred by the Trustee
in
connection with the previous sentence shall be reimbursable to the Trustee
out
of the Trust Fund. The Indenture Trustee shall have no liability with respect
to
any failure to properly file any Form 10-K resulting from or relating to the
Depositor’s failure to timely comply with the provisions of this
section.
The
Trustee shall sign a certification (in the form attached hereto as
Exhibit N-2) for the benefit of the Depositor and its officers, directors
and Affiliates in respect of items 1 through 3 of the Certification (provided,
however, that the Trustee shall not undertake an analysis of the Attestation
Report attached as an exhibit to the Form 10-K), and the Servicer shall sign
a
certification (the “Servicer Certification) solely with respect to the Servicer
(in the form attached hereto as Exhibit N-3) for the benefit of the
Depositor, the Trustee and each Person, if any, who “controls” the Depositor or
the Trustee within the meaning of the Securities Act of 1933, as amended, and
their respective officers and directors. Each such certification shall be
delivered to the Depositor and the Trustee by March 15th
of each
year (or if not a Business Day, the immediately preceding Business Day). The
Certification attached hereto as Exhibit N-1 shall be delivered to the
Trustee by March 20th
for
filing on or prior to March 30th
of each
year (or if not a Business Day, the immediately preceding Business
Day).
(c) (A)
The
Trustee shall indemnify and hold harmless the Depositor, the Servicer and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon (i) a breach of the Trustee’s obligations under this Section 4.07 caused by
the Trustee’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Assessment of
Compliance delivered by the Trustee pursuant to Section 3.21, and (B) the
Servicer shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon (i) the failure of the Servicer to timely deliver the Servicer
Certification or (ii) any material misstatement or omission in the Statement
as
to Compliance delivered by the Servicer pursuant to Section 3.20, the Assessment
of Compliance delivered by the Servicer pursuant to Section 3.21 or the Servicer
Certification. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Depositor, then (i) the Trustee agrees that
it
shall contribute to the amount paid or payable by the Depositor as a result
of
the losses, claims, damages or liabilities of the Depositor in such proportion
as is appropriate to reflect the relative fault of the Depositor on the one
hand
and the Trustee on the other in connection with a breach of the Trustee’s
obligations under this Section 4.07 caused by the Trustee’s negligence, bad
faith or willful misconduct in connection therewith and (ii) the Servicer agrees
that it shall contribute to the amount paid or payable by the Depositor and
the
Trustee as a result of the losses, claims, damages or liabilities of the
Depositor and the Trustee in such proportion as is appropriate to reflect the
relative fault of the Depositor and the Trustee on the one hand and the Servicer
on the other in connection with the Servicer Certification and the related
obligations of the Servicer under this Section 4.07.
Upon
any
filing with the Securities and Exchange Commission, the Trustee shall promptly
deliver to the Depositor a copy of any such executed report, statement or
information.
SECTION
4.08 Net
WAC
Rate Carryover Reserve Account.
No
later
than the Closing Date, the Trustee shall establish and maintain with itself
a
separate, segregated trust account titled, “Net WAC Rate Carryover Reserve
Account, Deutsche Bank National Trust Company, as Trustee, in trust for
registered Holders of Soundview Home Loan Trust 2006-OPT4 Asset-Backed
Certificates, Series 2006-OPT4” All amounts deposited in the Net WAC Rate
Carryover Reserve Account shall be distributed to the Holders of the Class
A and
Mezzanine 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 Class A or Mezzanine Certificates, the Trustee has been directed by
the
Class C Certificateholders to, and therefore will, deposit into the Net WAC
Rate
Carryover Reserve Account the amounts described in Section 4.01(d)(iv), rather
than distributing such amounts to the Class C Certificateholders. On each such
Distribution Date, the Trustee shall hold all such amounts for the benefit
of
the Holders of the Class A and Mezzanine Certificates, and will distribute
such
amounts to the Holders of the Class A and Mezzanine Certificates in the amounts
and priorities set forth in Section 4.01(d).
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Net WAC Rate Carryover Reserve Account be
disregarded as an entity separate from the Holder of the Class C Certificates
unless and until the date when either (a) there is more than one Class C
Certificateholder or (b) any Class of Certificates in addition to the Class
C
Certificates is recharacterized as an equity interest in the Net WAC Rate
Carryover Reserve Account for federal income tax purposes, in which case it
is
the intention of the parties hereto that, for federal and state income and
state
and local franchise tax purposes, the Net WAC Rate Carryover Reserve Account
be
treated as a partnership. All amounts deposited into the Net WAC Rate Carryover
Reserve Account 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 Class A and
Mezzanine 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 designees. 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 Class A and Mezzanine Certificates of
Net
WAC Rate Carryover Amounts will not be payments with respect to a “regular
interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trustee, and the Trustee hereby is directed, to deposit into the
Net
WAC Rate Carryover Reserve Account the amounts described above on each
Distribution Date as to which there is any Net WAC Rate Carryover Amount rather
than distributing such amounts to the Class C Certificateholders. By accepting
a
Class C Certificate, each Class C Certificateholder further agrees that such
direction is given for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by such acceptance.
Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
For
federal tax return and information reporting, the right of the Holders of the
Class A Certificates and the Class M Certificates to receive payments from
the
Net WAC Rate Carryover Reserve Account in respect of any Net WAC Rate Carryover
Amount may have more than a de
minimis
value.
SECTION
4.09 Distributions
on the REMIC Regular Interests.
On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts which shall be deemed to be distributed by REMIC 1 to
REMIC 2 on account of the REMIC 1 Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-1 Interest), as the case may be:
(i) to
Holders of each of REMIC 1 Regular Interest I and REMIC 1 Regular Interest
I-1-A
through I-57-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 Regular Interests I-1-A through I-57-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 I-57-B, (A) on each Distribution Date,
100%
of the amount paid in respect of Prepayment Charges and (B) on the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause.
(b) On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts which shall be deemed to be distributed by REMIC 2 to
REMIC 3 on account of the REMIC 2 Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-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
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
and
REMIC 2 Regular Interest LTM9 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 and REMIC 2 Regular
Interest LTM9 1.00% 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, 1.00% of such remainder,until
the
Uncertificated Principal Balance of such REMIC 2 Regular Interest is reduced
to
zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-1 Interest);
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Release Amount shall be allocated
to
Holders of (i) REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTP,
in that order and (ii) REMIC 2 Regular Interest LTZZ, respectively; provided
that REMIC 2 Regular Interest LTP shall not be reduced until the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC 2 Regular
Interest LTP, until $100 has been distributed pursuant to this
clause.
SECTION
4.10 Allocation
of Realized Losses.
(a) All
Realized Losses on the Mortgage Loans allocated to any Regular Certificate
shall
be allocated by the Trustee on each Distribution Date as follows: first, to
Net
Monthly Excess Cashflow; second, to Net Swap Payments received under the
Interest Rate Swap Agreement; third, to the Class C Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fourth, to
the
Class M-9 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; fifth, to the Class M-8 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; sixth, to the Class M-7
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; seventh, to the Class M-6 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; eighth, to the Class M-5 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero; ninth,
to the Class M-4 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; tenth, to the Class M-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eleventh, to
the
Class M-2 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero and twelfth, 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 on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof by
the
amount so allocated; any allocation of Realized Losses to a Class C Certificates
shall be made first by reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(d)(iv). No allocations of any Realized Losses shall
be
made to the Certificate Principal Balances of the Class A Certificates or the
Class P Certificates.
(b) With
respect to the REMIC 1 Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated shall be allocated by the Securities Administrator
on
each Distribution Date, first to REMIC 1 Regular Interest I until the
Uncertificated Principal Balance has been reduced to zero, and second, to REMIC
1 Regular Interest I-1-A through REMIC 1 Regular Interest I-57-B, starting
with
the lowest numerical denomination until such REMIC 1 Regular Interest has been
reduced to zero, provided that, for REMIC 1 Regular Interests with the same
numerical denomination, such Realized Losses shall be allocated pro rata between
such REMIC 1 Regular Interests.
(c) With
respect to the REMIC 2 Regular Interests, all Realized Losses on the Mortgage
Loans shall be deemed to have been allocated in the specified percentages,
as
follows: first, to Uncertificated Accrued Interest payable to the REMIC 2
Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an aggregate
amount equal to the REMIC 2 Interest Loss Allocation Amount, 98% and 2%,
respectively; second, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an aggregate
amount equal to the REMIC 2 Principal Loss Allocation Amount, 98% and 2%,
respectively; third, to the Uncertificated Principal Balances of REMIC 2 Regular
Interest LTAA, REMIC 2 Regular Interest 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; fourth, 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; fifth, 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; sixth, 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; seventh,
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; eighth, 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; ninth, 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; tenth, 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; eleventh, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTM1 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM1 has been
reduced to zero.
ARTICLE
V
THE
CERTIFICATES
SECTION
5.01 The
Certificates.
Each
of
the Class A Certificates, the Mezzanine Certificates, the Class P Certificates,
the Class C Certificates and the Residual Certificates shall be substantially
in
the forms annexed hereto as exhibits, and shall, on original issue, be executed,
authenticated and delivered by the Trustee to or upon the order of the Depositor
concurrently with the sale and assignment to the Trustee of the Trust Fund.
The
Class A and Mezzanine 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 Class A and Mezzanine Certificates must be purchased
in
minimum total investments of $100,000 per class, except that one Certificate
of
each such Class of Certificates may be in a different denomination so that
the
sum of the denominations of all outstanding Certificates of such Class shall
equal the Certificate Principal Balance of such Class on the Closing Date.
The
Class P Certificates, the Class C Certificates and the Residual Certificates
are
issuable in any Percentage Interests; provided, however, that the sum of all
such percentages for each such Class totals 100% and no more than ten
Certificates of each Class may be issued and outstanding at any one
time.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Trustee by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trust, notwithstanding that such individuals or any of them
have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate.
No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless such Certificate shall have been manually authenticated
by the Trustee substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Subject to Section 5.02(c), the Class A and Mezzanine Certificates shall be
Book-Entry Certificates. The other Classes of Certificates shall not be
Book-Entry Certificates.
SECTION
5.02 Registration
of Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall cause to be kept at the Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as it
may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee shall initially serve as Certificate Registrar for the purpose
of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
Upon
surrender for registration of transfer of any Certificate at any office or
agency of the Certificate Registrar maintained for such purpose pursuant to
the
foregoing paragraph which office shall initially be the offices designated
by
the Trustee and, in the case of a Residual Certificate, upon satisfaction of
the
conditions set forth below, the Trustee on behalf of the Trust shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same aggregate Percentage
Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute on behalf of the Trust and authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trustee or the Certificate Registrar)
be duly endorsed by, or be accompanied by a written instrument of transfer
satisfactory to the Trustee and the Certificate Registrar duly executed by,
the
Holder thereof or his attorney duly authorized in writing. In addition, (i)
with
respect to each Class R Certificate, the holder thereof may exchange, in the
manner described above, such Class R Certificate for two separate certificates,
each representing such holder’s respective Percentage Interest in the Class R-1
Interest, the Class R-2 Interest and the Class R-3 Interest that was evidenced
by the Class R Certificate being exchanged and (ii) with respect to each Class
R-X Certificate, the holder thereof may exchange, in the manner described above,
such Class R-X Certificate for three separate certificates, each representing
such holder’s respective Percentage Interest in the Class R-4 Interest, the
Class R-5 Interest and the Class R-6 Interest that was evidenced by the Class
R-X Certificate being exchanged.
(b) Except
as
provided in paragraph (c) below, the Book-Entry Certificates shall at all times
remain registered in the name of the Depository or its nominee and at all times:
(i) registration of such Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Certificates; (iii) ownership and transfers of registration
of
such Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants;
(v)
the Trustee shall for all purposes deal with the Depository as representative
of
the Certificate Owners of the Certificates for purposes of exercising the rights
of Holders under this Agreement, and requests and directions for and votes
of
such representative shall not be deemed to be inconsistent if they are made
with
respect to different Certificate Owners; (vi) the Trustee may rely and shall
be
fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons shown
on
the books of such indirect participating firms as direct or indirect Certificate
Owners; and (vii) the direct participants of the Depository shall have no rights
under this Agreement under or with respect to any of the Certificates held
on
their behalf by the Depository, and the Depository may be treated by the Trustee
and its agents, employees, officers and directors as the absolute owner of
the
Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute a Letter of Representations with the Depository or take such other
action as may be necessary or desirable to register a Book-Entry Certificate
to
the Depository. In the event of any conflict between the terms of any such
Letter of Representation and this Agreement, the terms of this Agreement shall
control.
(c) If
(i)(x)
the Depository or the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Trustee or the Depositor is unable
to
locate a qualified successor or (ii) after the occurrence of a Servicer Event
of
Termination, the Certificate Owners of the Book-Entry Certificates representing
Percentage Interests of such Classes aggregating not less than 51% advise the
Trustee and Depository through the Financial Intermediaries and the Depository
Participants in writing that the continuation of a book-entry system through
the
Depository to the exclusion of definitive, fully registered certificates (the
“Definitive Certificates”) to Certificate Owners is no longer in the best
interests of the Certificate Owners. Upon surrender to the Certificate Registrar
of the Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall, in the
case of (i) and (ii) above, execute on behalf of the Trust and authenticate
the
Definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Certificate Registrar, the Servicer,
any Paying Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) No
transfer, sale, pledge or other disposition of any Class 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, (ii) the transfer of any such Class C, Class
P or
Residual Certificate to the issuer under the Indenture or the indenture trustee
under the Indenture or (iii) a transfer of any such Class C, Class P or Residual
Certificate from the issuer under the Indenture or the indenture trustee under
the Indenture to the Depositor or an Affiliate of the Depositor), (i) unless
such transfer is made in reliance upon Rule 144A (as evidenced by the investment
letter delivered to the Trustee, in substantially the form attached hereto
as
Exhibit J) under the 1933 Act, the Trustee and the Depositor shall require
a
written Opinion of Counsel (which may be in-house counsel) acceptable to and
in
form and substance reasonably satisfactory to the Trustee and the Depositor
that
such transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to
the 1933 Act, which Opinion of Counsel shall not be an expense of the Trustee
or
the Depositor or (ii) the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached hereto as Exhibit
L)
and the transferee to execute an investment letter (in substantially the form
attached hereto as Exhibit J) acceptable to and in form and substance reasonably
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which investment letter shall
not be an expense of the Trustee or the Depositor. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result
if
the transfer is not so exempt or is not made in accordance with such federal
and
state laws.
Notwithstanding
the foregoing, in the event of any such transfer of any Ownership Interest
in
any Private Certificate that is a Book-Entry Certificate, except with respect
to
the initial transfer of any such Ownership Interest by the Depositor, such
transfer shall be required to be made in reliance upon Rule 144A under the
1933
Act, and the transferor will be deemed to have made each of the transferor
representations and warranties set forth Exhibit L hereto in respect of such
interest as if it was evidenced by a Definitive Certificate and the transferee
will be deemed to have made each of the transferee representations and
warranties set forth Exhibit J hereto in respect of such interest as if it
was
evidenced by a Definitive Certificate. The Certificate Owner of any such
Ownership Interest in any such Book-Entry Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
Notwithstanding
the foregoing, no certification or Opinion of Counsel described above in this
Section 5.02(d) will be required in connection with the transfer, on the Closing
Date, of any Residual Certificate by the Depositor to an “accredited investor”
within the meaning of Rule 501 of the 1933 Act.
No
transfer of a Private Certificate (other than a Class M-9 Certificate) or any
interest therein shall be made to any Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring such Certificates
with “Plan Assets” of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as certified
by such transferee in the form of Exhibit M, unless the Trustee is provided
with
an Opinion of Counsel for the benefit of the Depositor, the Trustee and the
Servicer and on which they may rely which establishes to the satisfaction of
the
Trustee that the purchase of such Certificates is permissible under applicable
law, will not constitute or result in any prohibited transaction under ERISA
or
Section 4975 of the Code and will not subject the Depositor, the Servicer,
the
Trustee or the Trust Fund to any obligation or liability (including obligations
or liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Servicer, the Trustee or the Trust Fund. Neither a
certification nor an Opinion of Counsel will be required in connection with
(i)
the initial transfer of any such Certificate by the Depositor to an Affiliate
of
the Depositor, (ii) the transfer of any such Class C, Class P or Residual
Certificate to the issuer under the Indenture or the indenture trustee under
the
Indenture or (iii) a transfer of any such Class C, Class P or Residual
Certificate from the issuer under the Indenture or the indenture trustee under
the Indenture to the Depositor or an Affiliate of the Depositor (in which case,
the Depositor or any Affiliate thereof shall have deemed to have represented
that such Affiliate is not a Plan or a Person investing Plan Assets) and the
Trustee shall be entitled to conclusively rely upon a representation (which,
upon the request of the Trustee, shall be a written representation) from the
Transferor of the status of such transferee as an affiliate of the
Depositor.
Prior
to
the termination of the Supplemental Interest Trust, no Transfer of a Class
A or
Mezzanine Certificate shall be made unless either (i) the Trust Administrator
shall have received a representation from the transferee (in the form of Exhibit
M) of such Certificate acceptable to and in form and substance satisfactory
to
the Trustee, to the effect that such transferee is not a Plan, or a Person
acting on behalf of a Plan or using the assets a Plan, or (ii) the transferee
is
deemed to represent that (a) such Plan is an accredited invester within the
meaning of Prohibited Transaction Exemption (“PTE”) 2002-41, 67 Fed. Reg 54487
(August 22, 2002), and (b) the proposed transfer or holding of such Certificate
is eligible for exemptive relief under an individual or class prohibited
transaction exemption, including, but not limited to, for the Class A
Certificates, Prohibited Transaction Exemption (“PTCE”) 84-14, XXXX 00-00, XXXX
00-0, XXXX 95-60 or PTE 96-23 and for Mezzanine Certificates, PTCE
95-60.
Subsequent
to the termination of the Supplemental Interest Trust, each Transferee of a
Mezzanine 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
or
(b) 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 PTCE
95-60, and (iii) the conditions set forth in Sections I and III of PTCE 95-60
have been satisfied.
If
any
Certificate or any interest therein is acquired or held in violation of the
provisions of the three preceding paragraphs, the next preceding permitted
beneficial owner will be treated as the beneficial owner of that Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any such Certificate
or interest therein was effected in violation of the provisions of the two
preceding paragraphs shall indemnify and hold harmless the Depositor, the
Servicer, the NIMS Insurer, the Trustee and the Trust from and against any
and
all liabilities, claims, costs or expenses incurred by those parties as a result
of that acquisition or holding.
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Person
shall acquire an Ownership Interest in a Residual Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trustee shall as a condition to registration of the transfer,
require delivery to it, in form and substance satisfactory to it, of each of
the
following:
(A) an
affidavit in the form of Exhibit K hereto from the proposed transferee to the
effect that such transferee is a Permitted Transferee and that it is not
acquiring its Ownership Interest in the Residual Certificate that is the subject
of the proposed transfer as a nominee, trustee or agent for any Person who
is
not a Permitted Transferee; and
(B) a
covenant of the proposed transferee to the effect that the proposed transferee
agrees to be bound by and to abide by the transfer restrictions applicable
to
the Residual Certificates.
(iv) Any
attempted or purported transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of a Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not permitted
by this Section or for making any distributions due on such Residual Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Trustee received the
documents specified in clause (iii). The Trustee shall be entitled to recover
from any Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time such distributions were made all distributions made
on
such Residual Certificate. Any such distributions so recovered by the Trustee
shall be distributed and delivered by the Trustee to the prior Holder of such
Residual Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee shall have the right but not the obligation, without notice to the
Holder of such Residual Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of such
Residual Certificate. The proceeds of such sale, net of commissions (which
may
include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the Trustee
to the previous Holder of such Residual Certificate that is a Permitted
Transferee, except that in the event that the Trustee determines that the Holder
of such Residual Certificate may be liable for any amount due under this Section
or any other provisions of this Agreement, the Trustee may withhold a
corresponding amount from such remittance as security for such claim. The terms
and conditions of any sale under this clause (v) shall be determined in the
sole
discretion of the Trustee and it shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its exercise of
such
discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee upon receipt of reasonable compensation will provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3) and (6)
of
the Code, information needed to compute the tax imposed under Section 860E(e)(5)
of the Code on transfers of residual interests to disqualified
organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Trustee
and
the NIMS Insurer, in form and substance satisfactory to the Trustee and the
NIMS
Insurer, (i) written notification from each Rating Agency that the removal
of
the restrictions on transfer set forth in this Section will not cause such
Rating Agency to downgrade its rating of the Certificates and (ii) an Opinion
of
Counsel to the effect that such removal will not cause any REMIC created
hereunder to fail to qualify as a REMIC.
(e) No
service charge shall be made for any registration of transfer or exchange of
Certificates of any Class, but the Certificate Registrar may require payment
of
a sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall be
canceled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
SECTION
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (ii) there is delivered to the Trustee,
the
Depositor, the NIMS Insurer and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the
absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute on behalf of the Trust, authenticate and deliver, in exchange for or
in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Percentage Interest. Upon the issuance of any
new
Certificate under this Section, the Trustee or the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) in
connection therewith. Any duplicate Certificate issued pursuant to this Section,
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION
5.04 Persons
Deemed Owners.
The
Servicer, the Depositor, the Trustee, the NIMS Insurer, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor, the
Trustee, the NIMS Insurer, the Certificate Registrar or any Paying Agent may
treat the Person, including a Depository, in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.01 and for all other purposes whatsoever,
and none of the Servicer, the Trust, the Trustee nor any agent of any of them
shall be affected by notice to the contrary.
SECTION
5.05 Appointment
of Paying Agent.
(a) The
Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 4.01 and shall report the amounts
of
such distributions to the Trustee. The duties of the Paying Agent may include
the obligation (i) to withdraw funds from the Collection Account pursuant to
Section 3.11(a) and for the purpose of making the distributions referred to
above and (ii) to distribute statements and provide information to
Certificateholders as required hereunder. The Paying Agent hereunder shall
at
all times be an entity duly organized and validly existing under the laws of
the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. The Paying Agent shall initially be the Trustee.
The Trustee may appoint a successor to act as Paying Agent, which appointment
shall be reasonably satisfactory to the Depositor and the NIMS
Insurer.
(b) The
Trustee shall cause the Paying Agent (if other than the Trustee) to execute
and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee that such Paying Agent shall hold all sums, if any, held by it
for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree that it shall comply with all requirements
of
the Code regarding the withholding of payments in respect of Federal income
taxes due from Certificate Owners and otherwise comply with the provisions
of
this Agreement applicable to it.
ARTICLE
VI
THE
SERVICER, THE DEPOSITOR
AND THE
CREDIT RISK MANAGER
SECTION
6.01 Liability
of the Servicer and the Depositor.
The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by Servicer herein. The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the
Depositor.
SECTION
6.02 Merger
or
Consolidation of, or Assumption of the Obligations of, the Servicer or the
Depositor.
Any
entity into which the Servicer or Depositor may be merged or consolidated,
or
any entity resulting from any merger, conversion or consolidation to which
the
Servicer or the Depositor shall be a party, or any corporation succeeding to
the
business of the Servicer or the Depositor, shall be the successor of the
Servicer or the Depositor, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that
the successor Servicer shall satisfy all the requirements of Section 7.02 with
respect to the qualifications of a successor Servicer.
SECTION
6.03 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor the Depositor nor any of the directors or officers or employees
or agents of the Servicer or the Depositor shall be under any liability to
the
Trust or the Certificateholders for any action taken or for refraining from
the
taking of any action by the Servicer or the Depositor in good faith pursuant
to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Servicer, the Depositor or any such Person
against any liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or negligence in the performance of duties of the
Servicer or the Depositor, as the case may be, or by reason of its reckless
disregard of its obligations and duties of the Servicer or the Depositor, as
the
case may be, hereunder. The Servicer and any director or officer or employee
or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Servicer and the Depositor, and any director or officer
or employee or agent of the Servicer or the Depositor, shall be indemnified
by
the Trust and held harmless against any loss, liability or expense incurred
in
connection with (i) any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason
of
its willful misfeasance, bad faith or negligence or by reason of its reckless
disregard of its obligations and duties hereunder or by reason of its failure
to
perform its obligations or duties hereunder and (ii) any breach of a
representation or warranty regarding the Mortgage Loans. The Servicer or the
Depositor may initiate any such action which it may deem necessary or desirable
in respect of this Agreement, and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, unless
the
Depositor or the Servicer acts without the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights, the reasonable
legal
expenses and costs of such action and any liability resulting therefrom shall
be
expenses, costs and liabilities of the Trust and the Servicer shall be entitled
to be reimbursed therefor from the Collection Account as and to the extent
provided in Section 3.11, any such right of reimbursement being prior to the
rights of the Certificateholders to receive any amount in the Collection
Account. The Servicer’s right to indemnity or reimbursement pursuant to this
Section shall survive any resignation or termination of the Servicer pursuant
to
Section 6.04 or 7.01 with respect to any losses, expenses, costs or liabilities
arising prior to such resignation or termination (or arising from events that
occurred prior to such resignation or termination). This paragraph shall apply
to the Servicer solely in its capacity as Servicer hereunder and in no other
capacities. Without limiting the foregoing, the Servicer shall undertake to
defend any claims against the Trust Fund, the Trustee and/or itself initiated
by
a Borrower or otherwise related to the servicing of any Mortgage Loan, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust and the Servicer
shall be entitled to be reimbursed therefor from the Collection Account as
and
to the extent provided in Section 3.11, any such right of reimbursement being
prior to the rights of the Certificateholders to receive any amount in the
Collection Account.
Neither
the Credit Risk Manager, nor any of the directors, officers, employees or agents
of the Credit Risk Manager, shall be under any liability to the Trustee, the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in reliance
upon information provided by 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, bad faith or negligence
in its performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement or the Credit Risk Management
Agreement. The Credit Risk Manager and any director, officer, employee or agent
of the Credit Risk Manager may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder, and may rely in good faith upon the accuracy of information
furnished by the Servicer pursuant to the Credit Risk Management Agreement
in
the performance of its duties thereunder and hereunder.
SECTION
6.04 Servicer
Not to Resign.
The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except (i) upon determination that its duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it or its subsidiaries
or
Affiliates, the other activities of the Servicer so causing such a conflict
being of a type and nature carried on by the Servicer or its subsidiaries or
Affiliates at the date of this Agreement or (ii) upon satisfaction of the
following conditions: (a) the Servicer has proposed a successor servicer to
the
Trustee and the NIMS Insurer in writing and such proposed successor servicer
is
reasonably acceptable to the Trustee and the NIMS Insurer and (b) each Rating
Agency shall have delivered a letter to the Trustee and the NIMS Insurer prior
to the appointment of the successor servicer stating that the proposed
appointment of such successor servicer as Servicer hereunder will not result
in
the reduction or withdrawal of the then current rating of the Certificates;
provided, however, that no such resignation by the Servicer shall become
effective until such successor servicer or, in the case of (i) above, the
Trustee shall have assumed the Servicer’s responsibilities and obligations
hereunder or the Trustee shall have designated, with the consent of the NIMS
Insurer, a successor servicer in accordance with Section 7.02. Except as
expressly provided herein, the Servicer shall not assign or transfer any of
its
rights, benefits or privileges hereunder to any other Person, or delegate to
or
subcontract with, or authorize or appoint any other Person to perform any of
the
duties, covenants or obligations to be performed by the Servicer hereunder.
The
foregoing prohibition on assignment shall not prohibit the Servicer from
designating a Sub-Servicer as payee of any indemnification amount payable to
the
Servicer hereunder; provided, however, no Sub-Servicer shall be a third-party
beneficiary hereunder and the parties hereto shall not be required to recognize
any Subservicer as an indemnitee under this Agreement.
SECTION
6.05 Delegation
of Duties.
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those set forth
in Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04. Except as provided
in Section 3.02, no such delegation is permitted that results in the delegee
subservicing any Mortgage Loans. The Servicer shall provide the Trustee and
the
NIMS Insurer with 60 days prior written notice prior to the delegation of any
of
its duties to any Person other than any of the Servicer’s Affiliates or their
respective successors and assigns.
SECTION
6.06 [Reserved].
SECTION
6.07 Inspection.
The
Servicer, in its capacity as Servicer, shall afford the Trustee and the NIMS
Insurer, upon reasonable notice, during normal business hours, access to all
records maintained by the Servicer in respect of its rights and obligations
hereunder and access to officers of the Servicer responsible for such
obligations.
SECTION
6.08 Credit
Risk Manager.
For
and
on behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Charges with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information
provided to the Credit Risk Manager pursuant to the Credit Risk Management
Agreement, and the Credit Risk Manager shall look solely to the Servicer for
all
information and data (including loss and delinquency information and data)
relating to the servicing of the Mortgage Loans. Upon any termination of
the Credit Risk Manager or the appointment of a successor Credit Risk Manager,
the Trustee, if it has been notified in writing of such termination or
appointment, shall give written notice thereof to the Servicer and the
Depositor.
If
Holders of the Certificates entitled to 66 2/3% or more of the Voting Rights
request in writing to the Trustee to terminate the Credit Risk Manager under
this Agreement, the Credit Risk Manager shall be removed pursuant to this
Section 6.08. Upon receipt of such notice, the Trustee shall provide
written notice to the Credit Risk Manager and the Servicer of the Credit Risk
Manager’s removal, which shall be effective upon receipt of such notice by the
Credit Risk Manager.
ARTICLE
VII
DEFAULT
SECTION
7.01 Servicer
Events of Termination.
(a) If
any
one of the following events (“Servicer Events of Termination”) shall occur and
be continuing:
(i) (A)
The
failure by the Servicer to make any Advance;
or (B)
any other failure by the Servicer to deposit in the Collection Account or the
Distribution Account any deposit required to be made under the terms of this
Agreement which continues unremedied for a period of one Business Day after
the
date upon which written notice of such failure shall have been given to the
Servicer by the Trustee or to the Servicer and the Trustee by the NIMS Insurer
or any Holders of a Regular Certificate evidencing at least 25% of the Voting
Rights; or
(ii) The
failure by the Servicer to make any required Servicing Advance which failure
continues unremedied for a period of 30 days, or the failure by the Servicer
duly to observe or perform, in any material respect, any other covenants,
obligations or agreements of the Servicer as set forth in this Agreement, which
failure continues unremedied for a period of 30 days (or
if
such failure or breach cannot be remedied within 30 days, then such remedy
shall
have been commenced within 30 days and diligently pursued thereafter; provided,
however, that in no event shall such failure or breach be allowed to exist
for a
period of greater than 90 days), after the date (A) on which written notice
of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or to the Trustee by the NIMS Insurer or any Holders
of
a Regular Certificate evidencing at least 25% of the Voting Rights or (B) of
actual knowledge of such failure by a Servicing Officer of the Servicer;
or
(iii) The
entry
against the Servicer of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 days; or
(iv) The
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator or receiver or liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Servicer and such decree or order shall have remained
in force undischarged, unbonded or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors
or
voluntarily suspend payment of its obligations;
(v) A
Delinquency Servicer Termination Trigger has occurred and is
continuing;
(b) then,
and
in each and every such case, so long as a Servicer Event of Termination shall
not have been remedied within the applicable grace period, (x) with respect
solely to clause (i)(A) above, if such Advance is not made by 5:00 P.M., New
York time, on the Business Day immediately following the Servicer Remittance
Date (provided the Trustee shall give the Servicer notice of such failure to
advance by 5:00 P.M. New York time on the Servicer Remittance Date), the Trustee
shall, at the direction of the NIMS Insurer, terminate all of the rights and
obligations of the Servicer under this Agreement, to the extent permitted by
law, and in and to the Mortgage Loans and the proceeds thereof and the Trustee,
or a successor servicer appointed in accordance with Section 7.02, shall
immediately make such Advance and assume, pursuant to Section 7.02, the duties
of a successor Servicer and (y) in the case of (i)(B), (ii), (iii) or (iv)
above, the Trustee shall, at the direction of the NIMS Insurer or the Holders
of
each Class of Regular Certificates evidencing Percentage Interests aggregating
not less than 51%, by notice then given in writing to the Servicer (and to
the
Trustee if given by the NIMS Insurer or the Holders of Certificates), terminate
all of the rights and obligations of the Servicer as servicer under this
Agreement. Any such notice to the Servicer shall also be given to each Rating
Agency, the Depositor and the Servicer. On or after the receipt by the Servicer
(and by the Trustee if such notice is given by the Holders) of such written
notice, all authority and power of the Servicer under this Agreement, whether
with respect to the Certificates or the Mortgage Loans or otherwise, shall
pass
to and be vested in the Trustee pursuant to and under this Section; and, without
limitation, and the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts
or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of each Mortgage
Loan and related documents or otherwise. The Servicer agrees to cooperate with
the Trustee (or the applicable successor Servicer) in effecting the termination
of the responsibilities and rights of the Servicer hereunder, including, without
limitation, the delivery to the Trustee of all documents and records requested
by it to enable it to assume the Servicer’s functions under this Agreement
within ten Business Days subsequent to such notice, the transfer within one
Business Day subsequent to such notice to the Trustee (or the applicable
successor Servicer) for the administration by it of all cash amounts that shall
at the time be held by the Servicer and to be deposited by it in the Collection
Account, the Distribution Account, any REO Account or any Servicing Account
or
that have been deposited by the Servicer in such accounts or thereafter received
by the Servicer with respect to the Mortgage Loans or any REO Property received
by the Servicer. All reasonable costs and expenses (including attorneys’ fees)
incurred in connection with transferring the Mortgage Files to the successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer (or if the
predecessor Servicer is the Trustee, the initial Servicer) upon presentation
of
reasonable documentation of such costs and expenses and to the extent not paid
by the Servicer, by the Trust.
SECTION
7.02 Trustee
to Act; Appointment of Successor.
(a) From
the
time the Servicer (and the Trustee, if notice is sent by the Holders) receives
a
notice of termination pursuant to Section 7.01 or 6.04, the Trustee (or such
other successor Servicer as is approved in accordance with this Agreement)
shall
be the successor in all respects to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein
and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions hereof arising on
and
after its succession. Notwithstanding the foregoing, the parties hereto agree
that the Trustee, in its capacity as successor Servicer, immediately will assume
all of the obligations of the Servicer to make advances. Notwithstanding the
foregoing, the Trustee, in its capacity as successor Servicer, shall not be
responsible for the lack of information and/or documents that it cannot obtain
through reasonable efforts. It is understood and agreed by the parties hereto
that there will be a period of transition (not to exceed 90 days) before the
transition of servicing obligations is fully effective. As compensation
therefor, the Trustee (or such other successor Servicer) shall be entitled
to
such compensation as the Servicer would have been entitled to hereunder if
no
such notice of termination had been given. Notwithstanding the above, (i) if
the
Trustee is unwilling to act as successor Servicer or (ii) if the Trustee is
legally unable so to act, the Trustee shall appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer having
a
net worth of not less than $50,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder; provided, that the appointment of
any
such successor Servicer shall be approved by the NIMS Insurer (such approval
not
to be unreasonably withheld), as evidenced by the prior written consent of
the
NIMS Insurer, and will not result in the qualification, reduction or withdrawal
of the ratings assigned to the Certificates by the Rating Agencies as evidenced
by a letter to such effect from the Rating Agencies. Pending appointment of
a
successor to the Servicer hereunder, the Trustee shall act in such capacity
as
hereinabove provided. In connection with such appointment and assumption, the
successor shall be entitled to receive compensation out of payments on Mortgage
Loans in an amount equal to the compensation which the Servicer would otherwise
have received pursuant to Section 3.18 (or such other compensation as the
Trustee and such successor shall agree, not to exceed the Servicing Fee). The
appointment of a successor Servicer shall not affect any liability of the
predecessor Servicer which may have arisen under this Agreement prior to its
termination as Servicer to pay any deductible under an insurance policy pursuant
to Section 3.14, to reimburse the Trustee pursuant to Section 3.06 or to
indemnify the Trustee or the NIMS Insurer pursuant to Section 8.05(c)), nor
shall any successor Servicer be liable for any acts or omissions of the
predecessor Servicer or for any breach by such Servicer of any of its
representations or warranties contained herein or in any related document or
agreement. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
All Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be
paid
by the successor Servicer or the Trustee (in which case the successor Servicer
or the Trustee, as applicable, shall be entitled to reimbursement therefor
from
the assets of the Trust).
(b) Any
successor to the Servicer, including the Trustee, shall during the term of
its
service as servicer continue to service and administer the Mortgage Loans for
the benefit of Certificateholders, and maintain in force a policy or policies
of
insurance covering errors and omissions in the performance of its obligations
as
Servicer hereunder and a fidelity bond in respect of its officers, employees
and
agents to the same extent as the Servicer is so required pursuant to Section
3.14.
SECTION
7.03 Waiver
of
Defaults.
The
Majority Certificateholders may, on behalf of all Certificateholders and with
the consent of the NIMS Insurer, waive any events permitting removal of the
Servicer as servicer pursuant to this Article VII, provided, however, that
the
Majority Certificateholders may not waive a default in making a required
distribution on a Certificate without the consent of the Holder of such
Certificate and the consent of the NIMS Insurer. Upon any waiver of a past
default, such default shall cease to exist and any Servicer Event of Termination
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto except to the extent expressly so waived.
Notice of any such waiver shall be given by the Trustee to the Rating Agencies
and the NIMS Insurer.
SECTION
7.04 Notification
to Certificateholders.
(a) Upon
any
termination or appointment of a successor to the Servicer pursuant to this
Article VII or Section 6.04, the Trustee shall give prompt written notice
thereof to the Certificateholders at their respective addresses appearing in
the
Certificate Register, the NIMS Insurer, the Swap Provider and each Rating
Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute a Servicer Event of
Termination for five Business Days after a Responsible Officer of the Trustee
becomes aware of the occurrence of such an event, the Trustee shall transmit
by
mail to all Certificateholders and to the NIMS Insurer notice of such occurrence
unless such default or Servicer Event of Termination shall have been waived
or
cured.
SECTION
7.05 Survivability
of Servicer Liabilities.
Notwithstanding
anything herein to the contrary, upon termination of the Servicer hereunder,
any
liabilities of the Servicer which accrued prior to such termination shall
survive such termination.
ARTICLE
VIII
THE
TRUSTEE
SECTION
8.01 Duties
of
Trustee.
The
Trustee, prior to the occurrence of a Servicer Event of Termination and after
the curing of all Servicer Events of Termination which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set
forth in this Agreement. If a Servicer Event of Termination has occurred (which
has not been cured) of which a Responsible Officer has knowledge, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement,
and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that the Trustee will not
be
responsible for the accuracy or content of any such resolutions, certificates,
statements, opinions, reports, documents or other instruments. If any such
instrument is found not to conform to the requirements of this Agreement in
a
material manner the Trustee shall take such action as it deems appropriate
to
have the instrument corrected, and if the instrument is not corrected to the
Trustee’s satisfaction, the Trustee will provide notice thereof to the
Certificateholders and the NIMS Insurer.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own misconduct; provided, however, that:
(i) prior
to
the occurrence of a Servicer Event of Termination, and after the curing of
all
such Servicer Events of Termination which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance
of
such duties and obligations as are specifically set forth in this Agreement,
no
implied covenants or obligations shall be read into this Agreement against
the
Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness
of
the opinions expressed therein, upon any certificates or opinions furnished
to
the Trustee and conforming to the requirements of this Agreement;
(ii) the
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(iii) the
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the NIMS Insurer or the Majority Certificateholders relating to
the
time, method and place of conducting any proceeding for any remedy available
to
the Trustee, or exercising or omitting to exercise any trust or power conferred
upon the Trustee, under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any failure by the Servicer
to
comply with the obligations of the Servicer referred to in clauses (i) and
(ii)
of Section 7.01(a) or of the existence of any Servicer Event of Termination
unless a Responsible Officer of the Trustee at the Corporate Trust Office
obtains actual knowledge of such failure or the Trustee receives written notice
of such failure from the Depositor, the Servicer, the NIMS Insurer or the
Majority Certificateholders.
The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial liability in the performance of any of its duties hereunder, or in
the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations
of
the Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Servicer in accordance with the terms of this
Agreement.
SECTION
8.02 Certain
Matters Affecting the Trustee.
(a) Except
as
otherwise provided in Section 8.01:
(i) the
Trustee may request and rely upon, and shall be protected in acting or
refraining from acting upon, any resolution, Officers’ Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented
by
the proper party or parties, and the manner of obtaining consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may
prescribe;
(ii) the
Trustee may consult with counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such Opinion
of
Counsel;
(iii) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Certificateholders or the NIMS Insurer, pursuant to the provisions
of this Agreement, unless such Certificateholders or the NIMS Insurer, as
applicable shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby; the right of the Trustee to perform any discretionary act enumerated
in
this Agreement shall not be construed as a duty, and the Trustee shall not
be
answerable for other than its negligence or willful misconduct in the
performance of any such act;
(iv) the
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(v) prior
to
the occurrence of a Servicer Event of Termination and after the curing of all
Servicer Events of Termination which may have occurred, the Trustee shall not
be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or documents, unless
requested in writing to do so by the NIMS Insurer or the Majority
Certificateholder; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee,
not
reasonably assured to the Trustee by the security afforded to it by the terms
of
this Agreement, the Trustee may require reasonable indemnity against such cost,
expense or liability as a condition to such proceeding. The reasonable expense
of every such examination shall be paid by the Servicer or the NIMS Insurer
(if
requested by the NIMS Insurer) or, if paid by the Trustee, shall be reimbursed
by the Servicer or the NIMS Insurer (if requested by the NIMS Insurer) upon
demand and, if not reimbursed by the Servicer or the NIMS Insurer (if requested
by the NIMS Insurer), shall be reimbursed by the Trust. Nothing in this clause
(v) shall derogate from the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Mortgagors;
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Servicer until
such
time as the Trustee may be required to act as Servicer pursuant to Section
7.02
and thereupon only for the acts or omissions of the Trustee as successor
Servicer;
(vii) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, custodians
or
nominees;
(viii) the
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act;
(ix) the
Trustee shall not be personally liable for any loss resulting from the
investment of funds held in the Collection Account or the REO Account made
at
the direction of the Servicer pursuant to Section 3.12; and
(x) the
Trustee or its Affiliates are permitted to receive compensation that could
be
deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian
or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. Such compensation
shall
not be considered an amount that is reimbursable or payable pursuant to Section
3.11.
In
order
to comply with its duties under the U.S. Patriot Act, the Trustee shall obtain
and verify certain information and documentation from the other parties hereto,
including, but not limited to, such parties’ name, address and other identifying
information.
SECTION
8.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the authentication
of the Trustee on the Certificates) shall be taken as the statements of the
Depositor, and the Trustee assumes no responsibility for the correctness of
the
same. The Trustee makes no representations as to the validity or sufficiency
of
this Agreement or of the Certificates (other than the signature and
authentication of the Trustee on the Certificates) or of any Mortgage Loan
or
related document or MERS or the MERS System other than with respect to the
Trustee’s execution and authentication of the Certificates. The Trustee shall
not be accountable for the use or application by the Servicer, or for the use
or
application of any funds paid to the Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from the Collection Account by the Servicer. The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and
enforceability of any hazard insurance thereon (other than if the Trustee shall
assume the duties of the Servicer pursuant to Section 7.02); the validity of
the
assignment of any Mortgage Loan to the Trustee or of any intervening assignment;
the completeness of any Mortgage Loan; the performance or enforcement of any
Mortgage Loan (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02); the compliance by the Depositor, the Originator
or
the Servicer with any warranty or representation made under this Agreement
or in
any related document or the accuracy of any such warranty or representation
prior to the Trustee’s receipt of notice or other discovery of any
non-compliance therewith or any breach thereof; any investment of monies by
or
at the direction of the Servicer or any loss resulting therefrom, it being
understood that the Trustee shall remain responsible for any Trust property
that
it may hold in its individual capacity; the acts or omissions of any of the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), any Sub-Servicer or any Mortgagor; any action of
the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), or any Sub- Servicer taken in the name of the
Trustee; the failure of the Servicer or any Sub-Servicer to act or perform
any
duties required of it as agent of the Trustee hereunder; or any action by the
Trustee taken at the instruction of the Servicer (other than if the Trustee
shall assume the duties of the Servicer pursuant to Section 7.02); provided,
however, that the foregoing shall not relieve the Trustee of its obligation
to
perform its duties under this Agreement, including, without limitation, the
Trustee’s duty to review the Mortgage Files pursuant to Section 2.01. The
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Servicer).
SECTION
8.04 Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not Trustee
and
may transact any banking and trust business with the Originator, the Servicer,
the Depositor or their Affiliates.
SECTION
8.05 Trustee
Compensation, Custodial Fee and Expenses.
(a) On
each
Distribution Date, prior to making any distributions to Certificateholders,
the
Trustee shall withdraw from the Distribution Account and pay to itself the
Trustee Compensation payable on such Distribution Date consisting of all income
earned on amounts on deposit in the Distribution Account. The Trustee shall
be
provided a copy of the separate fee schedule between the Depositor and the
Custodian. The Trustee shall withdraw from the Distribution Account on each
Distribution Date and pay to the Custodian, the Custodial Fee prior to making
any distributions to Certificateholders.
(b) The
Trustee, or any director, officer, employee or agent of the Trustee, shall
be
indemnified by the Trust Fund and held harmless against any loss, liability
or
expense (not including expenses and disbursements incurred or made by the
Trustee, including the compensation and the expenses and disbursements of its
agents and counsel, in the ordinary course of the Trustee’s performance in
accordance with the provisions of this Agreement) incurred by the Trustee
arising out of or in connection with the acceptance or administration of its
obligations and duties under this Agreement, other than any loss, liability
or
expense (i) resulting from a breach of the Servicer’s obligations and duties
under this Agreement for which the Trustee is indemnified under Section 8.05(b)
or (ii) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence of the Trustee in
the
performance of its duties hereunder or by reason of the Trustee’s reckless
disregard of obligations and duties hereunder
or as a
result of a breach of the Trustee’s obligations under Article X hereof. It is
understood by the parties hereto that a “claim” as used in the preceding
sentence includes any claim for indemnification made by the Custodian under
Section 22 of the Custodial Agreement; provided, however, that the Trustee
shall
not lose any right it may have to indemnification under this Section 8.05 due
to
the willful misfeasance, bad faith or negligence of the Custodian in the
performance of its duties under the Custodial Agreement or by reason of the
Custodian’s reckless disregard of its obligations and duties under the Custodial
Agreement. Any amounts payable to the Trustee, or any director, officer,
employee or agent of the Trustee, in respect of the indemnification provided
by
this Section 8.05(a), or pursuant to any other right of reimbursement from
the
Trust Fund that the Trustee, or any director, officer, employee or agent of
the
Trustee, may have hereunder in its capacity as such, may be withdrawn by the
Trustee from the Distribution Account at any time. The foregoing indemnity
shall
survive the resignation or removal of the Trustee.
(c) The
Servicer agrees to indemnify the Trustee, the NIMS Insurer, the Custodian or
any
director, officer, employee or agent of the Trustee, the NIMS Insurer or
Custodian from, and hold it harmless against, any loss, liability or expense
resulting from a breach of the Servicer’s obligations and duties under this
Agreement. Such indemnity shall survive the termination or discharge of this
Agreement and the resignation or removal of the Trustee and the Servicer for
actions prior to such resignation or removal. Any payment hereunder made by
the
Servicer to the Trustee shall be from the Servicer’s own funds, without
reimbursement from the Trust Fund therefor.
SECTION
8.06 Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be an entity duly organized and validly
existing under the laws of the United States of America or any state thereof,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority. If such entity publishes reports
of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06, the combined capital and surplus of such entity shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. The principal office of the Trustee (other than the
initial Trustee) shall be in a state with respect to which an Opinion of Counsel
has been delivered to such Trustee and the NIMS Insurer at the time such Trustee
is appointed Trustee to the effect that the Trust will not be a taxable entity
under the laws of such state. In case at any time the Trustee shall cease to
be
eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07.
SECTION
8.07 Resignation
or Removal of Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the NIMS Insurer, the Depositor, the
Servicer and each Rating Agency. Upon receiving such notice of resignation,
the
Depositor shall promptly appoint a successor Trustee acceptable to the NIMS
Insurer by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor Trustee.
If
no successor Trustee shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 8.06 and shall fail to resign after written request therefor by the
Depositor or the NIMS Insurer if at any time the Trustee shall be legally unable
to act, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall
take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Depositor, the Servicer
or the NIMS Insurer may remove the Trustee. If the Depositor, the Servicer
or
the NIMS Insurer removes the Trustee under the authority of the immediately
preceding sentence, the Depositor, with the consent of the NIMS Insurer, shall
promptly appoint a successor Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee.
The
Majority Certificateholders (or the NIMS Insurer upon the failure of the Trustee
to perform its obligations hereunder) may at any time remove the Trustee by
written instrument or instruments delivered to the Servicer, the Depositor
and
the Trustee; the Depositor shall thereupon use its best efforts to appoint
a
successor trustee acceptable to the NIMS Insurer in accordance with this
Section.
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.08.
SECTION
8.08 Successor
Trustee.
Any
successor Trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the NIMS Insurer, the Depositor, the Servicer and
to
its predecessor Trustee an instrument accepting such appointment hereunder,
and
thereupon the resignation or removal of the predecessor Trustee shall become
effective, and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee. The Depositor, the Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Trustee all such rights, powers, duties and obligations.
No
successor Trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 8.06 and the appointment of such successor
Trustee shall not result in a downgrading of the Regular Certificates by either
Rating Agency, as evidenced by a letter from each Rating Agency.
Upon
acceptance of appointment by a successor Trustee as provided in this Section
8.08, the successor Trustee shall mail notice of the appointment of a successor
Trustee hereunder to all Holders of Certificates at their addresses as shown
in
the Certificate Register and to each Rating Agency.
SECTION
8.09 Merger
or
Consolidation of Trustee.
Any
entity into which the Trustee may be merged or converted or with which it may
be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding
to
the business of the Trustee, shall be the successor of the Trustee hereunder,
provided such entity shall be eligible under the provisions of Section 8.06
and
8.08, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
8.10 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust or
any
Mortgaged Property may at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee and the
NIMS
Insurer to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust, and
to
vest in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Servicer and the Trustee may consider necessary or
desirable. Any such co-trustee or separate trustee shall be subject to the
written approval of the Servicer and the NIMS Insurer. If the Servicer and
the
NIMS Insurer shall not have joined in such appointment within 15 days after
the
receipt by it of a request so to do, or in the case a Servicer Event of
Termination shall have occurred and be continuing, the Trustee alone shall
have
the power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06, and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08. The
Servicer shall be responsible for the fees of any co-trustee or separate trustee
appointed hereunder.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Servicer and the Trustee, acting jointly and with the consent of the NIMS
Insurer, may at any time accept the resignation of or remove any separate
trustee or co-trustee except that following the occurrence of a Servicer Event
of Termination, the Trustee acting alone may accept the resignation or remove
any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Depositor, the Servicer and the NIMS Insurer.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
SECTION
8.11 Limitation
of Liability.
The
Certificates are executed by the Trustee, not in its individual capacity but
solely as Trustee of the Trust, in the exercise of the powers and authority
conferred and vested in it by the Trust Agreement. Each of the undertakings
and
agreements made on the part of the Trustee in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust.
SECTION
8.12 Trustee
May Enforce Claims Without Possession of Certificates.
(a) All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment
has
been recovered.
(b) The
Trustee shall afford the Originator, the Depositor, the Servicer, the NIMS
Insurer and each Certificateholder upon reasonable prior notice during normal
business hours, access to all records maintained by the Trustee in respect
of
its duties hereunder and access to officers of the Trustee responsible for
performing such duties. Upon request, the Trustee shall furnish the Depositor,
the Servicer, the NIMS Insurer and any requesting Certificateholder with its
most recent financial statements. The Trustee shall cooperate fully with the
Originator, the Servicer, the NIM Insurer, the Depositor and such
Certificateholder and shall make available to the Originator, the Servicer,
the
Depositor, the NIMS Insurer and such Certificateholder for review and copying
such books, documents or records as may be requested with respect to the
Trustee’s duties hereunder. The Originator, the Depositor, the Servicer and the
Certificateholders shall not have any responsibility or liability for any action
or failure to act by the Trustee and are not obligated to supervise the
performance of the Trustee under this Agreement or otherwise.
SECTION
8.13 Suits
for
Enforcement.
In
case a
Servicer Event of Termination or other default by the Servicer or the Depositor
hereunder shall occur and be continuing, the Trustee, shall, at the direction
of
the Majority Certificateholders or the NIMS Insurer, or may, proceed to protect
and enforce its rights and the rights of the Certificateholders or the NIMS
Insurer under this Agreement by a suit, action or proceeding in equity or at
law
or otherwise, whether for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the execution of any power granted
in
this Agreement or for the enforcement of any other legal, equitable or other
remedy, as the Trustee, being advised by counsel, and subject to the foregoing,
shall deem most effectual to protect and enforce any of the rights of the
Trustee, the NIMS Insurer and the Certificateholders.
SECTION
8.14 Waiver
of
Bond Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
SECTION
8.15 Waiver
of
Inventory, Accounting and Appraisal Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
SECTION
8.16 Appointment
of the Custodian.
The
Trustee shall, at the direction of the Depositor and with the consent of the
Servicer, appoint the Custodian to hold all or a portion of the Mortgage Files.
The appointment of the Custodian may at any time be terminated and a substitute
Custodian appointed therefor at the direction of the Depositor to the Trustee,
the consent to which shall not be unreasonably withheld. The Custodian shall
be
entitled to its fees and expenses in accordance with the Custodial Agreement,
which fees and expenses shall be paid to the Custodian from the Trust in
accordance with Section 8.05. Subject to Article VIII hereof, the Trustee agrees
to comply with the terms of the Custodial Agreement, which agreement may be
amended from time to time, and shall have the right to enforce the terms and
provisions thereof against the Custodian for the benefit of the
Certificateholders having an interest in any Mortgage File held by the
Custodian. Notwithstanding anything to the contrary in this Agreement, the
Custodian is not an agent of the Trustee and in no event shall the Trustee
be
liable for any acts, omission, duties, obligations, or liabilities of the
Custodian. In no event shall the appointment of the Custodian pursuant to the
Custodial Agreement diminish the obligations of the Trustee
hereunder.
ARTICLE
IX
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. The Securities
Administrator and the Trustee shall not permit the creation of any “interests”
(within the meaning of Section 860G of the Code) in any REMIC created hereunder
other than (a) the REMIC 1 Regular Interests, the REMIC 2 Regular Interests,
the
REMIC 3 Regular Interests, the REMIC 4 Regular Interests, the REMIC 5 Regular
Interests or the REMIC 6 Regular Interests, the ownership of which is
represented by the Class A and Class M Certificates, REMIC 6 Regular Interest
SWAP IO, the Class C Certificates and the Class P Certificates and (b) the
Class
R-1 Interest, the Class R-2 Interest, the Class R-3 Interest, the Class R-4
Interest, the Class R-5 Interest and the Class R-6 Interest. The Securities
Administrator will apply for an Employee Identification Number from the IRS
via
form SS-4 or any other acceptable method for each Trust REMIC
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code.
(c) The
Trustee shall pay any and all expenses relating to any tax audit of any REMIC
(including, but not limited to, any professional fees or any administrative
or
judicial proceedings with respect to any Trust REMIC that involve the Internal
Revenue Service or state tax authorities), including the expense of obtaining
any tax related Opinion of Counsel. The Trustee shall be entitled to
reimbursement of expenses incurred pursuant to this Section 9.01(c) to the
extent provided in Section 8.05.
(d) The
Trustee shall prepare, sign and file, all of the REMICs’ federal and state tax
and information returns (including Form 8811) as the direct representative
each
REMIC created hereunder. The expenses of preparing and filing such returns
shall
be borne by the Trustee.
(e) The
Holder of the Class R Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the related “Tax Matters Person”) with respect to REMIC 1, REMIC 2
and REMIC 3 and shall act as Tax Matters Person for REMIC 1, REMIC 2 and REMIC
3. The Holder of the Class R-X Certificate at any time holding the largest
Percentage Interest thereof shall be the Tax Matters Person with respect to
REMIC 4, REMIC 5 and REMIC 6 and shall act as Tax Matters Person for REMIC
4,
REMIC 5 and REMIC 6. The Trustee, as agent for the Tax Matters Person, shall
perform on behalf of each REMIC all reporting and other tax compliance duties
that are the responsibility of such REMIC under the Code, the REMIC Provisions,
or other compliance guidance issued by the Internal Revenue Service or any
state
or local taxing authority. Among its other duties, if required by the Code,
the
REMIC Provisions, or other such guidance, the Trustee, as agent for the Tax
Matters Person, shall provide (i) to the Treasury or other governmental
authority such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any disqualified person
or
organization and (ii) to the Certificateholders such information or reports
as
are required by the Code or REMIC Provisions. The Trustee, as agent for the
Tax
Matters Person, shall represent each REMIC in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of any
REMIC, enter into settlement agreements with any government taxing agency,
extend any statute of limitations relating to any item of any REMIC and
otherwise act on behalf of any REMIC in relation to any tax matter involving
the
Trust.
(f) The
Trustee, the Servicer and the Holders of Certificates shall take any action
or
cause the REMIC to take any action necessary to create or maintain the status
of
each REMIC as a REMIC under the REMIC Provisions and shall assist each other
as
necessary to create or maintain such status. Neither the Trustee, the Servicer
nor the Holder of any Residual Certificate shall take any action, cause any
REMIC created hereunder to take any action or fail to take (or fail to cause
to
be taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of such REMIC as a REMIC or
(ii)
result in the imposition of a tax upon such REMIC (including but not limited
to
the tax on prohibited transactions as defined in Code Section 860F(a)(2) and
the
tax on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an “Adverse REMIC Event”) unless the Trustee, the NIMS
Insurer and the Servicer have received an Opinion of Counsel (at the expense
of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a
tax.
In addition, prior to taking any action with respect to any REMIC created
hereunder or the assets therein, or causing such REMIC to take any action,
which
is not expressly permitted under the terms of this Agreement, any Holder of
a
Residual Certificate will consult with the Trustee, the NIMS Insurer and the
Servicer, or their respective designees, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
REMIC, and no such Person shall take any such action or cause any REMIC to
take
any such action as to which the Trustee, the NIMS Insurer or the Servicer has
advised it in writing that an Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
each REMIC created hereunder by federal or state governmental authorities.
To
the extent that such Trust taxes are not paid by a Residual Certificateholder,
the Trustee shall pay any remaining REMIC taxes out of current or future amounts
otherwise distributable to the Holder of the Residual Certificate in the REMICs
or, if no such amounts are available, out of other amounts held in the
Distribution Account, and shall reduce amounts otherwise payable to Holders
of
regular interests in the related REMIC. Subject to the foregoing, in the event
that a REMIC incurs a state or local tax, including franchise taxes, as a result
of a determination that such REMIC is domiciled in the State of California
for
state tax purposes by virtue of the location of the Servicer, the Servicer
agrees to pay on behalf of such REMIC when due, any and all state and local
taxes imposed as a result of such a determination, in the event that the Holder
of the related Residual Certificate fails to pay such taxes, if any, when
imposed.
(h) The
Trustee, as agent for the Tax Matters Person, shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither
the Trustee nor the Servicer shall enter into any arrangement by which any
REMIC
created hereunder will receive a fee or other compensation for
services.
(k) On
or
before April 15 of each calendar year beginning in 2006, the Servicer shall
deliver to the NIMS Insurer, the Trustee and each Rating Agency an Officers’
Certificate stating the Servicer’s compliance with the provisions of this
Section 9.01.
(l) The
Trustee will apply for an Employee Identification Number from the Internal
Revenue Service via a Form SS-4 or other acceptable method for all tax entities
and shall complete the Form 8811.
SECTION
9.02 Prohibited
Transactions and Activities.
Neither
the Depositor, the Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of any REMIC created hereunder pursuant to Article X
of
this Agreement, (iv) a substitution pursuant to Article II of this Agreement
or
(v) a repurchase of Mortgage Loans pursuant to Article II of this Agreement,
nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the
Distribution Account for gain, nor accept any contributions to either REMIC
after the Closing Date, unless it and the NIMS Insurer have received an Opinion
of Counsel (at the expense of the party causing such sale, disposition, or
substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of any REMIC created hereunder as
a
REMIC or of the interests therein other than the Residual Certificates as the
regular interests therein, (b) affect the distribution of interest or principal
on the Certificates, (c) result in the encumbrance of the assets transferred
or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause any REMIC created hereunder to be subject to a tax on prohibited
transactions or prohibited contributions pursuant to the REMIC
Provisions.
SECTION
9.03 Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
(a) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth herein,
the
Servicer shall indemnify the NIMS Insurer, the Trustee and the Trust Fund
against any and all losses, claims, damages, liabilities or expenses (“Losses”)
resulting from such negligence; provided, however, that the Servicer shall
not
be liable for any such Losses attributable to the action or inaction of the
Trustee, the Depositor or the Holder of such Residual Certificate, as
applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Servicer has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies
of
the Holder of such Residual Certificate now or hereafter existing at law or
in
equity. Notwithstanding the foregoing, however, in no event shall the Servicer
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Servicer of its duties and obligations
set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on the
Certificates).
(b) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Trustee of its duties and obligations set forth herein,
the
Trustee shall indemnify the Trust Fund against any and all Losses resulting
from
such negligence; provided, however, that the Trustee shall not be liable for
any
such Losses attributable to the action or inaction of the Servicer, the
Depositor or the Holder of such Residual Certificate, as applicable, nor for
any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Trustee has relied. The foregoing shall not
be
deemed to limit or restrict the rights and remedies of the Holder of such
Residual Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Trustee have
any
liability (1) for any action or omission that is taken in accordance with and
in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than arising out of a
negligent performance by the Trustee of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the
Certificates).
ARTICLE
X
TERMINATION
SECTION
10.01 Termination.
(a) The
respective obligations and responsibilities of the Servicer, the Depositor
and
the Trustee created hereby (other than the obligation of the Trustee to make
certain payments to Certificateholders after the final Distribution Date and
the
obligation of the Servicer to send certain notices as hereinafter set forth)
shall terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Terminator of the Mortgage Loans as described below and (iv) the Assumed
Final Maturity Date as defined in the Preliminary Statement. Notwithstanding
the
foregoing, in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of
St.
James’s, living on the date hereof.
The
Servicer (in such context, the “Terminator”), may, at its option, terminate this
Agreement on any date on which the aggregate of the Stated Principal Balances
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 Balances of the Mortgage Loans on the Cut-off Date, by purchasing,
on
the next succeeding Distribution Date, all of the outstanding Mortgage Loans
and
REO Properties at a price equal to the greater of (i) the Stated Principal
Balance of the Mortgage Loans (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties and (ii) fair market
value
of the Mortgage Loans and REO Properties (as determined and as agreed upon
in
their good faith business judgment (determined as provided in the last sentence
of this paragraph) as of the Close of Business on the third Business Day next
preceding the date upon which notice of any such termination is furnished to
the
related Certificateholders pursuant to Section 10.01(c) by (x) the Terminator,
(y) the Holders of a majority in Percentage Interest in the Class C Certificates
and (z) if the Floating-Rate Certificates will not receive all amounts owed
to
it as a result of the termination, the Trustee (provided that if this clause
(z)
applies to such determination, such determination shall, notwithstanding
anything to the contrary herein, be based solely upon an appraisal obtained
as
provided in the last sentence of this paragraph)), plus accrued and unpaid
interest thereon at the weighted average of the Mortgage Rates through the
end
of the Due Period preceding the final Distribution Date plus unreimbursed
Servicing Advances, Advances, any unpaid Servicing Fees allocable to such
Mortgage Loans and REO Properties, any accrued and unpaid Net WAC Rate Carryover
Amounts and any Swap Termination Payment payable to the Swap Provider then
remaining unpaid or which is due to the exercise of such option (the
“Termination Price”); provided, however, such option may only be exercised if
the Termination Price is sufficient to result in the payment of all interest
accrued on, as well as amounts necessary to retire the principal balance of,
each class of notes issued pursuant to the Indenture and any amounts owed to
the
NIMS Insurer (as it notifies the Trustee and Servicer in writing). If the
determination of the fair market value of the Mortgage Loans and REO Properties
shall be required to be made and agreed upon by the Terminator, the Holders
of a
majority in Percentage Interest in the Class C Certificates and the Trustee
as
provided in (ii) above in their good faith business judgment, such determination
shall be based on an appraisal of the value of the Mortgage Loans and REO
Properties conducted by an independent appraiser mutually agreed upon by the
Terminator, the Holders of a majority in Percentage Interest in the Class C
Certificates and the Trustee in their reasonable discretion, and (A) such
appraisal shall be obtained at no expense to the Trustee and (B) notwithstanding
anything to the contrary above, the Trustee may solely and conclusively rely
on,
and shall be protected in relying on, such appraisal in making such
determination.
In
connection with any such purchase pursuant to the preceding paragraph, the
Terminator shall deposit in the Distribution Account all amounts then on deposit
in the Collection Account, which deposit shall be deemed to have occurred
immediately preceding such purchase.
Any
such
purchase shall be accomplished by deposit into the Distribution Account on
the
Determination Date before such Distribution Date of the Termination
Price.
(b) Notice
of
any termination, specifying the Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon
the
Trustee receiving notice of such date from the Terminator, by letter to the
Certificateholders and the Swap Provider (if the Interest Rate Swap Agreement
has not terminated by its terms) mailed not earlier than the 15th
day and
not later than the 25th
day of
the month next preceding the month of such final distribution specifying (1)
the
Distribution Date upon which final distribution of the Certificates will be
made
upon presentation and surrender of such Certificates at the office or agency
of
the Trustee therein designated, (2) the amount of any such final distribution
and (3) that the Record Date otherwise applicable to such Distribution Date
is
not applicable, distributions being made only upon presentation and surrender
of
the Certificates at the office or agency of the Trustee therein
specified.
(c) Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Holders of the Certificates on the Distribution Date for
such
final distribution, in proportion to the Percentage Interests of their
respective Class and to the extent that funds are available for such purpose,
an
amount equal to the amount required to be distributed to such Holders in
accordance with the provisions of Section 4.01 for such Distribution Date.
By
acceptance of the Residual Certificates, the Holders of the Residual
Certificates agree, in connection with any termination hereunder, to assign
and
transfer any amounts in excess of the par value of the Mortgage Loans, and
to
the extent received in respect of such termination, to pay any such amounts
to
the Holders of the Class C Certificates.
(d) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final Distribution Date, the
Trustee shall promptly following such date cause all funds in the Distribution
Account not distributed in final distribution to Certificateholders to be
withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate Servicing Account for the benefit of such
Certificateholders, and the Servicer (if the Servicer has exercised its right
to
purchase the Mortgage Loans) or the Trustee (in any other case) shall give
a
second written notice to the remaining Certificateholders, to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within nine months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Residual
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto, and the Trustee upon transfer of such funds shall
be discharged of any responsibility for such funds, and the Certificateholders
shall look to the Residual Certificateholders for payment.
SECTION
10.02 Additional
Termination Requirements.
(a) In
the
event that the Terminator exercises its purchase option as provided in Section
10.01, each REMIC shall be terminated in accordance with the following
additional requirements, unless the Trustee shall have been furnished with
an
Opinion of Counsel to the effect that the failure of the Trust to comply with
the requirements of this Section will not (i) result in the imposition of taxes
on “prohibited transactions” of the Trust as defined in Section 860F of the Code
or (ii) cause any REMIC constituting part of the Trust Fund to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) Within
90
days prior to the final Distribution Date, the Terminator shall adopt and the
Trustee shall sign a plan of complete liquidation of each REMIC created
hereunder meeting the requirements of a “Qualified Liquidation” under Section
860F of the Code and any regulations thereunder; and
(ii) At
or
after the time of adoption of such a plan of complete liquidation and at or
prior to the final Distribution Date, the Trustee shall sell all of the assets
of the Trust Fund to the Terminator for cash pursuant to the terms of the plan
of complete liquidation.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee as their attorney in fact to: (i) adopt such a plan of complete
liquidation (and the Certificateholders hereby appoint the Trustee as their
attorney in fact to sign such plan) as appropriate and (ii) to take such other
action in connection therewith as may be reasonably required to carry out such
plan of complete liquidation all in accordance with the terms
hereof.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
SECTION
11.01 Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicer and
the Trustee with the consent of the NIMS Insurer and without the consent of
the
Certificateholders (i) to cure any ambiguity, (ii) to correct or supplement
any
provisions herein which may be defective or inconsistent with any other
provisions herein (iii) to amend the provisions of Section 3.22(b) or (iv)
to
make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided that such action shall not, as evidenced by either (a)
an
Opinion of Counsel delivered to the Trustee or (b) written notice to the
Depositor, the Servicer and the Trustee from each Rating Agency that such action
will not result in the reduction or withdrawal of the rating of any outstanding
Class of Certificates with respect to which it is a Rating Agency, adversely
affect in any material respect the interests of any Certificateholder. No
amendment shall be deemed to adversely affect in any material respect the
interests of any Certificateholder who shall have consented thereto, and no
Opinion of Counsel or Rating Agency confirmation shall be required to address
the effect of any such amendment on any such consenting Certificateholder.
Notwithstanding the foregoing, neither an Opinion of Counsel nor written notice
to the Depositor, the Servicer and the Trustee from the Rating Agencies will
be
required in connection with an amendment to the provisions of Section
3.22(b).
In
addition, this Agreement may be amended from time to time by the Depositor,
the
Servicer and the Trustee with the consent of the NIMS Insurer, the Swap Provider
and the Majority Certificateholders for the purpose of adding any provisions
to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that no such amendment or waiver shall (x) reduce in any
manner the amount of, or delay the timing of, payments on the Certificates
or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate, (y) adversely affect in any material
respect the interests of the Swap Provider or Holders of any Class of
Certificates (as evidenced by either (i) an Opinion of Counsel delivered to
the
Trustee or (ii) written notice to the Depositor, the Servicer and the Trustee
from each Rating Agency that such action will not result in the reduction or
withdrawal of the rating of any outstanding Class of Certificates with respect
to which it is a Rating Agency) in a manner other than as described in clause
(x) above, without the consent of the Holders of Certificates of such Class
evidencing at least a 66% Percentage Interest in such Class, or (z) reduce
the
percentage of Voting Rights required by clause (y) above without the consent
of
the Holders of all Certificates of such Class then outstanding. Upon approval
of
an amendment, a copy of such amendment shall be sent to the Rating
Agencies.
Notwithstanding
any provision of this Agreement to the contrary, the Trustee shall not consent
to any amendment to this Agreement unless it shall have first received an
Opinion of Counsel, delivered by (and at the expense of) the Person seeking
such
Amendment and satisfactory to the NIMS Insurer, to the effect that such
amendment will not result in the imposition of a tax on any REMIC created
hereunder constituting part of the Trust Fund pursuant to the REMIC Provisions
or cause any REMIC created hereunder constituting part of the Trust to fail
to
qualify as a REMIC at any time that any Certificates are outstanding and that
the amendment is being made in accordance with the terms hereof.
Notwithstanding
any of the other provisions of this Section 11.01, none of the Depositor, the
Servicer or the Trustee shall enter into any amendment to this Agreement, if
such amendment would have a material adverse effect on the Swap Provider,
without the prior written consent of the Swap Provider (which consent shall
not
be unreasonably withheld).
Promptly
after the execution of any such amendment the Trustee shall furnish, at the
expense of the Person that requested the amendment if such Person is the
Servicer (but in no event at the expense of the Trustee), otherwise at the
expense of the Trust, a copy of such amendment and the Opinion of Counsel
referred to in the immediately preceding paragraph to the Servicer, the NIMS
Insurer and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
to approve the particular form of any proposed amendment; instead it shall
be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
The
Trustee may, but shall not be obligated to, enter into any amendment pursuant
to
this Section 11.01 that affects its rights, duties and immunities under this
Agreement or otherwise.
SECTION
11.02 Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer at the expense
of
the Trust, but only upon direction of Certificateholders accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
SECTION
11.03 Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this
Section 11.03 each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION
11.04 Governing
Law; Jurisdiction.
This
Agreement shall be construed in accordance with the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws. With respect to any claim arising
out
of this Agreement, each party irrevocably submits to the exclusive jurisdiction
of the courts of the State of New York and the United States District Court
located in the Borough of Manhattan in The City of New York, and each party
irrevocably waives any objection which it may have at any time to the laying
of
venue of any suit, action or proceeding arising out of or relating hereto
brought in any such courts, irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum and further irrevocably waives the right to object, with
respect to such claim, suit, action or proceeding brought in any such court,
that such court does not have jurisdiction over such party, provided that
service of process has been made by any lawful means.
SECTION
11.05 Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, by facsimile or by express delivery service, to
(a)
in the case of the Servicer, Option One Mortgage Corporation, 3 Xxx, Xxxxxx,
Xxxxxxxxxx 00000, or such other address or telecopy number as may hereafter
be
furnished to the Depositor, the NIMS Insurer and the Trustee in writing by
the
Servicer, (b) in the case of the Trustee, Deutsche Bank National Trust Company,
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust
Administration - GC06O4 (telecopy number: (000) 000-0000), or such other address
or telecopy number as may hereafter be furnished to the Depositor, the NIMS
Insurer and the Servicer in writing by the Trustee (c) in the case of the
Depositor, Financial Asset Securities Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Legal, or such other address as may be furnished
to the Servicer, the NIMS Insurer and the Trustee in writing by the Depositor,
(d) in the case of the NIMS Insurer, such address furnished to the Depositor,
the Servicer and the Trustee in writing by the NIMS Insurer, or such other
address or telecopy number as may hereafter be furnished to the Depositor,
the
Servicer and the Trustee in writing by the NIMS Insurer or (e) in the case
of
the Swap Provider, Wachovia Bank, N.A. 000 Xxxxx Xxxxxxx Xxxxxx XX-0, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000, Attention: Risk Management or such other address
or
telecopy number as may hereafter be furnished to the Depositor, the Servicer
and
the Trustee in writing by the NIMS Insurer. Any notice required or permitted
to
be mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register.
Notice of any Servicer Event of Termination shall be given by telecopy and
by
certified mail. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have duly been given when mailed,
whether or not the Certificateholder receives such notice. A copy of any notice
required to be telecopied hereunder shall also be mailed to the appropriate
party in the manner set forth above.
SECTION
11.06 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
11.07 Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
11.08 Notice
to
the Rating Agencies, the Swap Provider and the NIMS Insurer.
(a) Each
of
the Trustee and the Servicer shall be obligated to use its best reasonable
efforts promptly to provide notice to the Rating Agencies, the Swap Provider
and
the NIMS Insurer with respect to each of the following of which a Responsible
Officer of the Trustee or Servicer, as the case may be, has actual
knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Servicer Event of Termination that has not been cured or
waived;
(iii) the
resignation or termination of the Servicer or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as successor Servicer pursuant to Section 7.02 hereof, any
event that would result in the inability of the Trustee to make
Advances.
(b) In
addition, the Trustee shall promptly make available to each Rating Agency copies
of each Statement to Certificateholders described in Sections 4.03 and 3.19
hereof and the Servicer shall promptly furnish to each Rating Agency copies
of
the following:
(i) each
annual statement as to compliance described in Section 3.20 hereof;
(ii) each
annual independent public accountants’ servicing report described in Section
3.21 hereof; and
(iii) each
notice delivered pursuant to Section 7.01(a) hereof which relates to the fact
that the Servicer has not made an Advance.
Any
such
notice pursuant to this Section 11.08 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to (i) Fitch Ratings, 0 Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) Standard & Poor’s, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, Attention: Residential Mortgage Surveillance Group.
SECTION
11.09 Further
Assurances.
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
SECTION
11.10 Third
Party Rights.
The
NIMS
Insurer and the Swap Provider shall each be deemed third-party beneficiaries
of
this Agreement to the same extent as if they were parties hereto, and shall
have
the right to enforce the provisions of this Agreement.
SECTION
11.11 Benefits
of Agreement.
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders, the NIMS Insurer and the parties
hereto and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
SECTION
11.12 Acts
of
Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and the Servicer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust,
if made in the manner provided in this Section 11.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
SECTION
11.13 Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.20, 3.21
and
4.07 of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB promulgated by the SEC under the 1934 Act (17 C.F.R.
§§ 229.1100-229.1123), as such may be amended from time to time and subject to
clarification and interpretive advice as may be issued by the staff of the
SEC
from time to time. Therefore, each of the parties agrees that (a) the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with requests made by the Depositor for delivery of additional
or
different information as the Depositor may determine in good faith is necessary
to comply with the provisions of Regulation AB, and (d) no amendment of this
Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
IN
WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
|
FINANCIAL
ASSET SECURITIES CORP.,
as
Depositor
|
||
|
By:
|
/s/ Xxx Xxx | |
|
Name:
|
Xxx Xxx | |
|
Title:
|
Vice President | |
|
OPTION
ONE MORTGAGE CORPORATION.,
as
Servicer
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
|
Name:
|
Xxxxxxx X. Xxxxxx | |
|
Title:
|
Vice President | |
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee and Supplemental
Interest Trust
Trustee
|
||
|
By:
|
/s/ Xxxxxxx Xxxxx | |
|
Name:
|
Xxxxxxx Xxxxx | |
|
Title:
|
Vice President | |
|
By:
|
/s/ Hang Xxx | |
|
Name:
|
Hang Xxx | |
|
Title:
|
Authorized Signatory |
|
STATE
OF CONNECTICUT
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
____ day of May, 2006 before me, a notary public in and for said State,
personally appeared ___________________known to me to be a ____________________
of Financial Asset Securities Corp., a Delaware corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_____________________________
Notary
Public
|
STATE
OF CALIFORNIA
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
On
the____ day of May, 2006 before me, a notary public in and for said State,
personally appeared ________________________known to me to be a
___________________ of Option One Mortgage Corporation, a corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_____________________________
Notary
Public
|
STATE
OF CALIFORNIA
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
On
the
___ day of May, 2006 before me, a notary public in and for said State,
personally appeared_______________________, known to me to be
a(n)________________________ and ________________________, known to me to be
a(n) ________________________of Deutsche Bank National Trust Company, one of
the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said association, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_____________________________
Notary
Public
EXHIBIT
A-1
FORM
OF
CLASS I-A-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE WHO IS 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 DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION 5.02(d)
OF THE
AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$321,226,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$321,226,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000X
XX 0
|
|
Class
|
:
|
I-A-1
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
I-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class I-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class I-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class I-A-1 Certificate (obtained by dividing the Denomination
of this Class I-A-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class I-A-1 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class I-A-1 Certificate by
virtue of the acceptance hereof assents and by which such Holder is
bound.
Reference
is hereby made to the further provisions of this Class I-A-1 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class I-A-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class I-A-1 Certificate]
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate who is 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 deemed to have made
the
representation made except in accordance with Section 5.02(d) of the
Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF
CLASS II-A-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE WHO IS 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 DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION 5.02(d)
OF THE
AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$260,789,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$260,789,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000X
XX 8
|
|
Class
|
:
|
II-A-1
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
II-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-1 Certificate (obtained by dividing the
Denomination of this Class II-A-1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of May 1, 2006 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Deutsche Bank National Trust Company, a national banking association, as trustee
(the “Trustee”). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Class II-A-1
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class II-A-1
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Reference
is hereby made to the further provisions of this Class II-A-1 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-1 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A-1 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate who is 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 deemed to have made
the
representation made except in accordance with Section 5.02(d) of the
Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF
CLASS II-A-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE WHO IS 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 DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION 5.02(d)
OF THE
AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$75,758,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$75,758,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AC 6
|
|
Class
|
:
|
II-A-2
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
II-A-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-2 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-2 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-2 Certificate (obtained by dividing the
Denomination of this Class II-A-2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of May 1, 2006 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Deutsche Bank National Trust Company, a national banking association, as trustee
(the “Trustee”). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Class II-A-2
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class II-A-2
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Reference
is hereby made to the further provisions of this Class II-A-2 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-2 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A-2 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate who is 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 deemed to have made
the
representation made except in accordance with Section 5.02(d) of the
Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF
CLASS II-A-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE WHO IS 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 DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION 5.02(d)
OF THE
AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$108,517,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$108,517,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AD 4
|
|
Class
|
:
|
II-A-3
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
II-A-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-3 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-3 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-3 Certificate (obtained by dividing the
Denomination of this Class II-A-3 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of May 1, 2006 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Deutsche Bank National Trust Company, a national banking association, as trustee
(the “Trustee”). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Class II-A-3
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class II-A-3
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Reference
is hereby made to the further provisions of this Class II-A-3 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-3 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A-3 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate who is 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 deemed to have made
the
representation made except in accordance with Section 5.02(d) of the
Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date the Servicer may purchase, in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF
CLASS II-A-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE WHO IS 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 DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION 5.02(d)
OF THE
AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$37,710,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$37,710,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000X
XX 2
|
|
Class
|
:
|
II-A-4
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
II-A-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-4 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-4 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-4 Certificate (obtained by dividing the
Denomination of this Class II-A-4 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of May 1, 2006 (the “Agreement”) among the
Depositor, Option One Mortgage Corporation, as servicer (the “Servicer”), and
Deutsche Bank National Trust Company, a national banking association, as trustee
(the “Trustee”). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Class II-A-4
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class II-A-4
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Reference
is hereby made to the further provisions of this Class II-A-4 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-4 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A-4 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate who is 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 deemed to have made
the
representation made except in accordance with Section 5.02(d) of the
Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
FORM
OF
CLASS M-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES AND THE CLASS
II-A-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$72,500,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$72,500,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AF 9
|
|
Class
|
:
|
M-1
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-1 Certificate (obtained by dividing the Denomination
of this Class M-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-1 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-1 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-1 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-1 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-7
FORM
OF
CLASS M-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS
I-A-1 CERTIFICATES, THE CLASS II-A-1 CERTIFICATES, THE CLASS II-A-2, THE CLASS
II-A-3 CERTIFICATES, THE CLASS II-A-4 CERTIFICATES
AND THE
CLASS M-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$21,500,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$21,500,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AG 7
|
|
Class
|
:
|
M-2
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-2 Certificate (obtained by dividing the Denomination
of this Class M-2 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-2 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-2 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-2 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-2 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-8
FORM
OF
CLASS M-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES, THE CLASS II-A-4
CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$18,500,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$18,500,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AH 5
|
|
Class
|
:
|
M-3
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-3 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-3 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-3 Certificate (obtained by dividing the Denomination
of this Class M-3 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-3 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-3 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-3 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-3 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-3 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date the Servicer may purchase, in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-9
FORM
OF
CLASS M-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES, THE CLASS II-A-4
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE
CLASS M-3 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$17,500,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$17,500,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AJ 1
|
|
Class
|
:
|
M-4
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-4 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-4 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-4 Certificate (obtained by dividing the Denomination
of this Class M-4 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-4 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-4 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-4 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-4 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-4 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-10
FORM
OF
CLASS M-5 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES, THE CLASS II-A-4
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS
M-3 CERTIFICATES AND THE CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$17,500,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$17,500,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000X
XX 8
|
|
Class
|
:
|
M-5
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-5
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-5 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-5 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-5 Certificate (obtained by dividing the Denomination
of this Class M-5 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-5 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-5 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-5 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-5 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-5 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-11
FORM
OF
CLASS M-6 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES, THE CLASS II-A-4
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS
M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES
TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$12,000,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$12,000,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AL 6
|
|
Class
|
:
|
M-6
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-6
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-6 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-6 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-6 Certificate (obtained by dividing the Denomination
of this Class M-6 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-6 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-6 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-6 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-6 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-6 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-12
FORM
OF
CLASS M-7 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES, THE CLASS II-A-4
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS
M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND
THE
CLASS M-6 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$10,000,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$10,000,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AM 4
|
|
Class
|
:
|
M-7
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-7
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-7 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-7 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-7 Certificate (obtained by dividing the Denomination
of this Class M-7 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-7 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-7 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-7 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-7 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-7 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-13
FORM
OF
CLASS M-8 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES, THE CLASS II-A-4
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS
M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE
CLASS M-6 CERTIFICATES AND THE CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$7,000,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$7,000,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AN 2
|
|
Class
|
:
|
M-8
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-8
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-8 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-8 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-8 Certificate (obtained by dividing the Denomination
of this Class M-8 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-8 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-8 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-8 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-8 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-8 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-14
FORM
OF
CLASS M-9 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES, THE CLASS II-A-4
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS
M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE
CLASS M-6 CERTIFICATES, THE CLASS M-7 CERTIFICATES AND THE CLASS M-8
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY TRANSFEREE WHO IS AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), EXCEPT IN
ACCORDANCE WITH SECTION 5.02(d)
OF THE
AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”)
AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A PERSON
THAT IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE
144A, IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, IN WHICH THE TRANSFEREE MAKES OR IS DEEMED TO MAKE CERTAIN
REPRESENTATIONS AND UNDERTAKINGS SET FORTH IN THE AGREEMENT AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
9,500,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
9,500,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83611Y
AP 7
|
|
Class
|
:
|
M-9
|
|
Assumed
Maturity Date
|
:
|
June
2036
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
M-9
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-9 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-9 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-9 Certificate (obtained by dividing the Denomination
of this Class M-9 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class M-10 Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-9 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No
transfer of this Certificate shall be made to any transferee of this Certificate
who is a Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any person using Plan
Assets to acquire this Certificate except in accordance with Section 5.02(d)
of
the Agreement.
Reference
is hereby made to the further provisions of this Class M-9 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-9 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-9 Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-15
FORM
OF
CLASS 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 CLASS I-A-1 CERTIFICATES, THE CLASS II-A-1
CERTIFICATES, THE CLASS II-A-2, THE CLASS II-A-3 CERTIFICATES, THE CLASS II-A-4
CERTIFICATES, THE CLASS A-6 CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS
M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE
CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE CLASS M-7 CERTIFICATES,
THE CLASS M-8 CERTIFICATES, THE CLASS M-9 CERTIFICATES, THE CLASS M-10
CERTIFICATES AND THE CLASS M-11 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
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$
9,999,931.47
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$
9,999,931.47
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
C
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
C
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class C Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class C Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, or the Trustee referred to below or any of their respective
affiliates.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the Denomination of this Class C Certificate by the Original Class Certificate
Principal Balance) in certain distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class C Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class C Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class C Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class C Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class C Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-16
FORM
OF
CLASS 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
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$100.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$100.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
P
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
P
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class P Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class P Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, or the Trustee referred to below or any of their respective
affiliates.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the Denomination of this Class P Certificate by the Original Class Certificate
Principal Balance) in certain distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of May 1, 2006 (the “Agreement”) among the Depositor, Option
One Mortgage Corporation, as servicer (the “Servicer”), and Deutsche Bank
National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class P Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class P Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This
Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class P Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class P Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class P Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-17
FORM
OF
CLASS R CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
R
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
R
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting primarily of
a
pool of first lien adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of May 1, 2006 (the
“Agreement”) among the Depositor, Option One Mortgage Corporation, as servicer
(the “Servicer”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trustee of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must
agree
not to transfer an Ownership Interest in this Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v)
any
attempted or purported transfer of any Ownership Interest in this Certificate
in
violation of such restrictions will be absolutely null and void and will vest
no
rights in the purported transferee. Pursuant to the Agreement, The Trustee
will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws
on
transfers of residual interests to disqualified organizations, if any person
other than a Permitted Transferee acquires an Ownership Interest on a Class
R
Certificate in violation of the restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class R Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4 Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-18
FORM
OF
CLASS R-X CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R-X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
June
26, 2006
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
R-X
|
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
Series
2006-OPT4
CLASS
R-X
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting primarily of
a
pool of first lien adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of May 1, 2006 (the
“Agreement”) among the Depositor, Option One Mortgage Corporation, as servicer
(the “Servicer”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trustee of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must
agree
not to transfer an Ownership Interest in this Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v)
any
attempted or purported transfer of any Ownership Interest in this Certificate
in
violation of such restrictions will be absolutely null and void and will vest
no
rights in the purported transferee. Pursuant to the Agreement, The Trustee
will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws
on
transfers of residual interests to disqualified organizations, if any person
other than a Permitted Transferee acquires an Ownership Interest on a Class
R-X
Certificate in violation of the restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
May __, 2006
|
SOUNDVIEW
HOME LOAN TRUST 0000-XXX0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class R-X Certificate]
Soundview
Home Loan Trust 2006-OPT4
Asset-Backed
Certificates,
SERIES
2006-OPT4
This
Certificate is one of a duly authorized issue of Certificates designated as
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in June 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
B
[RESERVED]
EXHIBIT
C
FORM
OF
MORTGAGE LOAN PURCHASE AGREEMENT
OPTION
ONE MORTGAGE CORPORATION,
as
Originator and Seller
OPTION
ONE OWNER TRUST 2001-1B,
OPTION
ONE OWNER TRUST 2001-2,
OPTION
ONE OWNER TRUST 2002-3,
OPTION
ONE OWNER TRUST 2003-4,
OPTION
ONE OWNER TRUST 2003-5,
OPTION
ONE OWNER TRUST 2005-6,
OPTION
ONE OWNER TRUST 2005-7,
OPTION
ONE OWNER TRUST 2005-8,
OPTION
ONE OWNER TRUST 2005-9
as
Sellers
and
FINANCIAL
ASSET SECURITIES CORP.,
as
Purchaser
MORTGAGE
LOAN PURCHASE AGREEMENT
Dated
as
of May 16, 2006
Adjustable-Rate
and Fixed-Rate Mortgage Loans
Soundview
Home Loan Trust 2006-OPT4
Table
of Contents
|
ARTICLE
I.
|
|
|
DEFINITIONS
|
|
|
Section
1.01
|
Definitions
|
|
ARTICLE
II.
|
|
|
SALE
OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
|
|
|
Section
2.01
|
Sale
of Mortgage Loans
|
|
Section
2.02
|
Obligations
of the Originator Upon Sale
|
|
Section
2.03
|
Payment
of Purchase Price for the Mortgage Loans.
|
|
ARTICLE
III.
|
|
|
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
|
|
|
Section
3.01
|
Originator
Representations and Warranties Relating to the Mortgage
Loans.
|
|
Section
3.02
|
Originator
Representations and Warranties Relating to Option One Mortgage
Corporation.
|
|
Section
3.03
|
Seller
Trust Representations and Warranties
|
|
Section
3.04
|
Remedies
for Breach of Representations and Warranties
|
|
ARTICLE
IV.
|
|
|
SELLER’S
COVENANTS
|
|
|
Section
4.01
|
Covenants
of the Originator
|
|
ARTICLE
V.
|
|
|
INDEMNIFICATION
WITH RESPECT TO THE MORTGAGE LOANS
|
|
|
Section
5.01
|
Indemnification.
|
|
ARTICLE
VI.
|
|
|
TERMINATION
|
|
|
Section
6.01
|
Termination
|
|
ARTICLE
VII.
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
7.01
|
Amendment
|
|
Section
7.02
|
Governing
Law
|
|
Section
7.03
|
Notices
|
|
Section
7.04
|
Severability
of Provisions
|
|
Section
7.05
|
Counterparts
|
|
Section
7.06
|
Further
Agreements
|
|
Section
7.07
|
Intention
of the Parties
|
|
Section
7.08
|
Successors
and Assigns; Assignment of Purchase Agreement
|
|
Section
7.09
|
Survival
|
|
Section
7.10
|
Owner
Trustee
|
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of May 16, 2006 (the “Agreement”), among
Option One Mortgage Corporation (the “Originator”), Option One Owner Trust
2001-1B (“Seller Trust 1B”), Option One Owner Trust 2001-2 (“Seller Trust 2”),
Option One Owner Trust 2002-3 (“Seller Trust 3”), Option One Owner Trust 2003-4
(“Seller Trust 4”), Option One Owner Trust 2003-5 (“Seller Trust 5”), Option One
Owner Trust 2005-6 (“Seller Trust 6”), Option One Owner Trust 2005-7 (“Seller
Trust 7”), Option One Owner Trust 2005-8 (“Seller Trust 2005-8) and Option One
Owner Trust 2005-9 (“Seller Trust 2005-9); each of Seller Trust 1B, Seller Trust
2, Seller Trust 3, Seller Trust 4, Seller Trust 5, Seller Trust 6, Seller
Trust
7, Seller Trust 8 and Seller Trust 9, a “Seller
Trust”
and
collectively the “Seller
Trusts”)
(the
Originator and each Seller Trust a “Seller” and collectively the “Sellers”) and
Financial Asset Securities Corp. (the “Purchaser”).
WITNESSETH
WHEREAS,
each Seller is the owner of (a) the notes or other evidence of indebtedness
(the
“Mortgage Notes”) so indicated on the applicable Schedule hereto referred to
below and (b) the other documents or instruments constituting the Mortgage
File
(collectively, the “Mortgage Loans”); and
WHEREAS,
the Sellers, as of the date hereof, own the mortgages (the “Mortgages”) on the
properties (the “Mortgaged Properties”) securing such Mortgage Loans, including
rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise and (b) the proceeds of any insurance policies covering
the Mortgage Loans or the Mortgaged Properties or the obligors on the Mortgage
Loans; and
WHEREAS,
the parties hereto desire that the Sellers sell the Mortgage Loans to the
Purchaser pursuant to the terms of this Agreement; and
WHEREAS,
each Seller Trust is an indirect subsidiary of the Originator and the Originator
is the administrator of each Seller Trust; and
WHEREAS,
the Originator originated or acquired the Mortgage Loans and subsequently
sold
the Mortgage Loans to the applicable Seller Trust; and
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement dated as of May
1,
2006 (the “Pooling and Servicing Agreement”) among the Purchaser as depositor,
the Originator as servicer and Deutsche Bank National Trust Company as trustee
(the “Trustee”), the Purchaser will convey the Mortgage Loans to Soundview Home
Loan Trust 2006-OPT4 (the “Trust”); and
WHEREAS,
the Originator is obligated, in connection with the transactions contemplated
by
this Agreement, to make certain representations, warranties and covenants
with
respect to itself and the Mortgage Loans; and
WHEREAS,
each Seller Trust is obligated, in connection with the transactions contemplated
by this Agreement, to make certain representations, warranties and covenants
with respect to itself.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms used but not defined herein and below shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
“ORIGINATOR
INFORMATION”:
The
information contained in the Prospectus Supplement, read either individually
or
collectively under “SUMMARY OF TERMS—Mortgage Loans,” the first sentence of the
fourth bullet point under “RISK FACTORS—Unpredictability of Prepayments and
Effect on Yields,” the second sentence under “RISK FACTORS—Payment Status of the
Mortgage Loans,” the first sentence under “RISK FACTORS—Interest Only Mortgage
Loans,” the second sentence under “RISK FACTORS—Second Lien Loan Risk,” the
first sentence under “RISK FACTORS—Interest Only Mortgage Loans,” the second
sentence of the third bullet point under “RISK FACTORS—Interest Generated by the
Mortgage Loans May Be Insufficient to Maintain Overcollateralization,” the first
and second sentence under “RISK FACTORS—Simultaneous Second Lien Risk,” “THE
MORTGAGE POOL,” the first sentence of the fifth paragraph under “YIELD,
PREPAYMENT AND MATURITY CONSIDERATIONS”, “THE ORIGINATOR AND THE SPONSOR” and
“THE SERVICER.”
ARTICLE
II.
SALE
OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01 Sale
of Mortgage Loans.
The
applicable Seller, concurrently with the execution and delivery of this
Agreement, does hereby sell, assign, set over, and otherwise convey to the
Purchaser, without recourse, (i) all of its right, title and interest in
and to
each Mortgage Loan, identified on the related Schedule, including the related
Cut-off Date Principal Balance, all interest accruing thereon on or after
the
Cut-off Date and all collections in respect of interest and principal due
after
the Cut-off Date; (ii) property which secured 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; and (iv) all
proceeds of any of the foregoing. In addition to the sale of the Mortgage
Loans,
the Originator will direct the Trustee to enter into the Interest Rate Swap
Agreement and Swap Administration Agreement on behalf of the Trust.
Section
2.02 Obligations
of the Originator Upon Sale.
In
connection with any transfer pursuant to Section 2.01 hereof, the Originator
further agrees, at its own expense on or prior to the Closing Date, (a) to
cause
its books and records and the books and records of each Seller Trust, to
indicate that the Mortgage Loans have been sold to the Purchaser pursuant
to
this Agreement and (b) to deliver to the Purchaser and the Trustee a computer
file containing a true and complete list of all such Mortgage Loans specifying
for each such Mortgage Loan, as of the Cut-off Date, (i) its account number
and
(ii) the Cut-off Date Principal Balance. Such files, which form a part of
Exhibit D to the Pooling and Servicing Agreement, shall also be marked as
Schedule I to this Agreement and are hereby incorporated into and made a
part of
this Agreement.
In
connection with any conveyance by the Sellers, the Originator shall on behalf
of
the Purchaser deliver to, and deposit with the Trustee (or the Custodian
on
behalf of the Trustee), as assignee of the Purchaser, on or before the Closing
Date, the following documents or instruments with respect to each Mortgage
Loan:
(i) the
original Mortgage Note, endorsed either (A) in blank, in which case the Trustee
shall cause the endorsement to be completed or (B) in the following form:
“Pay
to the order of Deutsche Bank National Trust Company, as Trustee,” 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 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) an
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank, without recourse or (B)
to
“Deutsche Bank National Trust Company, as Trustee”;
(iv) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments;
(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,
substitution agreement or guarantee, if any.
The
Originator hereby confirms to the Purchaser and the Trustee that it has caused
the appropriate entries to be made in its general accounting records to indicate
that such Mortgage Loans have been transferred to the Trustee and constitute
part of the Trust in accordance with the terms of the Pooling and Servicing
Agreement.
If
any of
the documents referred to in Section 2.02(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 Originator to deliver such documents shall be deemed to be satisfied
upon
(1) delivery to the Trustee or the Custodian, 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, 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
2.02(v) above, the Originator shall deliver or cause to be delivered to the
Trustee or the Custodian, 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, promptly upon receipt thereof. The Originator
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 Originator shall have 90
days
to cure such defect or deliver such missing document to the Purchaser. If
the
Originator does not cure such defect or deliver such missing document within
such time period, the Originator shall either repurchase or substitute for
such
Mortgage Loan pursuant to Section 2.03 of the Pooling and Servicing
Agreement.
Purchaser
hereby acknowledges its acceptance of all right, title and interest to the
Mortgage Loans and other property, now existing and hereafter created, conveyed
to it pursuant to Section 2.01.
The
parties hereto intend that the transaction set forth herein be a sale by
the
Sellers to the Purchaser of all the applicable Seller’s right, title and
interest in and to the related Mortgage Loans and other property described
above. In the event the transaction set forth herein is deemed not to be
a sale,
each Seller hereby grants to the Purchaser a security interest in all of
such
Seller’s right, title and interest in, to and under the related Mortgage Loans
and other property described above, whether now existing or hereafter created,
to secure all of such Seller’s obligations hereunder; and this Agreement shall
constitute a security agreement under applicable law.
The
Originator shall cause the Assignments which were delivered in blank to be
completed and shall cause all Assignments referred to in Section 2.02(iii)
hereof and, to the extent necessary, in Section 2.02(iv) hereof to be recorded.
The Originator shall be required 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 Originator shall
promptly have a substitute Assignment prepared or have such defect cured,
as the
case may be, and thereafter cause each such Assignment to be duly recorded.
Notwithstanding the foregoing, for administrative convenience and facilitation
of servicing and to reduce closing costs, the Assignments of Mortgage shall
not
be required to be submitted for recording (except with respect to any Mortgage
Loan located in Maryland) unless 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 shall be submitted for recording by the Originator in the manner
described above, at no expense to the Trust Fund or Trustee, upon the earliest
to occur of: (i) reasonable direction by Holders of Certificates entitled
to at
least 25% of the Voting Rights, (ii) the occurrence of a Servicer Event of
Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Servicer, (iv) the occurrence of a servicing transfer as
described in Section 7.02 of the Pooling and Servicing Agreement, (v) upon
receipt of notice from the Servicer, the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Mortgagor under the related Mortgage and (vi)
upon receipt of notice from the Servicer, any Mortgage Loan that is 90 days
or
more Delinquent. Upon receipt of written notice from the Purchaser that
recording of the Assignments is required pursuant to one or more of the
conditions set forth in the preceding sentence, the related Seller shall
be
required to deliver such Assignments for recording as provided above, promptly
and in any event within 30 days following receipt of such notice. The related
Seller shall furnish the Trustee (or the Custodian on behalf of the Trustee),
or
its designated agent, with a copy of each Assignment submitted for
recording.
In
the
event that any Mortgage Note is endorsed in blank as of the Closing Date,
promptly following the Closing Date, the Trustee (or the Custodian on behalf
of
the Trustee), at the expense of the related Seller, shall cause to be completed
such endorsements “Pay to the order of Deutsche Bank National Trust Company, as
Trustee, without recourse.”
Section
2.03 Payment
of Purchase Price for the Mortgage Loans.
(i) In
consideration of the sale of the Mortgage Loans from Option One Mortgage
Corporation to the Purchaser on the Closing Date, the Purchaser agrees to
pay to
Option One Mortgage Corporation on the Closing Date immediately available
funds
in an amount equal to $
22,285,231.55.
(ii) In
consideration of the sale of the Mortgage Loans from Seller Trust 1B to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
1B on
the Closing Date immediately available funds in an amount equal to
$284,680,973.83.
(iii) In
consideration of the sale of the Mortgage Loans from Seller Trust 2 to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
2 on
the Closing Date immediately available funds in an amount equal to
$43,527,378.29.
(iv) In
consideration of the sale of the Mortgage Loans from Seller Trust 3to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
3 on
the Closing Date immediately available funds in an amount equal to
$110,805,820.30.
(v) In
consideration of the sale of the Mortgage Loans from Seller Trust 4 to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
4 on
the Closing Date immediately available funds in an amount equal to
$74,924,315.63.
(vi) In
consideration of the sale of the Mortgage Loans from Seller Trust 5 to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
5 on
the Closing Date immediately available funds in an amount equal to
$96,802,648.30.
(vii) In
consideration of the sale of the Mortgage Loans from Seller Trust 6 to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
6 on
the Closing Date immediately available funds in an amount equal to
$91,904,051.65.
(viii) In
consideration of the sale of the Mortgage Loans from Seller Trust 7 to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
7 on
the Closing Date immediately available funds in an amount equal to
$93,751,602.08.
(ix) In
consideration of the sale of the Mortgage Loans from Seller Trust 8 to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
8 on
the Closing Date immediately available funds in an amount equal to
$107,607,078.55.
(x) In
consideration of the sale of the Mortgage Loans from Seller Trust 9 to the
Purchaser on the Closing Date, the Purchaser agrees to pay to Seller Trust
9 on
the Closing Date immediately available funds in an amount equal to
$73,710,931.29.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Originator
Representations and Warranties Relating to the Mortgage Loans.
The
Originator and the Purchaser understand, acknowledge and agree that, the
representations and warranties set forth in Schedule II attached hereto are
made
as of the Closing Date or as of the date specifically provided
herein.
Section
3.02 Originator
Representations and Warranties Relating to Option One Mortgage
Corporation.
The
Originator represents, warrants and covenants to the Purchaser as of the
Closing
Date or as of such other date specifically provided herein:
(a) The
Originator is duly organized, validly existing and in good standing as a
corporation under the laws of the State of California and is and will remain
in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(b) The
Originator has the full power and authority to hold each Mortgage Loan, to
sell
each Mortgage Loan, to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Originator
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 Purchaser and the Seller Trusts,
constitutes a legal, valid and binding obligation of the Originator, enforceable
against it in accordance with its terns except as the enforceability thereof
may
be limited by bankruptcy, insolvency or reorganization. At the time of the
sale
of each Mortgage Loan by the Originator (in its capacity as a Seller), the
Originator (in its capacity as a Seller) had the full power and authority
to
hold each Mortgage Loan and to sell each Mortgage Loan;
(c) The
execution and delivery of this Agreement by the Originator and the performance
of and compliance with the terms of this Agreement will not violate the
Originator’s articles of incorporation or by-laws or constitute a default under
or result in a breach or acceleration of, any material contract, agreement
or
other instrument to which the Originator is a party or which may be applicable
to the Originator or its assets;
(d) The
Originator is not in violation of, and the execution and delivery of this
Agreement by the Originator and its performance and compliance with the terms
of
this Agreement will not constitute a violation with respect to, any order
or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction over the Originator or its assets,
which violation might have consequences that would materially and adversely
affect the condition (financial or otherwise) or the operation of the Originator
or its assets or might have consequences that would materially and adversely
affect the performance of its obligations and duties hereunder;
(e) Reserved;
(f) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the
Originator (in its capacity as a Seller) was the owner of the related Mortgages
and the indebtedness evidenced by the related Mortgage Note and upon the
payment
of the Purchase Price by the Purchaser, in the event that the Originator
(in its
capacity as a Seller) retains record title, the Originator (in its capacity
as a
Seller) shall retain such record title to each Mortgage, each related Mortgage
Note and the related Mortgage Files with respect thereto in trust for the
Purchaser as the owner thereof,
(g) The
Originator (in its capacity as a Seller) has not transferred the Mortgage
Loans
to the Purchaser with any intent to hinder, delay or defraud any of its
creditors;
(h) There
are
no actions or proceedings against, or investigations known to it of, the
Originator before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the sale
of
the Mortgage Loans or the consummation of the transactions contemplated by
this
Agreement or (C) that might prohibit or materially and adversely affect the
performance by the Originator of its obligations under, or validity or
enforceability of, this Agreement;
(i) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Originator
of, or compliance by the Originator 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;
(j) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Originator. The sale of the Mortgage Loans
is
in the ordinary course of business of the Originator (in its capacity as
a
Seller) and the assignment and conveyance of the Mortgage Notes and the
Mortgages by the Originator (in its capacity as a Seller) are not subject
to the
bulk transfer or any similar statutory provisions;
(k) Except
with respect to liens released immediately prior to the transfer herein
contemplated, each Mortgage Note and related Mortgage have not been assigned
or
pledged and immediately prior to the transfer and assignment herein
contemplated, the Originator (in its capacity as a Seller) held good, marketable
and indefeasible title to, and were the sole owners and holders of, each
Mortgage Loan subject to no liens, charges, mortgages, claims, participation
interests, equities, pledges or security interests of any nature, encumbrances
or rights of others (collectively, a “Lien”); the Originator (in its capacity as
a Seller) had full right and authority under all governmental and regulatory
bodies having jurisdiction over the Originator, subject to no interest or
participation of, or agreement with, any party, to sell and assign the same
pursuant to this Agreement; and immediately upon the transfers and assignments
herein contemplated. The Originator (in its capacity as a Seller) shall have
transferred all of its right, title and interest in and to each Mortgage
Loan
and the Trustee will hold good, marketable and indefeasible title to, and
be the
sole owner of, each Mortgage Loan subject to no Liens.
(l) The
Originator does not believe, nor does it have any reason or cause to believe,
that it cannot perform each and every covenant contained in this Agreement;
and
(m) Except
with respect to any statement regarding the intentions of the Purchaser,
or any
other statement contained herein the truth or falsity of which is dependant
solely upon the actions of the Purchaser, this Agreement does not contain
any
untrue statement of material fact or omit to state a material fact necessary
to
make the statements contained herein not misleading. The written statements,
reports and other documents prepared and furnished or to be prepared and
furnished by the Originator pursuant to this Agreement or in connection with
the
transactions contemplated hereby taken in the aggregate do not contain any
untrue statement of material fact or omit to state a material fact necessary
to
make the statements contained therein not misleading;
(n) The
Originator is an approved seller/servicer for Xxxxxx Xxx and Xxxxxxx Mac
in good
standing and is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act. No event has occurred, including but not limited to
a
change in insurance coverage, which would make the Originator unable to comply
with Xxxxxx Mae, Xxxxxxx Mac or HUD eligibility requirements or which would
require notification to Xxxxxx Mae, Xxxxxxx Mac or HUD;
(o) The
Mortgage Note, the Mortgage, the Assignment and any other documents required
to
be delivered with respect to each Mortgage Loan, have been delivered to the
Purchaser all in compliance with the specific requirements hereof. With respect
to each Mortgage Loan, the Originator/Seller is in possession of a complete
Mortgage File, except for such documents as have been delivered to the Trustee;
and
(p) The
Originator
is a
member of MERS in good standing, will 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 and is current in payment of all fees
and
assessments imposed by MERS.
Section
3.03 Seller
Trust Representations and Warranties.
Each
Seller Trust represents, warrants and covenants to the Purchaser as of the
Closing Date or as of such other date specifically provided herein:
(i) The
Seller Trust is duly organized, validly existing and in good standing as
a
business trust under the laws of the State of Delaware and is and will remain
in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(ii) The
Seller Trust has the full power and authority to hold each Mortgage Loan,
to
sell each Mortgage Loan, to execute, deliver and perform, and to enter into
and
consummate, all transactions contemplated by this Agreement. The Seller Trust
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 Purchaser and the Originator,
constitutes a legal, valid and binding obligation of the Seller Trust,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or reorganization;
(iii) The
execution and delivery of this Agreement by the Seller Trust and the performance
of and compliance with the terms of this Agreement will not violate the Seller
Trust’s certificate of trust or constitute a default under or result in a breach
or acceleration of, any material contract, agreement or other instrument
to
which the Seller Trust is a party or which may be applicable to the Seller
Trust
or its assets;
(iv) The
Seller Trust is not in violation of, and the execution and delivery of this
Agreement by the Seller Trust and its performance and compliance with the
terms
of this Agreement will not constitute a violation with respect to, any order
or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction over such Seller Trust or its
assets,
which violation might have consequences that would materially and adversely
affect the condition (financial or otherwise) or the operation of the Seller
Trust or its assets or might have consequences that would materially and
adversely affect the performance of its obligations and duties hereunder;
and
(v) Immediately
prior to the payment of the mortgage loan purchase price for each Mortgage
Loan,
the Seller Trust was the owner of the related Mortgage and the indebtedness
evidenced by the related Mortgage Note and upon the payment of the mortgage
loan
purchase price by the Purchaser, in the event that the Seller Trust retains
record title, the Seller Trust shall retain such record title to each Mortgage,
each related Mortgage Note and the related Mortgage Files with respect thereto
in trust for the Purchaser as the owner thereof;
(vi) The
Seller Trust has not transferred the Mortgage Loans to the Purchaser with
any
intent to hinder, delay or defraud any of its creditors;
(vii) There
are
no actions or proceedings against, or investigations known to it of, the
Seller
Trust before any court, administrative or other tribunal (A) that might prohibit
its entering into this Agreement, (B) seeking to prevent the sale of the
Mortgage Loans or the consummation of the transactions contemplated by this
Agreement or (C) that might prohibit or materially and adversely affect the
performance by the Seller Trust of its obligations under, or validity or
enforceability of, this Agreement;
(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 Seller
Trust
of, or compliance by the Seller Trust 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;
(ix) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller Trust, and the transfer assignment
and
conveyance of the related Mortgage Notes and the Mortgages by the Seller
Trust
pursuant to this Agreement are not subject to the bulk transfer or any similar
statutory provisions; and
(x) Except
with respect to liens released immediately prior to the transfer herein
contemplated, the applicable Mortgage Note and related Mortgage have not
been
assigned or pledged and immediately prior to the transfer and assignment
herein
contemplated, the Seller Trust held good, marketable and indefeasible title
to,
and was the sole owner and holder of, the related Mortgage Loan subject to
no
liens, charges, mortgages, claims, participation interests, equities, pledges
or
security interests of any nature, encumbrances or rights of others
(collectively, a “Lien”); the Seller Trust has full right and authority under
all governmental and regulatory bodies having jurisdiction over the Seller
Trust, subject to no interest or participation of, or agreement with, any
party,
to sell and assign the same pursuant to this Agreement; and immediately upon
the
transfers and assignments herein contemplated, the Seller Trust shall have
transferred all of its right, title and interest in and to the related Mortgage
Loans and the Trustee will hold good, marketable and indefeasible title to,
and
be the sole owner of, the related Mortgage Loans subject to no
Liens.
Section
3.04 Remedies
for Breach of Representations and Warranties.
It is
understood and agreed that the representations and warranties set forth in
Subsections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to
the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment or
the
examination or lack of examination of any Mortgage File. Upon discovery by
either the Originator or the Purchaser of a breach of any of the foregoing
representations and warranties that materially and adversely affects the
value
of the Mortgage Loans or the interest of the Purchaser (or which materially
and
adversely affects the interests of the Purchaser in the related Mortgage
Loan in
the case of a representation and warranty relating to a particular Mortgage
Loan), the party discovering such breach shall give prompt written notice
to the
other. It is understood by the parties hereto that a breach of the
representations and warranties made in paragraphs (7), (39), (45), (48),
(55),
(60), (61), (76), (85), (87), (88), (89), (90), (91), (92), (93), (94) and
(95)
of Schedule II will be deemed to materially and adversely affect the value
of
the related Mortgage Loan or the interest of the Purchaser.
Within
60
days of the earlier of either discovery by or notice to the Originator of
any
breach of a representation or warranty made by the Originator or the Sellers
that materially and adversely affects the value of a Mortgage Loan or the
Mortgage Loans or the interest therein of the Purchaser, the Originator shall
use its best efforts promptly to cure such breach in all material respects
and,
if such breach cannot be cured, the Originator shall, at the Purchaser’s option,
repurchase such Mortgage Loan at the Purchase Price (as defined in the Pooling
and Servicing Agreement). In the event that a breach shall involve any
representation or warranty set forth in Subsection 3.02 and such breach cannot
be cured within 60 days of the earlier of either discovery by or notice to
the
Originator of such breach, all of the Mortgage Loans shall, at the Purchaser’s
option be repurchased by the Originator at the Purchase Price (as defined
in the
Pooling and Servicing Agreement). The Originator may, at the request of the
Purchaser and assuming the Originator has a Qualified Substitute Mortgage
Loan,
rather than repurchase a deficient Mortgage Loan as provided above, remove
such
Mortgage Loan and substitute in its place a Qualified Substitute Mortgage
Loan
or Loans. If the Originator does not provide a Qualified Substitute Mortgage
Loan or Loans, it shall repurchase the deficient Mortgage Loan. Any repurchase
of a Mortgage Loan(s) pursuant to the foregoing provisions of this Section
3.03
shall occur on a date designated by the Purchaser and shall be accomplished
by
deposit in accordance with Section 2.03 of the Pooling and Servicing Agreement.
Any repurchase or substitution required by this Section shall be made in
a
manner consistent with Section 2.03 of the Pooling and Servicing
Agreement.
Notwithstanding
the foregoing, within 90 days of the earlier of discovery by the Originator
or
receipt of notice by the Originator of the breach of the representation of
the
Originator set forth in paragraphs (52) or (58) of Schedule II which materially
and adversely affects the interests of the Holders of the Class P Certificates
in any Prepayment Charge, the Originator shall pay the amount of the scheduled
Prepayment Charge, for the benefit of the Holders of the Class P Certificates,
by depositing such amount into the Collection Account, net of any amount
previously collected by the Servicer and paid by the Servicer, for the benefit
of the Holders of the Class P Certificates, in respect of such Prepayment
Charge.
With
respect to the covenant set forth in paragraph (83) of Schedule II, if the
reports required to be delivered by the Servicer pursuant to Section 3.01
of the
Pooling and Servicing Agreement are not obtained or if any of the related
Mortgaged Properties appear to have been damaged materially per such reports,
the Originator shall repurchase or substitute for such Mortgage Loans in
accordance with the procedures set forth herein within 180 days of the Closing
Date.
At
the
time of substitution or repurchase of any deficient Mortgage Loan, the Purchaser
and the Originator shall arrange for the reassignment of the repurchased
or
substituted Mortgage Loan to the Originator (in its capacity as Seller) and
the
delivery to the Originator (in its capacity as Seller) of any documents held
by
the Trustee relating to the deficient or repurchased Mortgage Loan. In the
event
the Purchase Price (as defined in the Pooling and Servicing Agreement) is
deposited in the Collection Account. The Originator shall, simultaneously
with
such deposit, give written notice to the Purchaser that such deposit has
taken
place. Upon such repurchase, the Mortgage Loan Schedule shall be amended
to
reflect the withdrawal of the repurchased Mortgage Loan from this
Agreement.
In
the
event that the first Monthly Payment on any Mortgage Loan due to the Trust
is
not made within forty-five (45) days of the date on which such Monthly Payment
was due, then such Mortgage Loan will be repurchased by the Originator at
the
Purchase Price (as defined in the Pooling and Servicing Agreement).
Notwithstanding the foregoing, the Originator’s obligation to repurchase any
such Mortgage Loan pursuant to this paragraph shall expire 180 days following
the Closing Date.
As
to any
Deleted Mortgage Loan for which the Originator substitutes a Qualified
Substitute Mortgage Loan or Loans, the Originator shall effect such substitution
by delivering to the Purchaser or its designee for such Qualified Substitute
Mortgage Loan or Loans the Mortgage Note, the Mortgage, the Assignment and
such
other documents and agreements as are required by the Pooling and Servicing
Agreement. with the Mortgage Note endorsed as required therein. The Originator
shall remit for deposit in the Collection Account the Monthly Payment due
on
such Qualified Substitute Mortgage Loan or Loans in the month following the
date
of such substitution. Monthly payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution will be retained by the Originator.
For the month of substitution, distributions to the Purchaser will include
the
Monthly Payment due on such Deleted Mortgage Loan in the month of substitution,
and the Originator shall thereafter be entitled to retain all amounts
subsequently received by the Originator in respect of such Deleted Mortgage
Loan. Upon such substitution, the Qualified Substitute Mortgage Loans shall
be
subject to the terms of this Agreement in all respects, and the Originator
shall
be deemed to have made with respect to such Qualified Substitute Mortgage
Loan
or Loans as of the date of substitution, the covenants, representations and
warranties set forth in Subsections 3.01 and 3.02.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive delivery of the respective Mortgage
Files
to the Trustee on behalf of the Purchaser.
It
is
understood and agreed that the obligations of the Originator set forth in
this
Section 3.04 to cure, repurchase and substitute for a defective Mortgage
Loan
and to indemnify the Purchaser as provided in Section 5.01 constitute the
sole
remedies of the Purchaser respecting a missing or defective document or a
breach
of the representations and warranties contained in Section 3.01, 3.02 or
3.03.
ARTICLE
IV.
ORIGINATOR’S
COVENANTS
Section
4.01 Covenants
of the Originator.
The
Originator hereby covenants that except for the transfer hereunder, neither
the
Originator
nor any Seller Trust will
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on any Mortgage Loan, or any interest
therein; the Originator will notify the Trustee, as assignee of the Purchaser,
of the existence of any Lien on any Mortgage Loan immediately upon discovery
thereof, and the Originator will defend the right, title and interest of
the
Trust, as assignee of the Purchaser, in, to and under the Mortgage Loans,
against all claims of third parties claiming through or under the Originator
or
any Seller Trust; provided,
however,
that
nothing in this Section 4.01 shall prevent or be deemed to prohibit the
Originator or any Seller Trust from suffering to exist upon any of the Mortgage
Loans any Liens for municipal or other local taxes and other governmental
charges if such taxes or governmental charges shall not at the time be due
and
payable or if the Originator or any Seller shall currently be contesting
the
validity thereof in good faith by appropriate proceedings and shall have
set
aside on its books adequate reserves with respect thereto.
ARTICLE
V.
INDEMNIFICATION
WITH RESPECT TO THE MORTGAGE LOANS
Section
5.01 Indemnification.
(a) The
Originator indemnifies and holds harmless the Purchaser, its respective officers
and directors and each person, if any, who controls the Purchaser within
the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act,
as follows:
(i) against
any and all losses, claims, expenses, damages or liabilities, joint or several,
to which the Purchaser or such controlling person may become subject under
the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof including, but not limited to,
any
loss, claim, expense, damage or liability related to purchases and sales
of the
Certificates) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus Supplement,
or
any amendment or supplement thereto, or arise out of, or are based upon,
the
omission or alleged omission to state therein a material fact required to
be
stated therein or necessary to make the statements made therein not misleading,
to the extent that any untrue statement or alleged untrue statement therein
results (or is alleged to have resulted) from an error or material omission
in
the information concerning the Originator Information furnished by the
Originator to the Purchaser for use in the preparation of the Prospectus
Supplement, which error was not superseded or corrected by the delivery to
the
Purchaser of corrected written or electronic information, or for which the
Originator provided written notice of such error to the Purchaser prior to
the
confirmation of the sale of the Certificates; and will reimburse the Purchaser
and each such controlling person for any legal or other expenses reasonably
incurred by the Purchaser or such controlling person in connection with
investigating or defending any such loss, claim, damage. liability or action
as
such expenses are incurred;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, to the
extent
of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever based upon any such untrue statement or omission, or
any
such alleged untrue statement or omission, if such settlement is effected
with
the written consent of the Purchaser; and
(iii) against
any and all expense whatsoever (including the fees and disbursements of counsel
chosen by the Purchaser), reasonably incurred in investigating, preparing
or
defending against any litigation, or investigation or proceeding by any
governmental agency or body. commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
clause (i) or clause (ii) above.
This
indemnity agreement will be in addition to any liability which the Originator
may otherwise have.
(b) Promptly
after receipt by any indemnified party under this Article V of notice of
any
claim or the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against any indemnifying party under
this
Article V, notify the indemnifying party in writing of the claim or the
commencement of that action; provided,
however,
that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Article V except to the extent it
has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Article
V.
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to
the indemnified party under this Article V for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any
such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless: (i)
the
employment thereof has been specifically authorized by the indemnifying party
in
writing; (ii) such indemnified party shall have been advised in writing by
such
counsel that there may be one or more legal defenses available to it which
are
different from or additional to those available to the indemnifying party
and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel; or (iii) the indemnifying party has failed
to
assume the defense of such action and employ counsel reasonably satisfactory
to
the indemnified party, in which case, if such indemnified party notifies
the
indemnifying party in writing that it elects to employ separate counsel at
the
expense of the indemnifying party, the indemnifying party shall not have
the
right to assume the defense of such action on behalf of such indemnified
party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys (in addition to local counsel) at any time for
all
such indemnified parties, which firm shall be designated in writing by the
Purchaser, if the indemnified parties under this Article V consist of the
Purchaser, by the Originator, if the indemnified parties in this Article
V
consist of the Originator, or be the related Seller Trust, if the indemnified
parties in this Article V consist of such Seller Trust.
Each
indemnified party, as a condition of the indemnity agreements contained in
Section 5.01 (a) and (b) hereof, shall use its best efforts to cooperate
with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
an
indemnifying party to consent to a settlement of any action, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request
and the indemnifying party has not previously provided the indemnified party
with written notice of its objection to such settlement. No indemnifying
party
shall effect any settlement of any pending or threatened proceeding in respect
of which an indemnified party is or could have been a party and indemnity
is or
could have been sought hereunder, without the written consent of such
indemnified party, unless settlement includes an unconditional release of
such
indemnified party from all liability and claims that are the subject matter
of
such proceeding.
(c) In
order
to provide for just and equitable contribution in circumstances in which
the
indemnity agreement provided for in this Article is for any reason held to
be
unenforceable although applicable in accordance with its terms, each Seller
Trust and the Originator, on the one hand, and the Purchaser, on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred
by the
related Seller Trust, the Originator and the Purchaser in such proportions
as
shall be appropriate to reflect the relative fault of each Seller Trust and
the
Originator on the one hand and the Purchaser on the other from the sale of
the
Mortgage Loans; provided,
however,
that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11
(f) of the Securities Act) shall be entitled to contribution from any person
who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each officer and director of the Purchaser and each person, if any,
who
controls the Purchaser within the meaning of Section 15 of the Securities
Act
shall have the same rights to contribution as the Purchaser and each director
of
the Originator, each officer of the Originator, and each person, if any,
who
controls the Originator within the meaning of Section 15 of the Securities
Act
shall have the same rights to contribution as the Originator and each director
of the related Seller Trust, each officer of such Seller Trust, and each
person,
if any, who controls such Seller within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the related
Seller.
(d) The
Originator agrees to indemnify and to hold each of the Purchaser, the Trustee,
each of the officers and directors of each such entity and each person or
entity
who controls each such entity or person and each Certificateholder harmless
against any and all claims, losses, penalties, fines, forfeitures, legal
fees
and related costs, judgments, and any other costs, fees and expenses that
the
Purchaser, the Trustee, or any such person or entity and any Certificateholder
may sustain in any way (i) related to the failure of the Originator to perform
its duties in compliance with the terms of this Agreement or (ii) arising
from a
breach by the Originator of its representations and warranties in Sections
3.01
and 3.02 of this Agreement. The Originator shall immediately notify the
Purchaser, the Trustee and each Certificateholder if a claim is made by a
third
party with respect to this Agreement. The Originator shall assume the defense
of
any such claim and pay all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against the Purchaser, the Trustee or any such
person or entity and/or any Certificateholder in respect of such
claim.
ARTICLE
VI.
TERMINATION
Section
6.01 Termination.
The
respective obligations and responsibilities of the Originator, each Seller
and
the Purchaser created hereby shall terminate, except for the Originator’s
indemnity obligations as provided herein upon the termination of the Trust
as
provided in Article X of the Pooling and Servicing Agreement.
ARTICLE
VII.
MISCELLANEOUS
PROVISIONS
Section
7.01 Amendment.
This
Agreement may be amended from time to time by the Originator, each Seller
Trust
and the Purchaser, by written agreement
signed by the Originator, each Seller Trust and the Purchaser.
Section
7.02 Governing
Law.
This
Agreement shall be governed by and 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.
Section
7.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows: (i) if to the
Originator, Option One Mortgage Corporation, 3 Ada, Xxxxxx, Xxxxxxxxxx 00000,
Attention: C. Xxxxxx Xxxxxx, or such other address as may hereafter be furnished
to the Purchaser in writing by the Originator and (ii) if to the Purchaser,
Financial Asset Securities Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: Legal, or such other address as may hereafter be furnished
to
the Purchaser and any Seller Trust in writing by the Originator.
Section
7.04 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions of terms of this Agreement
shall be held invalid for any reason whatsoever, 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 of enforceability of the other provisions of this
Agreement.
Section
7.05 Counterparts.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original and such counterparts, together, shall constitute
one and the same agreement.
Section
7.06 Further
Agreements.
The
Purchaser, each Seller and the Originator each agree to execute and deliver
to
the other such additional documents, instruments or agreements as may be
necessary or reasonable and appropriate to effectuate the purposes of this
Agreement or in connection with the issuance of any Series of Certificates
representing interests in the Mortgage Loans.
Without
limiting the generality of the foregoing, as a further inducement for the
Purchaser to purchase the Mortgage Loans from the Sellers, the Originator
will
cooperate with the Purchaser in connection with the sale of any of the
securities representing interests in the Mortgage Loans. In that connection,
the
Originator will provide to the Purchaser any and all information and appropriate
verification of information, whether through letters of its auditors and
counsel
or otherwise, as the Purchaser shall reasonably request and will provide
to the
Purchaser such additional representations and warranties, covenants, opinions
of
counsel, letters from auditors, and certificates of public officials or officers
of the Originator as are reasonably required in connection with such
transactions and the offering of investment grade securities rated by the
Rating
Agencies.
Section
7.07 Intention
of the Parties.
It is
the intention of the parties that the Purchaser is purchasing, and each Seller
is selling, the Mortgage Loans rather than pledging the Mortgage Loans to
secure
a loan by the Purchaser to each Seller. Accordingly, the parties hereto each
intend to treat the transaction for federal income tax purposes and all other
purposes as a sale by the related Seller, and a purchase by the Purchaser,
of
the Mortgage Loans. The Purchaser will have the right to review the Mortgage
Loans and the related Mortgage Files to determine the characteristics of
the
Mortgage Loans which will affect the federal income tax consequences of owning
the Mortgage Loans and the related Seller will cooperate with all reasonable
requests made by the Purchaser in the course of such review.
Section
7.08 Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by each
Seller, the Originator, the Purchaser and the Trustee.
The
obligations of each Seller and the Originator under this Agreement cannot
be
assigned or delegated to a third party without the consent of the Purchaser
which consent shall be at the Purchaser’s sole discretion, except that the
Purchaser acknowledges and agrees that each Seller or the Originator may
assign
its obligations hereunder to any Person into which the related Seller or
the
Originator is merged or any corporation resulting from any merger, conversion
or
consolidation to which the related Seller or the Originator is a party or
any
Person succeeding to the business of the related Seller or the Originator.
The
parties hereto acknowledge that the Purchaser is acquiring the Mortgage Loans
for the purpose of contributing them to a trust that will issue a series
of
Certificates representing undivided interests in such Mortgage Loans. As
an
inducement to the Purchaser to purchase the Mortgage Loans, the related Seller
and the Originator acknowledge and consent to the assignment by the Purchaser
to
the Trustee of all of the Purchaser’s rights against each Seller and the
Originator pursuant to this Agreement insofar as such rights relate to Mortgage
Loans transferred to the Trustee and to the enforcement or exercise of any
right
or remedy against each Seller or the Originator pursuant to this Agreement
by
the Trustee. Such enforcement of a right or remedy by the Trustee shall have
the
same force and effect as if the right or remedy had been enforced or exercised
by the Purchaser directly.
Section
7.09 Survival.
The
representations and warranties set forth in Sections 3.01, 3.02 and 3.03
and the
provisions of Article V hereof shall survive the purchase of the Mortgage
Loans
hereunder.
Section
7.10 Owner
Trustee.
It is
expressly understood and agreed by the parties to this Agreement that (a)
this
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Owner Trustee of the Seller Trusts,
in
the exercise of the powers and authority conferred and vested in it as trustee,
(b) each of the representations undertakings and agreements herein made on
the
part of the related Seller Trust is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company
but is
made and intended for the purpose of binding only the related Seller Trust,
(c)
nothing herein contained shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any,
being
expressly waived by the parties to this Agreement and by any person claiming
by,
through or under the parties to this Agreement and (d) under no circumstances
shall Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of any Seller Trust or be liable for the breach
or
failure of any obligation, representation, warranty or covenant made or
undertaken by any Seller Trust under this Agreement or any other document.
IN
WITNESS WHEREOF, each Seller, the Originator and the Purchaser have caused
their
names to be signed to this Mortgage Loan Purchase Agreement by their respective
officers thereunto duly authorized as of the day and year first above
written.
FINANCIAL
ASSET SECURITIES CORP.,
as
Purchaser
By:_________________________________
Name:
Title:
OPTION
ONE MORTGAGE CORPORATION, as Originator
By:_________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2001-1B,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:_______________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2001-2,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:___________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2002-3,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:____________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2003-4,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:___________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2003-5,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:___________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2005-6,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:__________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2005-7,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:____________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2005-8,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:____________________________________
Name:
Title:
OPTION
ONE OWNER TRUST 2005-9,
as
a
Seller
|
By:
|
Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee.
|
By:____________________________________
Name:
Title:
SCHEDULE
I
MORTGAGE
LOANS
SEE
EXHIBIT D TO
POOLING
AND SERVICING AGREEMENT
SCHEDULE
II
REPRESENTATIONS
AND WARRANTIES
The
Originator hereby represents and warrants to the Purchaser and to any subsequent
Purchaser that, as to each Mortgage Loan, as of the Closing Date for such
Mortgage Loan:
(1) The
information set forth in the Mortgage Loan Schedule is complete, true and
correct as of the Cut-off Date;
(2) Except
with respect to payments not yet 30 days past due, 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 Originator 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; and except with respect to payments not yet 30 days past due, 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) As
of the
origination date of the Mortgage Loan there were 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, and as of the
Closing Date there are no delinquent taxes, insurance premiums, or other
outstanding charges jeopardizing the lien position of the Mortgage Loan,
and to
the best knowledge of the Originator, as of the Closing Date, there are no
ground rents, water charges, sewer rents, assessments, 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 Trustee; 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 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 Trustee and the terms of which are reflected in the 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 an insurer acceptable
to
Xxxxxx Xxx and Xxxxxxx Mac 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 first lien Mortgage Loan and the outstanding principal balance
of
the second lien Mortgage Loan, (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 of the originator
or
(iv) 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.
All
such insurance policies contain a standard mortgagee clause naming the
Originator, 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 conforms to the requirements of Xxxxxx Mae and Xxxxxxx Mac. 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, abusive and fair 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 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 Originator
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 Originator 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 Value of the Mortgaged Property, (c)
with
respect to each Mortgage Loan which is indicated by the Originator 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 Originator 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 who executed the related
Mortgage either in an individual capacity or, provided that the related Mortgage
is guaranteed by a natural person, as trustee for a family trust;
(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) As
of the
Closing Date and immediately prior to the sale of the Mortgage Loan hereunder,
the applicable 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)
or
with respect to any Mortgage Loan for which the related Mortgaged Property
is
located in California a CLTA lender’s title insurance policy, or other generally
acceptable form of policy or insurance acceptable to Xxxxxx Xxx and Xxxxxxx
Mac,
issued by a title insurer acceptable to Xxxxxx Mae and Xxxxxxx Mac 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 Originator, 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 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 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
Originator 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 Originator, has
done,
by act or omission, anything which would impair the coverage of such lender’s
title insurance policy;
(16) As
of the
Closing Date, 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 Originator has
not
waived any default, breach, violation or event of acceleration. With respect
to
each second lien Mortgage Loan, as of the Closing Date (i) the related first
lien mortgage loan is in full force and effect, (ii) 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,
and
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. For purposes
of
the foregoing, a delinquent payment of less than thirty (30) days on a Mortgage
Loan in and of itself does not constitute a default, breach, violation or
event
of acceleration (or an event which, with the passage of time or with notice
and
the expiration of any grace or cure period, has occurred that would constitute
a
default, breach, violation or event of acceleration) with respect to such
Mortgage Loan;
(17) As
of the
Closing Date, 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 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 or acquired by the Originator (and if acquired
by
the Originator, the Mortgage Loan was underwritten in all material respects
with
the Originator’s underwriting guidelines, and if a first-lien Mortgage Loan, is
eligible for inclusion under a Secondary Mortgage Market Enhancement Act
eligible transaction) 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 days after the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Rate. With respect to each Mortgage Loan which is not a negative
amortization loan, the Mortgage Note is payable on the first day of each
month,
or such other day of each month as may be specified in the Mortgage Loan
Schedule, 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 Mortgage Loan Schedule as an interest-only Mortgage Loan during the
interest-only period) and to pay interest at the related Mortgage 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 Mortgage Loan Schedule as an interest-only Mortgage
Loan
during the interest-only period) and to pay interest at the related Mortgage
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 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 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 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 Rate. The Index for each Adjustable-Rate
Mortgage Loan is as defined in the Mortgage Loan Schedule. No Mortgage Loan
is a
convertible Mortgage Loan;
(21) The
origination, servicing and collection practices used by the Originator 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 Originator and any predecessor servicer
in accordance with the terms of the Mortgage Note. With respect to escrow
deposits and Escrow Payments, if any, all such payments are in the possession
of, or under the control of, the Originator 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 Originator have been capitalized under any Mortgage or the
related Mortgage Note and no such escrow deposits or Escrow Payments are
being
held by the Originator for any work on a Mortgaged Property which has not
been
completed;
(22) As
of the
Closing Date, the
Mortgaged Property is free of material 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. Since
the date of origination of the Mortgage Loan, the Mortgaged Property has
not
been subject to any bankruptcy proceeding or foreclosure proceeding and the
Mortgagor has not filed for 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. As of the Closing Date, the Mortgagor
has
not notified the Originator and the Originator 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 standards
of
the Originator in effect at the time the Mortgage Loan was originated. The
Mortgage Note and Mortgage are on forms generally acceptable to Xxxxxx Xxx
and
Xxxxxxx 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 Xxxxxx Mae and Xxxxxxx Mac, was on appraisal form
1004 or form 2055 (or a form otherwise satisfactory to S&P and Xxxxx’x) and
was made and signed, prior to the approval of the Mortgage Loan application,
by
a qualified appraiser, duly appointed by the originator of the Mortgage Loan,
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 met the minimum qualifications
of
Xxxxxx Xxx and Xxxxxxx Mac. Each appraisal of the Mortgage Loan was made
in
accordance with the relevant provisions of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989;
(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 Originator, 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) The
Originator has no knowledge of any circumstances or condition with respect
to
the Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause private institutional
investors who routinely invest in mortgage loans similar to the Mortgage
Loan to
regard the Mortgage Loan to be an unacceptable investment, cause the Mortgage
Loan to become delinquent, or adversely affect the value of the Mortgage
Loan;
(32) No
Mortgage Loan had a Loan-to Value Ratio or a Combined Loan-to-Value Ratio
at
origination in excess of 100%;
(33) 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 the Originator,
the
related Seller, or to the best of the Originator’s knowledge, on the part of any
other 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 is in recordable form and (other than with respect to the blank
assignee) 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 Xxxxxx Xxx and Xxxxxxx Mac. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan plus any negative amortization;
(37) No
Mortgage Loan is a balloon mortgage loan that has an original stated maturity
of
less than seven (7) years;
(38) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or a
unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of Xxxxxx Mae and Xxxxxxx Mac;
(39) With
respect to each Mortgage Loan, the Originator has fully and accurately furnished
complete information on the related borrower credit files to Equifax, Experian
and Trans Union Credit Information Originator, in accordance with the Fair
Credit Reporting Act and its implementing regulations, on a monthly basis
and
the Originator for each Loan will furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information on its primary borrower to Equifax, Experian, and Trans Union
Credit
Information Originator, on a monthly basis;
(40) The
source of the down payment with respect to each Mortgage Loan has been fully
verified by the Originator, except as noted on the Mortgage Loan
Schedule;
(41) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(42) The
Originator 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 Originator fails to purchase such tax service
contract, the Originator shall be required to reimburse the Purchaser for
all
costs and expenses incurred by the Purchaser in connection with the purchase
of
any such tax service contract;
(43) Each
Mortgage Loan is covered by a flood zone service contract which is assignable
to
the Purchaser or its designee or, for each Mortgage Loan not covered by such
Flood Zone Service Contract, the Originator agrees to purchase such flood
zone
service contract;
(44) As
of the
Closing Date. the Mortgaged Property is in material compliance with all
applicable environmental laws pertaining to environmental hazards including,
without limitation, asbestos, and neither the Originator nor, to the
Originator’s knowledge, the related Mortgagor, has received any notice of any
violation or potential violation of such law;
(45) No
Mortgage Loan is (a) subject to the provisions of the Homeownership and Equity
Protection Act of 1994 as amended (“HOEPA”) or is in violation of any comparable
state law and no Mortgage Loan has an “annual percentage rate” or “total points
and fees” payable by the borrower (as each such term is defined under HOEPA)
that equal or exceed the applicable thresholds defined under HOEPA (Section
32
of Regulation Z, 12 C.F.R. Section 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);
(46) 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. Each Mortgage Loan (other
than with respect to the points and fees threshold in connection with Mortgage
Loans that are not Points and Fees Eligible Loans and escrow payment
requirements) is
in
compliance with the anti-predatory lending eligibility for purchase requirements
of the Xxxxxx Mae Guides;
(47) The
debt-to-income ratio of the related Mortgagor was not greater than 65% at
the
origination of the related Mortgage Loan;
(48) No
Mortgagor was required to purchase any single premium 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,
property or health insurance product) or debt cancellation in connection
with
the origination of the Mortgage Loan. No proceeds from any Mortgage Loan
were
used to purchase single premium credit insurance policies (e.g., life, mortgage,
disability, accident, unemployment, or health insurance product) or debt
cancellation agreements as part of the origination of, or as a condition
to
closing, such Mortgage Loan;
(49) The
Mortgage Loans were not selected from the outstanding Fixed-Rate or
adjustable-rate one to four-family mortgage loans in the Originator’s portfolio
at the Cut-off Date as to which the representations and warranties set forth
in
this Agreement could be made in a manner so as to affect adversely the interests
of the Purchaser;
(50) 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;
(51) 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;
(52) The
information set forth in the Prepayment Charge Schedule is complete, true
and
correct in all material respects and each Prepayment Charge is permissible,
enforceable and collectable under applicable federal and state law;
(53) The
Mortgage Loan was not prepaid in full prior to the Closing Date and the
Originator has not received notification from a Mortgagor that a prepayment
in
full shall be made after the Closing Date;
(54) No
Mortgage Loan is secured by cooperative housing, commercial property or mixed
use property;
(55) Any
Mortgaged Property that is considered manufactured housing shall be legally
classified as real property under applicable state law, is permanently affixed
to a foundation and must assume that characteristics of site-built housing
or
shall be the principal residence of the borrower and must otherwise conform
to
the requirements (A) for inclusion in residential mortgage backed securities
transactions rated by S&P and (B) of Xxxxxx Xxx and Xxxxxxx Mac, including,
but not limited to, the requirements that (i) the related Mortgage Note or
contract, as applicable, be secured by a “single family residence” within the
meaning of Section 25(e)(10) of the Code, (ii) the fair market value of the
manufactured home securing each related Mortgage Note or contract, as
applicable, was at least equal to 80% of the original principal balance of
such
Note or contract, as applicable, and (iii) each related Mortgage Note or
contract, as applicable, is a “qualified mortgage” under Section 860G(a)(3) of
the Code;
(56) Each
Mortgage Loan is eligible for sale in the secondary market without unreasonable
credit enhancement;
(57) All
points and fees related to each Mortgage Loan were disclosed in writing to
the
borrower in accordance with applicable state and federal law and regulation.
No
Group I Mortgage Loan borrower was charged “points and fees” (whether or not
financed) in an amount that exceeds the greater of (1) 5% of the principal
amount of the Mortgage Loan (such 5% limitation is calculated in accordance
with
Xxxxxx Mae’s requirements as set forth in the Xxxxxx Xxx Selling Guide or (2)
$1,000.
(58) Except
as
set forth on the 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 penalty, such prepayment penalty does
not
extend beyond five years after the date of origination. For any Mortgage
Loan
originated on or following October 1, 2002 that is subject to a prepayment
penalty, such prepayment penalty does not extend beyond three 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, (iv) the
duration of the prepayment period shall not exceed three (3) years from the
date
of the note, and (v) notwithstanding any state or federal law to the contrary,
the Originator shall not impose such prepayment premium in any instance when
the
mortgage debt is accelerated as the result of the Mortgagor’s default in making
the loan payments;
(59) The
Originator 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 Originator 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 property
in
question, 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;
(60) 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 subject to the
Georgia Act and 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;
(61) 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
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. For a
Mortgagor who seeks financing through an Originator’s higher-priced subprime
lending channel, the Mortgagor should be directed towards or offered the
Originator’s standard mortgage line if the Mortgagor is able to qualify for one
of the standard products;
(62) 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;
(63) With
respect to any Mortgage Loan which is secured by manufactured housing, such
Mortgage Loan satisfies the requirements for inclusion in residential mortgage
backed securities transactions rated by S&P;
(64) 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;
(65) The
Originator will transmit full-file credit reporting data for each Mortgage
Loan
pursuant to Xxxxxx Mae Guide Announcement 95-19 and for each Mortgage Loan,
Originator agrees it shall report one of the following statuses each month
as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(66) No
Mortgage Loan is a “High-Cost Home Loan” loan as defined under the New York
Banking Law Section 6-1, effective as of April 1, 2003;
(67) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
(68) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(69) No
Mortgage Loan secured by property located in the State of Nevada is a “home
loan” as defined in the Nevada Assembly Xxxx No. 284;
(70) No
Mortgage Loan is a “manufactured housing loan” or “home improvement home loan”
pursuant to the New Jersey Home Ownership Act. No Mortgage Loan is a “High-Cost
Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22
et
seq.);
(71) 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);
(72) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity protection Act;
(73) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(74) 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.)
and
no Mortgage Loan secured by a Mortgage Property located in the State of Illinois
is in violation of the provisions of the Illinois Interest Act, including
Section 4.1a;
(75) No
Loan
that is secured by property located within the State of Maine meets the
definition of a (i) “high-rate, high-fee” mortgage loan under Article VIII,
Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home Loan” as
defined under the Maine House Xxxx 383 X.X. 494, effective as of September
13,
2003;
(76) No
Loan
is a “High Cost Home Loan” governed by the Indiana Home Loan Practices Act
effective January 1, 2005 (Ind. Code Xxx. §§ 24-9-1 et seq.);
(77) The
Mortgagor 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) 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;
(79) With
respect to each MOM Loan, the Originator 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;
(80) With
respect to each Mortgage Loan, (i) if the related first lien provides for
negative amortization, the Combined Loan-to Value Ratio was calculated at
the
maximum principal balance of such first lien that could result upon application
of such negative amortization feature, and (ii) 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;
(81) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction;
(82) No
Mortgage Loan is
a
“High-Cost Home Mortgage Loan” as
defined in the Massachusetts
Predatory Home
Loan
Practices Act, effective November 7, 2004 (Mass. Xxx. Laws Ch. 183C).
If any
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth
of
Massachusetts was made to pay off or refinance an existing loan or other
debt of
the related borrower (as the term “borrower” is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
Massachusetts House Xxxx 480 (2004)), such Mortgage Loan is in the “borrower’s
interest,” as documented by a “borrower’s interest worksheet” for the particular
Mortgage Loan, which worksheet incorporates the factors set forth in
Massachusetts House Xxxx 4880 (2004) and the regulations promulgated thereunder
for determining “borrower’s interest,” and otherwise complies in all material
respects with the laws of the Commonwealth of Massachusetts;
(83) With
respect to the Mortgage Loans set forth on Schedule III, the Originator shall
cause the Servicer to deliver the reports required by Section 3.01 of the
Pooling and Servicing Agreement;
(84) [Reserved];
(85) No
Mortgage Loan that was originated on or after October 31, 2004, is subject
to
mandatory arbitration except when the terms of the arbitration also contain
a
waiver provision that provides that in the event of a sale or transfer of
the
Mortgage Loan or interest in the Mortgage Loan to Xxxxxx Mae, the terms of
the
arbitration are null and void and cannot be reinstated. The seller hereby
covenants that the seller or servicer of the Mortgage Loan, as applicable,
will
notify the borrower in writing within 60 days of the sale or transfer of
the
Mortgage Loan to Xxxxxx Xxx that the terms of the arbitration are null and
void.
With respect to any Mortgage Loan originated on or after August 1, 2004,
neither
the related mortgage nor the related mortgage note requires the Mortgagor
to
submit to arbitration to resolve any dispute arising out of or relating in
any
way to the mortgage loan transaction;
(86) All
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 has been disclosed in writing to the borrower in accordance
with applicable state and federal law and regulation;
(87) With
respect to any mortgage loan underlying the Security that contains a provision
permitting imposition of a penalty upon a prepayment prior to maturity: (a)
the
mortgage loan provides some benefit to the borrower (e.g. a rate or fee
reduction) in exchange for accepting such prepayment penalty; (b) the mortgage
loan’s originator had a written policy of offering the borrower, or requiring
third-party brokers to offer the borrower, the option of obtaining a mortgage
loan that did not require payment of such a penalty; (c) the prepayment penalty
was adequately disclosed to the borrower pursuant to applicable state and
federal law; (d) no subprime loan originated on or after October 1, 2002
underlying the Security will provide for prepayment penalties for a term
in
excess of three years and any loans originated prior to such date, and any
non-subprime loans, will not provide for prepayment penalties for a term
in
excess of five years; in each case unless the loan was modified to reduce
the
prepayment period to no more than three years from the date of the note and
the
borrower was notified in writing of such reduction in prepayment period;
and (e)
such prepayment penalty shall not be imposed in any instance where the 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 the
mortgage loan or state or federal law might permit the imposition of such
penalty;
(88) The
methodology used in underwriting the extension of credit for each mortgage
loan
in the trust did not rely on the extent of the borrower’s equity in the
collateral as the principal determining factor in approving such extension
of
credit. The methodology employed objective criteria that related such facts
as,
without limitation, the borrower’s credit history, income, assets or
liabilities, to the proposed mortgage payment and, based on such methodology,
the mortgage loan’s originator made a reasonable determination that at the time
of origination the borrower had the ability to make timely payments on the
mortgage loan;
(89) No
Group
I Mortgage Loan borrower under a mortgage loan in the trust was charged “points
and fees” in an amount greater than (a) $1,000 or (b) 5% of the principal amount
of such mortgage loan, whichever is greater. For purposes of this
representation, “points and fees” (x) include origination, underwriting, broker
and finder’s fees and charges that the lender imposed as a condition of making
the mortgage loan, whether they are paid to the lender or a third party;
and (y)
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;”
(90) With
respect to any subordinate lien mortgage loan underlying the Security, such
lien
is on a one- to four-family residence that is (or will be) the principal
residence of the borrower;
(91) No
Group
I Mortgage Loan underlying the Security is “seasoned” (a seasoned mortgage loan
is one where the date of the mortgage note is more than 1 year before the
date
of issuance of the related Security);
(92) No
Group
I subordinate lien Mortgage Loan has an original principal balance that exceeds
one-half of the one-unit limitation for first lien mortgage loans, or $208,000
(in Alaska, Guam, Hawaii or Virgin Islands: $312,750), without regard to
the
number of units;
(93) For
the
Group I Mortgage Loans, the original principal balance of the first lien
mortgage loan plus the original principal balance of any subordinate lien
mortgage loan relating to the same mortgaged property does not exceed the
applicable Xxxxxxx Mac loan limit for first lien mortgage loans for that
property type;
(94)
For the
Group I Mortgage Loans, the Stated Principal Balance of each Mortgage Loan
is
within Xxxxxxx Mac loan limits for conforming one-to-four family Mortgage
Loans;
(95) No
Group
I first lien Mortgage Loan has an original principal balance that exceeds
that
applicable Xxxxxxx Mac loan limit.
SCHEDULE
III
|
Loan
#
|
Origination
Date
|
State
|
Zip
|
Note
Date
|
||||
|
211032714
|
7/26/2005
|
MS
|
39462
|
7/26/2005
|
||||
|
211033484
|
7/29/2005
|
LA
|
70065
|
7/29/2005
|
||||
|
351029690
|
8/22/2005
|
XX
|
00000
|
8/22/2005
|
||||
|
391011886
|
6/13/2005
|
AL
|
36618
|
6/13/2005
|
||||
|
391012654
|
5/31/2005
|
XX
|
00000
|
5/31/2005
|
||||
|
391013237
|
6/10/2005
|
LA
|
70460
|
6/10/2005
|
||||
|
391013351
|
6/21/2005
|
LA
|
70113
|
6/21/2005
|
||||
|
391013352
|
6/21/2005
|
LA
|
70113
|
6/21/2005
|
||||
|
391013405
|
6/15/2005
|
XX
|
00000
|
6/15/2005
|
||||
|
391013660
|
7/1/2005
|
LA
|
70094
|
7/1/2005
|
||||
|
391013841
|
7/22/2005
|
XX
|
00000
|
7/22/2005
|
||||
|
391013945
|
7/25/2005
|
XX
|
00000
|
7/25/2005
|
||||
|
391013963
|
7/22/2005
|
LA
|
70116
|
7/22/2005
|
||||
|
391014027
|
7/20/2005
|
LA
|
70114
|
7/20/2005
|
||||
|
391014055
|
7/19/2005
|
LA
|
70114
|
7/19/2005
|
||||
|
391014157
|
8/8/2005
|
AL
|
36609
|
8/8/2005
|
||||
|
391014569
|
8/16/2005
|
LA
|
70669
|
8/16/2005
|
||||
|
391015306
|
9/30/2005
|
LA
|
70769
|
9/30/2005
|
||||
|
551007451
|
7/18/2005
|
LA
|
70711
|
7/18/2005
|
||||
|
551007990
|
8/24/2005
|
LA
|
70737
|
8/24/2005
|
||||
|
551008334
|
8/2/2005
|
XX
|
00000
|
8/2/2005
|
||||
|
551008349
|
9/26/2005
|
LA
|
70460
|
9/26/2005
|
||||
|
641010001
|
6/15/2005
|
LA
|
70652
|
6/15/2005
|
||||
|
641011319
|
8/10/2005
|
LA
|
70633
|
8/10/2005
|
||||
|
641011471
|
8/4/2005
|
XX
|
00000
|
8/4/2005
|
||||
|
651012562
|
8/31/2005
|
LA
|
70726
|
8/31/2005
|
||||
|
771006529
|
8/31/2005
|
XX
|
00000
|
8/31/2005
|
||||
|
061061849
|
9/14/2005
|
FL
|
32905
|
9/14/2005
|
||||
|
071066271
|
4/27/2005
|
FL
|
33990
|
4/27/2005
|
||||
|
071067378
|
6/29/2005
|
FL
|
33971
|
6/29/2005
|
||||
|
071067597
|
6/29/2005
|
FL
|
33971
|
6/29/2005
|
||||
|
071068174
|
7/29/2005
|
FL
|
33917
|
7/29/2005
|
||||
|
071068989
|
9/13/2005
|
FL
|
33971
|
9/13/2005
|
||||
|
131034153
|
8/12/2005
|
FL
|
33904
|
8/12/2005
|
||||
|
231070411
|
7/28/2005
|
FL
|
34983
|
7/28/2005
|
||||
|
261052921
|
6/28/2005
|
FL
|
33916
|
6/28/2005
|
||||
|
261054217
|
9/8/2005
|
FL
|
33936
|
9/8/2005
|
||||
|
261054218
|
9/8/2005
|
FL
|
33936
|
9/8/2005
|
||||
|
291002261
|
9/27/2005
|
FL
|
34120
|
9/27/2005
|
||||
|
371026862
|
6/16/2005
|
FL
|
32909
|
6/16/2005
|
||||
|
371029613
|
9/13/2005
|
FL
|
32926
|
9/13/2005
|
||||
|
371030306
|
10/31/2005
|
FL
|
34950
|
10/31/2005
|
||||
|
561003150
|
7/14/2005
|
FL
|
32952
|
7/14/2005
|
||||
|
561003505
|
8/11/2005
|
FL
|
32909
|
8/11/2005
|
||||
|
561003919
|
9/15/2005
|
FL
|
34120
|
9/15/2005
|
||||
|
561003920
|
9/15/2005
|
FL
|
34120
|
9/15/2005
|
||||
|
611019943
|
10/31/2005
|
FL
|
34119
|
10/31/2005
|
||||
|
621008614
|
5/27/2005
|
FL
|
33991
|
5/27/2005
|
||||
|
621010133
|
7/13/2005
|
FL
|
34116
|
7/13/2005
|
||||
|
621010361
|
7/29/2005
|
FL
|
34984
|
7/29/2005
|
||||
|
741012202
|
6/30/2005
|
FL
|
33920
|
6/30/2005
|
EXHIBIT
D
MORTGAGE
LOAN SCHEDULE
Available
Upon Request
EXHIBIT
E
REQUEST
FOR RELEASE
|
To:
|
[Address
for Custodian: Mortgage Document Custody
|
|
Xxxxx
Fargo Corporate Trust Services
|
|
|
00
Xxxxxxxxx Xxxx, Xxxxx 000
|
|
|
Xxxxxx,
Xxxxxxxxxx 00000]
|
|
Re:
|
Custodial
Agreement, dated as of May 1, 2006, among Deutsche Bank National
Trust
Company as the Trustee, Option One Mortgage Corporation
as Servicer and Xxxxx
Fargo Bank, N.A.
as
the Custodian
|
In
connection with the administration of the Mortgage Loans included in the
Trust
Fund established pursuant to the Pooling and Servicing Agreement dated as
of May
1, 2006, among Financial Asset Securities Corp. as Depositor, Option One
Mortgage Corporation, as Servicer, and Deutsche Bank National Trust Company,
a
national banking association, as Trustee and held by you as Custodian pursuant
to the above-captioned Custodial Agreement, we request the release, and hereby
acknowledge receipt of the Custodial File for the Mortgage Loan described
below,
for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
|
_________1.
|
Mortgage
Paid in Full
|
|
_________2.
|
Foreclosure
|
|
_________3.
|
Substitution
|
|
_________4.
|
Other
Liquidation (Repurchases, etc.)
|
|
_________5.
|
Nonliquidation Reason:_____________________
|
Address
to which Trustee should deliver
the
Custodial File:
|
By:
|
|||
|
(authorized
signer)
|
|||
|
Issuer:
|
|||
|
Address:
|
|||
|
Date:
|
|||
Custodian
Xxxxx
Fargo Bank, N.A.
Please
acknowledge the execution of the above request by your signature and date
below:
|
____________________________
|
__________________
|
|
Signature
|
Date
|
|
Documents
returned to Custodian:
|
|
|
______________________________
|
__________________
|
|
Custodian
|
Date
|
EXHIBIT
F-1
[FORM
OF
TRUSTEE’S INITIAL CERTIFICATION
May
__,
2006
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement dated as of May 1, 2006, among
Financial
Asset Securities Corp. as Depositor, Option One Mortgage
Corporation,
as Servicer, and Deutsche Bank National Trust Company, a
national
banking association, as
Trustee
|
Ladies
and Gentlemen:
Attached
is the Trustee’s preliminary exception report delivered in accordance with
Section 2.02 of the referenced Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”). Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Pooling and Servicing
Agreement.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File includes any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:]
|
|
[FORM
OF
CUSTODIAN’S INITIAL CERTIFICATION
_____,
2006
Trust
Receipt #: ____
Original
Principal Balance of the Mortgage Loans:$_______
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
Trust Administration GC04FFH4
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Re:
|
Custodial
Agreement, dated as of May 1, 2006, among Deutsche Bank National
Trust
Company as the Trustee, Option One Mortgage Corporation as Servicer
and
Xxxxx
Fargo Bank, N.A.
as
the Custodian
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 3 of the above-referenced Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that it is
holding the Mortgage Loans identified on the schedule attached hereto for the
exclusive benefit of the Trustee pursuant to the terms and conditions of the
Custodial Agreement, and it has received a Custodial File with respect to each
such Mortgage Loan (other than any Mortgage Loan specifically identified on
the
exception report attached hereto) and that with respect to each such Mortgage
Loan: (i) all documents 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 definition of “Mortgage Loan Schedule”
in the Pooling and Servicing Agreement accurately reflects information set
forth
in the Custodial File.
The
Custodian hereby confirms that it is holding each such Custodial File as agent
and bailee of and custodian for the exclusive use and benefit of the Trustee
pursuant to the terms of the Custodial Agreement.
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
|
XXXXX
FARGO
BANK, N.A.
(Custodian)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:]
|
||
EXHIBIT
F-2
[FORM
OF
TRUSTEE’S FINAL CERTIFICATION
________________
[Date]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as
of May 1, 2006 among Financial Asset Securities Corp., as Depositor,
Option One Mortgage Corporation, as Servicer and Deutsche Bank National
Trust Company, as Trustee with respect to Soundview Home Loan Trust
2006-OPT4, Asset-Backed Certificates, Series
2006-OPT4
|
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:]
|
||
[FORM
OF
CUSTODIAN’S FINAL CERTIFICATION
TRUST
RECEIPT # ___
______,
2006
Aggregate
Amount of Mortgage Loans: _____
Original
Principal Balance of Aggregate Mortgage Loans: __________
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
Trust Administration GC04FFH4
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Re:
|
Custodial
Agreement, dated as of May 1, 2006, among Deutsche Bank National
Trust
Company as the Trustee, Option One Mortgage Corporation as Servicer
and
Xxxxx
Fargo Bank, N.A.
as
the Custodian
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 4 of the above-referenced Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that as to each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or any Mortgage Loan listed on the attachment hereto) it has
reviewed the Custodial Files and has determined that (i) all documents required
to be delivered to it pursuant to Sections 2(i), (ii), (iii), (iv) and (v)
of
the Custodial Agreement are in its possession and to the extent provided in
the
Custodial Files paragraph (v) of Section 2 of the Custodial Agreement are in
its
possession; (ii) such documents have been reviewed by it and appear regular
on
their face and relate to such Mortgage Loan; (iii) based on its examination
and
only as to the foregoing documents, the information set forth in items (1)
and
(3) of the definition of “Mortgage Loan Schedule” in the Pooling and Servicing
Agreement accurately reflects information set forth in the Custodial File;
and
(iv) each Mortgage Note has been endorsed as provided in Section 2 of the
Custodial Agreement and each Mortgage has been assigned in accordance with
Section 2 of the Custodial Agreement. The Custodian makes no representations
as
to (i) the validity, legality, enforceability, sufficiency, due authorization
or
genuineness of any of the documents contained in each Custodial File or of
any
of the Mortgage Loans or (ii) the collectability, insurability, effectiveness
or
suitability of any such Mortgage Loan.
The
Custodian hereby confirms that it is holding each such Custodial File as agent
and bailee of, and custodian for the exclusive use and benefit, and subject
to
the sole direction, of the Trustee pursuant to the terms and conditions of
the
Custodial Agreement.
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
|
XXXXX
FARGO
BANK, N.A.
(Custodian)
|
|
|
By:
|
|
|
Name:
|
|
|
Title]
|
|
EXHIBIT
F-3
FORM
OF
RECEIPT OF MORTGAGE NOTE
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
Ladies
and Gentlemen:
Pursuant
to Section 3 of the Custodial Agreement, dated as of May 1, 2006, among Deutsche
Bank National Trust Company as the Trustee, Option One Mortgage Corporation
as
Servicer and Xxxxx
Fargo Bank, N.A.
as the
Custodian, 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.
|
XXXXX
FARGO BANK, N.A.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
G
FORM
OF
CUSTODIAL AGREEMENT
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee
for
the
Soundview Home Loan Trust 2006-OPT4,
Asset
Backed Certificates, Series 2006-OPT4
and
XXXXX
FARGO BANK, N.A.,
as
Custodian
and
OPTION
ONE MORTGAGE CORPORATION,
as
Servicer
CUSTODIAL
AGREEMENT
As
of May
1, 2006
TABLE
OF CONTENTS
Section
|
1.
|
Definitions.
|
|
|
2.
|
Delivery
of Custodial Files.
|
|
|
3.
|
Custodian’s
Receipt, Examination and Certification of Mortgage Files; Initial
Trust
Receipt Delivered by the Custodian.
|
|
|
4.
|
Obligations
of the Custodian.
|
|
|
5.
|
Final
Trust Receipt.
|
|
|
6.
|
Future
Defects.
|
|
|
7.
|
Release
for Servicing.
|
|
|
8.
|
Release
for Payment.
|
|
|
9.
|
Fees
and Expenses of Custodian.
|
|
|
10.
|
Removal
of Custodian.
|
|
|
11.
|
Transfer
of Custodial Files.
|
|
|
12.
|
Examination
of Custodial Files.
|
|
|
13.
|
Insurance
of Custodian.
|
|
|
14.
|
Counterparts.
|
|
|
15.
|
Periodic
Statements.
|
|
|
16.
|
GOVERNING
LAW.
|
|
|
17.
|
Copies
of Mortgage Documents.
|
|
|
18.
|
No
Adverse Interest of Custodian.
|
|
|
19.
|
Termination
by Custodian.
|
|
|
20.
|
Term
of Agreement.
|
|
|
21.
|
Notices.
|
|
|
22.
|
Successors
and Assigns.
|
|
|
23.
|
Indemnification
of Custodian.
|
|
|
24.
|
Reliance
of Custodian.
|
|
|
25.
|
Transmission
of Custodial Files.
|
|
|
26.
|
Authorized
Representatives.
|
|
|
27.
|
Reproduction
of Documents.
|
|
|
28.
|
Amendment.
|
|
|
29.
|
Compliance
with Regulation AB.
|
|
|
30.
|
Limitation
of Liability.
|
|
EXHIBITS
|
EXHIBIT
1
|
FORM
OF TRUST RECEIPT AND INITIAL CERTIFICATION
|
|
|
EXHIBIT
2
|
FORM
OF FINAL TRUST RECEIPT
|
|
|
EXHIBIT
3
|
FORM
OF REQUEST FOR RELEASE OF DOCUMENTS
|
|
|
EXHIBIT
4
|
AUTHORIZED
REPRESENTATIVES OF SERVICER
|
|
|
EXHIBIT
5
|
AUTHORIZED
REPRESENTATIVES OF TRUSTEE
|
|
|
EXHIBIT
6
|
AUTHORIZED
REPRESENTATIVES OF CUSTODIAN
|
|
|
EXHIBIT
7
|
MORTGAGE
LOAN SCHEDULE
|
|
|
EXHIBIT
8
|
FORM
OF RECEIPT OF MORTGAGE NOTE
|
THIS
CUSTODIAL AGREEMENT, dated as of May 1, 2006, among Deutsche Bank National
Trust
Company, having an address at 0000
Xxxx
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, not individually but
solely
as trustee for Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates,
Series 2006-OPT4 (the “Trustee”), Xxxxx Fargo Bank, N.A. as custodian, having an
address at 00 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 (the
“Custodian”) and Option One Mortgage Corporation. as servicer (the “Servicer”),
having an address at 3 Xxx, Xxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H
WHEREAS,
Financial Asset Securities Corp. (the “Depositor”) has purchased certain
conventional fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”) from Option One Mortgage Corporation, Option One Owner Trust 2001-1A,
Option One Owner Trust 2001-1B, Option One Owner Trust 2001-2, Option One
Owner
Trust 2002-3, Option One Owner Trust 2003-4, Option One Owner Trust 2003-5,
Option One Owner Trust 2005-6, Option One Owner Trust 2005-7, Option One
Owner
Trust 2005-8 and/or Option One Owner Trust 2005-9 (collectively, the “Sellers”),
pursuant to the terms and conditions of an Mortgage Loan Purchase Agreement,
dated as of May 16, 2006, among the Depositor and the Sellers (the “Purchase
Agreement”);
WHEREAS,
the Servicer is to service the Mortgage Loans on behalf of Soundview Home
Loan
Trust 2006-OPT4, under a Pooling and Servicing Agreement, dated as of May
1,
2006, among the Depositor, the Servicer and the Trustee (the “Pooling and
Servicing Agreement”); and
WHEREAS,
the Custodian is a national banking association chartered under the laws
of the
United States of America and regulated by the Comptroller of the Currency,
and
is otherwise authorized to act as Custodian pursuant to this Agreement.
With
respect to each of the Mortgage Loans set forth on the Mortgage Loan Schedule
attached as Exhibit 8 hereto, the Servicer desires to have the Custodian
take
possession of the Mortgages and Mortgage Notes, along with certain other
documents specified herein, as the custodian of the Trustee, in accordance
with
the terms and conditions hereof.
NOW
THEREFORE, in consideration of the mutual undertakings herein expressed,
the
parties hereto hereby agree as follows:
1. Definitions.
Any
capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Pooling and Servicing Agreement.
2. Delivery
of Custodial Files.
The
Depositor has delivered and released, or will cause to be delivered and
released, to the Custodian on or prior to the Closing Date the following
documents pertaining to each of the Mortgage Loans identified in the Mortgage
Loan Schedule (the “Custodial File”):
(i) the
original Mortgage Note, endorsed either (A) in blank, in which case the
Custodian shall cause the endorsement to be completed 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 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) 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 copy of any intervening assignment of Mortgage showing a complete
chain
of assignments;
(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.
If
any of
the documents referred to in Section 2(ii), (iii) or (iv) above has as
of the
Closing Date (or Subsequent Transfer Date, with respect to Subsequent Mortgage
Loans) been submitted for recording but either (x) has not been returned
from
the applicable public recording office or (y) has been lost or such public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied
upon (1)
delivery to the Custodian no later than the Closing Date (or Subsequent
Transfer
Date, with respect to Subsequent Mortgage Loans), of a copy of each such
document certified by the Originator in the case of (x) above or the applicable
public recording office in the case of (y) above to be a true and complete
copy
of the original that was submitted for recording and (2) if such copy is
certified by the Originator, delivery to the Custodian, 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(v) above, the Depositor
shall
deliver or cause to be delivered to the Custodian, the original or a copy
of a
written commitment or interim binder or preliminary report of title issued
by
the title insurance or escrow company, with the original or a certified
copy
thereof to be delivered to the Custodian, promptly upon receipt thereof.
The
Servicer or the Depositor shall deliver or cause to be delivered to 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 Custodian shall notify
the
Servicer and the Servicer shall enforce the obligations of the Originator
under
the Purchase Agreement to cure such defect or deliver such missing document
to
the Trustee or the Custodian within 120 days. If the Originator does not
cure
such defect or deliver such missing document within such time period, the
Servicer shall enforce the obligations of the Originator to either repurchase
or
substitute for such Mortgage Loan in accordance with Section 2.03 of the
Pooling
and Servicing Agreement. For purposes of this Section, “defect” shall mean a
failure of a document to correspond to the information set forth in the
applicable Mortgage Loan Schedule or the absence in a Mortgage File of
any
document required pursuant to this Agreement. In connection with the foregoing,
it is understood that the Custodian 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.
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
Custodian hereby agrees to its duties under Section 2.03 of the Pooling
and
Servicing Agreement with respect to Qualified Substitute Mortgage
Loans.
|
3.
|
Custodian’s
Receipt, Examination and Certification of Mortgage Files; Initial
Trust
Receipt Delivered by the Custodian.
|
The
Custodian agrees, for the benefit of the Certificateholders, to review
each
Custodial File within 45 days of the Closing Date and to certify in
substantially the form attached hereto as Exhibit 1 (the “Trust Receipt and
Initial Certification”) 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 definition
of “Mortgage Loan Schedule” in the Pooling and Servicing Agreement accurately
reflects information set forth in the Custodial File. It is herein acknowledged
that, in conducting such review, the Custodian was not under any duty or
obligation (i) to inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine, enforceable,
or appropriate for the represented purpose or whether they have actually
been
recorded or that they are other than what they purport to be on their face
or
(ii) to determine whether any Custodial File should include any of the
documents
specified in clause (v) of Section 2.
The
Custodian agrees to execute and deliver to the Depositor, the Trustee and
the
Servicer on or prior to the Closing Date an acknowledgment of receipt of
the
related original Mortgage Note for each Initial Mortgage Loan (with any
exceptions noted), substantially in the form attached as Exhibit 8 (the
“Receipt
of Mortgage Note”) hereto.
4. Obligations
of the Custodian.
With
respect to the Mortgage Note, the Mortgage and the Assignment and other
documents constituting each Custodial File which is delivered to the Custodian
or which come into the possession of the Custodian, the Custodian is the
custodian for the Trustee exclusively. The Custodian shall hold all mortgage
documents received by it constituting the Custodial File for the exclusive
use
and benefit of the Trustee, and shall make disposition thereof only in
accordance with this Agreement and the instructions furnished by the Trustee.
The Custodian shall segregate and maintain continuous custody of all mortgage
documents constituting the Custodial File in secure and fire-resistant
facilities in accordance with customary standards for such custody. The
Custodian shall not be responsible to verify (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness
of any document in each Custodial File or of any of the Mortgage Loans
or (ii)
the collectability, insurability, effectiveness or suitability of any Mortgage
Loan.
The
Custodian shall not execute any
endorsements on the Mortgage Notes and Assignments of Mortgages without
the
prior written consent of the Trustee,
except as otherwise set forth in Section 2 of this Agreement or as otherwise
agreed to between the Trustee and the Custodian.
5. Final
Trust Receipt.
Within
one (1) year
after
the Closing Date, the Custodian shall review each Custodial File, and shall
deliver to the Trustee (with a copy to the Depositor and the Servicer),
a Final
Trust Receipt attached hereto as Exhibit 2 to the effect that, as to each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan
(i) paid in full,
or
(ii)
specifically identified on such Final Trust Receipt as not covered by such
Final
Trust Receipt): (i) all documents required to be delivered to it pursuant
to
paragraphs (i), (ii), (iii), (iv) and (vi) and to the extent provided in
the
Custodial Files paragraph (v) of Section 2 of this Agreement are in its
possession; (ii) such documents have been reviewed by it and appear regular
on
their face and relate to such Mortgage Loan; (iii) based on its examination
and
only as to the foregoing documents,
the
information set forth in items (1) and (3) of the definition of “Mortgage Loan
Schedule” in the Pooling and Servicing Agreement accurately reflects information
set forth in the Custodial File; and (iv) each Mortgage Note has been endorsed
as provided in Section 2 of this Agreement and each Mortgage has been assigned
in accordance with Section 2 of this Agreement.
6. Future
Defects.
During
the term of this Agreement, if the Custodian discovers any defect with
respect
to the Custodial File, the Custodian shall give written specification of
such
defect to the Servicer and the Trustee. For purposes of this Section, “defect”
shall mean a failure of a document to correspond to the information set
forth in
the applicable Mortgage Loan Schedule or the absence in a Mortgage File
of any
document required pursuant to this Agreement.
7. Release
for Servicing.
From
time
to time and as appropriate for the foreclosure or servicing of any of the
Mortgage Loans, the Custodian shall, upon receipt of two copies (or
electronic receipt
from the Servicer in a form acceptable to the Custodian) of a Request for
Release of Documents and receipt in the form annexed hereto as Exhibit
3,
release
to the Servicer, the related Custodial File or its designee within three
Business Days, which, shall be sent by overnight mail, at the expense of
the
Servicer or the related Mortgagor, and the Custodian shall, at the written
direction of the Servicer, execute such documents provided to it by the
Servicer
as shall be necessary to the prosecution of any such proceedings. The Servicer
shall return to the Custodian the Custodial File when the Servicer’s need
therefor in connection with such foreclosure or servicing no longer exists,
unless the Mortgage Loan shall be liquidated in which case, upon receipt
of an
additional Request for Release of Documents and receipt certifying such
liquidation in the form annexed hereto as Exhibit
3,
the
request and receipt submitted pursuant to the first sentence of this Section
7
shall be released by the Custodian to the Servicer.
8. Release
for Payment.
Upon
receipt by the Custodian of two copies (or electronic receipt from the
Servicer
in a form acceptable to the Custodian) of the Servicer’s Request for Release of
Documents and receipt in the form annexed hereto as Exhibit
3
(which
certification shall include a statement to the effect that all amounts
received
in connection with such payment, repurchase or liquidation have been credited
to
the related custodial account), the Custodian shall promptly release the
related
Custodial File to the Servicer.
9. Fees
and Expenses of Custodian.
In
accordance with the terms of the Pooling and Servicing Agreement, the
Custodian’s fees and expenses in connection herewith shall be a monthly fee
equal to one-twelfth of 0.0050% on the unpaid principal balance of the
Mortgage
Loans as of the first day of the related due period.
10. Removal
of Custodian.
The
Trustee, with or without cause, may upon at least 60
days’
notice remove and discharge the Custodian from the performance of its duties
under this Agreement by written notice from the Trustee
to the
Custodian, with a copy to the Servicer. Having given notice of such removal,
the
Trustee promptly shall appoint (at the direction of the Depositor and with
the
consent of the Servicer) a successor Custodian to act on behalf of the
Trustee
by written instrument, one original counterpart of which instrument shall
be
retained by the Trustee, with a copy to the Servicer, and an original to
the
successor Custodian. In the event of any such removal, the Custodian shall,
upon
the Trustee’s surrender of the Trust Receipt and Initial Certifications and
Final Trust Receipt, as applicable, promptly transfer to the successor
Custodian, as directed, all Custodial Files being administered under this
Agreement. In
the
event of any such removal and appointment the Trust Fund shall be responsible
for the fees and expenses of the existing and successor Custodian.
11. Transfer
of Custodial Files.
Upon
the
Custodian’s receipt of two (2) Business Days’ written or
electronic notification
from the Trustee, the Custodian shall release to such persons as the
Trustee
shall
designate all or a portion of the Custodial Files relating to the Mortgage
Loans
subject to the Trust Receipt and Initial Certification or Final Trust
Receipt,
as
applicable.
12. Examination
of Custodial Files.
Upon
reasonable prior written notice to the Custodian but not less than two
(2)
Business Days notice, the Trustee and its agents, accountants, attorneys
and
auditors will be permitted during normal business hours to examine the
Custodial
Files, documents, records and other papers in the possession of or under
the
control of the Custodian relating to any or all of the Mortgage Loans at
the
expense of the Trustee.
13. Insurance
of Custodian.
At
its
own expense, the Custodian shall maintain at all times during the existence
of
this Agreement and keep in full force and effect such insurance in amounts,
with
standard coverage and subject to deductibles, all as is customary for insurance
typically maintained by banks which act as Custodian. The minimum coverage
under
any such bond and insurance policies shall be at least equal to the
corresponding amounts required by Xxxxxx Xxx in the Xxxxxx Mae Servicing
Guide
or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx’ & Servicers’ Guide. Upon
request, the Trustee shall be entitled to receive evidence satisfactory
to the
Trustee that such insurance is in full force and effect.
14. Counterparts.
For
the
purpose of facilitating the execution of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any
number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute and be one and the same
instrument.
15. Periodic
Statements.
Upon
the
written request of the Trustee, the Custodian shall provide to the Trustee
a
list of all the Mortgage Loans for which the Custodian holds a Custodial
File
pursuant to this Agreement. Such list may be in the form of a copy of the
Mortgage Loan Schedule with manual deletions to specifically denote any
Mortgage
Loans paid off, repurchased or sold since the date of this
Agreement.
16. GOVERNING
LAW.
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.
17. Copies
of Mortgage Documents.
Upon
the
written request of the Trustee
and at
the cost and expense of the Custodian, the Custodian shall provide the
Trustee
with
copies of the Mortgage Notes, Mortgages, Assignments and other documents
relating to one or more of the Mortgage Loans.
18. No
Adverse Interest of Custodian.
By
execution of this Agreement, the Custodian represents and warrants that
it
currently holds, and during the existence of this Agreement shall hold,
no
interest adverse to the Trustee, by way of security or otherwise, in any
Mortgage Loan, and hereby waives and releases any such interest which it
may
have in any Mortgage Loan as of the date hereof.
19. Termination
by Custodian.
The
Custodian may terminate its obligations under this Agreement upon at least
sixty
(60) days’ prior notice to the Servicer and the Trustee. In the event of such
termination, the Trustee shall appoint a successor Custodian. The payment
of
the
existing Custodian’s or such
successor Custodian’s fees and expenses shall be solely the responsibility of
the Trust Fund. Upon such appointment, the Custodian shall promptly transfer
to
the successor Custodian, as directed, all Custodial Files being administered
under this Agreement.
20. Term
of Agreement.
Unless
terminated pursuant to Section 9 or Section 18 hereof, this Agreement shall
terminate upon the final payment or other liquidation (or advance with
respect
thereto) of the last Mortgage Loan or the disposition of all property acquired
upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan, and
the
final remittance of all funds due under the Pooling and Servicing Agreement.
In
such event all documents remaining in the Custodial Files shall be released
in
accordance with the written instructions of the Trustee.
21. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by the recipient party (i)
in the
case of the Custodian, the Trustee and the Servicer, at the address shown
on the
first page hereof, (ii) in the case of the Depositor, Financial Asset Securities
Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal
and
(iii) in the case of the Seller, Option One Mortgage Corporation, 3 Xxx,
Xxxxxx,
Xxxxxxxxxx 00000, or in any case, at such other addresses as may hereafter
be
furnished to the other party by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee.
22. Successors
and Assigns.
This
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto; provided however, that the form of any assignment by any
party
of its interests hereunder shall be in a form reasonably acceptable to
the
Trustee, the Servicer and the Custodian. Such assignment shall be executed
by an
authorized representative of the assignor and any assignee shall forward
a list
of authorized representatives to each party to this Agreement pursuant
to
Section 26 of this Agreement.
23. Indemnification
of Custodian.
The
Custodian and its directors, officers, agents and employees shall be indemnified
and held harmless by the Trust Fund against liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements,
including reasonable attorney’s fees, that may be imposed on, incurred by, or
asserted against it or them directly relating to or arising out of this
Custodial Agreement or any action taken or not taken by it or them hereunder
unless such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements were imposed on, incurred
by
or asserted against the Custodian because of the breach by the Custodian
of its
obligations hereunder, which breach was caused by negligence, lack of good
faith
or willful misconduct on the part of the Custodian or any of its directors,
officers, agents or employees. The indemnification set forth in this section
shall survive any termination or
assignment of
this
Custodial Agreement and the termination or removal of the
Custodian.
The
Custodian agrees to indemnify and hold the Trust Fund and Trustee, its
employees, officers and directors harmless against liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or
disbursements, including reasonable attorney’s fees, that may be imposed on,
incurred by, or asserted against them directly relating to or arising out
of a
failure to produce a Mortgage Note, Assignment or any other document related
to
a Mortgage Loan that was in its possession pursuant to Section 2 within
two (2)
Business Days after required or requested by the Trustee, and provided,
that (i)
Custodian previously delivered to the Trustee a Trust Receipt and Initial
Certification with respect to such document (other than any Mortgage Loan
identified in the exception report annexed thereto as not covered by such
certification); (ii) such document is not outstanding pursuant to a Request
for
Release; and (iii) such document was held by the Custodian on behalf of
the
Trustee. In no event shall the Custodian or its directors, officers, agents
and
employees be liable for any special, indirect or consequential damages
from any
action taken or omitted to be taken by it or them hereunder or in connection
herewith even if advised of the possibility of such damages. The foregoing
indemnification shall survive any termination or assignment of this Agreement
or
the removal or resignation of the Custodian hereunder.
24. Reliance
of Custodian.
(i) The
Custodian may conclusively rely, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon any request, instructions,
certificate, opinion or other document furnished to the Custodian, reasonably
believed by the Custodian to be genuine and to have been signed or presented
by
the proper party or parties and conforming to the requirements of this
Agreement; but in the case of any loan document or other request, instruction,
document or certificate which by any provision hereof is specifically required
to be furnished to the Custodian, the Custodian shall be under a duty to
examine
the same to determine, subject to the limitations on the Custodian’s obligations
set forth herein, whether or not it conforms to the requirements of this
Agreement.
(ii) The
Custodian shall have no duties or responsibilities except those that are
specifically set forth in this Agreement. The Custodian shall have no
responsibility nor duty with respect to any Custodial File while such Custodial
File is not in its possession. If the Custodian requests instructions from
the
Trustee
with
respect to any act, action or failure to act in connection with this Agreement,
the Custodian shall be entitled to refrain from taking such action and
continue
to refrain from acting unless and until the Custodian shall have received
written instructions from the Trustee
with
respect to a Custodial File without incurring any liability therefor to
the
Trustee
or any
other Person.
(iii) Other
than as provided herein, neither the Custodian nor any of its directors,
officers, agents or employees shall be liable for any action or omission
to act
hereunder except for its or their own negligence or lack of good faith
or
willful misconduct. In no event shall the Custodian or any of its directors,
officers, agents or employees have any responsibility to ascertain or take
action except as expressly provided herein.
(iv) Neither
the Custodian nor any of its directors, officers, agents or employees shall
be
liable for any action taken or not taken by it in good faith in the performance
of its obligations under this Agreement. The obligations of the Custodian
or any
of its directors, officers, agents or employees shall be determined solely
by
the express provisions of this Agreement. No representation, warranty,
covenant,
agreement, obligation or duty of the Custodian or any of its directors,
officers, agents or employees shall be implied with respect to this Agreement
or
the Custodian’s services hereunder.
(v) The
Custodian, its directors, officers, agents and employees shall be under
no duty
or obligation to inspect, review or examine the Custodial Files to determine
that the contents thereof are genuine, enforceable or appropriate for the
represented purpose or that they have been actually recorded or that they
are
other than what they purport to be on their face.
(vi) The
Custodian may consult with counsel selected by the Custodian with regard
to
legal questions arising out of or in connection with this Agreement, and
the
advice or opinion of such counsel shall be full and complete authorization
and
protection in respect of any action reasonably taken, omitted or suffered
by the
Custodian in good faith and in accordance therewith.
(vii) No
provision of this Agreement shall require the Custodian to expend or risk
its
own funds or otherwise incur financial liability (other than expenses or
liabilities otherwise required to be incurred by the express terms of this
Agreement) in the performance of its duties under this Agreement if it
shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity is not reasonably assured to it.
(viii) Any
corporation into which the Custodian may be merged or converted or with
which it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Custodian shall be a party, or any corporation
succeeding to the business of the Custodian shall be the successor of the
Custodian hereunder without the execution or filing of any paper with any
party
hereto or any further act on the part of any of the parties hereto except
where
an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
(ix) The
Custodian shall not be responsible for delays or failures in performance
resulting from acts beyond its control. Such acts shall include, but not
limited to, acts of God, strikes, lockouts, riots, acts of war or terrorism,
epidemics, nationalization, expropriation, currency restrictions, governmental
regulations superimposed after the fact, fire, communication line failures,
computer viruses, power failures, earthquakes and other disasters.
(x) The
Custodian shall not be responsible or liable for, and makes no representation
or
warranty with respect to, the validity, adequacy or perfection of any lien
upon
or security interest in any Mortgage File.
(xi) The
Custodian shall not be responsible for preparing or filing any reports
or
returns relating to federal, state or local income taxes with respect to
this
Agreement, other than for the Custodian’s compensation or for reimbursement of
expenses.
(xii) The
duties and obligations of the Custodian shall only be such as are expressly
set
forth in this Agreement or as set forth in a written amendment to this
Agreement
executed by the parties hereto or their successors and assigns. In the
event that any provision of this Agreement implies or requires that action
or
forbearance be taken by a party, but is silent as to which party has the
duty to
act or refrain from acting, the parties agree that the Custodian shall
not be
the party required to take the action or refrain from acting. In no event
shall the Custodial have any responsibility to ascertain or take actions
except
as expressly provided herein.
(xiii) Nothing
in this Agreement shall be deemed to impose on the Custodian any duty to
qualify
to do business in any jurisdiction, other
than
(i) any
jurisdiction where any Mortgage File is or may be held by the Custodian
from
time to time hereunder, and (ii) any jurisdiction where its ownership or
property or conduct of business requires such qualification and where failure
to
qualify could have a material adverse effect on the Custodian or its property
or
business or on the ability of the Custodian to perform its duties
hereunder.
(xiv) The
Custodian shall have no duty to ascertain whether or not any cash amount
or
payment has been received by the Seller, the Buyer or any third
person.
25. Transmission
of Custodial Files.
Written
or
electronic
instructions as to the method of shipment and shipper(s) the Custodian
is
directed to utilize in connection with transmission of mortgage files and
loan
documents in the performance of the Custodian’s duties hereunder shall be
delivered by the Servicer (a “Requesting Party”), to the Custodian prior to any
shipment of any mortgage files and loan documents hereunder. The Requesting
Party will arrange for the provision of such services at its sole cost
and
expense (or, at the Custodian’s option, reimburse the Custodian for all costs
and expenses incurred by the Custodian consistent with such instructions)
and
will maintain such insurance against loss or damage to mortgage files and
loan
documents as the Requesting Party deems appropriate. Without limiting the
generality of the provisions of Section 23 above, it is expressly agreed
that in
no event shall the Custodian have any liability for any losses or damages
to any
person, including without limitation, any Requesting Party, arising out
of
actions of the Custodian consistent with instructions of the Requesting
Party.
26. Authorized
Representatives.
Each
individual designated as an authorized representative of the Servicer,
the
Trustee and the Custodian, respectively (an “Authorized
Representative”),
is
authorized to give and receive notices, requests and instructions and to
deliver
certificates and documents in connection with this Agreement on behalf
of the
Servicer, the Trustee or the Custodian, as the case may be, and the specimen
signature for each such Authorized Representative of the Servicer, the
Trustee
and the Custodian, initially authorized hereunder, as set forth on Exhibit
4,
Exhibit
5
and
Exhibit
6
hereof,
respectively. From time to time the parties hereto may, by delivering to
each
other a revised exhibit, change the information previously given pursuant
to
this Section 25, but each of the parties hereto shall be entitled to rely
conclusively on the then current exhibit until receipt of a superseding
exhibit.
27. Reproduction
of Documents.
This
Custodial Agreement and all documents relating thereto except with respect
to
the Custodial File, including, without limitation, (a) consents, waivers
and
modifications which may hereafter be executed, and (b) certificates and
other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, microcard, miniature photographic
or other
similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or
not such
reproduction was made by a party in the regular course of business, and
that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
28. Amendment.
This
Custodial Agreement may be amended from time to time by written agreement
signed
by the Servicer, the Trustee and the Custodian.
29. Compliance
with Regulation AB.
(a) Intent
of the Parties; Reasonableness.
The
Custodian acknowledges and agrees that the purpose of this Section 29 is
to
facilitate compliance by the Depositor with the provisions of Regulation
AB and
related rules and regulations of the Securities and Exchange Commission
(the
“Commission”). The Depositor shall not exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act of
1933
(the “1933 Act”), the Securities and Exchange Act of 1934, as amended (the
“Exchange Act”) and the rules and regulations of the Commission under the 1933
Act and the Exchange Act. The Custodian acknowledges that interpretations
of the
requirements of Regulation AB may change over time, due to interpretive
guidance
provided by the Commission or its staff and agrees to comply with requests
made
by the Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. The
Custodian shall cooperate reasonably with the Depositor to deliver to the
Depositor (including any of its assignees or designees), any and all disclosure,
statements, reports, certifications, records and any other information
necessary
in the reasonable, good faith determination of the Depositor to permit
the
Depositor to comply with the provisions of Regulation AB.
(b) Additional
Representations and Warranties of the Custodian.
(i) The
Custodian hereby represents and warrants that the information set forth
in the
Prospectus Supplement under the caption “Pooling and Servicing Agreement—The
Custodian” (the “Custodian Disclosure”) does not contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(ii) The
Custodian shall be deemed to represent to the Depositor as of the date
hereof
and on each date on which information is provided to the Depositor under
Section
29(c) that, except as disclosed in writing to the Depositor prior to such
date:
(i) there are no aspects of its financial condition that could have a material
adverse effect on the performance by it of its Custodian obligations under
this
Custodial Agreement or any other securitization transaction as to which
it is
the custodian; (ii) there are no material legal or governmental proceedings
pending (or known to be contemplated) against it; and (iii) there are no
affiliations relating to the Custodian with respect to the Depositor or
any of
the following and their affiliates: Soundview Home Loan Trust 2006-OPT4
(“Issuing
Entity”), Option One Mortgage Corporation (“Sponsor”), the Depositor, the
Servicer, the Trustee, Wachovia Bank, N.A. (“Swap Provider”) or any successor
thereto or other material party as identified in writing to the Custodian
by the
Sponsor (each a “Transaction Party”) on any date following the date
hereof,
any
relationships or transaction any relationships or transactions relating
to the
Custodian and any Transaction Party of a type described in Item 1119(b)
of
Regulation AB or any specific relationships involving the transaction
contemplated by the Pooling and servicing Agreement or the Mortgage Loans
between the Custodian and any Transaction Party.
(iii) If
so
requested by the Depositor on any date following the Closing Date, the
Custodian
shall, within five Business Days following such request, confirm in writing
the
accuracy of the representations and warranties set forth in paragraph (ii)
of
this Section 29(b) or, if any such representation and warranty is not accurate
as of the date of such confirmation, provide reasonably adequate disclosure
of
the pertinent facts, in writing, to the requesting party. Any such request
from
the Depositor shall not be given more than once each calendar quarter,
unless
the Depositor shall have a reasonable basis for a determination that any
of the
representations and warranties may not be accurate.
(iv) The
Custodian has not and shall not engage any subcontractor which is “participating
in the servicing function” within the meaning of Item 1122 of Regulation AB,
unless such subcontractor provides, beginning March 1, 2007, a report and
a
statement of a registered public accounting firm certifying its compliance
with
the applicable servicing criteria in Item 1122(d) of Regulation AB.
(c) Additional
Information to Be Provided by the Custodian.
For so
long as the Certificates are outstanding, for the purpose of satisfying
the
Depositor’s reporting obligation under the Exchange Act with respect to any
class of Certificates, the Custodian shall (a) notify the Depositor and
the
Trustee in writing of any material litigation or governmental proceedings
pending against the Custodian that would be material to Certificateholders,
and
(b) provide to the Depositor and the Trustee a written description of such
proceedings. Any notices and descriptions required under this Section 29(c)
shall be given no later than five Business Days prior to the Determination
Date
following the month in which the Custodian has knowledge of the occurrence
of
the relevant event. As of the date the Depositor or Trustee files each
Report on
Form 10-D or Form 10-K with respect to the Certificates, the Custodian
will be
deemed to represent that any information previously provided under this
Section
29(c), if any, is materially correct and does not have any material omissions
unless the Custodian has provided an update to such information.
(d) Report
on Assessment of Compliance and Attestation.
On or
before March 15th of each calendar year, beginning in 2007 until and unless
a
Form 15 suspension notification has been filed with respect to the Trust,
the
Custodian shall, at its own expense:
(i) deliver
to the Trustee a report (in form and substance reasonably satisfactory
to the
Trustee) regarding the Custodian’s assessment of compliance with the Servicing
Criteria (set forth in Exhibit 9) applicable to it during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Each such report shall include
(a)
a statement of the Custodian’s responsibility for assessing compliance with the
Servicing Criteria applicable to it, (b) a statement that the Custodian
used the
criteria applicable to it identified in Item 1122(d) of Regulation AB
(§229.1122(d)) to assess compliance with the applicable Servicing Criteria,
(c)
disclosure of any material instance of noncompliance identified by the
Custodian, and (d) a statement that a registered public accounting firm
has
issued an attestation report on the Custodian’s assessment of compliance with
the applicable Servicing Criteria, which report shall be delivered by the
Custodian as provided in this Section 29(d). Such report shall be addressed
to
the Depositor and signed by an authorized officer of the Custodian, and
shall
address each of the applicable Servicing Criteria; and
(ii) deliver
to the Trustee a report of a registered public accounting firm (who may
also
render other services to Custodian), which is a member of the American
Institute
of Certified Public Accountants, that attests to, and reports on, the assessment
of compliance made by the Custodian and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3)
and
2-02(g) of Regulation S-X under the 1933 Act and the Exchange Act.
(iii) The
Custodian has not and shall not engage any subcontractor which is “participating
in the servicing function” within the meaning of Item 1122 of Regulation AB
unless such Subcontractor provides, beginning March 1, 2007 a Report on
Assessment of Compliance and an Attestation from a registered public accounting
firm certifying its compliance with the applicable Servicing
Criteria.
(e) Indemnification;
Remedies.
The
Custodian shall indemnify the Depositor, each affiliate of the Depositor
and
each broker dealer acting as underwriter, placement agent or initial purchaser
of the Certificates or each Person who controls any of such parties (within
the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the respective present and former directors, officers, employees and
agents
of each of the foregoing, and shall hold each of them harmless from and
against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and any other costs, fees and expenses that any
of
them may sustain arising out of or based upon (i) any untrue statement
of a
material fact contained or alleged to be contained in the Custodian Disclosure
and any information, report, certification, accountants’ attestation or other
material provided under this Section 29 by or on behalf of the Custodian
(collectively, the “Custodian Information”), or the omission or alleged omission
to state in the Custodian Information a material fact required to be stated
in
the Custodian Information or necessary in order to make the statements
therein,
in the light of the circumstances under which they were made, not misleading;
or
(ii) any failure by the Custodian to deliver any information, report,
certification, accountants’ attestation or other material when and as required
under this Section 29. This indemnification shall survive the termination of
this Custodial Agreement or the termination, resignation or removal of
the
Custodian.
In
the
case of any failure of performance described in clause (ii) of the immediately
preceding paragraph, the Custodian shall promptly reimburse the Depositor
for
all costs reasonably incurred by the Depositor in order to obtain the
information, report, certification, accountants’ letter or other material not
delivered as required by the Custodian.
30. Limitation
of Liability.
It
is
expressly understood and agreed by the parties hereto that (a) this Custodial
Agreement is executed and delivered by Deutsche Bank National Trust Company,
not
individually or personally but solely as the Indenture Trustee for Soundview
Home Loan Trust 2006-OPT4, in the exercise of the powers and authority
conferred
and vested in it, (b) the representations, undertakings and agreements
herein
made on the part of the Soundview Home Loan Trust 2006-OPT4 are made and
intended not as personal representations, undertakings and agreements by
Deutsche Bank National Trust Company but are made and intended for the
purpose
of binding only the Soundview Home Loan Trust 2006-OPT4, (c) nothing herein
contained shall be construed as creating any liability on Deutsche Bank
National
Trust Company, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this Custodial Agreement
and by any person claiming by, through or under such parties and (d) under
no
circumstances shall Deutsche Bank National Trust Company be personally
liable
for the payment of any indebtedness or expenses of the Soundview Home Loan
Trust
2006-OPT4 or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Soundview
Home
Loan Trust 2006-OPT4 under this Custodial Agreement.
IN
WITNESS WHEREOF, the Trustee, the Custodian and the Servicer have caused
their
names to be duly signed hereto by their respective officers thereunto duly
authorized, all as of the date first above written.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee for the
Soundview
Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series
2006-OPT4
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
XXXXX
FARGO
BANK, N.A.,
as
Custodian
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
OPTION
ONE MORTGAGE CORPORATION,
as
Servicer
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
1
FORM
OF
TRUST RECEIPT AND INITIAL CERTIFICATION
_____,
2006
Trust
Receipt #: ___
Original
Principal Balance of the Mortgage Loans:$_______
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
Trust Administration GC05O3
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Re:
|
Custodial
Agreement, dated as of May 1, 2006, among Deutsche Bank National
Trust
Company as the Trustee, Option One Mortgage Corporation as Servicer
and
Xxxxx
Fargo Bank, N.A.
as
the Custodian
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 3 of the above-referenced Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that it
is
holding the Mortgage Loans identified on the schedule attached hereto for
the
exclusive benefit of the Trustee pursuant to the terms and conditions of
the
Custodial Agreement, and it has received a Custodial File with respect
to each
such Mortgage Loan (other than any Mortgage Loan specifically identified
on the
exception report attached hereto) and that with respect to each such Mortgage
Loan: (i) all documents 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 definition of “Mortgage Loan Schedule”
in the Pooling and Servicing Agreement accurately reflects information
set forth
in the Custodial File.
The
Custodian hereby confirms that it is holding each such Custodial File as
agent
and bailee of and custodian for the exclusive use and benefit of the Trustee
pursuant to the terms of the Custodial Agreement.
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
XXXXX
FARGO
BANK,
N.A.
(Custodian)
By:____________________________________
Name:
Title:
EXHIBIT
2
FORM
OF
FINAL TRUST RECEIPT
TRUST
RECEIPT # ___
______,
2006
Aggregate
Amount of Mortgage Loans: _____
Original
Principal Balance of Aggregate Mortgage Loans: __________
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
Trust Administration GC05O3
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Re:
|
Custodial
Agreement, dated as of May 1, 2006, among Deutsche Bank National
Trust
Company as the Trustee, Option One Mortgage Corporation as Servicer
and
Xxxxx
Fargo Bank, N.A.
as
the Custodian
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 4 of the above-referenced Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that as
to each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or any Mortgage Loan listed on the attachment hereto) it has
reviewed the Custodial Files and has determined that (i) all documents
required
to be delivered to it pursuant to Sections 2(i), (ii), (iii), (iv) and
(v) of
the Custodial Agreement are in its possession and to the extent provided
in the
Custodial Files paragraph (v) of Section 2 of the Custodial Agreement are
in its
possession; (ii) such documents have been reviewed by it and appear regular
on
their face and relate to such Mortgage Loan; (iii) based on its examination
and
only as to the foregoing documents, the information set forth in items
(1) and
(3) of the definition of “Mortgage Loan Schedule” in the Pooling and Servicing
Agreement accurately reflects information set forth in the Custodial File;
and
(iv) each Mortgage Note has been endorsed as provided in Section 2 of the
Custodial Agreement and each Mortgage has been assigned in accordance with
Section 2 of the Custodial Agreement. The Custodian makes no representations
as
to (i) the validity, legality, enforceability, sufficiency, due authorization
or
genuineness of any of the documents contained in each Custodial File or
of any
of the Mortgage Loans or (ii) the collectability, insurability, effectiveness
or
suitability of any such Mortgage Loan.
The
Custodian hereby confirms that it is holding each such Custodial File as
agent
and bailee of, and custodian for the exclusive use and benefit, and subject
to
the sole direction, of the Trustee pursuant to the terms and conditions
of the
Custodial Agreement.
Capitalized
terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
XXXXX
FARGO
BANK,
N.A.
(Custodian)
By:___________________________________
Name:
Title:
EXHIBIT
3
REQUEST
FOR RELEASE OF DOCUMENTS
|
To:
|
Xxxxx
Fargo Bank, N.A.
|
|
00
Xxxxxxxxx Xxxx, Xxxxx 000
|
|
|
Xxxxxx,
XX 00000
|
|
|
Attn: Inventory
Control
|
|
Re:
|
Custodial
Agreement, dated as of May 1, 2006, among Deutsche Bank National
Trust
Company as the Trustee, Option One Mortgage Corporation
as Servicer and Xxxxx
Fargo Bank, N.A.
as
the Custodian
|
In
connection with the administration of the Mortgage Loans included in the
Trust
Fund established pursuant to the Pooling and Servicing Agreement dated
as of May
1, 2006, among Financial Asset Securities Corp. as Depositor, Option One
Mortgage Corporation, as Servicer, and Deutsche Bank National Trust Company,
a
national banking association, as Trustee and held by you as Custodian pursuant
to the above-captioned Custodial Agreement, we request the release, and
hereby
acknowledge receipt of the Custodial File for the Mortgage Loan described
below,
for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents
(check
one):
_______ 1. Mortgage
Paid in Full
_______ 2. Foreclosure
_______ 3.
Substitution
_______ 4. Other
Liquidation (Repurchases, etc.)
_______ 5. Nonliquidation
Reason:___________________________
|
Address
to which Custodian should
Deliver
the Custodial File:
|
||
By:_____________________________________
(authorized
signer)
Issuer:___________________________________
Address:
Date:____________________________________
Custodian
Xxxxx
Fargo Bank, N.A.
Please
acknowledge the execution of the above request by your signature and date
below:
____________________________________ _________________
Signature Date
Documents
returned to Custodian:
____________________________________ _________________
Custodian Date
EXHIBIT
4
AUTHORIZED
REPRESENTATIVES OF SERVICER
|
NAME
|
SPECIMEN
SIGNATURE
|
|
EXHIBIT
5
AUTHORIZED
REPRESENTATIVES OF TRUSTEE
|
NAME
|
SPECIMEN
SIGNATURE
|
|
EXHIBIT
6
AUTHORIZED
REPRESENTATIVES OF CUSTODIAN
|
NAME
|
SPECIMEN
SIGNATURE
|
|
EXHIBIT
7
SCHEDULE
OF MORTGAGE LOANS
SEE
EXHIBIT D TO THE POOLING AND SERVICING AGREEMENT
EXHIBIT
8
FORM
OF
RECEIPT OF MORTGAGE NOTE
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
Ladies
and Gentlemen:
Pursuant
to Section 3 of the Custodial Agreement, dated as of May 1, 2006, among
Deutsche
Bank National Trust Company as the Trustee, Option One Mortgage Corporation
as
Servicer and Xxxxx
Fargo Bank, N.A.
as the
Custodian, we hereby acknowledge the receipt of the original Mortgage Notes
with
any exceptions thereto listed on Exhibit 2.
|
XXXXX
FARGO BANK, N.A.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
9
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Custodian shall address,
at a
minimum, the criteria identified below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements
|
|
|
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
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
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.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
|
|
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 institutions” 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.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
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 ther person who prepared
the
reconciliations; 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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related asset pool documents.
|
√
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements.
|
√
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s pool asset (e.g., loan
modifications or re-agings) are made, reviewed and approved by
authorized
personnel in accordance with the transaction agreements and related
pool
asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation of recovery actions (e.g., forbearance plans, modifications
and
deed 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
documents.
|
|
|
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 in 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).
|
|
|
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.
|
|
|
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 3-
calendar
days of full repayment of the related pool asset, or such other
number of
days specified in the transaction agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax ore 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 service at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible funds are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
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.
|
|
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 Soundview Home Loan Trust 2006-OPT4,
Asset-Backed Certificates Series 2006-OPT4, to accept the transfer of the above
described loan from Seller.
Seller
agrees to indemnify Deutsche Bank National Trust Company and Financial Asset
Securities Corp. harmless for any losses incurred by such parties resulting
from
the above described promissory note has been lost or misplaced.
By: _______________________
_______________________
|
STATE
OF
|
)
|
|
)
SS:
|
|
|
COUNTY
OF
|
)
|
On
this
______ day of ______________, 20_, before me, a Notary Public, in and for said
County and State, appeared , who acknowledged the extension of the foregoing
and
who, having been duly sworn, states that any representations therein contained
are true.
Witness
my hand and Notarial Seal this _________ day of 20__.
____________________________
____________________________
My
commission expires __________________________.
EXHIBIT
I
FORM
OF
LIMITED POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that [NAME OF MORTGAGEE, ASSIGNEE OR LAST ENDORSEE,
AS
APPLICABLE], [a ___________________ corporation][a national banking
organization], having its principal place of business at
__________________________, (the “Undersigned”), pursuant to that Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) among Financial
Asset Securities Corp. (the “Owner”), Deutsche Bank National Trust Company and
Option One Mortgage Corporation (“OOMC”), hereby constitutes and appoints OOMC,
by and through OOMC’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 OOMC pursuant to the Pooling and Servicing Agreement,
for the purpose of performing all acts and executing all documents in the name
of the Undersigned as may be customarily and reasonably necessary and
appropriate to effectuate the following enumerated transactions in respect
of
any of the mortgages, deeds of trust or security instrument (each a “Mortgage”
or a “Deed of Trust” respectively) and promissory notes secured thereby (each a
“Mortgage Note”) for which the Undersigned is acting as Servicer pursuant to the
Pooling and Servicing Agreement (whether the Undersigned is named therein as
mortgagee or beneficiary or has become mortgagee by virtue of endorsement of
the
Mortgage Note secured by any such Mortgage or Deed of Trust) all subject to
the
terms of the related Pooling and Servicing Agreement.
This
appointment shall apply to the following enumerated transactions
only:
1. The
modification or re-recording of a Mortgage or Deed of Trust, where said
modification or re-recording is for the purpose of correcting the Mortgage
or
Deed of Trust to conform same to the original intent of the parties thereto
or
to correct title errors discovered after such title insurance was issued and
said modification or re-recording, in either instance, does not adversely affect
the lien of the Mortgage or Deed of Trust as insured.
2. The
subordination of the lien of a Mortgage or Deed of Trust to an easement in
favor
of a public utility company or a governmental agency or authority thereunder
with powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfaction/release, partial reconveyances or the
execution of requests to trustees to accomplish same.
3. The
conveyance of the properties to the mortgage insurer, or the closing of the
title to the property to be acquired as real estate owned, or conveyance of
title to real estate owned.
4. The
completion of loan assumption agreements.
5. The
full
satisfaction/release of a Mortgage or Deed of Trust or full reconveyance upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related Mortgage Note.
6. The
assignment of any Mortgage or Deed of Trust and the related Mortgage Note,
in
connection with the repurchase of the mortgage loan secured and evidenced
thereby.
7. The
full
assignment of a Mortgage or Deed of Trust upon payment and discharge of all
sums
secured thereby in conjunction with the refinancing thereof, including, without
limitation, the assignment of the related Mortgage Note.
8. With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking of a deed
in
lieu of foreclosure, or the completion of judicial or non-judicial foreclosure
or termination, cancellation or rescission of any such foreclosure, including,
without limitation, any and all of the following acts:
a) the
substitution of trustee(s) serving under a Deed of Trust, in accordance with
state law and the Deed of Trust;
b) the
preparation and issuance of statements of breach or
non-performance;
c) the
preparation and filing of notices of default and/or notices of
sale;
d) the
cancellation/rescission of notices of default and/or notices of
sale;
e) the
taking of a deed in lieu of foreclosure; and
f) the
preparation and execution of such other documents and performance of such other
actions as may be necessary under the terms of the Mortgage, Deed of Trust
or
state law to expeditiously complete said transactions in paragraphs 8(a) through
8(e) above.
9. The
full
assignment of a Mortgage or Deed of Trust upon sale of a loan pursuant to a
mortgage loan sale agreement for the sale of a loan or pool of loans, including,
without limitation, the assignment of the related Mortgage Note.
The
Undersigned gives said Attorney-in-Fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney, each subject to the terms and conditions set forth in the
related Pooling and Servicing Agreement and in accordance with the standard
of
care applicable to servicers in the Pooling and Servicing Agreement as fully
as
the undersigned might or could do, and hereby does ratify and confirm to all
that said Attorney-in-Fact shall lawfully do or cause to be done by authority
hereof. This Limited Power of Attorney shall be effective as of [SERVICING
TRANSFER EFFECTIVE DATE].
Nothing
contained herein shall (i) limit in any manner any indemnification provided
by
OOMC to the Owner under the Pooling and Servicing Agreement, or (ii) be
construed to grant OOMC 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.
Option
One Mortgage Corporation 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 OOMC
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
OPTION
ONE MORTGAGE CORPORATION
By:_________________________
Name:
Title:
EXHIBIT
J
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
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.
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Very
truly yours,
[NAME
OF TRANSFEREE]
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
FORM
OF
RULE 144A INVESTMENT LETTER
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(c)
we are not an employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended, or a plan that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended, nor are we acting on
behalf of any such plan, (d) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (e) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Securities Act and have completed either of
the
forms of certification to that effect attached hereto as Annex 1 or Annex 2.
We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged
or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of
a
qualified institutional buyer to whom notice is given that the resale, pledge
or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
|
Very
truly yours,
[NAME
OF TRANSFEREE]
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
ANNEX
1 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
_________
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan association
or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
_________
Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Broker-Dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
_________
Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
_________
State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
_________
ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
_________
Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
_________
Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“SECURITIES” as used herein DOES NOT INCLUDE (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iv) bank
deposit notes and certificates of deposit (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
|
Print
Name of Buyer
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
ANNEX
2 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyers Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
_________
The
Buyer
owned $_________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_________
The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$___________ in securities (other than the excluded securities referred to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“FAMILY OF INVESTMENT COMPANIES” as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The
term
“SECURITIES” as used herein does not include (i) securities of issuers that are
affiliated with the Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
|
Print
Name of Buyer or Adviser
|
||
|
Name
|
||
|
Title
|
||
|
IF
AN ADVISER:
|
||
|
Print
Name of Buyer
|
||
|
Date:
|
||
EXHIBIT
K
FORM
OF
TRANSFER AFFIDAVIT FOR RESIDUAL CERTIFICATES
PURSUANT
TO SECTION 5.02(D)
SOUNDVIEW
HOME LOAN TRUST 2006-OPT4
ASSET-BACKED
CERTIFICATES, SERIES 2006-OPT4
|
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 May 1, 2006 (the
“Agreement”),
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Option One Mortgage Corporation, as servicer (the “Servicer”)
and
Deutsche Bank National Trust Company, as trustee (the “Trustee”).
Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee for the benefit of the Depositor and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for
a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the
tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(d) of the Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions
on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by
the provisions of Section 5.02(d) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that
any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit L to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends to
pay
its debts as they come due in the future, and understands that the taxes payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is ___________.
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable to
a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
[_] The
present value of the anticipated tax liabilities associated with holding the
Certificate, as applicable, does not exceed the sum of:
|
(i)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to
the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by
the
Transferee.
[_] The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United
States;
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in
excess of $10 million;
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of
the U.S. Treasury Regulations;
and
|
|
(iv)
|
the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including, but
not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
[_] None
of
the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
|
[NAME
OF TRANSFEREE]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[Corporate
Seal]
ATTEST:
|
[Assistant]
Secretary
|
Personally
appeared before me the above-named __________, known or proved to me to be
the
same person who executed the foregoing instrument and to be the ___________
of
the Transferee, and acknowledged that he executed the same as his free act
and
deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
|
NOTARY
PUBLIC
My
Commission expires the __ day
of
_________, 20__
|
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in
securities.
EXHIBIT
L
FORM
OF
TRANSFEROR CERTIFICATE
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, (b)
we
have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act, (c)
to
the extent we are disposing of a Class [ ] Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of a Class [ ] Certificate is to impede the assessment or collection
of tax.
|
Very
truly yours,
|
||
|
TRANSFEROR
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
M
FORM
OF
ERISA REPRESENTATION LETTER
_____________,
20__
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance Soundview Home
Loan Trust 2006-OPT4, Asset-Backed Certificates Series 2006-OPT4, Class
[C][P][R[-X]] (the “Certificates”), issued pursuant to a Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) dated as of May 1, 2006 among
Financial Asset Securities Corp. as depositor (the “Depositor”), Option One
Mortgage Corporation as servicer (the “Servicer”) and Deutsche Bank National
Trust Company as trustee (the “Trustee”). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants
to, and covenants with the Depositor, the Trustee and the Servicer the
following:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R. §2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within
the meaning of the DOL regulation at 29 C.F.R. §2510.3-101.
|
Very
truly yours,
|
||
|
[Transferee]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
N-1
FORM
CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
I,
[identify the certifying individual], certify that:
l. I
have
reviewed this report on Form 10-K, and all reports on Form 10-D required to
be
filed in respect of the period included in the year covered by this report
in
Form 10-K of Soundview Home Loan Trust 2006-OPT4 (the “Exchange Act periodic
reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. Based
on
my knowledge and upon the annual compliance statement required in this report
under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act
periodic reports, the Servicer has fulfilled each of its obligations under
the
pooling and servicing agreement; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: Option One Mortgage Corporation and
Deutsche Bank National Trust Company.
|
FINANCIAL
ASSET SECURITIES CORP.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
N-2
FORM
CERTIFICATION TO BE
PROVIDED
TO DEPOSITOR BY THE TRUSTEE
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
I,
[identify the certifying individual], a [title] of Deutsche Bank National Trust
Company, as Trustee of the Trust, hereby certify to Financial Asset Securities
Corp. (the “Depositor”), and its officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification,
that:
1. I
have
reviewed the annual report on Form 10-K for the fiscal year [___], and all
reports on Form 10-D required to be filed in respect of the period covered
by
such Form 10-K of the Depositor relating to the above-referenced trust (the
“Exchange Act periodic reports”)
2. Based
on
my knowledge, the information prepared by the Trustee, contained, in these
distribution reports taken as a whole, do not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading with respect to the period covered by this report;
3. Based
on
my knowledge, the distribution information required to be provided by the
Trustee under the Pooling and Servicing Agreement is included in these
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated May 1, 2006 (the “Pooling and Servicing
Agreement”), among the Depositor as depositor, Option One Mortgage Corporation
as servicer and Deutsche Bank National Trust Company as trustee.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
N-3
FORM
CERTIFICATION TO BE
PROVIDED
TO DEPOSITOR BY THE SERVICER
|
Re:
|
Soundview
Home Loan Trust 2006-OPT4,
Asset-Backed
Certificates Series
2006-OPT4
|
I,
[identify the certifying individual], certify to Financial Asset Securities
Corp. (the “Depositor”), the Trustee and their respective officers, directors
and affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
1.
Based
on
my knowledge, the information in the annual compliance statement, the Annual
Independent Public Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the servicing of the
Mortgage Loans taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading as of the date of this certification;
2. The
servicing information required to be provided by the Servicer under the Pooling
and Servicing Agreement has been provided to the Depositor and the
Trustee;
3. I
am is
responsible for reviewing the activities performed by the Servicer under the
Pooling and Servicing Agreement and based upon the review required by the
Pooling and Servicing Agreement, and except as disclosed in the annual
compliance statement or the Annual Independent Public Accountant's Servicing
Report, the Servicer has, as of the date of this certification fulfilled its
obligations under the Pooling and Servicing Agreement; and
4. Such
officer has disclosed to the Depositor and the Trustee all significant
deficiencies relating to the Servicer’s compliance with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set
forth
in the Pooling and Servicing Agreement.
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
Capitalized
terms used but not defined herein have the meanings ascribed to them in
the
Pooling
and Servicing Agreement, dated May 1, 2006 (the “Pooling and Servicing
Agreement”), among the Depositor, Option One Mortgage Corporation as servicer
and Deutsche Bank National Trust Company as trustee.
|
OPTION
ONE MORTGAGE CORPORATION
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
O
FORM
OF
POOL POLICY
Table
of Contents
Mortgage
Trust Bulk Supplemental Policy
|
1
|
Definitions
|
|
1.1
|
Aggregate
Loss
|
|
1.2
|
Aggregate
Loss Limit
|
|
1.3
|
Aggregate
Loss Percentage
|
|
1.4
|
Application
|
|
1.5
|
Appropriate
Proceedings
|
|
1.6
|
Approval
of Coverage
|
|
1.7
|
Approved
Sale
|
|
1.8
|
Borrower
|
|
1.9
|
Certificate
Number
|
|
1.10
|
Claim
|
|
1.11
|
Claim
Amount
|
|
1.12
|
Deductible
Amount
|
|
1.13
|
Deductible
Loss
|
|
1.14
|
Deductible
Loss Percentage
|
|
1.15
|
Default
|
|
1.16
|
Eligibility
Criteria
|
|
1.17
|
Environmental
Condition
|
|
1.18
|
Good
and Merchantable Title
|
|
1.19
|
Initial
Principal Balance
|
|
1.20
|
Insured
|
|
1.21
|
Loan
|
|
1.22
|
Loan
Effective Date
|
|
1.23
|
Loan
File
|
|
1.24
|
Loss
|
|
1.25
|
Perfected
Claim
|
|
1.26
|
Person
|
|
1.27
|
Physical
Damage
|
|
1.28
|
Policy
|
|
1.29
|
Pooling
and Servicing Agreement
|
|
1.30
|
Possession
of the Property
|
|
1.31
|
Primary
Policy
|
|
1.32
|
Property
|
|
1.33
|
Qualified
|
|
1.34
|
Residential
|
|
1.35
|
Security
|
|
1.36
|
Servicer
|
|
1.37
|
Settlement
Period
|
|
1.38
|
Total
Initial Principal Balance
|
|
1.39
|
Value
|
|
2
|
Obtaining
Coverage and Payment of
Premiums
|
|
2.1
|
Loan
Underwriting and Obtaining
Coverage
|
|
2.2
|
Representations
of the Insured
|
|
2.3
|
Company’s
Remedies for
Misrepresentation
|
|
2.4
|
Premiums
and Term of Coverage
|
|
2.5
|
Termination
for Nonpayment of Premium
|
|
2.6
|
Payment
of Premiums
|
|
2.7
|
Continuation
or Cancellation by the Insured of Coverage of a
Loan
|
|
2.8
|
Cancellation
of Policy by the Insured
|
|
2.9
|
Cancellation
of Policy and Coverage of Loans Upon Termination of
Security
|
|
2.10
|
Post
Underwriting Review and Copies of Loan
Files
|
|
3
|
Changes
in Various Loan Terms and Servicing, Co-ordination and Duplication
of
Insurance Benefits
|
|
3.1
|
Loan
Modifications
|
|
3.2
|
Open
End Provisions
|
|
3.3
|
Assumptions
|
|
3.4
|
Change
of Servicing
|
|
3.5
|
Loan
Assignment
|
|
3.6
|
Co-ordination
and Duplication of Insurance
Benefits
|
|
4
|
Exclusions
From Coverage
|
|
4.1
|
Balloon
Payment
|
|
4.2
|
Effective
Date
|
|
4.3
|
Incomplete
Construction
|
|
4.4
|
Fraud
and Misrepresentation
|
|
4.5
|
Failure
to Meet Servicing
Standards
|
|
4.6
|
Non-Approved
Servicer
|
|
4.7
|
Physical
Damage (Other than Relating to Pre-Existing Environmental
Conditions)
|
|
4.8
|
Pre-Existing
Environmental Conditions
|
|
4.9
|
First
Lien Status
|
|
4.10
|
Breach
of the Insured’s Obligations or Failure to Comply with
Terms
|
|
4.11
|
Exclusion
Under Primary Policy
|
|
4.12
|
Primary
Policy
|
|
4.13
|
Investor-Paid
Coverage
|
|
4.14
|
Non-Eligible
Loans
|
|
5
|
Conditions
Precedent to Payment of
Claim
|
|
5.1
|
Maintenance
of Primary Policy
|
|
5.2
|
Notice
of Default
|
|
5.3
|
Monthly
Reports
|
|
5.4
|
Company’s
Option to Accelerate Filing of a
Claim
|
|
5.5
|
Voluntary
Conveyance
|
|
5.6
|
Appropriate
Proceedings
|
|
5.7
|
Mitigation
of Damages
|
|
5.8
|
Advances
|
|
5.9
|
Claim
Information and Other
Requirements
|
|
5.10
|
Acquisition
of Good and Merchantable Title Not
Required
|
|
5.11
|
Procedures
for the Company’s Approval of a Sale of the Property by the
Insured
|
|
5.12
|
Foreclosure
Bidding Instructions Given by the
Company
|
|
6
|
Loss
Payment Procedure
|
|
6.1
|
Filing
of Claim
|
|
6.2
|
Calculation
of Claim Amount
|
|
6.3
|
Payment
of Loss; Company’s Options
|
|
6.4
|
Calculation
of Settlement Period
|
|
6.5
|
Payment
by the Company After the Settlement
Period
|
|
6.6
|
Deductible
Losses
|
|
7
|
Additional
Conditions
|
|
7.1
|
Proceedings
of Eminent Domain
|
|
7.2
|
Pursuit
of Deficiencies
|
|
7.3
|
Subrogation
|
|
7.4
|
Policy
for Exclusive Benefit of the
Insured
|
|
7.5
|
Effect
of Borrower Insolvency or Bankruptcy on Principal
Balance
|
|
7.6
|
Arbitration
of Disputes, Suits and Actions Brought by the
Insured
|
|
7.7
|
Release
of Borrower; Defenses of
Borrower
|
|
7.8
|
Amendments;
No Waiver; Rights and Remedies; Use of Term
“Including”
|
|
7.9
|
No
Agency
|
|
7.10
|
Successors
and Assigns
|
|
7.11
|
Applicable
Law and Conformity to Law
|
|
7.12
|
Notice
|
|
7.13
|
Reports
and Examinations
|
|
7.14
|
Electronic
Media
|
|
7.15
|
Reporting
of Loan Balances, Prepayments and
Assumptions
|
Terms
and Conditions
| 1 |
Definitions
|
| 1.1 |
Aggregate
Loss
|
means,
at
any given time, the total of (a) all Losses, including advance payments of
Loss
and partial payments of Loss with respect to a Default paid by the Company
and
(b) the Deductible Loss charged to the Deductible Amount under this Policy,
reduced by (1) the net proceeds received by the Company upon disposal of
all
Loans (if the Loan is acquired by the Company in settlement of a Claim) and
Properties, and also reduced by (2) any other net recoveries made in its
sole
discretion by the Company, including recoveries made by exercise of subrogation
rights, with respect to any Loan or the related Property or Borrower. For
purposes hereof, the term “net proceeds” shall consist of the sale price
received by the Company, reduced by any expenses, payments or costs incurred
by
the Company in the ownership, maintenance and disposition of a Loan or a
Property, including all expenses of the type which would have been includable
in
a Claim for Loss, interest paid by the Company on borrowings for the acquisition
and ownership of the Loan or the Property (not to exceed the interest payable
at
the interest rate due on the Loan which would have been includable in the
Claim), brokerage commissions, title insurance expenses, recording fees,
and
other costs and expenses of closing the sale of the Loan or the Property;
and
expenses regarding the physical condition of the Property in order to make
it
ready for sale.
| 1.2 |
Aggregate
Loss Limit
|
means
the
Total Initial Principal Balance multiplied by the Aggregate Loss Percentage
or
such other amount set forth on the face of this Policy, as may be adjusted
under
Section 2.3, and represents the maximum aggregate amount of Aggregate Loss
under
this Policy. When the Aggregate Loss under this Policy is an amount equal
to the
Aggregate Loss Limit, the liability of the Company to pay any additional
Losses
ceases until the Aggregate Loss is reduced below the Aggregate Loss
Limit.
| 1.3 |
Aggregate
Loss Percentage
|
means
that percentage identified on the face of this Policy.
| 1.4 |
Application
|
means
all
documents, materials, statements, representations, warranties, data and other
information, irrespective of the Person or Persons who prepared same, submitted
to the Company by or on behalf of the Insured in connection with the Insured’s
request for insurance under this Policy.
| 1.5 |
Appropriate
Proceedings
|
means
any
legal or administrative action by the Insured affecting either a Loan or
title
to a Property, including:
| a. |
Preserving
a deficiency recovery by making a bid at the foreclosure sale and
pursuing
a deficiency judgment until the end of the Settlement Period, where
appropriate and permissible and where directed by the Company;
or
|
| b. |
Enforcing
the terms of the Loan as allowed by the laws where the Property
is
located; or
|
| c. |
Acquiring
Good and Merchantable Title to the Property, as may be required
under this
Policy, but excluding such title as may be acquired by a voluntary
conveyance from the Borrower; or
|
| d. |
Asserting
the Insured’s interest in the Property in a Borrower’s
bankruptcy.
|
| 1.6 |
Approval
of Coverage
|
means
the
document issued by the Company evidencing the Company’s approval of a Loan for
insurance under this Policy, subject to the terms and conditions contained
in
the form of such approval and in this Policy, including a list of loans to
which
coverage has been extended under this Policy, and which is attached to the
Approval of Coverage.
| 1.7 |
Approved
Sale
|
means
| a. |
A
sale of a Property because of a Default (whether such sale is before
or
after foreclosure) to which the Company has given prior approval;
or
|
| b. |
A
foreclosure sale of the Property to a Person other than the Insured
at a
price exceeding the amount approved by the Company under Section
5.12(b),
or if no amount is approved, the amount as defined in Section 5.12(a);
or
|
| c. |
Acquisition
of a Property by someone other than the Insured by exercise of
rights of
redemption, if the Insured has complied with Section 5.12;
or
|
| d. |
Acquisition
of a Property or Loan pursuant to a Primary
Policy.
|
| 1.8 |
Borrower
|
means
any
Person legally obligated to repay the debt obligation created by a Loan,
including any co-signer or guarantor of the Loan.
| 1.9 |
Certificate
Number
|
means
the
identification number issued by the Company for a Loan to which coverage
is
extended as shown on the Approval of Coverage for such Loan.
| 1.10 |
Claim
|
means
the
timely filed written request, made on a form or in a format provided or approved
by the Company, to receive the benefits of this Policy.
| 1.11 |
Claim
Amount
|
means
the
amount calculated in accordance with Section 6.2 of this Policy.
| 1.12 |
Deductible
Amount
|
means
the
Total Initial Principal Balance multiplied by the Deductible Loss Percentage
or
such other amount set forth on the face of this Policy, and represents the
maximum aggregate amount of Deductible Losses under this Policy.
| 1.13 |
Deductible
Loss
|
means
the
amount charged to the Deductible Amount as set forth in Section
6.6.
| 1.14 |
Deductible
Loss Percentage
|
means
that percentage identified on the face of this Policy.
| 1.15 |
Default
|
means
the
failure by a Borrower (a) to pay when due an amount equal to or greater than
one
(1) monthly regular periodic payment due under the terms of a Loan or (b)
to pay
all amounts due on acceleration of the Loan by the Insured after breach by
the
Borrower of a due-on-sale provision in the Loan, granting the Insured the
right
to accelerate the Loan upon transfer of title to, or an interest in, the
Property and to institute Appropriate Proceedings. Violation by the Borrower
of
any other term or condition of the Loan which is a basis for Appropriate
Proceedings shall not be considered to be a Default.
A
Loan is
deemed to be in Default for that month as of the close of business on the
installment due date for which a scheduled monthly payment has not been made
or
as of the close of business on the due date stated in the notice of acceleration
given pursuant to the due-on-sale provision in the Loan. The Loan will be
considered to remain in Default until filing of a Claim so long as such periodic
payment has not been made or such basis for Appropriate Proceedings remains.
For
example, a Loan is “four (4) months in Default” if the monthly installments due
on January 1 through April 1 remain unpaid as of the close of business on
April
1 or if a basis for acceleration and Appropriate Proceedings exists for a
continuous period of four months.
| 1.16 |
Eligibility
Criteria
|
means
the
requirements established by the Company for the insurability of a Loan under
this Policy and of which the Company has notified the Insured prior to issuance
of the Policy.
| 1.17 |
Environmental
Condition
|
means
the
presence of environmental contamination, including nuclear reaction or
radioactive waste, toxic waste, or poisoning, contamination or pollution
of
earth or water subjacent to the Property or of the atmosphere above the
Property; or the presence, on or under a Property, of any “Hazardous Substance”
as that term is defined by the federal Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Sec. 9601, et. seq., as amended
from
time to time) or as defined by any similar state law, or of any “Hazardous
Waste” or “Regulated Substance” as those terms are defined by the federal
Resource Conservation and Recovery Act (42 U.S.C. Sec. 6901, et. seq., as
amended from time to time) or as defined by any similar state law. Environmental
Condition does not mean the presence of radon, lead paint, or
asbestos.
| 1.18 |
Good
and Merchantable Title
|
means
title to a Property free and clear of all liens, encumbrances, covenants,
conditions, restrictions, easements and rights of redemption, except for
any of
the following or as permitted in writing by the Company:
| a. |
Any
lien established by public bond, assessment or tax, when no installment,
call or payment of or under such bond, assessment or tax is
delinquent;
|
| b. |
Any
municipal and zoning ordinances and exceptions to title waived
by the
regulations of federal mortgage insurers and guarantors with respect
to
mortgages on one-to-four family residences in effect on the date
on which
the Loan was closed and all documents were executed;
and
|
| c. |
Any
other impediments which will not have a materially adverse effect
on
either the transferability of the Property or the sale thereof
to a bona
fide purchaser.
|
Good
and
Merchantable Title will not exist if (i) there is any lien pursuant to the
Comprehensive Environmental Response, Compensation, and Liability Act, or
similar federal or state law, as in effect from time to time, providing for
liens in connection with the removal and clean-up of environmental conditions,
or if notice has been given of commencement of proceedings which could result
in
such a lien, or (ii) there are limitations on ingress and egress to the Property
or on use of utilities. Any action or proceeding after a foreclosure sale
relating to establishing a deficiency judgment will not be considered in
determining whether the Insured has acquired Good and Merchantable
Title.
| 1.19 |
Initial
Principal Balance
|
means
the
unpaid principal balance of a Loan at the Loan Effective Date.
| 1.20 |
Insured
|
means:
| a. |
The
Person designated on the face of this Policy;
or
|
| b. |
Any
Person (1) to whom this Policy and coverage of all (but not fewer
than
all) Loans under this Policy has been assigned and (2) of whom
the Company
has been notified.
|
Any
Person becoming the Insured under this Policy shall be subject to all of
the
terms and conditions of this Policy to the same extent as any previous Insured
hereunder including, without regard to the extent of the knowledge or
responsibility of such Person, with respect to matters occurring before such
Person became an Insured.
| 1.21 |
Loan
|
means
any
note, bond, or other evidence of indebtedness secured by a mortgage, deed
of
trust, or other similar instrument, which constitutes or is equivalent to
a
first lien or charge on a Property and which the Company has approved for
insurance, which secures or is represented by the Security, to which coverage
under this Policy has been extended, and which must be included on the Approval
of Coverage.
| 1.22 |
Loan
Effective Date
|
means
the
date a Loan first becomes insured under this Policy, as determined by the
Company and as set forth on the Approval of Coverage.
| 1.23 |
Loan
File
|
means,
with respect to a Loan, copies of all documents (including all data and
information in electronic format) created or received in connection with
the
origination and closing of the Loan, including the Borrower’s loan application,
purchase contract, appraisal, credit report, verifications of employment,
income
and deposit, and HUD-1 or other settlement statement.
| 1.24 |
Loss
|
means
the
liability of the Company with respect to a Loan for payment of a Perfected
Claim
which is calculated in accordance with Section 6.3, but subject to the
Deductible Amount and the Aggregate Loss Limit. A Loss will be deemed to
have
occurred when a Default on a Loan occurs, even though the amount of Loss
is not
then either presently ascertainable or due and payable.
| 1.25 |
Perfected
Claim
|
means
a
Claim received by the Company which contains all information or proof required
by the Company and for which all requirements of this Policy applicable to
payment of a Claim are satisfied.
| 1.26 |
Person
|
means
any
individual, corporation, partnership, association or other entity.
| 1.27 |
Physical
Damage
|
means
any
tangible injury to a Property, whether caused by accident, natural occurrence,
or any other reason, including damage caused by defects in construction,
land
subsidence, earth movement or slippage, fire, flood, earthquake, riot, vandalism
or any Environmental Condition.
| 1.28 |
Policy
|
means
this contract of insurance and all Applications, Approvals of Coverage, and
Endorsements which are incorporated in this Policy, related to Loans insured
under this Policy.
| 1.29 |
Pooling
and Servicing Agreement
|
means
the
document that sets forth the processes, procedures, and standards for servicing
the Loans in effect with respect to the Security as of the Effective Date
of
this Policy, which may incorporate standards of the Servicer with respect
to
such servicing; provided, however, that such document and standards of the
Servicer may be amended thereafter with respect to such servicing only with
the
approval of the Company.
| 1.30 |
Possession
of
the Property
|
means,
if
the Company elects to acquire the Property, physical and undisputed occupancy
and control of the Property at the time of acquisition.
| 1.31 |
Primary
Policy
|
means
a
policy, deemed acceptable to the Company, issued by a mortgage guaranty
insurance company or government agency or instrumentality, approved by the
Company, providing the coverage shown on the face of this Policy and defined
by
Section 5.1. A policy shall be deemed acceptable to the Company if it has
been
approved as the standard form of policy for insuring an individual mortgage
loan
sold to the Federal Home Loan Mortgage Corporation or the Federal National
Mortgage Association.
| 1.32 |
Property
|
means
a
Residential real property and all improvements thereon which secure a Loan,
together with all easements and appurtenances, all rights of access, all
rights
to use common areas, recreational and other facilities, and all of their
replacements or additions.
| 1.33 |
Qualified
|
means
the
Company is duly qualified under applicable state laws as a mortgage guaranty
insurance company, duly authorized to write the insurance provided by this
Policy, and is approved as an insurer and has a financial strength rating
of not
lower than “Baa3” from Xxxxx’x, “BBB” from S&P and “BBB” from Fitch (if
rated by the respective rating agency).
| 1.34 |
Residential
|
means
a
type of building or a portion thereof which is designed for occupancy by
not
more than four (4) families, or a single-family condominium, or a unit in
a
planned unit development.
| 1.35 |
Security
|
means
the
bond, certificate or other security instrument, or pool or group of loans,
designated or referred to on the face of this Policy.
| 1.36 |
Servicer
|
means
that Person acting on behalf of the Insured of a Loan (or on behalf of the
Insured’s designee, if any) to service the Loan. The Servicer acts as a
representative of the Insured of the Loan (and the Insured’s designee, if any)
and will bind the Insured and its designee for all purposes of this Policy,
including providing information to the Company, receiving any notices, paying
premiums, accepting Loss payments, and performing any other acts under this
Policy. For purposes of this Policy, the term “Servicer” shall include the
master servicer for a Loan of whom the Company has been notified, as well
as any
servicer acting on behalf of the master servicer of whom the Company has
been
notified. References in this Policy to a Servicer’s obligations will not be
construed as relieving the Insured or its designee of responsibility for
the
Servicer’s performance.
| 1.37 |
Settlement
Period
|
means
the
thirty (30) day period as determined under Section 6.4, at the end of which
a
Loss is payable by the Company; provided that if the Company pays a Loss
prior
to expiration of such thirty (30) day period, the Settlement Period ends
with
such payment.
| 1.38 |
Total
Initial Principal Balance
|
means
the
sum of the Initial Principal Balances of all the Loans insured under this
Policy.
| 1.39 |
Value
|
means
the
lesser of the sales price of a Property (only applicable in the case of a
Loan
to finance the purchase of such Property) or appraised value of the Property
as
set forth by the Company in the Approval of Coverage.
As
used
herein, the masculine, feminine and neuter gender and the singular and plural
number shall each equally include the other, as the context shall
require.
| 2 |
Obtaining
Coverage and Payment of
Premiums
|
| 2.1 |
Loan
Underwriting and Obtaining
Coverage
|
-
This
Policy shall automatically extend to each Loan which is submitted for coverage
under this Policy, provided that the Loan is (a) made in accordance with
the
terms and provisions of this Policy, including the Eligibility Criteria,
(b)
included on an Approval of Coverage, and (c) included in the Security. In
order
to obtain coverage under this Policy for a Loan, the Insured or the Person
acting on its behalf must submit a duly completed Application to the Company
which must be acceptable to the Company. If all applicable requirements are
satisfied, extension of coverage to a Loan under this Policy shall be evidenced
by inclusion on the Approval of Coverage and assignment of a Certificate
Number
to the Loan.
| 2.2 |
Representations
of the Insured
|
-
The
Insured represents to the Company that:
| a. |
all
statements made and information provided to the Company in an Application
(including as such is related to continuation of coverage upon
assumption
of a Loan) are supported by statements and information in the Loan
File;
and
|
| b. |
such
statements and information are not false or misleading in any material
respect as of the date(s) on which they are made or provided and
do not
omit any fact necessary in order to make such statements and information
not false or misleading in any material respect as of such date(s);
and
|
| c. |
The
Loan complies with the Eligibility Criteria in effect at the time
the
Application is submitted to the Company.
|
The
foregoing representations will apply to all statements and information in
the
Application, Approval of Coverage or Loan File, whether made or submitted
by the
Insured, the Borrower or any other Person, and will be deemed to have been
made
and provided for and on behalf of the Insured. The foregoing representations
shall be effective whether or not they are made by the Insured or other Person
with the intent to deceive or mislead, or with the knowledge that they are
not
true and correct.
It
is
understood and agreed that such statements and information in the aggregate
are,
and in certain instances individually may be, material to the Company’s decision
to offer, provide or so continue coverage of the related Loan; the Company
issues the related Approval of Coverage or continues coverage in reliance
on the
accuracy and completeness of such statements and information and without
any
obligation to independently verify the statements and information submitted
to
it; and the Company’s reliance on the representations in Section 2.2(a) and (b)
above survive the issuance of an Approval of Coverage or such continuation
of
coverage.
The
foregoing representations shall be effective whether or not they are made
by the
Insured or other Person with the intent to deceive or mislead, or with the
knowledge that they are not true and correct.
| 2.3 |
Company’s
Remedies for
Misrepresentation
|
-
If any
of the Insured’s misrepresentations made with respect to such Loan as described
in Section 2.2 are materially false or misleading with respect to a Loan,
the
Company will have, at its option, the right to defend against a Claim, or
to the
extent permitted by applicable law, to cancel, reduce or rescind coverage
of
such Loan under this Policy retroactively to commencement of coverage (or
if the
misrepresentation occurs with respect to continuation of coverage upon
assumption of a Loan, to so defend, cancel, reduce or rescind retroactively
to
the date of such continuation). In the case of such cancellation or rescission,
the Company shall return at that time all paid premiums applicable to such
Loan
retroactively to such applicable date. In the case of rescission of coverage
retroactively to the Loan Effective Date, the Aggregate Loss Limit and the
Deductible Amount shall be adjusted as if such Loan had not been
insured.
| 2.4 |
Premiums
and Term of Coverage
|
| a. |
Within
fifteen (15) days from the Policy Effective Date, or such other
date as
the Company and the Insured may agree to in writing, the Insured
must
forward to the Company the appropriate initial premium. Payment
of the
applicable first premium shall be a condition precedent to coverage
being
initially extended to the Loan. Coverage shall remain in effect
for the
period covered by the applicable first premium. Tender of the first
premium for a Loan will constitute a representation for purposes
of
Section 2.2 by the Insured that any special conditions included
by the
Company in the related Approval of Coverage have been satisfied
and that
no payment which is then due under the Loan is more than thirty
(30) days
past due.
|
| b. |
The
Company will not rescind or cancel coverage, or deny or adjust
a Claim for
Loss, with respect to a Loan on the basis of a failure to satisfy
such
special condition (other than a special condition relating to completion
of construction, as described in Section 4.3 or to rehabilitation
or
repairs) if the Borrower has made twenty-four (24) consecutive
full
installment payments of principal, interest and impound or escrow
amounts
as called for by the Loan from the Borrower’s own funds. A payment will be
considered to be “consecutive” only if it is made prior to the date the
next scheduled installment becomes due. The “Borrower’s own funds” will
include any funds used by the Borrower for the purpose of making
installment payments, but will not include funds provided directly
or
indirectly by any Person (other than the Borrower) who is or was
a party
to the Loan or the related Property transaction, unless expressly
set
forth in the Application.
|
| 2.5 |
Termination
for Nonpayment of Premium
|
The
Insured is obligated to continue coverage in effect and pay any premium which
is
due, as required by Section 2.7 of this Policy. The entire premium for all
Loans
must be paid within the grace period for payment specified on the face of
this
Policy. Such premium shall be computed on the basis of the aggregate applicable
principal balance of all Loans, and irrespective of whether a Loan is in
Default
or whether Good and Merchantable Title for a Loan has been acquired by the
Insured. Upon payment of the entire premium for all Loans within such grace
period, this Policy will be in effect for the applicable period of coverage
and
a Default on a Loan occurring within said grace period which is not cured,
and
which results in a Claim being filed, will be covered.
If
the
entire premium for all Loans is not paid within the grace period, the coverage
of the Policy and the Company’s liability as to all Loans will terminate
effective as of 12:01 a.m. on the first day following the date through which
the
applicable premium has been paid and as a result, any existing or future
Defaults on any of the Loans will not be covered under this Policy.
| 2.6 |
Payment
of Premiums
|
At
the
request of the Company, the Insured shall provide the information and
documentation upon which all premium calculations are based; if the Insured
fails to provide the information and documentation requested by the Company,
the
Company shall calculate the applicable premium based on the information used
for
the most recent prior premium calculation, with the Company’s only refund
obligation being to refund any excess premium, without interest thereon,
upon
the Insured providing such information (but only if provided within twelve
(12)
months after the premium due date) as may be necessary to compute the correct
premium as of its due date and without the Insured being relieved of its
obligation to pay any further premium if the premium so calculated was less
than
the correct premium due. Except as expressly provided in this Policy, there
shall be no refund of premium under this Policy. If the Aggregate Losses
paid by
the Company under this Policy equal the Aggregate Loss Limit, then the total
premium due under this Policy is due and shall remain due; provided, however,
that the premium shall continue to be calculated and paid in the manner
specified on the face of this Policy. The Company shall have a right of offset
for any such unpaid premium against any payment of a Loss on any
Loan.
The
Insured acknowledges that the Company deposits premium checks immediately
upon
receipt and agrees that the receipt and deposit of a premium check by the
Company after the time specified in this Policy for receipt, does not constitute
a waiver of the requirements of this Policy for timely receipt or an acceptance
of premium by the Company. The Company will have the right to return such
late
premium payment as applicable to a Loan, but only within sixty (60) days
after
receipt, in which case coverage will be canceled retroactively to the applicable
Loan Effective Date for a late initial premium, or to the last day of the
period
covered by the previous premium payment for subsequent premium payment which
becomes due. Receipt, deposit and retention of a premium check will not
constitute a waiver of any defenses with respect to any other matters which
the
Company may have under this Policy.
| 2.7 |
Continuation
or Cancellation by the Insured of Coverage of a
Loan
|
Subject
to payment of the applicable premiums with respect to the Loans insured under
this Policy, coverage of a Loan shall continue until, and automatically cease
upon, the first to occur of the following events:
| a. |
The
Loan is paid in full; or
|
| b. |
The
Loan no longer secures or no longer is represented by the Security;
or
|
| c. |
The
Company pays the Insured the Loss with respect to the Loan;
or
|
| d. |
A
Deductible Loss is charged to the Deductible Amount with respect
to the
Loan; or
|
| e. |
The
Insured cancels the Policy pursuant to Section 2.8;
or
|
| f. |
The
Policy is cancelled pursuant to Section
2.9.
|
Except
as
a result of cancellation pursuant to Section 2.8, the Insured may not cancel
coverage of a Loan.
In
the
event coverage does not continue and ceases for any of the foregoing reasons,
the Company shall have no liability for any Default existing at the time
coverage is discontinued or ceases, other than Defaults on Loans for which
a
Claim had been filed in accordance with Section 6.1 of this Policy prior
to the
date of termination of coverage, and the Company shall have no liability
for any
Claims arising out of any future Default. Notwithstanding coverage of such
existing Default, the provisions of Section 3.5 shall continue to apply and
limit assignment of coverage of a Loan.
Except
as
provided in Section 2.8, there shall be no refund of premium on cancellation
by
the Insured of coverage of a Loan or if coverage of a Loan is not
continued.
| 2.8 |
Cancellation
of Policy by the Insured
|
-
The
Insured may cancel this Policy upon thirty (30) days written notice thereof
to
the Company if the Company shall cease to be Qualified. The Company shall
use
diligent efforts to remain Qualified. There shall be no other right of
cancellation of this Policy by the Insured. There shall be no refund of premium
on cancellation of this Policy by the Insured.
| 2.9 |
Cancellation
of Policy and Coverage of Loans Upon Termination of
|
Security
-
Except
as otherwise specified below, in the event that
| a. |
the
bonds, certificates or other security instruments designated or
referred
to in this Policy as the Security are redeemed, paid in full, cancelled
or
otherwise terminated, or the trust created in connection with the
issuance
of the Security is terminated for any reason (individually, a
“Redemption”), or
|
| b. |
there
are no longer any Loans that are security for, or represented by,
the
Security,
|
this
Policy and the coverage of all Loans under this Policy shall automatically
be
terminated without further action being required by either the Insured or
the
Company, and the Company shall have no liability for any Default existing
at the
time of cancellation, other than Defaults on Loans for which a Claim had
been
filed in accordance with Section 6.1 of this Policy prior to the date of
termination of coverage.
The
Insured shall notify the Company within thirty (30) days after the occurrence
of
either (a) or (b) above. The provisions of this Section 2.9 shall control,
notwithstanding the right of the Insured to cancel coverage on some or all
of
the Loans and the exercise of such right by the Insured. No refund will be
paid
upon cancellation of this Policy and coverage of Loans under this Section
2.9.
| 2.10 |
Post
Underwriting Review and Copies of Loan
Files
|
-
The
Company or representatives designated by it will have the right, from time
to
time, upon thirty (30) days advance notice to the Insured, to conduct a post
underwriting review (including inspection) of the Loan Files and other
information, papers, files, documents, books, records, agreements, and
electronically stored data prepared or maintained by or in the possession
or
under the control of the Insured pertaining to or in connection with Loans
insured under this Policy. The Company will have the right to conduct the
review
on the Insured’s premises during normal business hours. The Insured must
cooperate fully with the review. In addition, either in connection with such
review or separately, the Company will have the right upon thirty (30) days
prior written notice to obtain from the Insured a copy of the Loan File for
any
Loan insured under this Policy.
| 3 |
Changes
in Various Loan Terms and Servicing, Co-ordination and Duplication
of
Insurance Benefits
|
| 3.1 |
Loan
Modifications
|
-
Unless
advance written approval is provided by, or obtained from, the Company, the
Insured may not make any change in the terms of a Loan, including the borrowed
amount, interest rate, term or amortization schedule of the Loan, except
as such
change is permitted by terms of the Loan without the approval of the Insured;
nor make any change in the Property or other collateral securing the Loan;
nor
release the Borrower from liability on a Loan.
| 3.2 |
Open
End Provisions
|
-
The
Insured may increase the principal balance of a Loan, provided that the written
approval of the Company has been obtained. The Insured will pay the Company
the
additional premium due at the then prevailing premium rate.
| 3.3 |
Assumptions
|
-
If a
Loan is assumed with the Insured’s approval, the Company’s liability for
coverage under this Policy will terminate as of the date of such assumption,
unless the Company approves the assumption in writing. The Company will not
unreasonably withhold approval of an assumption. It is understood that coverage
will continue, and that the restriction of this Section 3.3 will not apply,
if
under the Loan or applicable law the Insured cannot exercise a “due-on-sale”
clause or is obligated to consent to such assumption under the Loan or
applicable law.
| 3.4 |
Change
of Servicing
|
-
If the
servicing rights for a Loan are sold, assigned or transferred, coverage of
the
Loan hereunder will continue provided that written notice of the new Servicer
is
given to the Company and the new Servicer is approved in writing by the Company,
and subject, nevertheless, to all of the terms and conditions hereof and
to all
defenses which the Company may have had prior to any such sale, assignment
or
transfer. The Company shall be automatically deemed to have approved as a
Servicer any person to whom the Company has issued a master policy, which
has
not been canceled, providing for residential mortgage guaranty
insurance.
| 3.5 |
Loan
Assignment
|
-
Unless
advance written approval is obtained from the Company (which approval shall
be
in the sole and absolute discretion of the Company), or this Policy and coverage
of all Loans under this Policy are assigned to an Insured as described in
Section 1.20, if a Loan is sold, assigned, or transferred by the Insured,
the
coverage of such Loan under this Policy may not and will not be assigned
to such
purchaser, assignee, or transferee and coverage of such Loan under this Policy
shall automatically terminate upon such purchase, assignment or transfer.
If the
Company does give such approval, the Company shall thereafter, for all purposes
under this Policy, including for purposes of calculating premiums and the
Aggregate Loss Limit, disregard such sale, assignment or transfer, and continue
to treat the Insured as the only Person with any interest in such Loan and
the
Insured agrees that it and any such purchaser, assignee, or transferee shall
make all such arrangements as between or among themselves as may be appropriate
in light of this restriction on the transfer of such coverage.
| 3.6 |
Co-ordination
and Duplication of Insurance
Benefits
|
-
The
coverage under this Policy shall be excess over any Primary Policy and any
other
insurance which may apply to the Property or to the Loan, regardless of the
type
of or the effective date of such other coverage.
| 4 |
Exclusions
From Coverage
|
The
Company will not be liable for, and this Policy will not apply to, extend
to or
cover the following:
| 4.1 |
Balloon
Payment
|
-
Any
Claim arising out of or in connection with the failure of the Borrower to
make
any payment of principal and/or interest due under a Loan, (a) as a result
of
the Insured exercising its right to call the Loan (other than when the Loan
is
in Default) or because the term of the Loan is shorter than the amortization
period, and (b) which is for an amount more than twice the regular periodic
payments of principal and interest that are set forth in the Loan (commonly
referred to as a “balloon payment”). This exclusion will not apply if the
Insured, the owner of the Loan, or other Person acting on either’s behalf offers
the Borrower, in writing, a renewal or extension of the Loan or a new loan
which
(i) constitutes a first lien, (ii) is at rates and terms generally prevailing
in
the marketplace (but otherwise subject to Section 3.1), (iii) is in an amount
not less than the then outstanding principal balance, (iv) has no decrease
in
the amortization period, and (v) is offered regardless of whether the Borrower
is then qualified under the Insured’s or owner’s underwriting standards. This
exclusion also will not apply if the Borrower is notified of the availability
of
such renewal or extension of the Loan or new loan and does not accept the
renewal, extension or new loan.
| 4.2 |
Effective
Date
|
-
Any
Claim on a Loan resulting from a payment on the Loan being thirty (30) days
or
more past due as of the Loan Effective Date.
| 4.3 |
Incomplete
Construction
|
-
Any
Claim when, as of the date of such Claim, construction of a Property is not
completed in accordance with the construction plans and specifications upon
which the appraisal of the Property at origination of the Loan was
based.
| 4.4 |
Fraud
and Misrepresentation
|
-
Any
Claim not otherwise within the scope of Section 2.3 where there was fraud
or
misrepresentation by the Insured with respect to the Loan, and the fraud
or
misrepresentation (a) materially contributed to the Default resulting in
such
Claim; or (b) increased the Loss, except that if the Company can reasonably
determine the amount of such increase, such Claim will not be excluded, but
the
Loss will be reduced to the extent of such amount.
| 4.5 |
Failure
to Meet Servicing
Standards
|
-
Any
Claim resulting from failure to service the Loan in accordance with the
servicing standards of the Servicer as set forth in the Pooling and Servicing
Agreement with respect to the Loan, which (a) was material to either the
acceptance of the risk or the hazard assumed by the Company; (b) materially
contributed to the Default resulting in such Claim; or (c) increased the
Loss,
except that if the Company can reasonably determine the amount of such increase,
such Claim will not be excluded, but the Loss will be reduced to the extent
of
such amount.
| 4.6 |
Non-Approved
Servicer
|
-
Any
Claim occurring when the Servicer, at time of Default or thereafter, is not
approved in writing; provided that this exclusion shall only apply if the
Company notifies the Insured if a Servicer is no longer approved and if within
ninety (90) days thereafter the Insured does not complete or cause to complete
a
transfer of servicing to a new Servicer approved by the Company.
| 4.7 |
Physical
Damage (Other than Relating to Pre-Existing Environmental
Conditions)
|
-
Any
Claim where, at any time after the Loan Effective Date, Physical Damage to
a
Property (other than reasonable wear and tear), occurs or manifests itself
subject to the following provisions:
| a. |
This
exclusion shall not apply if the Company in good faith determines
that the
aggregate cost of restoring all such Physical Damage is less than
fifteen
hundred dollars ($1,500), or such higher amount as the Company
may provide
from time to time.
|
| b. |
This
exclusion shall not apply if the Insured has restored the Property
in a
timely and diligent manner to its condition (except reasonable
wear and
tear) as of the Loan Effective Date. In lieu of requiring restoration
of
the Property, the Company may, at its option, reduce the Claim
Amount by
an amount equal to the cost of such
restoration.
|
| c. |
For
purposes of this Section 4.7, the Property subject to restoration
will
consist only of the land, improvements or personal property deemed
part of
the real property under applicable law; and chattel items affixed
to the
real property and identified in the appraisal of the Property at
the time
the Loan was made, whether or not they are deemed part of the real
property.
|
| d. |
Cost
estimates relied upon by the Company in connection with this Section
4.7
shall be provided in writing by an independent party selected by
the
Company. The Company will furnish the Insured with any such written
cost
estimates, if requested by the
Insured.
|
| 4.8 |
Pre-Existing
Environmental Conditions
|
-
Any
Claim where there is an Environmental Condition which existed on the Property
(whether or not known by the Person submitting an Application for coverage
of
the Loan) as of the Loan Effective Date, subject to the following
provisions:
| a. |
This
exclusion will not apply if the existence of such Environmental
Condition,
or the suspected existence of such Environmental Condition, was
specifically disclosed to the Company in the Application relating
to the
Property.
|
| b. |
This
exclusion will apply only if such Environmental Condition (1) was
a
principal cause of the Default, and (2) has made the principal
Residential
structure on the Property uninhabitable. A structure will be considered
“uninhabitable” if generally recognized standards for residential
occupancy are violated or if, in the absence of such standards,
a fully
informed and reasonable person would conclude that such structure
was not
safe to live in without fear of injury to health or
safety.
|
| c. |
This
exclusion will not apply if the Environmental Condition is removed
or
remedied in a timely and diligent manner in accordance with applicable
governmental standards for safe residential
occupancy.
|
| 4.9 |
First
Lien Status
|
-
Any
Claim, if the mortgage, deed of trust or other similar instrument executed
by
the Borrower and insured hereunder did not provide the Insured at origination
with a first or equivalent lien on the Property.
| 4.10 |
Breach
of the Insured’s Obligations or Failure to Comply with
Terms
|
-
Any
Claim involving or arising out of any breach by the Insured of its obligations
under, or its failure to comply with the terms of, this Policy or of its
obligations as imposed by operation of law, if the breach or
failure:
| a. |
Materially
contributed to the Default resulting in such Claim;
or
|
| b. |
Except
for a breach described in Section 2.3, increased the Loss; provided
that
if the Company can reasonably determine the amount of such increase,
such
Claim will not be excluded, but the Loss will be reduced to the
extent of
such amount.
|
| 4.11 |
Exclusion
Under Primary Policy
|
-
Any
Claim to the extent the related claim was excluded under any Primary Policy.
| 4.12 |
Primary
Policy
|
-
With
respect to any Claim, and subject to Section 5.1, the amount of the full
percentage option claim payment which the insurer under any Primary Policy
should have paid, but which was not paid, disregarding the reason or cause
for
the denial or failure of such insurer to pay under such Primary Policy, or
whether the Insured fails to obtain a Primary Policy as required by Section
5.1.
| 4.13 |
Investor-Paid
Coverage
|
-
With
respect to any Loan, if necessary for the Company to be authorized by law
to
insure such loan, if the Borrower, directly or indirectly pays for such premium,
including by an interest rate or other charges which are higher than the
interest rate or other charges applicable to mortgage loans which are not
similarly insured.
| 4.14 |
Non-Eligible
Loans
|
-
Any
Loan that did not meet the Eligibility Criteria in effect at the time the
related Application was submitted to the Company.
| 5 |
Conditions
Precedent to Payment of
Claim
|
It
is a
condition precedent to the Company’s obligation to pay a Loss that the Insured
comply with all of the following requirements:
| 5.1 |
Maintenance
of Primary Policy
|
-
The
Insured is required to maintain a Primary Policy issued by a mortgage guaranty
insurance company which is approved by the Company, and which provides coverage
against loss resulting from a Borrower’s Default on any Loan that has a ratio of
the principal balance of the Loan to the Value of the Property at the time
of
origination in excess of the percentage set forth on the face of this Policy.
The Primary Policy shall, at a minimum, provide coverage on the amount of
the
Loan in excess of the percentage of the Value or other coverage percentage
set
forth on the face of this Policy and must remain in force until the outstanding
principal balance of the Loan or other coverage percentage is reduced to
the
percentage of the Value or on such other basis set forth on the face of this
Policy. Notwithstanding the foregoing, if a Primary Policy is required but
there
is no Primary Policy in force, the Company shall accept the Claim and compute
the Loss as if such a Primary Policy were in force as provided in Section
6.2;
provided, however, that the Company shall not be liable pursuant to this
Policy
for any portion of such Primary Policy claim.
It
is the
primary responsibility of the Insured to provide appropriate servicing and
mitigation of delinquencies through its Primary Policy, if applicable. The
Insured shall not take, or fail to take, any action which would impair its
rights under a Primary Policy unless it shall first have given prompt written
notice to the Company of any conflict between the Primary Policy and this
Policy
or any circumstance under which its rights under the Primary Policy might
be
impaired. The risk of collection of a claim payment under any Primary Policy
and
the risk of the insolvency of the issuer of any Primary Policy are risks
of the
Insured and are not covered under this Policy.
| 5.2 |
Notice
of Default
|
-
The
Insured must give the Company written notice:
| a. |
Within
forty-five (45) days of the Default, if it occurs when the first
payment
is due under the Loan; or
|
| b. |
Within
ten (10) days after:
|
| 1. |
The
date when the Borrower has become no more than four (4) months
in Default
on the Loan; or
|
| 2. |
The
date when any Appropriate Proceedings which affect the Loan or
the
Property or the Insured’s or Borrower’s interest therein have been
started;
|
whichever
occurs first.
If
the
Insured fails to give the notice of Default to the Company within the time
period specified in this Section 5.2, any additional interest accruing or
advances incurred or accruing during the period of such failure shall not
be
includable in the Claim Amount.
| 5.3 |
Monthly
Reports
|
-
Following a notice of Default on the Loan, the Insured must give the Company
monthly reports on forms or in a format acceptable to the Company on the
status
of the Loan and on the servicing efforts undertaken to remedy the Default.
These
monthly reports may be furnished less frequently if allowed in writing by
the
Company, and must continue until the Borrower is no longer in Default, the
Appropriate Proceedings terminate, or until the Insured has acquired the
Property.
| 5.4 |
Company’s
Option to Accelerate Filing of a
Claim
|
-
At any
time following a notification of Default on a Loan, and before the Insured
has
obtained Good and Merchantable Title to the Property, the Company, directly
or
through its assignee (as purchaser of the Loan), shall have the right to
purchase the Loan from the Insured, free and clear of all liens, claims or
encumbrances, for a purchase price equal to the Loss calculated under Section
6.3(a) of this Policy, (but without deduction for a Primary Policy payment
which
has not yet become payable) and under the following terms and
conditions:
| a. |
Within
twenty (20) days after notice to the Insured (or such longer period
specified by the purchaser in its notice) that the Company or its
assignee
has elected to purchase the Loan pursuant hereto, the Insured shall
tender
and deliver or cause to be delivered to the Purchaser, to be held
in
escrow by the Purchaser against receipt of the purchase price as
set forth
herein above within ten (10) days after such tender and delivery
of all of
the following:
|
| 1. |
one
or more assignments (as shall be necessary or appropriate) to the
purchaser, containing customary representations and warranties,
duly and
properly executed and in recordable form, of all of the Insured’s
ownership right, title and interest in and to the Loan and related
documents (including private mortgage insurance coverage) and,
unless
expressly specified as being not subject to assignment or transfer,
seller/servicing agreements relating to the
Loan;
|
| 2. |
the
note, bond or other instrument evidencing the Loan, properly endorsed
in
blank;
|
| 3. |
an
assignment, to the purchaser, of coverage with respect to such
Loan under
this Policy, subject to all of the terms and conditions contained
herein;
and
|
| 4. |
any
and all documents executed or delivered by or to the Borrower under,
or
any holder of, such Loan, including the
following:
|
| i) |
originals
(or, if publicly recorded, certified copies) of mortgages, deeds
of trust
or other security instruments or assignments
thereof;
|
| ii) |
originals
(or acceptable duplicates) of policies of title insurance or opinions
of
title and surveys;
|
| iii) |
originals
(or acceptable duplicates) of certificates and/or policies evidencing
private mortgage insurance and hazard insurance;
and
|
| iv) |
copies
of state and/or federal disclosure and/or consumer credit
documents.
|
| b. |
Upon
purchase of the Loan by the purchaser pursuant to the foregoing
terms, all
rights of the Insured under this Policy shall be transferred to
the
purchaser, and payment to an Insured of the amount specified herein
shall
be a full and final discharge of the Company’s obligations to such Insured
with respect to such Loan. The Company shall have the right to
assign its
right to purchase a Loan pursuant to this Section 5.4 to any Person,
subject to the terms and conditions
hereof.
|
| 5.5 |
Voluntary
Conveyance
|
-
The
Insured may only accept a conveyance of the Property from the Borrower in
lieu
of foreclosure or other proceeding if the prior written approval of the Company
has been obtained. Such approval shall not be considered as an acknowledgement
of liability by the Company with respect to such Loan.
| 5.6 |
Appropriate
Proceedings
|
-
The
Insured must begin Appropriate Proceedings no later than when the Loan becomes
six (6) months in Default unless the Company provides written instructions
that
some other action be taken. Such instructions may be general or applicable
only
to specific Loans. The Company reserves the right to direct the Insured to
institute Appropriate Proceedings at any time after Default. When either
defending against or bringing Appropriate Proceedings, the Insured must report
their status to the Company as reasonably and expeditiously as
possible.
In
conducting Appropriate Proceedings, the Insured must:
| a. |
Diligently
pursue the Appropriate Proceedings once they have
begun;
|
| b. |
Apply
for the appointment of a receiver and assignment of rents, if permitted
by
law and requested by the Company;
|
| c. |
Furnish
the Company with copies of all notices and pleadings filed or required
in
the Appropriate Proceedings, except as the Company may waive such
requirement in writing;
|
| d. |
Act
and bid at the foreclosure sale in accordance with Section 5.12
so that
its ability to preserve, transfer and assign to the Company its
rights
against the Borrower are not impaired; and so that the rights of
the
Company under this Policy against the Borrower are fully protected.
Such
rights include any rights to obtain a deficiency judgment, subject
to the
Company’s compliance with Sections 7.2 and 7.3 relating to establishing
a
deficiency; and
|
| e. |
When
requested by the Company, furnish the Company with a written statement
indicating the estimated potential Claim Amount (as computed under
Section
6.2) at least fifteen (15) days before the foreclosure
sale.
|
| 5.7 |
Mitigation
of Damages
|
-
The
Insured must actively cooperate with and assist the Company to prevent and
mitigate the Loss, including good faith efforts by the Insured to obtain
a cure
of the Default, collect amounts due under the Loan, inspect and appraise
the
Property and effectuate the early disposition of the Property. The Company
must
administer this Policy in good faith.
Without
limiting the right of the Company to direct the Insured with respect to
disposition of the Property, the Company may direct the Insured: to list
the
Property for sale at a price to be established; to select the agents or brokers
with whom the Property is listed; without limiting the Insured’s obligation
under this Policy to restore a Property, to expend funds and complete work
on
the Property for the purpose of making the Property ready for sale at the
listed
price, provided that such expenditures are includable in the Claim for Loss;
to
assist in obtaining access of the Company to the Property; and to otherwise
assist in the prompt disposition of the Property, pursuant to an Approved
Sale
at the price established by the Company. If the Company so requests, the
Insured
shall permit the Company to cooperatively assist the Insured in the collection
of monies due under the Loan, including activities such as obtaining information
from the Borrower, attempting to develop repayment schedules acceptable to
the
Insured, conducting Property inspections, and requesting appraisals of the
Property. The Insured shall make available to the Company such information
relating to the Insured’s collection efforts as the Company shall reasonably
request.
| 5.8 |
Advances
|
-
The
Insured or the Servicer must advance:
| a. |
Normal
and customary hazard insurance premiums and real estate property
taxes, in
each case as due and payable;
|
| b. |
Reasonable
and necessary Property protection and preservation expenses approved
by
the Company, which shall not include expenditures to remove an
exclusion
from coverage under Section 4;
|
| c. |
Reasonable
costs to complete Appropriate Proceedings and eviction and moving
of
occupants, including related court expenses and attorney’s fees;
and
|
| d. |
Expenses
to prepare the Property for sale and to sell the Property, including
the
expenses described in Section 5.7, as approved in advance by the
Company.
|
| 5.9 |
Claim
Information and Other
Requirements
|
-
The
Insured must provide the Company with:
| a. |
All
information reasonably requested by the
Company;
|
| b. |
A
completed form furnished by or acceptable to the Company for payment
of a
Claim;
|
| c. |
If
the Property is not being acquired by the Company: (1) a copy of
(i) an
executed trustee’s or sheriff’s deed (which may be unrecorded) conveying
Good and Merchantable Title to the Property to the Insured, or
(ii) a deed
from the Borrower (which may be unrecorded) if a voluntary conveyance
has
been approved by the Company, conveying to the Insured the title
that was
required by the Company in the approval of the conveyance; (2)
a copy of
the sale contract and closing statement or evidence of sale pursuant
to
foreclosure or the Primary Policy; and (3) such other information
requested by the Company evidencing an Approved Sale of the
Property;
|
| d. |
If
the Property is being acquired by the
Company:
|
| 1. |
A
recordable deed in normal and customary form containing the customary
warranties and covenants conveying to the Company or its designee
Good and
Merchantable Title to the Property;
|
| 2. |
If
required by the Company, a title insurance policy acceptable to
the
Company or an attorney’s opinion of title acceptable to the Company,
confirming that the Insured has and can convey to the Company Good
and
Merchantable Title to the Property;
and
|
| 3. |
Possession
of the Property, but only if the Company has required such Possession
in
writing; and
|
| e. |
If
requested by the Company, access to the Property after completion
of
foreclosure, which may be requested before or after filing of the
Claim.
|
| 5.10 |
Acquisition
of Good and Merchantable Title Not
Required
|
-
The
Insured will not be required to acquire Good and Merchantable Title to a
Property if (a) the Company requires an early Claim filing pursuant to Section
5.4; or (b) the Property is sold pursuant to an Approved Sale.
| 5.11 |
Procedures
for the Company’s Approval of a Sale of the Property by the
Insured
|
-
An
offer to purchase a Property may not be accepted by the Insured unless (a)
the
offer meets the Company’s written delegated servicing guidelines and any
additional requirements of the Pooling and Servicing Agreement, or (b) the
Insured has received the Company’s prior approval to accept such
offer.
| 5.12 |
Foreclosure
Bidding Instructions Given by the
Company
|
-
Any bid
made at a foreclosure sale held as part of Appropriate Proceedings must either
(a) meet the Company’s written delegated bidding guidelines and any additional
requirements of the Pooling and Servicing Agreement, or (b) have been previously
approved by the Company. The Insured is not required to acquire Good and
Merchantable Title if it has bid in accordance with this Section 5.12, whether
or not pursuant to approval from the Company.
| 6 |
Loss
Payment Procedure
|
| 6.1 |
Filing
of Claim
|
| a. |
If
a Primary Policy is required pursuant to Section 5.1 hereof, unless
the
Company directs acceleration of the filing of a Claim under Section
5.4,
the Insured must submit and settle its claim under the Primary
Policy
before a Claim may be filed under this Policy. If the Insured negotiates
a
claim settlement on a basis other than on conditions stated in
the Primary
Policy, the Insured must obtain the prior written consent of the
Company
to such settlement. A Claim must be filed with the Company on a
form
provided or approved by the Company within sixty (60) days after
the later
of the following and only after both of the following conditions
have been
satisfied: (1) the date the claim has been settled and paid under
the
Primary Policy; and (2) either (i) the date the Insured has conveyed
title
to the Property pursuant to an Approved Sale, or (ii) the date
the Company
notifies the Insured that it will acquire the Property in settlement
of
the Claim, whichever is applicable.
|
If
a
claim under the Primary Policy has not been settled within six (6) months
after
the Insured has satisfied all reasonable requirements for filing of such
claim,
the Claim under this Policy may, notwithstanding any provision of this Policy
to
the contrary, be filed and the Claim shall be calculated and paid on the
basis
of the claim payment amount which the Insured should have received under
such
Primary Policy, as provided in Section 6.2(vii).
| b. |
If
a Primary Policy is not required pursuant to Section 5.1 hereof,
unless
the Company directs acceleration of the filing of a Claim under
Section
5.4, a Claim must be filed with the Company on a form provided
or approved
by the Company within sixty (60) days after either of the following
conditions, whichever is applicable, have been satisfied: (1) the
Insured
has conveyed title to the Property pursuant to an Approved Sale
or (2) the
date the Company notifies the Insured that it will acquire the
Property in
settlement of the Claim.
|
| c. |
If
the Insured is not required to have Good and Merchantable Title
to file a
Claim as described in Section 5.10, then in lieu of the Approved
Sale or
acquisition notice by the Company in the preceding paragraphs (a)
and (b),
the Claim shall be filed within sixty (60) days after the applicable
event
in Section 5.10.
|
| d. |
If
the Insured fails to file a Claim within the applicable time, the
Insured
will not be entitled to, and the Company will not be obligated
for, any
payment under this Policy for amounts, including additional interest
and
expenses, which would otherwise be claimable, but which accrue
or are
incurred after the sixty (60) day period for filing of a
Claim.
|
If
the
Insured fails to file a Perfected Claim within one hundred eighty (180) days
after the event occurs under this Section 6.1 which is the basis for filing
of
the Claim (or within such longer period of time as the Company may allow
in
writing), the Insured will no longer be entitled to payment of a Loss and
the
Company will not be obligated to make any payment under this
Policy.
| 6.2 |
Calculation
of Claim Amount
|
-
Subject
to the requirement for a Primary Policy, if any, and to the Aggregate Loss
Limit
then applicable, the Claim Amount will be an amount equal to the sum
of:
| a. |
The
amount of unpaid principal balance due under the Loan as of the
date of
Default without capitalization of delinquent interest, penalties
or
advances; and
|
| b. |
The
amount of accrued and unpaid interest due on the Loan, computed
at the
contract rate stated in the Loan on the unpaid principal balance
at the
date of Default (without adjustment for the proceeds of Primary
Policy
coverage or an Approved Sale), through the date that the Loss is
paid by
the Company, but excluding applicable late charges, penalty interest
or
other changes to the interest rate by reason of Default;
and
|
| c. |
The
amount of advances incurred by the Insured under Section 5.8 prior
to
filing of the Claim (except to Persons employed or controlled by
the
Insured or the Servicer of the Loan or their other internal costs)
provided that such advances, other than attorney’s fees, must have first
become due and payable after the Default, and payment of such advances
must be prorated through the date the Loss is paid by the Company;
and
|
| d. |
Amounts
required to be paid to the Insured pursuant to Sections 6.5, 7.2
and 7.5,
if applicable, less:
|
| (i) |
The
amount of all rents and other payments (excluding net proceeds
of an
Approved Sale of the Property and the proceeds of fire and extended
coverage insurance) collected or received by the Insured, which
are
derived from or in any way related to the
Property;
|
| (ii) |
The
amount of cash remaining in any escrow account as of the last payment
date;
|
| (iii) |
The
amount of cash or other collateral to which the Insured has retained
the
right of possession as security for the
Loan;
|
| (iv) |
The
amount paid under applicable fire and extended coverage policies
which is
in excess of the cost of restoring and repairing the Property,
if the
Property is damaged, and which has not been paid to the Borrower
or
applied to the payment of the Loan as required by the terms of
the
Loan;
|
| (v) |
The
amounts of any payments of Loss previously made by the
Company;
|
| (vi) |
The
net proceeds upon an Approved Sale of the Property other than from
acquisition pursuant to a Primary
Policy;
|
| (vii) |
The
greater of the amount of any claim payment pursuant to a Primary
Policy
which the Insured received, or which the Insured should have received
in
order for the exclusion under Section 4.11 or 4.12 of this Policy
not to
have applied; and
|
| (viii) |
Any
other amounts claimed by the Insured to the extent they are excluded
from
the Claim Amount by reason of Section
4.
|
| 6.3 |
Payment
of Loss; Company’s Options
|
-
Within
the Settlement Period, but only if the Insured has satisfied all requirements
for a payment of Loss and if the Company has received a Perfected Claim,
the
Company shall at its sole option exercise its:
| a. |
Property
acquisition settlement option. If the Company has elected to acquire
the
Property prior to an Approved Sale, the Company shall pay to the
Insured
as the Loss the Claim Amount calculated in accordance with Section
6.2
without reduction for net proceeds under Section 6.2(vi);
or
|
| b. |
Approved
sale option. If there has been an Approved Sale, the Company shall
pay to
the Insured as the Loss the Claim Amount calculated in accordance
with
Section 6.2.
|
When
the
Aggregate Loss paid by the Company under this Policy is an amount equal to
the
Aggregate Loss Limit, the liability of the Company to pay any additional
Claims
for Losses ceases until the Aggregate Loss is reduced below the Aggregate
Loss
Limit, at which time this Section 6.3 will again apply to any previously
Perfected Claims.
| 6.4 |
Calculation
of Settlement Period
|
-
The
Settlement Period will be a thirty (30) day period after the Company’s receipt
of a Claim, calculated as follows:
| a. |
No
later than the twentieth (20th) day after filing of a Claim, the
Company
may notify the Insured of additional documents or information which
it
requires for processing the Claim. The thirty (30) day period will
be
suspended until the Company receives such additional documents
and
information. The Company may request additional documents and information
after such twenty (20) day period, and the Insured must use reasonable
efforts to satisfy such request.
|
| b. |
The
Company may notify the Insured at any time after completion of
foreclosure
and before closing of an Approved Sale (or, if applicable, before
the
Company acquires the Property) that it will require access to the
Property
sufficient to inspect, appraise and evaluate the Property. If the
Company
does not notify the Insured by that date, its right to such access
will be
deemed waived. If such notice is given, the Insured will use its
best
efforts to provide access to the Company. If access is not then
available
and if the thirty day period has commenced, such thirty (30) day
period
will be suspended from the date such notice was given until the
Company
receives notice from the Insured that access is available to it.
If access
is in fact not available when sought by the Company after such
notice from
the Insured, the Company will promptly notify the Insured of such
unavailability, and the passage of the thirty (30) day period will
remain
suspended as if the Insured’s notice of availability had not been given to
the Company.
|
| c. |
If
the Company has elected to acquire the Property in settlement of
a Claim,
the thirty (30) day period also will be suspended if necessary
for there
to be a period of ten (10) days after the date on which the Insured
satisfies all conditions to acquisition, including any required
restoration of the Property, for the Insured to deliver a recordable
deed
and title policy or opinion evidencing Good and Merchantable Title
(not
subject to any rights of redemption, unless the Company waives
such
requirement) and, if applicable, to deliver Possession of the
Property.
|
| d. |
If
the thirty (30) day period is suspended for more than one reason,
the
resulting suspended periods will only be cumulative if in fact
they occur
at different times; to the extent they occur simultaneously, they
will not
be cumulative.
|
| 6.5 |
Payment
by the Company After the Settlement
Period
|
-
If the
Company has not paid a Loss during the Settlement Period, then (a) the Company
will include in its payment of Loss, if a Loss is ultimately payable, simple
interest on the amount payable accruing after the Settlement Period to the
date
of payment of Loss at the applicable interest rate or rates which would have
been payable on the Loan during such period, and (b) the Company will no
longer
be entitled to acquire the Property as an option for payment of the
Loss.
The
Company must either pay the amount of applicable Loss (including any additional
applicable interest as computed above) or deny the Claim in its entirety
within
(a) one hundred twenty (120) days after expiration of the Settlement Period,
or
(b) if the Settlement Period has not expired, no later than one hundred eighty
(180) days after filing of the Claim. If at a later date it is finally
determined by agreement between the Insured and the Company (or by completion
of
legal or other proceedings to which the Insured and the Company are parties)
that the Company was not entitled to deny all or a portion of the Claim,
the
Company will include in any resulting subsequent payment of Loss interest
as
calculated above through the date of such payment on the amount of Loss which
the Company was not entitled to deny.
| 6.6 |
Deductible
Losses
|
| a. |
Notwithstanding
any other provision of this Policy, the Company shall have no liability
to
pay any Loss until, and except to the extent that, the aggregate
amount of
the Deductible Loss shall exceed the Deductible Amount. The Insured
shall
remain solely responsible for all Deductible Loss up to the Deductible
Amount.
|
| b. |
A
Deductible Loss shall be calculated in the same manner as a Loss
under
Section 6.3(b) of this Policy in which there is an Approved Sale
except
that only interest accrued through the date of closing of the Approved
Sale shall be includable in the Deductible Loss. A Deductible Loss
shall
only be charged to the Deductible Amount if a Claim for Loss would
have
been payable by the Company. The Insured shall comply with all
of the
requirements of this Policy which would be applicable if the Company
were
paying a Claim for Loss, including the requirements of Section
5.7
relating to the mitigation of the Company’s Loss. After an Approved Sale,
the Insured shall file a notice of Deductible Loss with the Company
at the
same time and in the same manner as it would file a Claim for Loss
and the
Company shall process the notice and determine the amount of the
Deductible Loss as it would a Claim for Loss, and the Deductible
Loss
shall be charged to the Deductible Amount. The Company shall advise
the
Insured of its calculation of the Deductible Loss within sixty
(60) days
after filing of the notice of Deductible Loss by the
Insured.
|
| 7 |
Additional
Conditions
|
| 7.1 |
Proceedings
of Eminent Domain
|
-
In the
event that part or all of a Property is taken by eminent domain, or condemnation
or by any other proceedings by federal, state or local governmental unit
or
agency, the Insured must require that the Borrower apply the maximum permissible
amount of any compensation awarded in such proceedings to reduce the principal
balance of the Loan, in accordance with the law of the jurisdiction where
the
Property is located.
| 7.2 |
Pursuit
of Deficiencies
|
| a. |
The
Insured will be entitled to pursue Appropriate Proceedings, or
shall at
the direction of the Company pursue Appropriate Proceedings through
the
end of the Settlement Period, which may result in the Borrower
becoming
liable for a deficiency after completion of the Insured’s acquisition of a
Property. Such pursuit may not be directed by the Company unless
such
deficiency is estimated to exceed $7,500. If the Company proposes
to
pursue a deficiency judgment, it will notify the Insured at least
thirty
(30) days before the foreclosure sale. If the Insured pursues the
deficiency judgment, without direction from the Company, the Company
shall
nonetheless be subrogated to such deficiency judgment rights to
the extent
permitted by Section 7.3.
|
| b. |
The
following provisions will apply if, in completing Appropriate Proceedings
there are additional expenses advanced pursuant to Section 5.8
or
additional interest accrued on the Loan, to the extent not payable
under a
Primary Policy, due to (1) an additional redemptive period or a
delay in
acquisition of title, which period or delay is directly related
to
establishing the deficiency judgment or (2) legal proceedings which
are
necessary to establish and pursue the deficiency judgment and which
would
not otherwise be the custom and practice
used.
|
| i. |
If
the deficiency judgment is to be established for the account of
the
Company, the Company must pay the Insured at the time of payment
of the
Claim, the full amount of:
|
| a.) |
such
additional expenses advanced pursuant to Section 5.8 by the Insured;
and
|
| b.) |
such
additional interest accrued on the unpaid principal balance of
the Loan at
the contract rate stated in the Loan, but excluding applicable
late
charges, penalty interest, or other changes to the interest rate
by reason
of Default.
|
| ii. |
All
of the additional interest, expenses, attorney’s fees and court expenses
described in subparagraph (i) above will be accrued or advanced
only
through acquisition of Good and Merchantable Title, including any
additional redemptive period or such shorter time period as may
be
applicable under Section 5.10.
|
| 7.3 |
Subrogation
|
-
Subject
to Section 7.2(a), and only to the extent that the Company is entitled under
applicable law to pursue such deficiency rights, the Company will be subrogated,
upon payment of the Loss, in the amount thereof and with an equal priority
to
all of the Insured’s rights of recovery against a Borrower and any other Person
relating to the Loan or to the Property, to the extent such rights remain
after
settlement of the claim under an applicable Primary Policy. The Insured must
execute and deliver at the request of the Company such instruments and papers
and undertake such actions as may be necessary to transfer, assign and secure
such rights. The Insured shall refrain from any action, either before or
after
payment of a Loss, that prejudices such rights.
| 7.4 |
Policy
for Exclusive Benefit of the
Insured
|
-
An
Approval of Coverage, this Policy and the coverage provided under this Policy
will be for the sole and exclusive benefit of the Insured and permitted assigns,
and in no event will any Borrower or other Person be deemed a party to, or
an
intended beneficiary of, such Approval of Coverage, this Policy or any coverage
hereunder.
| 7.5 |
Effect
of Borrower Insolvency or Bankruptcy on Principal
Balance
|
-
If
under applicable insolvency or bankruptcy law, a Loan’s principal balance
secured by a Property is reduced (after all appeals of such reduction are
final
or the time for such appeals has lapsed without appeal), the portion of such
principal balance of the Loan not secured by the Property, and related interest,
will be includable in the Claim Amount, as provided in this Section
7.5.
If
a
Default occurs on the Loan, the Insured has acquired Good and Merchantable
Title
to the Property as required by this Policy, and all other requirements for
filing of a Claim are complied with, the Insured will be entitled to include
in
the Claim Amount (a) the amount of the principal balance of the Loan which
was
deemed unsecured under applicable insolvency or bankruptcy law, less any
collections or payments on such unsecured principal balance received by the
Insured, and (b) interest thereon at the rate and as computed in Section
6.2,
from the date of Default giving rise to the Claim (but for no prior period),
whether payable directly or by an addition to the principal balance which
is
includable in the Claim Amount, and (c) reasonable and necessary expenses
incurred by the Insured which are associated with the amount by which the
principal balance of the Loan became unsecured.
| 7.6 |
Arbitration
of Disputes, Suits and Actions Brought by the
Insured
|
| a. |
Unless
prohibited by applicable law, all controversies, disputes or other
assertions of liability or rights arising out of or relating to
this
Policy, including the breach, interpretation or construction thereof,
shall be settled by arbitration. Notwithstanding the foregoing,
the
Company or the Insured both retain the right to seek a declaratory
judgment from a court of competent jurisdiction on matters of
interpretation of the Policy. Such arbitration shall be conducted
in
accordance with the Title Insurance Arbitration Rules of the American
Arbitration Association in effect on the date the demand for arbitration
is made, or if such Rules are not then in effect, such other Rules
of the
American Arbitration Association as the Company may designate as
its
replacement.
|
The
arbitrator(s) shall be neutral person(s) selected from the American Arbitration
Association’s National Panel of Arbitrators familiar with the mortgage lending
or mortgage guaranty insurance business. Any proposed arbitrator may be
disqualified during the selection process, at the option of either party,
if he
is, or during the previous two (2) years has been, an employee, officer or
director of any mortgage guaranty insurer, or of any entity engaged in the
origination, purchase, sale or servicing of mortgage loans or mortgage-backed
securities.
| b. |
No
suit or action (including arbitration hereunder) brought by the
Insured
against the Company with respect to the Company’s liability for a Claim
under this Policy shall be sustained in any court of law or equity
or by
arbitration unless the Insured has substantially complied with
the terms
and conditions of this Policy, and unless the suit or action is
commenced
within three (3) years (five (5) years in Florida or Kansas) after
the
Insured has acquired Good and Merchantable Title to the Property,
an
Approved Sale of the Property is completed, or other basis for
filing a
Claim arises, whichever is applicable to a Loan. The foregoing
requirement
for substantial compliance shall not be applicable to the extent
that such
substantial compliance is at issue in the suit or action. No such
suit or
action with respect to a Claim may be brought by the Insured against
the
Company until sixty (60) days after such acquisition of Good and
Merchantable Title or Approved Sale, as applicable to a
Loan.
|
| c. |
If
a dispute arises concerning the Loan which involves either the
Property or
the Insured, the Company has the right to protect its interest
by
defending the suit, even if the allegations contained in such suit
are
groundless, false or fraudulent. The Company is not required to
defend any
lawsuit involving the Insured, the Property or the
Loan.
|
| 7.7 |
Release
of Borrower; Defenses of
Borrower
|
-
The
Insured’s execution of a release or waiver of the right to collect any portion
of the unpaid principal balance of a Loan or other amounts due under the
Loan
will release the Company from its obligation with respect to such Loan to
the
extent and amount of said release. If, under applicable law, the Borrower
successfully asserts defenses which have the effect of releasing, in whole
or in
part, the Borrower’s obligation to repay the Loan, or if for any other reason
the Borrower is released from such obligation, the Company will be released
to
the same extent and amount from its liability under this Policy, except as
provided by Section 7.5.
| 7.8 |
Amendments;
No Waiver; Rights and Remedies; Use of Term
“Including”
|
| a. |
The
Company reserves the right to amend the terms and conditions of
this
Policy from time to time; provided, however, that any such amendment
will
be effective only after the Company has given the Insured written
notice
thereof by endorsement setting forth the amendment. Such amendment
will
only be applicable to those Loans where the date of the related
Approval
of Coverage was issued on or after the effective date of the
amendment.
|
| b. |
No
condition or requirement of this Policy will be deemed waived,
modified or
otherwise compromised unless that waiver, modification or compromise
is
stated in a writing properly executed on behalf of the Company.
Each of
the conditions and requirements of this Policy is severable, and
a waiver,
modification or compromise of one will not be construed as a waiver,
modification or compromise of any
other.
|
| c. |
No
right or remedy of the Company provided for by this Policy will
be
exclusive of, or limit, any other rights or remedies set forth
in this
Policy or otherwise available to the Company at law or
equity.
|
| d. |
As
used in this Policy, the term “include” or “including” will mean “include
or including, without limitation.”
|
| 7.9 |
No
Agency
|
-
Neither
the Insured, any Servicer, nor any of their employees or agents (including
the
Persons underwriting the Loan on behalf of the Insured), will be deemed for
any
reason to be agents of the Company. Neither the Company, nor any of its
employees or agents, will be deemed for any reason to be agents of any Insured
or Servicer.
| 7.10 |
Successors
and Assigns
|
-
This
Policy will inure to the benefit of and shall be binding upon the Company
and
the Insured and their respective successors and permitted assigns, it being
recognized that assignment by the Insured of this Policy and its benefits
is
limited by Sections 1.20 and 3.5.
| 7.11 |
Applicable
Law and Conformity to Law
|
-
All
matters under this Policy will be governed by and construed in accordance
with
the laws of the jurisdiction in which the office of the original Insured
under
this Policy is located. Any provision of this Policy which is in conflict
with
any provision of the law of such jurisdiction is hereby amended to conform
to
the provisions required by that law.
| 7.12 |
Notice
|
-
All
claims, premium payments, tenders, reports, other data and any other notices
required to be submitted to the Company by the Insured must be sent to the
Company at MGIC Plaza, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000. The
Company may change this address by giving written notice to the Insured.
Unless
the Insured otherwise notifies the Company in writing, all notices to the
Insured must be sent to the address on the face of this Policy or, if the
Insured is not located at such address, to the last known address of the
Insured.
All
notices under this Policy, whether or not identified in this Policy as required
to be in writing, will be effective only if in writing and only upon receipt
thereof. Written notices may instead be given in the form of telecopy or,
if
acceptable to the Company (for notices given to the Company) or to the Insured
(for notices given to the Insured) in the form of computer tape or
computer-generated or any other electronic message. A telecopy or such tape
or
message shall be effective only when received. The Company and the Insured
may
mutually agree that notices will be sent to any additional Person. Except
as
expressly agreed to by the Company and the Insured, no liability shall be
incurred by the Company for the failure to give a notice to a Person other
than
the Insured.
| 7.13 |
Reports
and Examinations
|
-
The
Company may request, and the Insured must provide, such files, reports or
information as the Company may deem necessary pertaining to any Loan, and
the
Company will be entitled to inspect the files, books and records of the Insured
or any of its representatives pertaining to such Loan.
| 7.14 |
Electronic
Media
|
-
The
Company and the Insured may, from time to time, deliver or transfer information,
documents or other data between them by electronic media acceptable to them.
In
addition, the Company and the Insured may maintain information, documents
or
other data on electronic media or other media generally accepted for business
records, including microfiche. Such electronic or other media will be as
equally
acceptable for all purposes between the Insured and the Company as information,
documents or other data maintained in printed or written form.
| 7.15 |
Reporting
of Loan Balances, Prepayments and
Assumptions
|
-
The
Insured shall provide or cause to be provided to the Company no less often
than
annually information concerning the current unpaid principal balance of each
Loan insured under this Policy, including information as to which Loans have
prepaid in full or which have been assumed.
EXHIBIT
0
POOL
POLICY EXHIBIT A
Exhibit
A
Table
of Contents
Mortgage
Trust Bulk Supplemental Policy
|
1
|
Definitions
|
|
1.1
|
Aggregate
Loss
|
|
1.2
|
Aggregate
Loss Limit
|
|
1.3
|
Aggregate
Loss Percentage
|
|
1.4
|
Application
|
|
1.5
|
Appropriate
Proceedings
|
|
1.6
|
Approval
of Coverage
|
|
1.7
|
Approved
Sale
|
|
1.8
|
Borrower
|
|
1.9
|
Certificate
Number
|
|
1.10
|
Claim
|
|
1.11
|
Claim
Amount
|
|
1.12
|
Deductible
Amount
|
|
1.13
|
Deductible
Loss
|
|
1.14
|
Deductible
Loss Percentage
|
|
1.15
|
Default
|
|
1.16
|
Eligibility
Criteria
|
|
1.17
|
Environmental
Condition
|
|
1.18
|
Good
and Merchantable Title
|
|
1.19
|
Initial
Principal Balance
|
|
1.20
|
Insured
|
|
1.21
|
Loan
|
|
1.22
|
Loan
Effective Date
|
|
1.23
|
Loan
File
|
|
1.24
|
Loss
|
|
1.25
|
Perfected
Claim
|
|
1.26
|
Person
|
|
1.27
|
Physical
Damage
|
|
1.28
|
Policy
|
|
1.29
|
Pooling
and Servicing Agreement
|
|
1.30
|
Possession
of the Property
|
|
1.31
|
Primary
Policy
|
|
1.32
|
Property
|
|
1.33
|
Qualified
|
|
1.34
|
Residential
|
|
1.35
|
Security
|
|
1.36
|
Servicer
|
|
1.37
|
Settlement
Period
|
|
1.38
|
Total
Initial Principal Balance
|
|
1.39
|
Value
|
|
2
|
Obtaining
Coverage and Payment of
Premiums
|
|
2.1
|
Loan
Underwriting and Obtaining
Coverage
|
|
2.2
|
Representations
of the Insured
|
|
2.3
|
Company’s
Remedies for
Misrepresentation
|
|
2.4
|
Premiums
and Term of Coverage
|
|
2.5
|
Termination
for Nonpayment of Premium
|
|
2.6
|
Payment
of Premiums
|
|
2.7
|
Continuation
or Cancellation by the Insured of Coverage of a
Loan
|
|
2.8
|
Cancellation
of Policy by the Insured
|
|
2.9
|
Cancellation
of Policy and Coverage of Loans Upon Termination of
Security
|
|
2.10
|
Post
Underwriting Review and Copies of Loan
Files
|
|
3
|
Changes
in Various Loan Terms and Servicing, Co-ordination and Duplication
of
Insurance Benefits
|
|
3.1
|
Loan
Modifications
|
|
3.2
|
Open
End Provisions
|
|
3.3
|
Assumptions
|
|
3.4
|
Change
of Servicing
|
|
3.5
|
Loan
Assignment
|
|
3.6
|
Co-ordination
and Duplication of Insurance
Benefits
|
|
4
|
Exclusions
From Coverage
|
|
4.1
|
Balloon
Payment
|
|
4.2
|
Effective
Date
|
|
4.3
|
Incomplete
Construction
|
|
4.4
|
Fraud
and Misrepresentation
|
|
4.5
|
Failure
to Meet Servicing
Standards
|
|
4.6
|
Non-Approved
Servicer
|
|
4.7
|
Physical
Damage (Other than Relating to Pre-Existing Environmental
Conditions)
|
|
4.8
|
Pre-Existing
Environmental Conditions
|
|
4.9
|
First
Lien Status
|
|
4.10
|
Breach
of the Insured’s Obligations or Failure to Comply with
Terms
|
|
4.11
|
Exclusion
Under Primary Policy
|
|
4.12
|
Primary
Policy
|
|
4.13
|
Investor-Paid
Coverage
|
|
4.14
|
Non-Eligible
Loans
|
|
5
|
Conditions
Precedent to Payment of
Claim
|
|
5.1
|
Maintenance
of Primary Policy
|
|
5.2
|
Notice
of Default
|
|
5.3
|
Monthly
Reports
|
|
5.4
|
Company’s
Option to Accelerate Filing of a
Claim
|
|
5.5
|
Voluntary
Conveyance
|
|
5.6
|
Appropriate
Proceedings
|
|
5.7
|
Mitigation
of Damages
|
|
5.8
|
Advances
|
|
5.9
|
Claim
Information and Other
Requirements
|
|
5.10
|
Acquisition
of Good and Merchantable Title Not
Required
|
|
5.11
|
Procedures
for the Company’s Approval of a Sale of the Property by the
Insured
|
|
5.12
|
Foreclosure
Bidding Instructions Given by the
Company
|
|
6
|
Loss
Payment Procedure
|
|
6.1
|
Filing
of Claim
|
|
6.2
|
Calculation
of Claim Amount
|
|
6.3
|
Payment
of Loss; Company’s Options
|
|
6.4
|
Calculation
of Settlement Period
|
|
6.5
|
Payment
by the Company After the Settlement
Period
|
|
6.6
|
Deductible
Losses
|
|
7
|
Additional
Conditions
|
|
7.1
|
Proceedings
of Eminent Domain
|
|
7.2
|
Pursuit
of Deficiencies
|
|
7.3
|
Subrogation
|
|
7.4
|
Policy
for Exclusive Benefit of the
Insured
|
|
7.5
|
Effect
of Borrower Insolvency or Bankruptcy on Principal
Balance
|
|
7.6
|
Arbitration
of Disputes, Suits and Actions Brought by the
Insured
|
|
7.7
|
Release
of Borrower; Defenses of
Borrower
|
|
7.8
|
Amendments;
No Waiver; Rights and Remedies; Use of Term
“Including”
|
|
7.9
|
No
Agency
|
|
7.10
|
Successors
and Assigns
|
|
7.11
|
Applicable
Law and Conformity to Law
|
|
7.12
|
Notice
|
|
7.13
|
Reports
and Examinations
|
|
7.14
|
Electronic
Media
|
|
7.15
|
Reporting
of Loan Balances, Prepayments and
Assumptions
|
Terms
and Conditions
|
1
|
Definitions
|
|
1.1
|
Aggregate
Loss means,
at any given time, the total of (a) all Losses, including advance
payments
of Loss and partial payments of Loss with respect to a Default
paid by the
Company and (b) the Deductible Loss charged to the Deductible Amount
under
this Policy, reduced by (1) the net proceeds received by the Company
upon
disposal of all Loans (if the Loan is acquired by the Company in
settlement of a Claim) and Properties, and also reduced by (2)
any other
net recoveries made in its sole discretion by the Company, including
recoveries made by exercise of subrogation rights, with respect
to any
Loan or the related Property or Borrower. For purposes hereof,
the term
“net proceeds” shall consist of the sale price received by the Company,
reduced by any expenses, payments or costs incurred by the Company
in the
ownership, maintenance and disposition of a Loan or a Property,
including
all expenses of the type which would have been includable in a
Claim for
Loss, interest paid by the Company on borrowings for the acquisition
and
ownership of the Loan or the Property (not to exceed the interest
payable
at the interest rate due on the Loan which would have been includable
in
the Claim), brokerage commissions, title insurance expenses, recording
fees, and other costs and expenses of closing the sale of the Loan
or the
Property; and expenses regarding the physical condition of the
Property in
order to make it ready for
sale.
|
|
1.2
|
Aggregate
Loss Limit
means the Total Initial Principal Balance multiplied by the Aggregate
Loss
Percentage or such other amount set forth on the face of this
Policy, as
may be adjusted under Section 2.3, and represents the maximum
aggregate
amount of Aggregate Loss under this Policy. When the Aggregate
Loss under
this Policy is an amount equal to the Aggregate Loss Limit, the
liability
of the Company to pay any additional Losses ceases until the
Aggregate
Loss is reduced below the Aggregate Loss
Limit.
|
|
1.3
|
Aggregate
Loss Percentage
means that percentage identified on the face of this
Policy.
|
|
1.4
|
Application
means all documents, materials, statements, representations,
warranties, data and other information, irrespective of the Person
or
Persons who prepared same, submitted to the Company by or on
behalf of the
Insured in connection with the Insured’s request for insurance under this
Policy.
|
|
1.5
|
Appropriate
Proceedings
means any legal or administrative action by the Insured affecting
either a Loan or title to a Property,
including:
|
|
a.
|
Preserving
a deficiency recovery by making a bid at the foreclosure sale
and pursuing
a deficiency judgment until the end of the Settlement Period,
where
appropriate and permissible and where directed by the Company;
or
|
|
b.
|
Enforcing
the terms of the Loan as allowed by the laws where the Property
is
located; or
|
|
c.
|
Acquiring
Good and Merchantable Title to the Property, as may be required
under this
Policy, but excluding such title as may be acquired by a voluntary
conveyance from the Borrower; or
|
|
d.
|
Asserting
the Insured’s interest in the Property in a Borrower’s
bankruptcy.
|
|
1.6
|
Approval
of Coverage
means the document issued by the Company evidencing the Company’s
approval of a Loan for insurance under this Policy, subject to
the terms
and conditions contained in the form of such approval and in
this Policy,
including a list of loans to which coverage has been extended
under this
Policy, and which is attached to the Approval of
Coverage.
|
|
1.7
|
Approved
Sale
means
|
|
a.
|
A
sale of a Property because of a Default (whether such sale is
before or
after foreclosure) to which the Company has given prior approval;
or
|
|
b.
|
A
foreclosure sale of the Property to a Person other than the Insured
at a
price exceeding the amount approved by the Company under Section
5.12(b),
or if no amount is approved, the amount as defined in Section
5.12(a);
or
|
|
c.
|
Acquisition
of a Property by someone other than the Insured by exercise of
rights of
redemption, if the Insured has complied with Section 5.12;
or
|
|
d.
|
Acquisition
of a Property or Loan pursuant to a Primary
Policy.
|
|
1.8
|
Borrower
means any Person legally obligated to repay the debt obligation
created by
a Loan, including any co-signer or guarantor of the
Loan.
|
|
1.9
|
Certificate
Number
means the identification number issued by the Company for a Loan
to which
coverage is extended as shown on the Approval of Coverage for
such
Loan.
|
|
1.10
|
Claim
means the timely filed written request, made on a form or in
a format
provided or approved by the Company, to receive the benefits
of this
Policy.
|
|
1.11
|
Claim
Amount
means the amount calculated in accordance with Section 6.2 of
this
Policy.
|
|
1.12
|
Deductible
Amount
means the Total Initial Principal Balance multiplied by the Deductible
Loss Percentage or such other amount set forth on the face of
this Policy,
and represents the maximum aggregate amount of Deductible Losses
under
this Policy.
|
|
1.13
|
Deductible
Loss
means the amount charged to the Deductible Amount as set forth
in Section
6.6.
|
|
1.14
|
Deductible
Loss Percentage
means that percentage identified on the face of this
Policy.
|
|
1.15
|
Default
means the failure by a Borrower (a) to pay when due an amount
equal to or
greater than one (1) monthly regular periodic payment due under
the terms
of a Loan or (b) to pay all amounts due on acceleration of the
Loan by the
Insured after breach by the Borrower of a due-on-sale provision
in the
Loan, granting the Insured the right to accelerate the Loan upon
transfer
of title to, or an interest in, the Property and to institute
Appropriate
Proceedings. Violation by the Borrower of any other term or condition
of
the Loan which is a basis for Appropriate Proceedings shall not
be
considered to be a Default.
|
A
Loan is
deemed to be in Default for that month as of the close of business on the
installment due date for which a scheduled monthly payment has not been
made or
as of the close of business on the due date stated in the notice of acceleration
given pursuant to the due-on-sale provision in the Loan. The Loan will
be
considered to remain in Default until filing of a Claim so long as such
periodic
payment has not been made or such basis for Appropriate Proceedings remains.
For
example, a Loan is “four (4) months in Default” if the monthly installments due
on January 1 through April 1 remain unpaid as of the close of business
on April
1 or if a basis for acceleration and Appropriate Proceedings exists for
a
continuous period of four months.
|
1.16
|
Eligibility
Criteria
means the requirements established by the Company for the insurability
of
a Loan under this Policy and of which the Company has notified
the Insured
prior to issuance of the Policy.
|
|
1.17
|
Environmental
Condition
means the presence of environmental contamination, including
nuclear
reaction or radioactive waste, toxic waste, or poisoning, contamination
or
pollution of earth or water subjacent to the Property or of the
atmosphere
above the Property; or the presence, on or under a Property,
of any
“Hazardous Substance” as that term is defined by the federal Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C.
Sec.
9601, et. seq., as amended from time to time) or as defined by
any similar
state law, or of any “Hazardous Waste” or “Regulated Substance” as those
terms are defined by the federal Resource Conservation and Recovery
Act
(42 U.S.C. Sec. 6901, et. seq., as amended from time to time)
or as
defined by any similar state law. Environmental Condition does
not mean
the presence of radon, lead paint, or
asbestos.
|
|
1.18
|
Good
and Merchantable Title
means title to a Property free and clear of all liens, encumbrances,
covenants, conditions, restrictions, easements and rights of
redemption,
except for any of the following or as permitted in writing by
the
Company:
|
|
a.
|
Any
lien established by public bond, assessment or tax, when no installment,
call or payment of or under such bond, assessment or tax is
delinquent;
|
|
b.
|
Any
municipal and zoning ordinances and exceptions to title waived
by the
regulations of federal mortgage insurers and guarantors with
respect to
mortgages on one-to-four family residences in effect on the date
on which
the Loan was closed and all documents were executed;
and
|
|
c.
|
Any
other impediments which will not have a materially adverse effect
on
either the transferability of the Property or the sale thereof
to a bona
fide purchaser.
|
Good
and
Merchantable Title will not exist if (i) there is any lien pursuant to
the
Comprehensive Environmental Response, Compensation, and Liability Act,
or
similar federal or state law, as in effect from time to time, providing
for
liens in connection with the removal and clean-up of environmental conditions,
or if notice has been given of commencement of proceedings which could
result in
such a lien, or (ii) there are limitations on ingress and egress to the
Property
or on use of utilities. Any action or proceeding after a foreclosure sale
relating to establishing a deficiency judgment will not be considered in
determining whether the Insured has acquired Good and Merchantable
Title.
|
1.19
|
Initial
Principal Balance
means the unpaid principal balance of a Loan at the Loan Effective
Date.
|
|
1.20
|
Insured
means:
|
|
a.
|
The
Person designated on the face of this Policy;
or
|
|
b.
|
Any
Person (1) to whom this Policy and coverage of all (but not fewer
than
all) Loans under this Policy has been assigned and (2) of whom
the Company
has been notified.
|
Any
Person becoming the Insured under this Policy shall be subject to all of
the
terms and conditions of this Policy to the same extent as any previous
Insured
hereunder including, without regard to the extent of the knowledge or
responsibility of such Person, with respect to matters occurring before
such
Person became an Insured.
|
1.21
|
Loan
means any note, bond, or other evidence of indebtedness secured
by a
mortgage, deed of trust, or other similar instrument, which constitutes
or
is equivalent to a first lien or charge on a Property and which
the
Company has approved for insurance, which secures or is represented
by the
Security, to which coverage under this Policy has been extended,
and which
must be included on the Approval of
Coverage.
|
|
1.22
|
Loan
Effective Date
means the date a Loan first becomes insured under this Policy,
as
determined by the Company and as set forth on the Approval of
Coverage.
|
|
1.23
|
Loan
File
means, with respect to a Loan, copies of all documents (including
all data
and information in electronic format) created or received in
connection
with the origination and closing of the Loan, including the Borrower’s
loan application, purchase contract, appraisal, credit report,
verifications of employment, income and deposit, and HUD-1 or
other
settlement statement.
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|
1.24
|
Loss
means the liability of the Company with respect to a Loan for
payment of a
Perfected Claim which is calculated in accordance with Section
6.3, but
subject to the Deductible Amount and the Aggregate Loss Limit.
A Loss will
be deemed to have occurred when a Default on a Loan occurs, even
though
the amount of Loss is not then either presently ascertainable
or due and
payable.
|
|
1.25
|
Perfected
Claim
means a Claim received by the Company which contains all information
or
proof required by the Company and for which all requirements
of this
Policy applicable to payment of a Claim are
satisfied.
|
|
1.26
|
Person
means any individual, corporation, partnership, association or
other
entity.
|
|
1.27
|
Physical
Damage
means any tangible injury to a Property, whether caused by accident,
natural occurrence, or any other reason, including damage caused
by
defects in construction, land subsidence, earth movement or slippage,
fire, flood, earthquake, riot, vandalism or any Environmental
Condition.
|
|
1.28
|
Policy
means this contract of insurance and all Applications, Approvals
of
Coverage, and Endorsements which are incorporated in this Policy,
related
to Loans insured under this Policy.
|
|
1.29
|
Pooling
and Servicing Agreement
means the document that sets forth the processes, procedures,
and
standards for servicing the Loans in effect with respect to the
Security
as of the Effective Date of this Policy, which may incorporate
standards
of the Servicer with respect to such servicing; provided, however,
that
such document and standards of the Servicer may be amended thereafter
with
respect to such servicing only with the approval of the
Company.
|
|
1.30
|
Possession
of the Property
means, if the Company elects to acquire the Property, physical
and
undisputed occupancy and control of the Property at the time
of
acquisition.
|
|
1.31
|
Primary
Policy
means a policy, deemed acceptable to the Company, issued by a
mortgage
guaranty insurance company or government agency or instrumentality,
approved by the Company, providing the coverage shown on the
face of this
Policy and defined by Section 5.1. A policy shall be deemed acceptable
to
the Company if it has been approved as the standard form of policy
for
insuring an individual mortgage loan sold to the Federal Home
Loan
Mortgage Corporation or the Federal National Mortgage
Association.
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|
1.32
|
Property
means a Residential real property and all improvements thereon
which
secure a Loan, together with all easements and appurtenances,
all rights
of access, all rights to use common areas, recreational and other
facilities, and all of their replacements or
additions.
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|
1.33
|
Qualified
means the Company is duly qualified under applicable state laws
as a
mortgage guaranty insurance company, duly authorized to write
the
insurance provided by this Policy, and is approved as an insurer
and has a
financial strength rating of not lower than “Baa3” from Xxxxx’x, “BBB”
from S&P and “BBB” from Fitch (if rated by the respective rating
agency).
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|
1.34
|
Residential
means a type of building or a portion thereof which is designed
for
occupancy by not more than four (4) families, or a single-family
condominium, or a unit in a planned unit
development.
|
|
1.35
|
Security
means the bond, certificate or other security instrument, or
pool or group
of loans, designated or referred to on the face of this
Policy.
|
|
1.36
|
Servicer
means that Person acting on behalf of the Insured of a Loan (or
on behalf
of the Insured’s designee, if any) to service the Loan. The Servicer acts
as a representative of the Insured of the Loan (and the Insured’s
designee, if any) and will bind the Insured and its designee
for all
purposes of this Policy, including providing information to the
Company,
receiving any notices, paying premiums, accepting Loss payments,
and
performing any other acts under this Policy. For purposes of
this Policy,
the term “Servicer” shall include the master servicer for a Loan of whom
the Company has been notified, as well as any servicer acting
on behalf of
the master servicer of whom the Company has been notified. References
in
this Policy to a Servicer’s obligations will not be construed as relieving
the Insured or its designee of responsibility for the Servicer’s
performance.
|
|
1.37
|
Settlement
Period
means the thirty (30) day period as determined under Section
6.4, at the
end of which a Loss is payable by the Company; provided that
if the
Company pays a Loss prior to expiration of such thirty (30) day
period,
the Settlement Period ends with such
payment.
|
|
1.38
|
Total
Initial Principal Balance
means the sum of the Initial Principal Balances of all the Loans
insured
under this Policy.
|
|
1.39
|
Value
means the lesser of the sales price of a Property (only applicable
in the
case of a Loan to finance the purchase of such Property) or appraised
value of the Property as set forth by the Company in the Approval
of
Coverage.
|
As
used
herein, the masculine, feminine and neuter gender and the singular and
plural
number shall each equally include the other, as the context shall
require.
|
2
|
Obtaining
Coverage and Payment of
Premiums
|
|
2.1
|
Loan
Underwriting and Obtaining Coverage
- This Policy shall automatically extend to each Loan
which is
submitted for coverage under this Policy, provided that the Loan
is (a)
made in accordance with the terms and provisions of this Policy,
including
the Eligibility Criteria, (b) included on an Approval of Coverage,
and (c)
included in the Security. In order to obtain coverage under this
Policy
for a Loan, the Insured or the Person acting on its behalf must
submit a
duly completed Application to the Company which must be acceptable
to the
Company. If all applicable requirements are satisfied, extension
of
coverage to a Loan under this Policy shall be evidenced by inclusion
on
the Approval of Coverage and assignment of a Certificate Number
to the
Loan.
|
|
2.2
|
Representations
of the Insured
- The Insured represents to the Company
that:
|
|
a.
|
all
statements made and information provided to the Company in an
Application
(including as such is related to continuation of coverage upon
assumption
of a Loan) are supported by statements and information in the
Loan File;
and
|
|
b.
|
such
statements and information are not false or misleading in any
material
respect as of the date(s) on which they are made or provided
and do not
omit any fact necessary in order to make such statements and
information
not false or misleading in any material respect as of such date(s);
and
|
|
c.
|
The
Loan complies with the Eligibility Criteria in effect at the
time the
Application is submitted to the Company.
|
The
foregoing representations will apply to all statements and information
in the
Application, Approval of Coverage or Loan File, whether made or submitted
by the
Insured, the Borrower or any other Person, and will be deemed to have been
made
and provided for and on behalf of the Insured. The foregoing representations
shall be effective whether or not they are made by the Insured or other
Person
with the intent to deceive or mislead, or with the knowledge that they
are not
true and correct.
It
is
understood and agreed that such statements and information in the aggregate
are,
and in certain instances individually may be, material to the Company’s decision
to offer, provide or so continue coverage of the related Loan; the Company
issues the related Approval of Coverage or continues coverage in reliance
on the
accuracy and completeness of such statements and information and without
any
obligation to independently verify the statements and information submitted
to
it; and the Company’s reliance on the representations in Section 2.2(a) and (b)
above survive the issuance of an Approval of Coverage or such continuation
of
coverage.
The
foregoing representations shall be effective whether or not they are made
by the
Insured or other Person with the intent to deceive or mislead, or with
the
knowledge that they are not true and correct.
|
2.3
|
Company’s
Remedies for Misrepresentation
- If any of the Insured’s misrepresentations made with respect to
such Loan as described in Section 2.2 are materially false or
misleading
with respect to a Loan, the Company will have, at its option,
the right to
defend against a Claim, or to the extent permitted by applicable
law, to
cancel, reduce or rescind coverage of such Loan under this Policy
retroactively to commencement of coverage (or if the misrepresentation
occurs with respect to continuation of coverage upon assumption
of a Loan,
to so defend, cancel, reduce or rescind retroactively to the
date of such
continuation). In the case of such cancellation or rescission,
the Company
shall return at that time all paid premiums applicable to such
Loan
retroactively to such applicable date. In the case of rescission
of
coverage retroactively to the Loan Effective Date, the Aggregate
Loss
Limit and the Deductible Amount shall be adjusted as if such
Loan had not
been insured.
|
|
2.4
|
Premiums
and Term of Coverage
|
|
a.
|
Within
fifteen (15) days from the Policy Effective Date, or such other
date as
the Company and the Insured may agree to in writing, the Insured
must
forward to the Company the appropriate initial premium. Payment
of the
applicable first premium shall be a condition precedent to coverage
being
initially extended to the Loan. Coverage shall remain in effect
for the
period covered by the applicable first premium. Tender of the
first
premium for a Loan will constitute a representation for purposes
of
Section 2.2 by the Insured that any special conditions included
by the
Company in the related Approval of Coverage have been satisfied
and that
no payment which is then due under the Loan is more than thirty
(30) days
past due.
|
|
b.
|
The
Company will not rescind or cancel coverage, or deny or adjust
a Claim for
Loss, with respect to a Loan on the basis of a failure to satisfy
such
special condition (other than a special condition relating to
completion
of construction, as described in Section 4.3 or to rehabilitation
or
repairs) if the Borrower has made twenty-four (24) consecutive
full
installment payments of principal, interest and impound or escrow
amounts
as called for by the Loan from the Borrower’s own funds. A payment will be
considered to be “consecutive” only if it is made prior to the date the
next scheduled installment becomes due. The “Borrower’s own funds” will
include any funds used by the Borrower for the purpose of making
installment payments, but will not include funds provided directly
or
indirectly by any Person (other than the Borrower) who is or
was a party
to the Loan or the related Property transaction, unless expressly
set
forth in the Application.
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|
2.5
|
Termination
for Nonpayment of Premium
|
The
Insured is obligated to continue coverage in effect and pay any premium
which is
due, as required by Section 2.7 of this Policy. The entire premium for
all Loans
must be paid within the grace period for payment specified on the face
of this
Policy. Such premium shall be computed on the basis of the aggregate applicable
principal balance of all Loans, and irrespective of whether a Loan is in
Default
or whether Good and Merchantable Title for a Loan has been acquired by
the
Insured. Upon payment of the entire premium for all Loans within such grace
period, this Policy will be in effect for the applicable period of coverage
and
a Default on a Loan occurring within said grace period which is not cured,
and
which results in a Claim being filed, will be covered.
If
the
entire premium for all Loans is not paid within the grace period, the coverage
of the Policy and the Company’s liability as to all Loans will terminate
effective as of 12:01 a.m. on the first day following the date through
which the
applicable premium has been paid and as a result, any existing or future
Defaults on any of the Loans will not be covered under this Policy.
|
2.6
|
Payment
of Premiums
|
At
the
request of the Company, the Insured shall provide the information and
documentation upon which all premium calculations are based; if the Insured
fails to provide the information and documentation requested by the Company,
the
Company shall calculate the applicable premium based on the information
used for
the most recent prior premium calculation, with the Company’s only refund
obligation being to refund any excess premium, without interest thereon,
upon
the Insured providing such information (but only if provided within twelve
(12)
months after the premium due date) as may be necessary to compute the correct
premium as of its due date and without the Insured being relieved of its
obligation to pay any further premium if the premium so calculated was
less than
the correct premium due. Except as expressly provided in this Policy, there
shall be no refund of premium under this Policy. If the Aggregate Losses
paid by
the Company under this Policy equal the Aggregate Loss Limit, then the
total
premium due under this Policy is due and shall remain due; provided, however,
that the premium shall continue to be calculated and paid in the manner
specified on the face of this Policy. The Company shall have a right of
offset
for any such unpaid premium against any payment of a Loss on any
Loan.
The
Insured acknowledges that the Company deposits premium checks immediately
upon
receipt and agrees that the receipt and deposit of a premium check by the
Company after the time specified in this Policy for receipt, does not constitute
a waiver of the requirements of this Policy for timely receipt or an acceptance
of premium by the Company. The Company will have the right to return such
late
premium payment as applicable to a Loan, but only within sixty (60) days
after
receipt, in which case coverage will be canceled retroactively to the applicable
Loan Effective Date for a late initial premium, or to the last day of the
period
covered by the previous premium payment for subsequent premium payment
which
becomes due. Receipt, deposit and retention of a premium check will not
constitute a waiver of any defenses with respect to any other matters which
the
Company may have under this Policy.
|
2.7
|
Continuation
or Cancellation by the Insured of Coverage of a
Loan
|
Subject
to payment of the applicable premiums with respect to the Loans insured
under
this Policy, coverage of a Loan shall continue until, and automatically
cease
upon, the first to occur of the following events:
|
a.
|
The
Loan is paid in full; or
|
|
b.
|
The
Loan no longer secures or no longer is represented by the Security;
or
|
|
c.
|
The
Company pays the Insured the Loss with respect to the Loan;
or
|
|
d.
|
A
Deductible Loss is charged to the Deductible Amount with respect
to the
Loan; or
|
|
e.
|
The
Insured cancels the Policy pursuant to Section 2.8;
or
|
|
f.
|
The
Policy is cancelled pursuant to Section
2.9.
|
Except
as
a result of cancellation pursuant to Section 2.8, the Insured may not cancel
coverage of a Loan.
In
the
event coverage does not continue and ceases for any of the foregoing reasons,
the Company shall have no liability for any Default existing at the time
coverage is discontinued or ceases, other than Defaults on Loans for which
a
Claim had been filed in accordance with Section 6.1 of this Policy prior
to the
date of termination of coverage, and the Company shall have no liability
for any
Claims arising out of any future Default. Notwithstanding coverage of such
existing Default, the provisions of Section 3.5 shall continue to apply
and
limit assignment of coverage of a Loan.
Except
as
provided in Section 2.8, there shall be no refund of premium on cancellation
by
the Insured of coverage of a Loan or if coverage of a Loan is not
continued.
|
2.8
|
Cancellation
of Policy by the Insured
- The Insured may cancel this Policy upon thirty (30)
days
written notice thereof to the Company if the Company shall cease
to be
Qualified. The Company shall use diligent efforts to remain Qualified.
There shall be no other right of cancellation of this Policy
by the
Insured. There shall be no refund of premium on cancellation
of this
Policy by the Insured.
|
|
2.9
|
Cancellation
of Policy and Coverage of Loans Upon Termination of
|
Security
- Except as otherwise specified below, in the event that
|
a.
|
the
bonds, certificates or other security instruments designated
or referred
to in this Policy as the Security are redeemed, paid in full,
cancelled or
otherwise terminated, or the trust created in connection with
the issuance
of the Security is terminated for any reason (individually, a
“Redemption”), or
|
|
b.
|
there
are no longer any Loans that are security for, or represented
by, the
Security,
|
this
Policy and the coverage of all Loans under this Policy shall automatically
be
terminated without further action being required by either the Insured
or the
Company, and the Company shall have no liability for any Default existing
at the
time of cancellation, other than Defaults on Loans for which a Claim had
been
filed in accordance with Section 6.1 of this Policy prior to the date of
termination of coverage.
The
Insured shall notify the Company within thirty (30) days after the occurrence
of
either (a) or (b) above. The provisions of this Section 2.9 shall control,
notwithstanding the right of the Insured to cancel coverage on some or
all of
the Loans and the exercise of such right by the Insured. No refund will
be paid
upon cancellation of this Policy and coverage of Loans under this Section
2.9.
|
2.10
|
Post
Underwriting Review and Copies of Loan Files
- The Company or representatives designated by it will
have the
right, from time to time, upon thirty (30) days advance notice
to the
Insured, to conduct a post underwriting review (including inspection)
of
the Loan Files and other information, papers, files, documents,
books,
records, agreements, and electronically stored data prepared
or maintained
by or in the possession or under the control of the Insured pertaining
to
or in connection with Loans insured under this Policy. The Company
will
have the right to conduct the review on the Insured’s premises during
normal business hours. The Insured must cooperate fully with
the review.
In addition, either in connection with such review or separately,
the
Company will have the right upon thirty (30) days prior written
notice to
obtain from the Insured a copy of the Loan File for any Loan
insured under
this Policy.
|
|
3
|
Changes
in Various Loan Terms and Servicing, Co-ordination and Duplication
of
Insurance Benefits
|
|
3.1
|
Loan
Modifications
- Unless advance written approval is provided by, or
obtained
from, the Company, the Insured may not make any change in the
terms of a
Loan, including the borrowed amount, interest rate, term or amortization
schedule of the Loan, except as such change is permitted by terms
of the
Loan without the approval of the Insured; nor make any change
in the
Property or other collateral securing the Loan; nor release the
Borrower
from liability on a Loan.
|
|
3.2
|
Open
End Provisions
- The Insured may increase the principal balance of a
Loan,
provided that the written approval of the Company has been obtained.
The
Insured will pay the Company the additional premium due at the
then
prevailing premium rate.
|
|
3.3
|
Assumption
- If a Loan is assumed with the Insured’s approval, the Company’s
liability for coverage under this Policy will terminate as of
the date of
such assumption, unless the Company approves the assumption in
writing.
The Company will not unreasonably withhold approval of an assumption.
It
is understood that coverage will continue, and that the restriction
of
this Section 3.3 will not apply, if under the Loan or applicable
law the
Insured cannot exercise a “due-on-sale” clause or is obligated to consent
to such assumption under the Loan or applicable
law.
|
|
3.4
|
Change
of Servicing
- If the servicing rights for a Loan are sold, assigned
or
transferred, coverage of the Loan hereunder will continue provided
that
written notice of the new Servicer is given to the Company and
the new
Servicer is approved in writing by the Company, and subject,
nevertheless,
to all of the terms and conditions hereof and to all defenses
which the
Company may have had prior to any such sale, assignment or transfer.
The
Company shall be automatically deemed to have approved as a Servicer
any
person to whom the Company has issued a master policy, which
has not been
canceled, providing for residential mortgage guaranty
insurance.
|
|
3.5
|
Loan
Assignment
- Unless advance written approval is obtained from the
Company
(which approval shall be in the sole and absolute discretion
of the
Company), or this Policy and coverage of all Loans under this
Policy are
assigned to an Insured as described in Section 1.20, if a Loan
is sold,
assigned, or transferred by the Insured, the coverage of such
Loan under
this Policy may not and will not be assigned to such purchaser,
assignee,
or transferee and coverage of such Loan under this Policy shall
automatically terminate upon such purchase, assignment or transfer.
If the
Company does give such approval, the Company shall thereafter,
for all
purposes under this Policy, including for purposes of calculating
premiums
and the Aggregate Loss Limit, disregard such sale, assignment
or transfer,
and continue to treat the Insured as the only Person with any
interest in
such Loan and the Insured agrees that it and any such purchaser,
assignee,
or transferee shall make all such arrangements as between or
among
themselves as may be appropriate in light of this restriction
on the
transfer of such coverage.
|
|
3.6
|
Co-ordination
and Duplication of Insurance Benefits
- The coverage under this Policy shall be excess over
any Primary
Policy and any other insurance which may apply to the Property
or to the
Loan, regardless of the type of or the effective date of such
other
coverage.
|
|
4
|
Exclusions
From Coverage
|
The
Company will not be liable for, and this Policy will not apply to, extend
to or
cover the following:
|
4.1
|
Balloon
Payment
- Any Claim arising out of or in connection with the
failure of
the Borrower to make any payment of principal and/or interest
due under a
Loan, (a) as a result of the Insured exercising its right to
call the Loan
(other than when the Loan is in Default) or because the term
of the Loan
is shorter than the amortization period, and (b) which is for
an amount
more than twice the regular periodic payments of principal and
interest
that are set forth in the Loan (commonly referred to as a “balloon
payment”). This exclusion will not apply if the Insured, the owner of
the
Loan, or other Person acting on either’s behalf offers the Borrower, in
writing, a renewal or extension of the Loan or a new loan which
(i)
constitutes a first lien, (ii) is at rates and terms generally
prevailing
in the marketplace (but otherwise subject to Section 3.1), (iii)
is in an
amount not less than the then outstanding principal balance,
(iv) has no
decrease in the amortization period, and (v) is offered regardless
of
whether the Borrower is then qualified under the Insured’s or owner’s
underwriting standards. This exclusion also will not apply if
the Borrower
is notified of the availability of such renewal or extension
of the Loan
or new loan and does not accept the renewal, extension or new
loan.
|
|
4.2
|
Effective
Date
- Any Claim on a Loan resulting from a payment on the
Loan being
thirty (30) days or more past due as of the Loan Effective
Date.
|
|
4.3
|
Incomplete
Construction
- Any Claim when, as of the date of such Claim, construction
of a
Property is not completed in accordance with the construction
plans and
specifications upon which the appraisal of the Property at origination
of
the Loan was based.
|
|
4.4
|
Fraud
and Misrepresentation
- Any Claim not otherwise within the scope of Section
2.3 where
there was fraud or misrepresentation by the Insured with respect
to the
Loan, and the fraud or misrepresentation (a) materially contributed
to the
Default resulting in such Claim; or (b) increased the Loss, except
that if
the Company can reasonably determine the amount of such increase,
such
Claim will not be excluded, but the Loss will be reduced to the
extent of
such amount.
|
|
4.5
|
Failure
to Meet Servicing Standards
- Any Claim resulting from failure to service the Loan
in
accordance with the servicing standards of the Servicer as set
forth in
the Pooling and Servicing Agreement with respect to the Loan,
which (a)
was material to either the acceptance of the risk or the hazard
assumed by
the Company; (b) materially contributed to the Default resulting
in such
Claim; or (c) increased the Loss, except that if the Company
can
reasonably determine the amount of such increase, such Claim
will not be
excluded, but the Loss will be reduced to the extent of such
amount.
|
|
4.6
|
Non-Approved
Servicer
- Any Claim occurring when the Servicer, at time of Default
or
thereafter, is not approved in writing; provided that this exclusion
shall
only apply if the Company notifies the Insured if a Servicer
is no longer
approved and if within ninety (90) days thereafter the Insured
does not
complete or cause to complete a transfer of servicing to a new
Servicer
approved by the Company.
|
|
4.7
|
Physical
Damage (Other than Relating to Pre-Existing Environmental
Conditions)
- Any Claim where, at any time after the Loan Effective
Date,
Physical Damage to a Property (other than reasonable wear and
tear),
occurs or manifests itself subject to the following
provisions:
|
|
a.
|
This
exclusion shall not apply if the Company in good faith determines
that the
aggregate cost of restoring all such Physical Damage is less
than fifteen
hundred dollars ($1,500), or such higher amount as the Company
may provide
from time to time.
|
|
b.
|
This
exclusion shall not apply if the Insured has restored the Property
in a
timely and diligent manner to its condition (except reasonable
wear and
tear) as of the Loan Effective Date. In lieu of requiring restoration
of
the Property, the Company may, at its option, reduce the Claim
Amount by
an amount equal to the cost of such
restoration.
|
|
c.
|
For
purposes of this Section 4.7, the Property subject to restoration
will
consist only of the land, improvements or personal property deemed
part of
the real property under applicable law; and chattel items affixed
to the
real property and identified in the appraisal of the Property
at the time
the Loan was made, whether or not they are deemed part of the
real
property.
|
|
d.
|
Cost
estimates relied upon by the Company in connection with this
Section 4.7
shall be provided in writing by an independent party selected
by the
Company. The Company will furnish the Insured with any such written
cost
estimates, if requested by the
Insured.
|
|
4.8
|
Pre-Existing
Environmental Conditions
- Any Claim where there is an Environmental Condition
which
existed on the Property (whether or not known by the Person submitting
an
Application for coverage of the Loan) as of the Loan Effective
Date,
subject to the following
provisions:
|
|
a.
|
This
exclusion will not apply if the existence of such Environmental
Condition,
or the suspected existence of such Environmental Condition, was
specifically disclosed to the Company in the Application relating
to the
Property.
|
|
b.
|
This
exclusion will apply only if such Environmental Condition (1)
was a
principal cause of the Default, and (2) has made the principal
Residential
structure on the Property uninhabitable. A structure will be
considered
“uninhabitable” if generally recognized standards for residential
occupancy are violated or if, in the absence of such standards,
a fully
informed and reasonable person would conclude that such structure
was not
safe to live in without fear of injury to health or
safety.
|
|
c.
|
This
exclusion will not apply if the Environmental Condition is removed
or
remedied in a timely and diligent manner in accordance with applicable
governmental standards for safe residential
occupancy.
|
|
4.9
|
First
Lien Status
- Any Claim, if the mortgage, deed of trust or other
similar
instrument executed by the Borrower and insured hereunder did
not provide
the Insured at origination with a first or equivalent lien on
the
Property.
|
|
4.10
|
Breach
of the Insured’s Obligations or Failure to Comply with
Terms
- Any Claim involving or arising out of any breach by
the Insured
of its obligations under, or its failure to comply with the terms
of, this
Policy or of its obligations as imposed by operation of law,
if the breach
or failure:
|
|
a.
|
Materially
contributed to the Default resulting in such Claim;
or
|
|
b.
|
Except
for a breach described in Section 2.3, increased the Loss; provided
that
if the Company can reasonably determine the amount of such increase,
such
Claim will not be excluded, but the Loss will be reduced to the
extent of
such amount.
|
|
4.11
|
Exclusion
Under Primary Policy
- Any Claim to the extent the related claim was excluded
under
any Primary Policy.
|
|
4.12
|
Primary
Policy
- With respect to any Claim, and subject to Section 5.1,
the
amount of the full percentage option claim payment which the
insurer under
any Primary Policy should have paid, but which was not paid,
disregarding
the reason or cause for the denial or failure of such insurer
to pay under
such Primary Policy, or whether the Insured fails to obtain a
Primary
Policy as required by Section 5.1.
|
|
4.13
|
Investor-Paid
Coverage
- With respect to any Loan, if necessary for the Company
to be
authorized by law to insure such loan, if the Borrower, directly
or
indirectly pays for such premium, including by an interest rate
or other
charges which are higher than the interest rate or other charges
applicable to mortgage loans which are not similarly
insured.
|
|
4.14
|
Non-Eligible
Loans
- Any Loan that did not meet the Eligibility Criteria
in effect
at the time the related Application was submitted to the
Company.
|
|
5
|
Conditions
Precedent to Payment of
Claim
|
It
is a
condition precedent to the Company’s obligation to pay a Loss that the Insured
comply with all of the following requirements:
|
5.1
|
Maintenance
of Primary Policy
- The Insured is required to maintain a Primary Policy
issued by
a mortgage guaranty insurance company which is approved by the
Company,
and which provides coverage against loss resulting from a Borrower’s
Default on any Loan that has a ratio of the principal balance
of the Loan
to the Value of the Property at the time of origination in excess
of the
percentage set forth on the face of this Policy. The Primary
Policy shall,
at a minimum, provide coverage on the amount of the Loan in excess
of the
percentage of the Value or other coverage percentage set forth
on the face
of this Policy and must remain in force until the outstanding
principal
balance of the Loan or other coverage percentage is reduced to
the
percentage of the Value or on such other basis set forth on the
face of
this Policy. Notwithstanding the foregoing, if a Primary Policy
is
required but there is no Primary Policy in force, the Company
shall accept
the Claim and compute the Loss as if such a Primary Policy were
in force
as provided in Section 6.2; provided, however, that the Company
shall not
be liable pursuant to this Policy for any portion of such Primary
Policy
claim.
|
It
is the
primary responsibility of the Insured to provide appropriate servicing
and
mitigation of delinquencies through its Primary Policy, if applicable.
The
Insured shall not take, or fail to take, any action which would impair
its
rights under a Primary Policy unless it shall first have given prompt written
notice to the Company of any conflict between the Primary Policy and this
Policy
or any circumstance under which its rights under the Primary Policy might
be
impaired. The risk of collection of a claim payment under any Primary Policy
and
the risk of the insolvency of the issuer of any Primary Policy are risks
of the
Insured and are not covered under this Policy.
|
5.2
|
Notice
of Default
- The Insured must give the Company written
notice:
|
|
a.
|
Within
forty-five (45) days of the Default, if it occurs when the first
payment
is due under the Loan; or
|
|
b.
|
Within
ten (10) days after:
|
|
1.
|
The
date when the Borrower has become no more than four (4) months
in Default
on the Loan; or
|
|
2.
|
The
date when any Appropriate Proceedings which affect the Loan or
the
Property or the Insured’s or Borrower’s interest therein have been
started;
|
whichever
occurs first.
If
the
Insured fails to give the notice of Default to the Company within the time
period specified in this Section 5.2, any additional interest accruing
or
advances incurred or accruing during the period of such failure shall not
be
includable in the Claim Amount.
|
5.3
|
Monthly
Reports
- Following a notice of Default on the Loan, the Insured
must
give the Company monthly reports on forms or in a format acceptable
to the
Company on the status of the Loan and on the servicing efforts
undertaken
to remedy the Default. These monthly reports may be furnished
less
frequently if allowed in writing by the Company, and must continue
until
the Borrower is no longer in Default, the Appropriate Proceedings
terminate, or until the Insured has acquired the
Property.
|
|
5.4
|
Company’s
Option to Accelerate Filing of a Claim
- At any time following a notification of Default on
a Loan, and
before the Insured has obtained Good and Merchantable Title to
the
Property, the Company, directly or through its assignee (as purchaser
of
the Loan), shall have the right to purchase the Loan from the
Insured,
free and clear of all liens, claims or encumbrances, for a purchase
price
equal to the Loss calculated under Section 6.3(a) of this Policy,
(but
without deduction for a Primary Policy payment which has not
yet become
payable) and under the following terms and
conditions:
|
|
a.
|
Within
twenty (20) days after notice to the Insured (or such longer
period
specified by the purchaser in its notice) that the Company or
its assignee
has elected to purchase the Loan pursuant hereto, the Insured
shall tender
and deliver or cause to be delivered to the Purchaser, to be
held in
escrow by the Purchaser against receipt of the purchase price
as set forth
herein above within ten (10) days after such tender and delivery
of all of
the following:
|
|
1.
|
one
or more assignments (as shall be necessary or appropriate) to
the
purchaser, containing customary representations and warranties,
duly and
properly executed and in recordable form, of all of the Insured’s
ownership right, title and interest in and to the Loan and related
documents (including private mortgage insurance coverage) and,
unless
expressly specified as being not subject to assignment or transfer,
seller/servicing agreements relating to the
Loan;
|
|
2.
|
the
note, bond or other instrument evidencing the Loan, properly
endorsed in
blank;
|
|
3.
|
an
assignment, to the purchaser, of coverage with respect to such
Loan under
this Policy, subject to all of the terms and conditions contained
herein;
and
|
|
4.
|
any
and all documents executed or delivered by or to the Borrower
under, or
any holder of, such Loan, including the
following:
|
|
i)
|
originals
(or, if publicly recorded, certified copies) of mortgages, deeds
of trust
or other security instruments or assignments
thereof;
|
|
ii)
|
originals
(or acceptable duplicates) of policies of title insurance or
opinions of
title and surveys;
|
|
iii)
|
originals
(or acceptable duplicates) of certificates and/or policies evidencing
private mortgage insurance and hazard insurance;
and
|
|
iv)
|
copies
of state and/or federal disclosure and/or consumer credit
documents.
|
|
b.
|
Upon
purchase of the Loan by the purchaser pursuant to the foregoing
terms, all
rights of the Insured under this Policy shall be transferred
to the
purchaser, and payment to an Insured of the amount specified
herein shall
be a full and final discharge of the Company’s obligations to such Insured
with respect to such Loan. The Company shall have the right to
assign its
right to purchase a Loan pursuant to this Section 5.4 to any
Person,
subject to the terms and conditions
hereof.
|
|
5.5
|
Voluntary
Conveyance
- The Insured may only accept a conveyance of the Property
from
the Borrower in lieu of foreclosure or other proceeding if the
prior
written approval of the Company has been obtained. Such approval
shall not
be considered as an acknowledgement of liability by the Company
with
respect to such Loan.
|
|
5.6
|
Appropriate
Proceedings
- The Insured must begin Appropriate Proceedings no later
than
when the Loan becomes six (6) months in Default unless the Company
provides written instructions that some other action be taken.
Such
instructions may be general or applicable only to specific Loans.
The
Company reserves the right to direct the Insured to institute
Appropriate
Proceedings at any time after Default. When either defending
against or
bringing Appropriate Proceedings, the Insured must report their
status to
the Company as reasonably and expeditiously as
possible.
|
In
conducting Appropriate Proceedings, the Insured must:
|
a.
|
Diligently
pursue the Appropriate Proceedings once they have
begun;
|
|
b.
|
Apply
for the appointment of a receiver and assignment of rents, if
permitted by
law and requested by the Company;
|
|
c.
|
Furnish
the Company with copies of all notices and pleadings filed or
required in
the Appropriate Proceedings, except as the Company may waive
such
requirement in writing;
|
|
d.
|
Act
and bid at the foreclosure sale in accordance with Section 5.12
so that
its ability to preserve, transfer and assign to the Company its
rights
against the Borrower are not impaired; and so that the rights
of the
Company under this Policy against the Borrower are fully protected.
Such
rights include any rights to obtain a deficiency judgment, subject
to the
Company’s compliance with Sections 7.2 and 7.3 relating to establishing
a
deficiency; and
|
|
e.
|
When
requested by the Company, furnish the Company with a written
statement
indicating the estimated potential Claim Amount (as computed
under Section
6.2) at least fifteen (15) days before the foreclosure
sale.
|
|
5.7
|
Mitigation
of Damages
- The Insured must actively cooperate with and assist
the Company
to prevent and mitigate the Loss, including good faith efforts
by the
Insured to obtain a cure of the Default, collect amounts due
under the
Loan, inspect and appraise the Property and effectuate the early
disposition of the Property. The Company must administer this
Policy in
good faith.
|
Without
limiting the right of the Company to direct the Insured with respect to
disposition of the Property, the Company may direct the Insured: to list
the
Property for sale at a price to be established; to select the agents or
brokers
with whom the Property is listed; without limiting the Insured’s obligation
under this Policy to restore a Property, to expend funds and complete work
on
the Property for the purpose of making the Property ready for sale at the
listed
price, provided that such expenditures are includable in the Claim for
Loss; to
assist in obtaining access of the Company to the Property; and to otherwise
assist in the prompt disposition of the Property, pursuant to an Approved
Sale
at the price established by the Company. If the Company so requests, the
Insured
shall permit the Company to cooperatively assist the Insured in the collection
of monies due under the Loan, including activities such as obtaining information
from the Borrower, attempting to develop repayment schedules acceptable
to the
Insured, conducting Property inspections, and requesting appraisals of
the
Property. The Insured shall make available to the Company such information
relating to the Insured’s collection efforts as the Company shall reasonably
request.
|
5.8
|
Advances
- The Insured or the Servicer must
advance:
|
|
a.
|
Normal
and customary hazard insurance premiums and real estate property
taxes, in
each case as due and payable;
|
|
b.
|
Reasonable
and necessary Property protection and preservation expenses approved
by
the Company, which shall not include expenditures to remove an
exclusion
from coverage under Section 4;
|
|
c.
|
Reasonable
costs to complete Appropriate Proceedings and eviction and moving
of
occupants, including related court expenses and attorney’s fees;
and
|
|
d.
|
Expenses
to prepare the Property for sale and to sell the Property, including
the
expenses described in Section 5.7, as approved in advance by
the
Company.
|
|
5.9
|
Claim
Information and Other Requirements
- The Insured must provide the Company
with:
|
|
a.
|
All
information reasonably requested by the
Company;
|
|
b.
|
A
completed form furnished by or acceptable to the Company for
payment of a
Claim;
|
|
c.
|
If
the Property is not being acquired by the Company: (1) a copy
of (i) an
executed trustee’s or sheriff’s deed (which may be unrecorded) conveying
Good and Merchantable Title to the Property to the Insured, or
(ii) a deed
from the Borrower (which may be unrecorded) if a voluntary conveyance
has
been approved by the Company, conveying to the Insured the title
that was
required by the Company in the approval of the conveyance; (2)
a copy of
the sale contract and closing statement or evidence of sale pursuant
to
foreclosure or the Primary Policy; and (3) such other information
requested by the Company evidencing an Approved Sale of the
Property;
|
|
d.
|
If
the Property is being acquired by the
Company:
|
|
1.
|
A
recordable deed in normal and customary form containing the customary
warranties and covenants conveying to the Company or its designee
Good and
Merchantable Title to the Property;
|
|
2.
|
If
required by the Company, a title insurance policy acceptable
to the
Company or an attorney’s opinion of title acceptable to the Company,
confirming that the Insured has and can convey to the Company
Good and
Merchantable Title to the Property;
and
|
|
3.
|
Possession
of the Property, but only if the Company has required such Possession
in
writing; and
|
|
e.
|
If
requested by the Company, access to the Property after completion
of
foreclosure, which may be requested before or after filing of
the
Claim.
|
|
5.10
|
Acquisition
of Good and Merchantable Title Not Required
- The Insured will not be required to acquire Good and
Merchantable Title to a Property if (a) the Company requires
an early
Claim filing pursuant to Section 5.4; or (b) the Property is
sold pursuant
to an Approved Sale.
|
|
5.11
|
Procedures
for the Company’s Approval of a Sale of the Property by the
Insured
- An offer to purchase a Property may not be accepted
by the
Insured unless (a) the offer meets the Company’s written delegated
servicing guidelines and any additional requirements of the Pooling
and
Servicing Agreement, or (b) the Insured has received the Company’s prior
approval to accept such offer.
|
|
5.12
|
Foreclosure
Bidding Instructions Given by the Company
- Any bid made at a foreclosure sale held as part of
Appropriate
Proceedings must either (a) meet the Company’s written delegated bidding
guidelines and any additional requirements of the Pooling and
Servicing
Agreement, or (b) have been previously approved by the Company.
The
Insured is not required to acquire Good and Merchantable Title
if it has
bid in accordance with this Section 5.12, whether or not pursuant
to
approval from the Company.
|
|
6
|
Loss
Payment Procedure
|
|
6.1
|
Filing
of Claim
|
|
a.
|
If
a Primary Policy is required pursuant to Section 5.1 hereof,
unless the
Company directs acceleration of the filing of a Claim under Section
5.4,
the Insured must submit and settle its claim under the Primary
Policy
before a Claim may be filed under this Policy. If the Insured
negotiates a
claim settlement on a basis other than on conditions stated in
the Primary
Policy, the Insured must obtain the prior written consent of
the Company
to such settlement. A Claim must be filed with the Company on
a form
provided or approved by the Company within sixty (60) days after
the later
of the following and only after both of the following conditions
have been
satisfied: (1) the date the claim has been settled and paid under
the
Primary Policy; and (2) either (i) the date the Insured has conveyed
title
to the Property pursuant to an Approved Sale, or (ii) the date
the Company
notifies the Insured that it will acquire the Property in settlement
of
the Claim, whichever is applicable.
|
If
a
claim under the Primary Policy has not been settled within six (6) months
after
the Insured has satisfied all reasonable requirements for filing of such
claim,
the Claim under this Policy may, notwithstanding any provision of this
Policy to
the contrary, be filed and the Claim shall be calculated and paid on the
basis
of the claim payment amount which the Insured should have received under
such
Primary Policy, as provided in Section 6.2(vii).
|
b.
|
If
a Primary Policy is not required pursuant to Section 5.1 hereof,
unless
the Company directs acceleration of the filing of a Claim under
Section
5.4, a Claim must be filed with the Company on a form provided
or approved
by the Company within sixty (60) days after either of the following
conditions, whichever is applicable, have been satisfied: (1)
the Insured
has conveyed title to the Property pursuant to an Approved Sale
or (2) the
date the Company notifies the Insured that it will acquire the
Property in
settlement of the Claim.
|
|
c.
|
If
the Insured is not required to have Good and Merchantable Title
to file a
Claim as described in Section 5.10, then in lieu of the Approved
Sale or
acquisition notice by the Company in the preceding paragraphs
(a) and (b),
the Claim shall be filed within sixty (60) days after the applicable
event
in Section 5.10.
|
|
d.
|
If
the Insured fails to file a Claim within the applicable time,
the Insured
will not be entitled to, and the Company will not be obligated
for, any
payment under this Policy for amounts, including additional interest
and
expenses, which would otherwise be claimable, but which accrue
or are
incurred after the sixty (60) day period for filing of a
Claim.
|
If
the
Insured fails to file a Perfected Claim within one hundred eighty (180)
days
after the event occurs under this Section 6.1 which is the basis for filing
of
the Claim (or within such longer period of time as the Company may allow
in
writing), the Insured will no longer be entitled to payment of a Loss and
the
Company will not be obligated to make any payment under this
Policy.
|
6.2
|
Calculation
of Claim Amount
- Subject to the requirement for a Primary Policy, if any, and
to the
Aggregate Loss Limit then applicable, the Claim Amount will be
an amount
equal to the sum of:
|
|
a.
|
The
amount of unpaid principal balance due under the Loan as of the
date of
Default without capitalization of delinquent interest, penalties
or
advances; and
|
|
b.
|
The
amount of accrued and unpaid interest due on the Loan, computed
at the
contract rate stated in the Loan on the unpaid principal balance
at the
date of Default (without adjustment for the proceeds of Primary
Policy
coverage or an Approved Sale), through the date that the Loss
is paid by
the Company, but excluding applicable late charges, penalty interest
or
other changes to the interest rate by reason of Default;
and
|
|
c.
|
The
amount of advances incurred by the Insured under Section 5.8
prior to
filing of the Claim (except to Persons employed or controlled
by the
Insured or the Servicer of the Loan or their other internal costs)
provided that such advances, other than attorney’s fees, must have first
become due and payable after the Default, and payment of such
advances
must be prorated through the date the Loss is paid by the Company;
and
|
|
d.
|
Amounts
required to be paid to the Insured pursuant to Sections 6.5,
7.2 and 7.5,
if applicable, less:
|
|
(i)
|
The
amount of all rents and other payments (excluding net proceeds
of an
Approved Sale of the Property and the proceeds of fire and extended
coverage insurance) collected or received by the Insured, which
are
derived from or in any way related to the
Property;
|
|
(ii)
|
The
amount of cash remaining in any escrow account as of the last
payment
date;
|
|
(iii)
|
The
amount of cash or other collateral to which the Insured has retained
the
right of possession as security for the
Loan;
|
|
(iv)
|
The
amount paid under applicable fire and extended coverage policies
which is
in excess of the cost of restoring and repairing the Property,
if the
Property is damaged, and which has not been paid to the Borrower
or
applied to the payment of the Loan as required by the terms of
the
Loan;
|
|
(v)
|
The
amounts of any payments of Loss previously made by the
Company;
|
|
(vi)
|
The
net proceeds upon an Approved Sale of the Property other than
from
acquisition pursuant to a Primary
Policy;
|
|
(vii)
|
The
greater of the amount of any claim payment pursuant to a Primary
Policy
which the Insured received, or which the Insured should have
received in
order for the exclusion under Section 4.11 or 4.12 of this Policy
not to
have applied; and
|
|
(viii)
|
Any
other amounts claimed by the Insured to the extent they are excluded
from
the Claim Amount by reason of Section
4.
|
|
6.3
|
Payment
of Loss; Company’s Options
- Within the Settlement Period, but only if the Insured
has
satisfied all requirements for a payment of Loss and if the Company
has
received a Perfected Claim, the Company shall at its sole option
exercise
its:
|
|
a.
|
Property
acquisition settlement option. If the Company has elected to
acquire the
Property prior to an Approved Sale, the Company shall pay to
the Insured
as the Loss the Claim Amount calculated in accordance with Section
6.2
without reduction for net proceeds under Section 6.2(vi);
or
|
|
b.
|
Approved
sale option. If there has been an Approved Sale, the Company
shall pay to
the Insured as the Loss the Claim Amount calculated in accordance
with
Section 6.2.
|
When
the
Aggregate Loss paid by the Company under this Policy is an amount equal
to the
Aggregate Loss Limit, the liability of the Company to pay any additional
Claims
for Losses ceases until the Aggregate Loss is reduced below the Aggregate
Loss
Limit, at which time this Section 6.3 will again apply to any previously
Perfected Claims.
|
6.4
|
Calculation
of Settlement Period
- The Settlement Period will be a thirty (30) day period
after
the Company’s receipt of a Claim, calculated as
follows:
|
|
a.
|
No
later than the twentieth (20th) day after filing of a Claim,
the Company
may notify the Insured of additional documents or information
which it
requires for processing the Claim. The thirty (30) day period
will be
suspended until the Company receives such additional documents
and
information. The Company may request additional documents and
information
after such twenty (20) day period, and the Insured must use reasonable
efforts to satisfy such request.
|
|
b.
|
The
Company may notify the Insured at any time after completion of
foreclosure
and before closing of an Approved Sale (or, if applicable, before
the
Company acquires the Property) that it will require access to
the Property
sufficient to inspect, appraise and evaluate the Property. If
the Company
does not notify the Insured by that date, its right to such access
will be
deemed waived. If such notice is given, the Insured will use
its best
efforts to provide access to the Company. If access is not then
available
and if the thirty day period has commenced, such thirty (30)
day period
will be suspended from the date such notice was given until the
Company
receives notice from the Insured that access is available to
it. If access
is in fact not available when sought by the Company after such
notice from
the Insured, the Company will promptly notify the Insured of
such
unavailability, and the passage of the thirty (30) day period
will remain
suspended as if the Insured’s notice of availability had not been given to
the Company.
|
|
c.
|
If
the Company has elected to acquire the Property in settlement
of a Claim,
the thirty (30) day period also will be suspended if necessary
for there
to be a period of ten (10) days after the date on which the Insured
satisfies all conditions to acquisition, including any required
restoration of the Property, for the Insured to deliver a recordable
deed
and title policy or opinion evidencing Good and Merchantable
Title (not
subject to any rights of redemption, unless the Company waives
such
requirement) and, if applicable, to deliver Possession of the
Property.
|
|
d.
|
If
the thirty (30) day period is suspended for more than one reason,
the
resulting suspended periods will only be cumulative if in fact
they occur
at different times; to the extent they occur simultaneously,
they will not
be cumulative.
|
|
6.5
|
Payment
by the Company After the Settlement Period
- If the Company has not paid a Loss during the Settlement
Period, then (a) the Company will include in its payment of Loss,
if a
Loss is ultimately payable, simple interest on the amount payable
accruing
after the Settlement Period to the date of payment of Loss at
the
applicable interest rate or rates which would have been payable
on the
Loan during such period, and (b) the Company will no longer be
entitled to
acquire the Property as an option for payment of the
Loss.
|
The
Company must either pay the amount of applicable Loss (including any additional
applicable interest as computed above) or deny the Claim in its entirety
within
(a) one hundred twenty (120) days after expiration of the Settlement Period,
or
(b) if the Settlement Period has not expired, no later than one hundred
eighty
(180) days after filing of the Claim. If at a later date it is finally
determined by agreement between the Insured and the Company (or by completion
of
legal or other proceedings to which the Insured and the Company are parties)
that the Company was not entitled to deny all or a portion of the Claim,
the
Company will include in any resulting subsequent payment of Loss interest
as
calculated above through the date of such payment on the amount of Loss
which
the Company was not entitled to deny.
|
6.6
|
Deductible
Losses
|
|
a.
|
Notwithstanding
any other provision of this Policy, the Company shall have no
liability to
pay any Loss until, and except to the extent that, the aggregate
amount of
the Deductible Loss shall exceed the Deductible Amount. The Insured
shall
remain solely responsible for all Deductible Loss up to the Deductible
Amount.
|
|
b.
|
A
Deductible Loss shall be calculated in the same manner as a Loss
under
Section 6.3(b) of this Policy in which there is an Approved Sale
except
that only interest accrued through the date of closing of the
Approved
Sale shall be includable in the Deductible Loss. A Deductible
Loss shall
only be charged to the Deductible Amount if a Claim for Loss
would have
been payable by the Company. The Insured shall comply with all
of the
requirements of this Policy which would be applicable if the
Company were
paying a Claim for Loss, including the requirements of Section
5.7
relating to the mitigation of the Company’s Loss. After an Approved Sale,
the Insured shall file a notice of Deductible Loss with the Company
at the
same time and in the same manner as it would file a Claim for
Loss and the
Company shall process the notice and determine the amount of
the
Deductible Loss as it would a Claim for Loss, and the Deductible
Loss
shall be charged to the Deductible Amount. The Company shall
advise the
Insured of its calculation of the Deductible Loss within sixty
(60) days
after filing of the notice of Deductible Loss by the
Insured.
|
|
7
|
Additional
Conditions
|
|
7.1
|
Proceedings
of Eminent Domain
- In the event that part or all of a Property is taken
by eminent
domain, or condemnation or by any other proceedings by federal,
state or
local governmental unit or agency, the Insured must require that
the
Borrower apply the maximum permissible amount of any compensation
awarded
in such proceedings to reduce the principal balance of the Loan,
in
accordance with the law of the jurisdiction where the Property
is
located.
|
|
7.2
|
Pursuit
of Deficiencies
|
|
a.
|
The
Insured will be entitled to pursue Appropriate Proceedings, or
shall at
the direction of the Company pursue Appropriate Proceedings through
the
end of the Settlement Period, which may result in the Borrower
becoming
liable for a deficiency after completion of the Insured’s acquisition of a
Property. Such pursuit may not be directed by the Company unless
such
deficiency is estimated to exceed $7,500. If the Company proposes
to
pursue a deficiency judgment, it will notify the Insured at least
thirty
(30) days before the foreclosure sale. If the Insured pursues
the
deficiency judgment, without direction from the Company, the Company shall
nonetheless be subrogated to such deficiency judgment rights
to the extent
permitted by Section 7.3.
|
|
b.
|
The
following provisions will apply if, in completing Appropriate
Proceedings
there are additional expenses advanced pursuant to Section 5.8
or
additional interest accrued on the Loan, to the extent not payable
under a
Primary Policy, due to (1) an additional redemptive period or
a delay in
acquisition of title, which period or delay is directly related
to
establishing the deficiency judgment or (2) legal proceedings
which are
necessary to establish and pursue the deficiency judgment and
which would
not otherwise be the custom and practice
used.
|
|
i.
|
If
the deficiency judgment is to be established for the account
of the
Company, the Company must pay the Insured at the time of payment
of the
Claim, the full amount of:
|
|
a.)
|
such
additional expenses advanced pursuant to Section 5.8 by the Insured;
and
|
|
b.)
|
such
additional interest accrued on the unpaid principal balance of
the Loan at
the contract rate stated in the Loan, but excluding applicable
late
charges, penalty interest, or other changes to the interest rate
by reason
of Default.
|
|
ii.
|
All
of the additional interest, expenses, attorney’s fees and court expenses
described in subparagraph (i) above will be accrued or advanced
only
through acquisition of Good and Merchantable Title, including
any
additional redemptive period or such shorter time period as may
be
applicable under Section 5.10.
|
|
7.3
|
Subrogation
- Subject to Section 7.2(a), and only to the extent that
the
Company is entitled under applicable law to pursue such deficiency
rights,
the Company will be subrogated, upon payment of the Loss, in
the amount
thereof and with an equal priority to all of the Insured’s rights of
recovery against a Borrower and any other Person relating to
the Loan or
to the Property, to the extent such rights remain after settlement
of the
claim under an applicable Primary Policy. The Insured must execute
and
deliver at the request of the Company such instruments and papers
and
undertake such actions as may be necessary to transfer, assign
and secure
such rights. The Insured shall refrain from any action, either
before or
after payment of a Loss, that prejudices such
rights.
|
|
7.4
|
Policy
for Exclusive Benefit of the Insured
- An Approval of Coverage, this Policy and the coverage
provided
under this Policy will be for the sole and exclusive benefit
of the
Insured and permitted assigns, and in no event will any Borrower
or other
Person be deemed a party to, or an intended beneficiary of, such
Approval
of Coverage, this Policy or any coverage
hereunder.
|
|
7.5
|
Effect
of Borrower Insolvency or Bankruptcy on Principal
Balance
- If under applicable insolvency or bankruptcy law, a
Loan’s
principal balance secured by a Property is reduced (after all
appeals of
such reduction are final or the time for such appeals has lapsed
without
appeal), the portion of such principal balance of the Loan not
secured by
the Property, and related interest, will be includable in the
Claim
Amount, as provided in this Section
7.5.
|
If
a
Default occurs on the Loan, the Insured has acquired Good and Merchantable
Title
to the Property as required by this Policy, and all other requirements
for
filing of a Claim are complied with, the Insured will be entitled to include
in
the Claim Amount (a) the amount of the principal balance of the Loan which
was
deemed unsecured under applicable insolvency or bankruptcy law, less any
collections or payments on such unsecured principal balance received by
the
Insured, and (b) interest thereon at the rate and as computed in Section
6.2,
from the date of Default giving rise to the Claim (but for no prior period),
whether payable directly or by an addition to the principal balance which
is
includable in the Claim Amount, and (c) reasonable and necessary expenses
incurred by the Insured which are associated with the amount by which the
principal balance of the Loan became unsecured.
|
7.6
|
Arbitration
of Disputes, Suits and Actions Brought by the
Insured
|
|
a.
|
Unless
prohibited by applicable law, all controversies, disputes or
other
assertions of liability or rights arising out of or relating
to this
Policy, including the breach, interpretation or construction
thereof,
shall be settled by arbitration. Notwithstanding the foregoing,
the
Company or the Insured both retain the right to seek a declaratory
judgment from a court of competent jurisdiction on matters of
interpretation of the Policy. Such arbitration shall be conducted
in
accordance with the Title Insurance Arbitration Rules of the
American
Arbitration Association in effect on the date the demand for
arbitration
is made, or if such Rules are not then in effect, such other
Rules of the
American Arbitration Association as the Company may designate
as its
replacement.
|
The
arbitrator(s) shall be neutral person(s) selected from the American Arbitration
Association’s National Panel of Arbitrators familiar with the mortgage lending
or mortgage guaranty insurance business. Any proposed arbitrator may be
disqualified during the selection process, at the option of either party,
if he
is, or during the previous two (2) years has been, an employee, officer
or
director of any mortgage guaranty insurer, or of any entity engaged in
the
origination, purchase, sale or servicing of mortgage loans or mortgage-backed
securities.
|
b.
|
No
suit or action (including arbitration hereunder) brought by the
Insured
against the Company with respect to the Company’s liability for a Claim
under this Policy shall be sustained in any court of law or equity
or by
arbitration unless the Insured has substantially complied with
the terms
and conditions of this Policy, and unless the suit or action
is commenced
within three (3) years (five (5) years in Florida or Kansas)
after the
Insured has acquired Good and Merchantable Title to the Property,
an
Approved Sale of the Property is completed, or other basis for
filing a
Claim arises, whichever is applicable to a Loan. The foregoing
requirement
for substantial compliance shall not be applicable to the extent
that such
substantial compliance is at issue in the suit or action. No
such suit or
action with respect to a Claim may be brought by the Insured
against the
Company until sixty (60) days after such acquisition of Good
and
Merchantable Title or Approved Sale, as applicable to a
Loan.
|
|
c.
|
If
a dispute arises concerning the Loan which involves either the
Property or
the Insured, the Company has the right to protect its interest
by
defending the suit, even if the allegations contained in such
suit are
groundless, false or fraudulent. The Company is not required
to defend any
lawsuit involving the Insured, the Property or the
Loan.
|
|
7.7
|
Release
of Borrower; Defenses of Borrower
- The Insured’s execution of a release or waiver of the right to
collect any portion of the unpaid principal balance of a Loan
or other
amounts due under the Loan will release the Company from its
obligation
with respect to such Loan to the extent and amount of said release.
If,
under applicable law, the Borrower successfully asserts defenses
which
have the effect of releasing, in whole or in part, the Borrower’s
obligation to repay the Loan, or if for any other reason the
Borrower is
released from such obligation, the Company will be released to
the same
extent and amount from its liability under this Policy, except
as provided
by Section 7.5.
|
|
7.8
|
Amendments;
No Waiver; Rights and Remedies; Use of Term
“Including”
|
|
a.
|
The
Company reserves the right to amend the terms and conditions
of this
Policy from time to time; provided, however, that any such amendment
will
be effective only after the Company has given the Insured written
notice
thereof by endorsement setting forth the amendment. Such amendment
will
only be applicable to those Loans where the date of the related
Approval
of Coverage was issued on or after the effective date of the
amendment.
|
|
b.
|
No
condition or requirement of this Policy will be deemed waived,
modified or
otherwise compromised unless that waiver, modification or compromise
is
stated in a writing properly executed on behalf of the Company.
Each of
the conditions and requirements of this Policy is severable,
and a waiver,
modification or compromise of one will not be construed as a
waiver,
modification or compromise of any
other.
|
|
c.
|
No
right or remedy of the Company provided for by this Policy will
be
exclusive of, or limit, any other rights or remedies set forth
in this
Policy or otherwise available to the Company at law or
equity.
|
|
d.
|
As
used in this Policy, the term “include” or “including” will mean “include
or including, without limitation.”
|
|
7.9
|
No
Agency
- Neither the Insured, any Servicer, nor any of their
employees
or agents (including the Persons underwriting the Loan on behalf
of the
Insured), will be deemed for any reason to be agents of the Company.
Neither the Company, nor any of its employees or agents, will
be deemed
for any reason to be agents of any Insured or
Servicer.
|
|
7.10
|
Successors
and Assigns
- This Policy will inure to the benefit of and shall
be binding
upon the Company and the Insured and their respective successors
and
permitted assigns, it being recognized that assignment by the
Insured of
this Policy and its benefits is limited by Sections 1.20 and
3.5.
|
|
7.11
|
Applicable
Law and Conformity to Law
- All matters under this Policy will be governed by and
construed
in accordance with the laws of the jurisdiction in which the
office of the
original Insured under this Policy is located. Any provision
of this
Policy which is in conflict with any provision of the law of
such
jurisdiction is hereby amended to conform to the provisions required
by
that law.
|
|
7.12
|
Notice
- All claims, premium payments, tenders, reports, other
data and
any other notices required to be submitted to the Company by
the Insured
must be sent to the Company at MGIC Plaza, 000 Xxxx Xxxxxxxx
Xxxxxx,
Xxxxxxxxx, XX 00000. The Company may change this address by giving
written
notice to the Insured. Unless the Insured otherwise notifies
the Company
in writing, all notices to the Insured must be sent to the address
on the
face of this Policy or, if the Insured is not located at such address, to
the last known address of the
Insured.
|
All
notices under this Policy, whether or not identified in this Policy as
required
to be in writing, will be effective only if in writing and only upon receipt
thereof. Written notices may instead be given in the form of telecopy or,
if
acceptable to the Company (for notices given to the Company) or to the
Insured
(for notices given to the Insured) in the form of computer tape or
computer-generated or any other electronic message. A telecopy or such
tape or
message shall be effective only when received. The Company and the Insured
may
mutually agree that notices will be sent to any additional Person. Except
as
expressly agreed to by the Company and the Insured, no liability shall
be
incurred by the Company for the failure to give a notice to a Person other
than
the Insured.
|
7.13
|
Reports
and Examinations
- The Company may request, and the Insured must provide,
such
files, reports or information as the Company may deem necessary
pertaining
to any Loan, and the Company will be entitled to inspect the
files, books
and records of the Insured or any of its representatives pertaining
to
such Loan.
|
|
7.14
|
Electronic
Media
- The Company and the Insured may, from time to time,
deliver or
transfer information, documents or other data between them by
electronic
media acceptable to them. In addition, the Company and the Insured
may
maintain information, documents or other data on electronic media
or other
media generally accepted for business records, including microfiche.
Such
electronic or other media will be as equally acceptable for all
purposes
between the Insured and the Company as information, documents
or other
data maintained in printed or written
form.
|
|
7.15
|
Reporting
of Loan Balances, Prepayments and Assumptions
- The Insured shall provide or cause to be provided to
the
Company no less often than annually information concerning the
current
unpaid principal balance of each Loan insured under this Policy,
including
information as to which Loans have prepaid in full or which have
been
assumed.
|
EXHIBIT
0
TERMS
LETTER
|
Mortgage
Guaranty Insurance Corporation
|
 |
|
Xxxxxx
X. Xxxxxxxx
Vice
President
Risk
Management
|
May
15,
2006
|
Xx.
Xxxxxxx Xxx
|
Ronaldo
X. Xxxxx
|
|
Greenwich
Capital Markets, Inc.
|
Deutsche
Bank National Trust Company as Trustee
|
|
000
Xxxxxxxxx Xxxx
|
For
Soundview Home Loan Trust Series 2006-OPT4
|
|
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Asset-Backed
Certificates, Series 2006-OPT4
|
|
0000
Xxxx Xx. Xxxxxx Xxxxx
|
|
|
Xxxxx,
Xxx, Xxxxxxxxxx 00000
|
|
|
RE:
|
Terms
for MGIC Pool Coverage (“Coverage") on Approximately $942 Million in
Principal Balance of Loans (the “Insurable Loans”) to be included in the
Trust known as the Soundview Home Loan Trust Series 2006-OPT4 (the
"Trust")
|
Dear
Mr.
Leo and Xx. Xxxxx:
Mortgage
Guaranty Insurance Corporation ("MGIC") has reviewed the information provided
by
Greenwich Capital Markets, Inc. (“Greenwich”) concerning the Insurable Loans and
is providing pricing and terms to issue lender-paid first lien Coverage under
the Pool Policy (as defined below) on the loans contained within the portfolio.
This proposal is subject to the following terms and conditions:
Portfolio
Size.
MGIC
will insure all first-lien loans identified on the Final File (as defined
below)
totaling an approximate aggregate principal balance of nine hundred forty
two
million dollars ($942,000,000). The actual size of the final portfolio of
Insurable Loans may be slightly different based on loan removals, additions
and
substitutions due to prepayments, delinquencies, and/or additional screening
of
loan eligibility.
|
2.
|
Loan
Coverage.
Lender-paid mortgage insurance will be issued on each mortgage
loan that
meets the applicable Eligibility Criteria (as set forth in Section
8) (an
“Insured Loan”). Each Insured Loan will be assigned a Certificate Number
and listed on the Approval of Coverage provided by MGIC to the
Insured
upon issuance of the Pool Policy.
|
|
3.
|
Premium.
Upon issuance of the Pool Policy, Greenwich on behalf of the Trust
shall
pay (or cause to be paid) a nonrefundable single premium for the
Coverage
calculated at a premium rate of forty five (45) basis points, applied
to
the stated principal balance as the Coverage Effective Date of
the
Insurable Loans.
|
With
respect to all Insured Loans, Greenwich represents and warrants that (a)
the
borrower will not be charged a separate or identified amount as payment or
reimbursement for premiums for Coverage and that such premiums will be paid
from
funds of the Insured or persons other than the borrower, and (b) that the
Coverage will either not be subject to the Homeowners Protection Act of 1998
or
will be “lender paid mortgage insurance” thereunder. In addition, with respect
to any Insured Loan secured by a property in New York State for which, at
the
effective date of Coverage or at any time while the Pool Policy is in effect
for
such Insured Loan, the ratio of the unpaid principal balance of such Insured
Loan to the Value of the related property at origination is less than 75%,
Greenwich represents and warrants that all premiums for Coverage will not
be
paid by the borrower, directly or indirectly, including, for example, by
a
higher interest rate or other charges. It is acknowledged that these
representations and warranties are relied upon by MGIC in insuring such Insured
Loans because they relate to the maintenance of Coverage of such Insured
Loans
under the Pool Policy.
|
4.
|
Deductible
Amount and Aggregate Loss Limit.
There will be a Deductible Amount to be calculated as 675 basis
points
(6.75%) of the aggregate stated principal balance of all of the
mortgage
loans held by the Trust following the end of the funding period
(the
“Total Initial Principal Balance”) established under the Pool Policy. The
terms of the deductible will require the Trust to absorb the first
675
basis points of aggregate losses which would otherwise be payable
by MGIC
under the Pool Policy.
|
There
will be an Aggregate Loss Limit calculated as 1010 basis points (10.10%)
of the
Total Initial Principal Balance established under the Pool Policy, such
Aggregate Loss Limit to be inclusive of the Deductible Amount. As a result,
MGIC’s Losses payable under the Pool Policy will be limited in the aggregate to
335 basis points of the Total Initial Principal Balance.
|
5.
|
Effective
Date of Pool Policy and Coverage Under the Policy.
The Pool Policy and coverage for all Insured Loans thereunder shall
take
effect as of May 1, 2006.
|
|
6.
|
Named
Insured. Deutsche
Bank National Trust Company (“Deutsche Bank”, the “Insured”), solely in
its capacity as Trustee shall be the named insured under the Pool
Policy.
|
|
7.
|
Cancellation
of Policy and Coverage of Insured Loans Upon Termination of
Trust.
As
provided for in Section 2.9 of the Pool Policy, in the event of
a
Redemption or termination of the Trust for any other reason, or
if there
are no longer any Insured Loans that are security for, or represented
by,
the Trust, the Pool Policy and the Coverage of all Insured Loans
under the
Pool Policy shall automatically be terminated effective upon such
event,
without further action being required by either the Insured or
MGIC. Any
Default on any Insured Loan existing at the time of such termination
(other than Defaults for which a Claim had been filed prior to
the date of
such termination) and any future Default on an Insured Loan will
not be
covered under the Pool Policy, nor will any refund of premium be
paid.
|
|
8.
|
Loan
Eligibility Criteria.
Under the Pool Policy, "Eligibility Criteria" may be established
by MGIC
upon notice to the Insured. This letter will serve as such notice
for
purposes of the Pool Policy and will apply to all Insured Loans.
All
Insured Loans must meet the following Eligibility Criteria as of
the Pool
Policy Effective Date or as of such other date as otherwise noted
below:
|
| a) |
CLTVs
(Combined LTVs). With
respect to any Insured Loan, The CLTV (as defined below) may not
exceed
the Original LTV, except for loans for which the CLTV is specifically
disclosed to exceed the Original LTV on the Final File. The CLTV
may not
exceed 100% in any case.
|
| The combined loan-to-value ratio ("CLTV") is defined as the ratio, expressed as a percentage, of the sum, as of the date of Insured Loan closing, of (1) the loan amount of the Insured Loan and (2) the outstanding principal balance of any other loan or loans secured by the property which are either (a) subordinated to the lien of the Insured Loan or (b) a second lien loan, divided by the Value of the property. |
| b) |
Compliance
with Laws; Section 32 (HOEPA) loans.
Each Insured Loan was originated in compliance with all applicable
laws
and regulations including, but not limited to, any “fair lending” state
laws to which such Insured Loans is subject, and no Insured Loan
can be a
loan which would be required to comply with Section 226.32 of the
federal
truth-in-lending regulations (commonly referred to as a "HOEPA
loan").
|
| c) | Delinquencies. For an Insured Loan, the Borrower must have made from the Borrower’s Own Funds (a) the first regular periodic payment and (b) all subsequent regular periodic payments with a scheduled due date earlier than the first day of the month immediately preceding the Certificate Effective Date. For the avoidance of doubt, an Insured Loan satisfies the foregoing sentence as of May 1, 2006 if all scheduled periodic payments due on or before March 31, 2006 have been paid by the related borrower. |
| d) | Single Property. An Insured Loan must be secured by only one property. |
| e) | Loan Instrument Type. An Insured Loan must be positively amortizing or interest-only. Negatively amortizing loans are not eligible. |
| f) | Property Type and Units. An Insured Loan must be secured by only a 1-4 family residential property located in the United States. Eligible property types include single-family detached and attached (including condominiums, PUDs that meet Xxxxxx Xxx or Xxxxxxx Mac requirements, and cooperative housing). |
| g) | Properties with Physical Damage. No Insured Loan may be secured by a property which sustained Physical Damage at any time prior to the Approval of Coverage Issuance Date reflected on the face of the Approval of Coverage and for which the aggregate cost to repair all such Physical Damage to the property and restore such property to its condition at closing of such Insured Loan exceeds Five Thousand Dollars ($5,000.00) and for which such repair and restoration has not been completed as of the Approval of Coverage Issuance Date. |
| h) | Property Valuation. For an Insured Loan, the Value as represented on the Final File must have been obtained as the result of an appraisal as documented on the Universal Residential Appraisal Report or its equivalent and not as the result of an alternative valuation methodology such as an automated valuation model unless the use of such alternative evaluation methodology is disclosed in the Final File. |
|
9.
|
Pool
Policy.
All Coverage issued hereunder shall be subject to the terms and
conditions
of Mortgage Trust Bulk Supplemental Policy [MGIC form #71-70289
(3/06)]
with #71-70290 (5/06)] (the “Pool Policy”) attached as Exhibit A.
|
|
10.
|
Underwriting.
MGIC has been advised that the Insured Loans were made and underwritten
by
the originators in accordance with the underwriting requirements
of Option
One (the “Underwriting Requirements”). Greenwich represents and warrants
to MGIC that each Insured Loan meets (a) the Eligibility Criteria
set
forth in Section 8 and (b) in all material respects, the Underwriting
Requirements. If the Underwriting Requirements are inconsistent
with the
Eligibility Criteria, the Insured Loans must comply with the Eligibility
Criteria to the extent of any such inconsistency. Greenwich and
the
Insured acknowledge and agree that MGIC shall be entitled to rely
upon the
representation and warranty set forth in the preceding
sentence.
|
|
11.
|
Final
File.
Greenwich will deliver to MGIC a final data file for the initial
loan
portfolio described in Section 1 (in a form mutually agreed to
by the
parties) (the "Initial File") of Insurable Loans that meet the
Eligibility
Criteria. The Initial File and the Subsequent File together shall
be
referred to as the “Final File”. The Final File will constitute an
Application for Coverage under the Pool Policy and this letter
and any
other information provided to MGIC will be considered part of that
Application.
|
|
12.
|
Servicing
of Insured Loans under the Pool Policy.
Greenwich and the Insured acknowledge that (1) under Section 3.4
of the
Pool Policy if there is a change of Servicer, Coverage of an Insured
Loan
continues provided that (a) prior written notice of the new Servicer
is
given to MGIC and (b) the new Servicer is approved in writing by
MGIC in
advance of such change of Servicer, and that (2) under Section
4.6 of the
Pool Policy a Claim occurring on an Insured Loan when the Servicer
for
such Insured Loan is not approved by MGIC is excluded from Coverage
under
the Pool Policy. MGIC shall notify the Insured if the new Servicer
is
approved within five (5) business days of receipt of such notice
and such
approval shall not be withheld if the new Servicer has a mortgage
loan
servicing rating of "RPS2-" or better from Fitch Ratings, "Above
Average"
or better from Standard & Poor's Rating Services, or “SQ2” or better
from Xxxxx’x Investor Services.
|
|
13.
|
Accuracy
of Information and Representations and Warranties and
Covenants.
Greenwich acknowledges and agrees that (a) the mortgage loan
information for each Insurable Loan included in the Application
and
provided to MGIC prior to issuance of Coverage is material to MGIC’s
decision as to whether to issue such Coverage on such Insurable
Loan, and
(b) MGIC is relying on such information in issuing such Coverage on
such Insurable Loan.
|
|
It
is understood that information relating to the Insured Loans will
be
delivered to MGIC by electronic format, and that MGIC will not
individually underwrite each Insured Loan to determine whether
information
included in the Application is true, correct and accurate and whether
the
Insured Loans meet the Eligibility Criteria. In extending this
offer to
insure, MGIC is relying on the truth and accuracy of the information
in
the Application and Greenwich’s representation as to compliance with the
Eligibility Criteria relating to the Insured Loans. The submission
of
inaccurate information in the Application which, in MGIC's reasonable
judgment, is material to the acceptance or pricing of the risk
with
respect to any Insured Loan or failure to comply with Eligibility
Criteria
for an Insured Loan, may result in rescission or cancellation of
Coverage
on the affected Insured Loan, with a refund of all premium paid
with
respect thereto. MGIC has no obligation to insure loans which do
not meet
the requirements of this letter.
|
| For purposes of the Pool Policy, all of the representations and warranties and other covenants of Greenwich in this letter will be considered to be made on behalf of the Insured under the Pool Policy, and the representations and warranties of the Insured in Section 2.2 of the Pool Policy shall be deemed to have been made by Greenwich on behalf of the Insured. However, MGIC's rights and remedies for a breach thereof shall be limited to MGIC's rights and remedies under the Pool Policy and no other rights or remedies of MGIC shall be implied or created by this letter. |
|
14.
|
Counterparts
and Facsimile Signatures; Capitalized Terms.
This letter agreement may be executed in separate counterparts,
each of
which shall be deemed an original but all of which together will
constitute but one agreement, and will become effective when each
party
has executed one or more counterparts and delivered same to the
other
parties. This letter agreement may also be executed by facsimile
signatures, which will be as effective as original signatures.
All
capitalized terms in this letter, unless defined herein, shall
have the
respective meanings as set forth in the Pool Policy or on the Approval
of
Coverage.
|
It
is
acknowledged that although Deutsche Bank has executed this letter prior to
its
becoming Trustee for the benefit of the holders of the Trust, its execution
hereof only will become effective as of the date it becomes Trustee.
If
the
foregoing terms and conditions accurately reflect the agreement among MGIC,
Greenwich and Deutsche Bank as Trustee, as the Insured, please acknowledge
this
letter as your request for insurance of the Insured Loans and your acceptance
of
its terms by signing it in the space provided below at your earliest
convenience. Deutsche Bank is signing solely as the Trustee and only the
Trustee; Deutsche Bank personally is not responsible or liable for any
representations, warranties, covenants, or obligations herein except in its
capacity as Trustee, the Insured. In order for this letter to be binding
on
MGIC, it must be signed and returned to me within 30 days subsequent to the
date
of this letter, and the Pool Policy must be issued no later than 60 days
subsequent to the date of this letter.
Please
call me if you have any questions.
Sincerely,
Xxxxxx
X.
Xxxxxxxx
Vice
President
Risk
Management
Exhibit
A: Mortgage Trust Bulk Supplemental Policy [MGIC form #71-70289 (3/06)] with
#71-70290 (5/06)]
Terms
for MGIC Pool Coverage on Loans to be included in the Trust known as
Soundview
Home Loan Trust Series 2006-OPT4
The
foregoing terms, conditions and provisions are hereby accepted, acknowledged
and
agreed to by Greenwich Capital Markets, Inc. and by Deutsche Bank as Trustee
for
the Trust.
GREENWICH
CAPITAL MARKETS, INC.
|
By:
|
Dated:
|
|||
|
Name:
|
|
|||
|
Title:
|
|
|||
DEUTSCHE
BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR SOUNDVIEW
HOME LOAN TRUST SERIES 2006-OPT4
|
By:
|
Dated:
|
|||
|
Name:
|
|
|||
|
Title:
|
|
|||
EXHIBIT
P
FORM
OF
ANNUAL STATEMENT AS TO COMPLIANCE
___________________
Trust, Series 200_-___
_______________
Pass-Through Certificates
I,
_____________________, hereby certify that I am a duly appointed
__________________________ of _______________________________ (the
“[Servicer]”), and further certify as follows:
1. This
certification is being made pursuant to the terms of the Pooling and Servicing
Agreement, dated as of ____________, _____ (the “Agreement”), among
______________________, as depositor, the [Servicer], as [servicer] and
________________, as trustee.
2. I
have
reviewed the activities of the [Servicer] during the preceding year and the
[Servicer’s] performance under the Agreement and to the best of my knowledge,
based on such review, the [Servicer] has fulfilled all of its obligations under
the Agreement throughout the year.
Capitalized
terms not otherwise defined herein have the meanings set forth in the
Agreements.
Dated:
_________________
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
_____________.
|
By:
|
||
|
Name:
|
||
|
Title:
|
I,
_________________________, a (an) __________________ of the [Servicer], hereby
certify that _________________ is a duly elected, qualified, and acting
_______________________ of the [Servicer] and that the signature appearing
above
is his/her genuine signature.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________.
|
By:
|
||
|
Name:
|
||
|
Title:
|
EXHIBIT
Q
FORM
OF
INTEREST RATE SWAP AGREEMENT
Dated:
May 26, 2006
Rate
Swap Transaction
Re:
WB
Reference Xx. 0000000 / 0000000
Ladies
and Gentlemen:
The
purpose of this letter agreement (“Agreement”)
is to
confirm the terms and conditions of the rate Swap Transaction entered into
on
the Trade Date specified below (the “Transaction”)
between Wachovia Bank, N.A. (“WB”),
and
Deutsche Bank National Trust Company, not in its individual capacity, but
solely
as supplemental interest trust trustee (the “Supplemental
Interest Trust Trustee”)
for
the supplemental interest trust (the “Supplemental
Interest Trust”
or
the
“Counterparty”)
with
respect to the Soundview Home Loan Trust 2006-OPT4 Asset-Backed Certificates,
Series 2006-OPT4, under the pooling and servicing agreement dated as of May
26,
2006, among Financial Asset Securities Corp., as depositor (the “Depositor”),
Option One Mortgage Corporation, as servicer (the “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, lesser of (1) the Calculation
Amount
set forth for such period on Schedule I attached hereto, and (2)
(a) the
aggregate Certificate Principal Balance of the Floating Rate Certificates
immediately preceding the Distribution Date which occurs on or
abut the
Floating Rate Payer Period End Date for such Distribution Date
divided by
(b) 250.
|
|
Trade
Date:
|
May
22, 2006
|
|
Termination
Date:
|
March
25, 2011, subject to adjustment in accordance with the Following
Business
Day Convention.
|
FIXED
AMOUNTS
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate Payer
|
|
|
Effective
Date:
|
June
25, 2006
|
|
Fixed
Rate:
|
5.455%
|
|
Fixed
Rate Day Count
|
|
|
Fraction:
|
30/360
|
|
Fixed
Rate Payer
|
|
|
Period
End Dates:
|
The
25th
day of each month, beginning on July 25, 2006 and ending on the
Termination Date with No Adjustment, provided that for purposes
of
determining the Final Fixed Rate Payer Period End Date, the Termination
Date will not be adjusted in accordance with the Following Business
Day
Convention.
|
|
Fixed
Rate Payer
|
|
|
Payment
Dates:
|
The
25th
day of each month, beginning on July 25, 2006 and ending on the
Termination Date, subject to adjustment in accordance with the
Following
Business Day Convention.
|
|
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:
|
WB
|
|
Floating
Rate Payer
|
|
|
Effective
Date:
|
June
26, 2006
|
|
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 July 25, 2006 and ending on the
Termination Date, subject to adjustment in accordance with the
Following
Business Day Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
The
25th
day of each month, beginning on July 25, 2006 and ending on the
Termination Date, subject to adjustment in accordance with the
Following
Business Day Convention.
|
|
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
|
|
Compounding:
|
Inapplicable
|
|
Business
Days for Payments
|
|
|
By
both parties:
|
New
York
|
|
Calculation
Agent:
|
WB
|
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 XxXxxx-Xxxx Companies, Inc
(“S&P”)
and
Xxxxx’x 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”)
and
any notes backed by the Certificates (the “Notes”).
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 WB or the Counterparty for any purpose.
|
|
(b)
|
The
“Breach
of Agreement”
provision of Section 5(a)(ii) will not apply to WB or the
Counterparty.
|
|
(c)
|
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to WB (with respect
to credit
support furnished pursuant to Paragraph 4(9) below) but will not
apply to
the Counterparty.
|
|
(d)
|
The
“Misrepresentation”
provisions of Section 5(a)(iv) will not apply to WB or the
Counterparty.
|
|
(e)
|
“Default
under Specified Transaction”
is not applicable to WB or the Counterparty for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to WB or the
Counterparty.
|
|
(f)
|
The
“Cross
Default”
provisions of Section 5(a)(vi) will not apply to WB or to the
Counterparty.
|
|
(g)
|
The
“Bankruptcy”
provisions of Section 5(a)(vii) (2) will not apply to 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 WB or the
Counterparty.
|
|
(i)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to WB 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), WB 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), WB and the Counterparty make the
following representations.
|
(i)
The
following representation will apply to WB:
(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 national banking association organized or formed under
the
laws of the United States, and (z) it is a resident of the United States
for
federal income tax purposes.
|
(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
|
|
WB
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
|
|
WB
|
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
|
|
WB
|
A
copy of the most recent publicly available regulatory call
report.
|
Promptly
after request by the other party
|
Yes
|
|
WB
and Counterparty
|
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 WB:
Wachovia
Bank, NA
000
Xxxxx
Xxxxxxx Xxxxxx
XX-0
Xxxxxxxxx,
XX 00000-0000
Attn:
Xxxxx X. Xxxxx
Senior
Vice President, Risk Management
Tele:
000-000-0000
Fax:
000-000-0000
(For
all
purposes)
Address
for notices or communications to the Counterparty:
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, XX 00000-0000
Attn:
Mei Tglia
Tele:
000-000-0000
Fax:
000-000-0000
(b)
Process
Agent.
For the
purpose of Section 13(c):
WB
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
WB nor the Counterparty have any Offices other than as set forth
in the
Notices Section and WB 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):
|
WB
is not
a Multibranch Party.
The
Counterparty is not a Multibranch Party.
|
(e)
|
Calculation
Agent.
The Calculation Agent is WB.
|
(f)
Credit
Support Document. Not
applicable for either WB (except with respect to credit support furnished
pursuant to Paragraph 9) or the Counterparty.
|
(g)
|
Credit
Support Provider.
|
|
WB:
|
Not
Applicable (except with respect to credit support furnished pursuant
to
Paragraph 4(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 provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5,6, or 13 (or any definition
or
provision in Section 14 to the extent it relates to, or is used
in or in
connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
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.
To
the extent permitted by applicable law, 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.
WB
shall not institute against or cause any other person to institute
against, or join any other person in instituting against the Counterparty,
the Supplemental Interest Trust, or the trust formed pursuant to
the
Pooling and Servicing Agreement, 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 and any Notes.
This
provision shall survive the expiration of this Agreement provided
that nothing herein shall preclude, or be deemed to estop, WB from
taking
any action in any case or proceeding voluntarily filed or commenced
by or
on behalf of Counterparty by a party other than WB or any of WB’s
Affiliates or in any involuntary case or proceeding after it has
commenced.
|
|
(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 Deutsche
Bank National Trust Company (“Deutsche Bank”), 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 will Deutsche Bank, 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.
Deutsche Bank, 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.
|
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) and
3(h):
|
|
“(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.
|
|
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) and without
limiting
any set off rights contained in any Credit Support Annex that may
be
entered into pursuant to Paragraph 4(9)(ii)(A)(1), 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.
WB
fails to comply with the ratings downgrade provisions as set forth
in
Paragraph 4(9). WB 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 ISDA Form Master Agreement, both WB 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 any related
Monthly
Interest Distributable Amount or any amount in respect of principal
required to be paid pursuant to the terms of the Pooling and Servicing
Agreement.
|
| (iv) |
Amendment
without Consent.
The Pooling and Servicing Agreement is amended in a manner which
could
have a material adverse effect on WB without the prior written
consent of
WB, where such consent is required under the Pooling and Servicing
Agreement (such consent not to be unreasonably
withheld).
|
| (v) |
Provision
of Information Required by Regulation AB.
The occurrence of a Swap Disclosure Event (as defined in Paragraph
4(11)(i)and WB has not within five Business Days after such Swap
Disclosure Event (without giving effect to any grace period otherwise
provided herein or otherwise) complied with any of the provisions
set
forth in Paragraph 4(11)(ii) WB shall be the sole Affected
Party.
|
Unrescindable
notice is given by the Servicer that it will purchase all Mortgage Loans
in
accordance with Section 10.01 of the Pooling and Servicing Agreement. With
respect to this Additional Termination Event, Counterparty shall be the sole
Affected Party and this Transaction shall be the sole Affected Transaction;
provided, however, that notwithstanding Section 6(b)(iv) of the ISDA Form
Master
Agreement, either party may designate an Early Termination Date in respect
of
this Additional Termination Event; provided, further, that such Early
Termination Date shall not be prior to the final Distribution Date. If such
an
Additional Termination Event occurs, then, for purposes of determining the
related payment under Section 6(e) of the ISDA Form Master Agreement, for
all
Calculation Periods beginning after the related Early Termination Date, the
definition of Notional Amount in the Confirmation shall be deleted in its
entirety and replaced with the following: With respect to each Calculation
Period, the Calculation Amount for such Calculation Period as set forth in
the
Schedule of Calculation Amounts attached hereto multiplied by a factor. The
factor will be set in connection with such Early Termination Date to be equal
to
the quotient of (i) the Notional Amount immediately prior to the Early
Termination Date divided by (ii) the Calculation Amount for such Calculation
Period set forth in the Schedule of Calculation Amounts attached
hereto.
9) Ratings
Downgrade. For
purposes of each Transaction:
(i) Certain
Definitions.
(A)
“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 the
applicable Rating Agencies, and shall have provided notice thereof to WB,
that
the proposed action or inaction would not cause a downgrade or withdrawal
of
their then-current ratings of the Certificates.
(B)
“Qualifying
Ratings”
means,
with respect to the debt of any assignee or guarantor under Paragraph 4(9)(ii)
below,
(x) a
short-term unsecured and unsubordinated debt rating of “P-1” (not on watch for
downgrade), and a long-term unsecured and unsubordinated debt of ”A1” (not on
watch for downgrade) (or, if it has no short-term unsecured and unsubordinated
debt rating, a long term rating of “Aa3” (not on watch for downgrade) by
Xxxxx’x, and
(y) a
short-term unsecured and unsubordinated debt rating of “A-1” by S&P, and
(z) a
short-term unsecured and unsubordinated debt rating of “F-1” by
Fitch.
(C)
A
“Collateralization
Event”
shall
occur with respect to WB (or any applicable credit support provider)
if:
(x) its
short-term unsecured and unsubordinated debt rating is reduced to “P-1” (and is
on watch for downgrade) or below, and its long-term unsecured and unsubordinated
debt is reduced to ”A1” (and is 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” (and is on watch for downgrade) or below) by Xxxxx’x,
or
(y) its
short-term unsecured and unsubordinated debt rating is reduced below “A-1” by
S&P; or
(z) its
short-term unsecured and unsubordinated debt rating is reduced below “F-1” by
Fitch.
(D) A
“Ratings
Event”
shall
occur with respect to WB (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 Xxxxx’x 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
Xxxxx’x, or
(y) its
long-term unsecured and unsubordinated debt rating is withdrawn or reduced
below
“BBB-” by S&P, or
(z) its
long-term unsecured and unsubordinated debt rating is withdrawn or reduced
below
“BBB-” by Fitch.
|
(E)
|
“Permitted
Transfer”
means a transfer, in whole but not in part, of all of WB’s rights and
obligations under this Agreement and which meets all of the following
requirements:
|
(v)
the
transferee is a recognized dealer in interest rate swaps organized under
the
laws of the United States of America or a jurisdiction located in the United
States of America (or another jurisdiction reasonably acceptable to Party
B
that, at the time of the transfer, maintains the Qualifying
Ratings;
(w)
the
Rating Agency Condition is satisfied with respect to such transfer;
(x) neither
an Event of Default with respect to the transferee nor a Termination Event
would
exist immediately after that transfer;
(y) the
transferee executes and delivers a written agreement reasonably satisfactory
to
Counterparty under the Pooling and Servicing Agreement in which the transferee,
among other things, legally and effectively accepts all the rights and assumes
all the obligations of WB under this Agreement; and
(z) as
of the
date of such transfer neither the Transferee nor Counterparty will be required
to withhold or deduct on account of any Tax from any payments under this
Agreement in excess of what would have been required to be withheld or deducted
in the absence of such transfer.
For
purposes of (C) and (D) above, such events include those occurring in connection
with a merger, consolidation or other similar transaction by WB or any
applicable credit support provider, but they shall be deemed not to occur
if,
within 30 days (or, in the case of a Ratings Event, 10 Business Days)
thereafter, each of the applicable Rating Agencies has reconfirmed the ratings
of the Certificates and any Notes, as applicable, which were in effect
immediately prior thereto. For the avoidance of doubt, a downgrade of the
rating
on the Certificates or the Notes could occur in the event that WB does not
post
sufficient collateral.
(ii) Actions
to be Taken Upon Occurrence of Event.
Subject, in each case set forth in (A) and (B) below, to satisfaction of
the
Rating Agency Condition:
(A) Collateralization
Event.
If a
Collateralization Event occurs with respect to WB (or any applicable credit
support provider), then WB shall, at its own cost and expense, within thirty
(30) days of such Collateralization Ratings Event:
(1) post
collateral under agreements and other instruments approved by the Counterparty,
such approval not to be unreasonably withheld, which will be sufficient to
restore the immediately prior ratings of the Certificates and any
Notes;
(2) make
a
Permitted Transfer without the prior written consent of
Counterparty;
(3) obtain
a
guaranty of, or a contingent agreement of, another person, the ratings of
the
debt of which (or of the guarantor of which) meet or exceed the Qualifying
Ratings, to honor WB’s obligations under this Agreement.
(B) Ratings
Event.
If a
Ratings Event occurs with respect to WB (or any applicable credit support
provider), then WB shall, at its own cost and expense, within ten (10) Business
Days of such Ratings Event:
(1)
make a
Permitted Transfer without the prior written consent of Counterparty
or;
(2) obtain
a
guaranty of, or a contingent agreement of, another person, the ratings of
the
debt of which (or of the guarantor of which) meet or exceed the Qualifying
Ratings, to honor WB’s obligations under this Agreement, provided
that
such
other person is approved by the Counterparty, such approval not to be
unreasonably withheld.
|
10)
|
WB Payments
to be made to Supplemental Interest Trust Trustee.
WB
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 WB hereunder to the extent
of
such payment.
|
11) Compliance
with Regulation AB.
(i)
It
shall be a swap disclosure event (“Swap Disclosure Event”) if, at any time after
the date hereof, the Depositor or the Sponsor notifies WB that the aggregate
“significance percentage” (calculated in accordance with the provisions of Item
1115 of Regulation AB) of all derivative instruments provided by WB and any
of
its affiliates to the Counterparty (collectively, the “Aggregate Significance
Percentage”) is 10% or more.
(ii)
Upon
the occurrence of a Swap Disclosure Event, WB, at its own cost and expense
(and
without any expense or liability to the Depositor, the Sponsor, or Supplemental
Interest Trust Trustee, shall take one of the following actions:
(a)
provide to the Sponsor and the Depositor: (i) if the Aggregate Significance
Percentage is 10% or more, but less than 20%, the information required under
Item 1115(b)(1) of Regulation AB or (ii) if the Aggregate Significance
Percentage is 20% or more, within five (5) Business Days, the information
required under Item 1115(b)(2) of Regulation AB; or
(b)
assign its rights and delegate its obligations under the Transaction to a
counterparty with Qualifying Ratings (or which satisfies the Rating Agency
Condition),.
(iii)
For
so long as the Aggregate Significance Percentage is 10% or more, Party A
shall
provide any updates to the information provided pursuant to clause (ii)
above
to
the Sponsor and the Depositor within five (5) Business Days following
availability thereof (but in no event more than 45 days after the end of
each of
WB’s fiscal quarter for any quarterly update, and in no even more than 90 days
after the end of each of WB’s fiscal year for any annual update).
(iv)
All
information provided pursuant to clauses (ii) and (iii) shall be in a form
suitable for conversion to the format required for filing by the Depositor
with
the Commission via the Electronic Data Gathering and Retrieval System (XXXXX).
In addition, any such information, if audited, shall be accompanied by any
necessary auditor’s consents. If permitted by Regulation AB, any such
information may be provided by reference to or incorporation by reference
from
reports filed Pursuant to the Exchange Act.
|
|
(v)
Third Party Beneficiary. Each of the Sponsor and Depositor shall
be an
express third party beneficiary of this Agreement as if a party
hereto to
the extent of the Sponsor’s and the Depositor’s rights explicitly
specified herein.
|
| 12) |
FDIC
Requirements.
WB represents that it is a bank subject to the requirements of
12 U.S.C. §
1823(e), its execution, delivery and performance of this Agreement
(including the Credit Support Annex and each Confirmation) have
been
approved by its board of directors or its loan committee, such
approval is
reflected in the minutes of said board of directors or loan committee,
and
this Agreement (including the Credit Support Annex and each Confirmation)
will be maintained as one of its official records continuously
from the
time of its execution (or in the case of any Confirmation, continuously
until such time as the relevant Transaction matures and the obligations
therefore are satisfied in full).
|
|
13)
|
Permitted
Transfer upon Tax Events.
Notwithstanding Section 7 of this Agreement, at any time at which
a Tax
Event or Tax Event Upon Merger exists with respect to WB, WB may,
with
prior written consent of Counterparty (such consent not to be unreasonably
withheld) transfer, in whole but not in part, all of its rights
and
obligations under this Agreement in a transfer which meets all
of the
requirements for a Permitted
Transfer.
|
14) Gross
Up.
The
provisions of Section 2(d)(i)(4) and 2(d)(ii) of the printed
ISDA
Form
Master Agreement shall not apply to Counterparty and Counterparty shall not
be
required to pay any additional amounts referred to therein.
5. Account
Details and Settlement Information:
Payments
to WB:
Wachovia
Bank, N.A.
CIB
Group, ABA 000000000
Ref:
Derivative Desk (Trade No:0000000/0000000)
Account#:
04659360006116
Settlement
and/or Rate Resets:
0-000-000-0000
0-000-000-0000
Payments
to Counterparty:
Deutsche
Bank National Trust Company Americas
ABA
000-000-000
A/C:
01419663
A/C:
NYLTD Funds Control-Stars West
Ref:
Soundview 2006-OPT4
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 Derivatives
Documentation at 000-000-0000. 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,
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
SP:__
The
Counterparty, acting through its duly authorized signatory, hereby agrees
to,
accepts and confirms the terms of the foregoing as of the Trade
Date.
DEUTSCHE
BANK NATIONAL TRUST COMPANY, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
SUPPLEMENTAL INTEREST TRUST TRUSTEE FOR THE SUPPLEMENTAL INTEREST TRUST WITH
RESPECT TO THE SOUNDVIEW HOME LOAN TRUST 2006-OPT4 ASSET-BACKED CERTIFICATES,
SERIES 2006-OPT4
|
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
|
Calculation
Amount
|
|
06/25/2006
|
07/25/2006
|
$3,930,013.27
|
|
07/25/2006
|
08/25/2006
|
$3,883,988.21
|
|
08/25/2006
|
09/25/2006
|
$3,825,936.50
|
|
09/25/2006
|
10/25/2006
|
$3,748,327.58
|
|
10/25/2006
|
11/25/2006
|
$3,663,304.81
|
|
11/25/2006
|
12/25/2006
|
$3,571,106.34
|
|
12/25/2006
|
01/25/2007
|
$3,471,972.71
|
|
01/25/2007
|
02/25/2007
|
$3,366,233.65
|
|
02/25/2007
|
03/25/2007
|
$3,254,501.48
|
|
03/25/2007
|
04/25/2007
|
$3,138,748.36
|
|
04/25/2007
|
05/25/2007
|
$3,025,890.98
|
|
05/25/2007
|
06/25/2007
|
$2,917,182.73
|
|
06/25/2007
|
07/25/2007
|
$2,810,592.89
|
|
07/25/2007
|
08/25/2007
|
$2,707,764.72
|
|
08/25/2007
|
09/25/2007
|
$2,606,054.74
|
|
09/25/2007
|
10/25/2007
|
$2,490,472.83
|
|
10/25/2007
|
11/25/2007
|
$2,381,982.40
|
|
11/25/2007
|
12/25/2007
|
$2,279,698.25
|
|
12/25/2007
|
01/25/2008
|
$2,184,427.01
|
|
01/25/2008
|
02/25/2008
|
$2,101,641.39
|
|
02/25/2008
|
03/25/2008
|
$2,009,317.50
|
|
03/25/2008
|
04/25/2008
|
$1,855,804.65
|
|
04/25/2008
|
05/25/2008
|
$1,704,433.61
|
|
05/25/2008
|
06/25/2008
|
$1,569,490.67
|
|
06/25/2008
|
07/25/2008
|
$1,455,212.83
|
|
07/25/2008
|
08/25/2008
|
$1,388,487.07
|
|
08/25/2008
|
09/25/2008
|
$1,332,691.05
|
|
09/25/2008
|
10/25/2008
|
$1,279,327.92
|
|
10/25/2008
|
11/25/2008
|
$1,228,249.86
|
|
11/25/2008
|
12/25/2008
|
$1,179,351.56
|
|
12/25/2008
|
01/25/2009
|
$1,132,533.52
|
|
Accrual
Start Date
|
Accrual
End Date
|
Calculation
Amount
|
|
01/25/2009
|
02/25/2009
|
$1,087,703.33
|
|
02/25/2009
|
03/25/2009
|
$1,044,773.04
|
|
03/25/2009
|
04/25/2009
|
$1,003,658.20
|
|
04/25/2009
|
05/25/2009
|
$964,282.00
|
|
05/25/2009
|
06/25/2009
|
$926,565.77
|
|
06/25/2009
|
07/25/2009
|
$890,434.25
|
|
07/25/2009
|
08/25/2009
|
$855,817.44
|
|
08/25/2009
|
09/25/2009
|
$822,648.70
|
|
09/25/2009
|
10/25/2009
|
$790,864.31
|
|
10/25/2009
|
11/25/2009
|
$760,403.54
|
|
11/25/2009
|
12/25/2009
|
$731,208.41
|
|
12/25/2009
|
01/25/2010
|
$703,223.41
|
|
01/25/2010
|
02/25/2010
|
$676,395.60
|
|
02/25/2010
|
03/25/2010
|
$650,674.49
|
|
03/25/2010
|
04/25/2010
|
$626,011.83
|
|
04/25/2010
|
05/25/2010
|
$602,361.56
|
|
05/25/2010
|
06/25/2010
|
$579,679.71
|
|
06/25/2010
|
07/25/2010
|
$557,924.25
|
|
07/25/2010
|
08/25/2010
|
$537,054.70
|
|
08/25/2010
|
09/25/2010
|
$517,032.04
|
|
09/25/2010
|
10/25/2010
|
$497,817.74
|
|
10/25/2010
|
11/25/2010
|
$479,375.28
|
|
11/25/2010
|
12/25/2010
|
$461,675.83
|
|
12/25/2010
|
01/25/2011
|
$444,688.14
|
|
01/25/2011
|
02/25/2011
|
$428,381.52
|
|
02/25/2011
|
03/25/2011
|
$412,724.91
|
EXHIBIT
R
FORM
OF
SWAP ADMINISTRATION AGREEMENT
SWAP
ADMINISTRATION AGREEMENT
This
Swap
Administration Agreement, dated as of May 26, 2006 (this “Agreement”), among
Deutsche Bank National Trust Company (“Deutsche Bank”), as swap administrator
(in such capacity, the “Swap Administrator”) and as trustee and supplemental
interest trust trustee under the Pooling and Servicing Agreement, as hereinafter
defined (in such capacity, the “Trustee” and “Supplemental Interest Trust
Trustee”), and Greenwich
Capital Markets, Inc., as majority holder of the Class C
Certificates.
WHEREAS,
the Trustee, on behalf of the holders of the Soundview Home Loan Trust
2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4, is counterparty to
an
Interest Rate Swap Agreement (the “Swap Agreement”), a copy of which is attached
hereto as Exhibit A, between the Trustee and Wachovia Bank, N.A.
(“WB”);
and
WHEREAS,
it is desirable to irrevocably appoint the Swap Administrator, and the Swap
Administrator desires to accept such appointment, to receive and distribute
funds payable by WB under the Swap Agreement as provided herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and
for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the parties agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of May 1, 2006 (the “Pooling and Servicing Agreement”), among Financial
Asset Securities Corp., as Depositor, Option One Mortgage Corporation, as
servicer, and Deutsche Bank National Trust Company as trustee relating to
the
Soundview Home Loan Trust 2006-OPT4, Asset-Backed Certificates, Series 2006-OPT4
(the “Certificates”), or in the related Indenture as the case may be, as in
effect on the date hereof.
2.
Swap
Administrator.
(a) The
Swap
Administrator is hereby irrevocably appointed to receive all funds paid to
the
Supplemental Interest Trust Trustee by WB, or its successors in interest
(the
“Swap Provider”) under the Swap Agreement (including any Swap Termination
Payment) and the Swap Administrator hereby accepts such appointment and hereby
agrees to receive such amounts and to distribute on each Distribution Date
such
amounts in the following order of priority:
(i) first,
to
the Trustee for deposit into the Swap Account, an amount equal to the sum
of the
following amounts remaining outstanding after distribution of the Net Monthly
Excess Cashflow: (A) Unpaid Interest Shortfall Amounts, (B) Net WAC Rate
Carryover Amounts; (C) an
amount necessary to maintain or restore the Overcollateralization Target
Amount;
and
(D) any
Allocated Realized Loss Amounts;
(ii) second,
to Greenwich Capital Markets, Inc., as majority holder of the Class C
Certificates, any amounts remaining after payment of (i) above, provided,
however,
upon the
issuance of notes by an issuer (the “Trust”), secured by all or a portion of the
Class C Certificates and the Class P Certificates (the “NIM Notes”), Greenwich
Capital Markets, Inc., as majority holder of the Class C Certificates, hereby
instructs the Swap Administrator to make any payments under this clause
2(a)(ii):
(A) to
the
Indenture Trustee for the Trust, for deposit into the Note Account (each
as
defined in the related Indenture), for distribution in accordance with the
terms
of the Pooling and Servicing Agreement until satisfaction and discharge of
the
Indenture; and
(B) after
satisfaction and discharge of the Pooling and Servicing Agreement, to the
Holders of the Class C Certificates, pro
rata
based on
the outstanding Notional Amount of each such Certificate.
(b) The
Swap
Administrator agrees to hold any amounts received from the Supplemental Interest
Trust Trustee in trust upon the terms and conditions and for the exclusive
use
and benefit of the Trustee and the Indenture Trustee, as applicable (in turn
for
the benefit of the Certificateholders, the Noteholders and the NIMS Insurer,
if
any) as set forth herein. The rights, duties and liabilities of the Swap
Administrator in respect of this Agreement shall be as follows:
(i) The
Swap
Administrator shall have the full power and authority to do all things not
inconsistent with the provisions of this Agreement that may be deemed advisable
in order to enforce the provisions hereof. The Swap Administrator shall not
be
answerable or accountable except for its own bad faith, willful misconduct
or
negligence. The Swap Administrator shall not be required to take any action
to
exercise or enforce any of its rights or powers hereunder which, in the opinion
of the Swap Administrator, shall be likely to involve expense or liability
to
the Swap Administrator, unless the Swap Administrator shall have received
an
agreement satisfactory to it in its sole discretion to indemnify it against
such
liability and expense.
(ii) The
Swap
Administrator shall not be liable with respect to any action taken or omitted
to
be taken by it in good faith in accordance with the direction of any party
hereto or the NIMS Insurer, if any, or otherwise as provided herein, relating
to
the time, method and place of conducting any proceeding for any remedy available
to the Swap Administrator or exercising any right or power conferred upon
the
Swap Administrator under this Agreement.
(iii) The
Swap
Administrator may perform any duties hereunder either directly or by or through
agents or attorneys of the Swap Administrator. The Swap Administrator shall
not
be liable for the acts or omissions of its agents or attorneys so long as
the
Swap Administrator chose such Persons with due care.
3. Swap
Account.
The
Swap Administrator shall segregate and hold all funds received from the
Supplemental Interest Trust Trustee (including any Swap Termination Payment)
separate and apart from any of its own funds and general assets and shall
establish and maintain in the name of the Swap Administrator one or more
segregated accounts (such account or accounts, the “Swap”) as described in the
Pooling and Servicing Agreement.
4.
Replacement
Swap Agreements.
The
Trustee shall, at the direction of the NIMS Insurer, if any, or, with the
consent of the NIMS Insurer, if any, at the direction of Greenwich Capital
Markets, Inc., as majority holder of the Class C Certificates, 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), Greenwich Capital
Markets, Inc., as majority holder of the Class C Certificates, shall find
a
replacement counterparty to enter into a replacement swap
agreement.
Any
Swap
Termination Payment received by the Swap 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.
Notwithstanding
anything contained herein, in the event that a replacement swap agreement
cannot
be obtained within 30 days after receipt by the Swap Administrator of the
Swap
Termination Payment paid by the terminated Swap Provider, the Swap Administrator
shall deposit such Swap Termination Payment into a separate, non-interest
bearing account, established by the Swap Administrator and the Swap
Administrator shall, on each Distribution Date, withdraw from such account,
an
amount equal to the Net Swap Payment, if any, that would have been paid to
the
Trust by the original Swap Provider (computed in accordance with Exhibit
A) and
distribute such amount in accordance with Section 2(a) of this Agreement.
On the
Distribution Date immediately after the termination date of the original
Swap
Agreement, the Swap Administrator shall withdraw any funds remaining in such
account and distribute such amount in accordance with Section 2(a)(ii) of
this
Agreement.
5. Representations
and Warranties of Deutsche Bank.
Deutsche Bank represents and warrants as follows:
(a) Deutsche
Bank is duly organized and validly existing as a national trust company under
the laws of the United States and has all requisite power and authority to
execute and deliver this Agreement, to perform its obligations as Swap
Administrator hereunder.
(b) The
execution, delivery and performance of this Agreement by Deutsche Bank as
Trustee have been duly authorized in the Pooling and Servicing
Agreement.
(c) This
Agreement has been duly executed and delivered by Deutsche Bank as Swap
Administrator, the Trustee and the Supplemental Interest Trust Trustee and
is
enforceable against Deutsche Bank in such capacities in accordance with its
terms, except as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law).
6.
Replacement
of Swap Administrator.
Any
corporation, bank, trust company or association into which the Swap
Administrator may be merged or converted or with which it may be consolidated,
or any corporation, bank, trust company or association resulting from any
merger, conversion or consolidation to which the Swap Administrator shall
be a
party, or any corporation, bank, trust company or association succeeding
to all
or substantially all the corporate trust business of the Swap Administrator,
shall be the successor of the Swap Administrator hereunder, without the
execution or filing of any paper or any further act on the part of any of
the
parties hereto, except to the extent that assumption of its duties and
obligations, as such, is not effected by operation of law.
No
resignation or removal of the Swap Administrator and no appointment of a
successor Swap Administrator shall become effective until the appointment
by
Greenwich Capital Markets, Inc., as majority holder of the Class C Certificates,
of a successor swap administrator acceptable to the NIMS Insurer, if any.
Any
successor swap administrator shall execute such documents or instruments
necessary or appropriate to vest in and confirm to such successor swap
administrator all such rights and powers conferred by this
Agreement.
The
Swap
Administrator may resign at any time by giving written notice thereof to
the
other parties hereto with a copy to the NIMS Insurer, if any. If a successor
swap administrator shall not have accepted the appointment hereunder within
30
days after the giving by the resigning Swap Administrator of such notice
of
resignation, the resigning Swap Administrator may petition any court of
competent jurisdiction for the appointment of a successor swap administrator
acceptable to the NIMS Insurer, if any.
In
the
event of a resignation or removal of the Swap Administrator, Greenwich Capital
Markets, Inc., as majority holder of the Class C Certificates, shall promptly
appoint a successor Swap Administrator acceptable to the NIMS Insurer, if
any.
If no such appointment has been made within 10 days of the resignation or
removal, the NIMS Insurer, if any, may appoint a successor Swap
Administrator.
| 7. |
Trustee
Obligations.
|
Whenever
the Supplemental Interest Trust Trustee, as a party to the Swap Agreement,
has
the option or is requested in such capacity, whether such request is by the
counterparty to such agreement, to take any action or to give any consent,
approval or waiver that it is on behalf of the Trust entitled to take or
give in
such capacity, including, without limitation, in connection with an amendment
of
such agreement or the occurrence of a default or termination event thereunder,
the Supplemental Interest Trust Trustee shall promptly notify the parties
hereto
and the NIMS Insurer, if any, of such request in such detail as is available
to
it and, shall, on behalf of the parties hereto and the NIMS Insurer, if any,
take such action in connection with the exercise and/or enforcement of any
rights and/or remedies available to it in such capacity with respect to such
request as Greenwich Capital Markets, Inc., as majority holder of the Class
C
Certificates, or the NIMS Insurer, if any, shall direct in writing; provided
that if no such direction is received prior to the date that is established
for
taking such action or giving such consent, approval or waiver (notice of
which
date shall be given by the Supplemental Interest Trust Trustee to the parties
hereto and the NIMS Insurer, if any), the Supplemental Interest Trust Trustee
may abstain from taking such action or giving such consent, approval or
waiver.
The
Trustee shall forward to the parties hereto and the NIMS Insurer, if any,
on the
Payment Date following its receipt thereof copies of any and all notices,
statements, reports and/or other material communications and information
(collectively, the “Swap Reports”) that it receives in connection with the Swap
Agreement or from the counterparty thereto.
| 8. |
Miscellaneous.
|
(a) This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
(b) Any
action or proceeding against any of the parties hereto relating in any way
to
this Agreement may be brought and enforced in the courts of the State of
New
York sitting in the borough of Manhattan or of the United States District
Court
for the Southern District of New York and the Swap Administrator irrevocably
submits to the jurisdiction of each such court in respect of any such action
or
proceeding. The Swap Administrator waives, to the fullest extent permitted
by
law, any right to remove any such action or proceeding by reason of improper
venue or inconvenient forum.
(c) This
Agreement may be amended, supplemented or modified in writing by the parties
hereto, but only with the consent of the NIMS Insurer, if any.
(d) This
Agreement may not be assigned or transferred without the prior written consent
of the NIMS Insurer, if any; provided, however, the parties hereto acknowledge
and agree to the assignment of the rights of Greenwich Capital Markets, Inc.,
as
majority holder of the Class C Certificates, as provided under this Agreement
pursuant to the Sale Agreement, the Trust Agreement and the
Indenture.
(e) This
Agreement may be executed by one or more of the parties to this Agreement
on any
number of separate counterparts (including by facsimile transmission), and
all
such counterparts taken together shall be deemed to constitute one and the
same
instrument.
(f) Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
(g) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
(h) The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
(i) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
9. Third-Party
Beneficiary.
Each of
the Note Insurer, the Backup Note Insurer and the Indenture Trustee, if any,
shall be deemed a third-party beneficiary of this Agreement to the same extent
as if it were a party hereto, and shall have the right to enforce the provisions
of this Agreement.
10. Swap
Administrator and Trustee Rights.
The
Swap Administrator shall be entitled to the same rights, protections and
indemnities afforded to the Trustee under the Pooling and Servicing Agreement,
and the Indenture Trustee under the Indenture, in each case as if specifically
set forth herein with respect to the Swap Administrator.
The
Trustee shall be entitled to the same rights, protections and indemnities
afforded to the Trustee under the Pooling and Servicing Agreement as if
specifically set forth herein with respect to the Swap
Administrator.
11. Limited
Recourse.
It is
expressly understood and agreed by the parties hereto that this Agreement
is
executed and delivered by the Trustee, not in its individual capacity but
solely
as Trustee under the Pooling and Servicing Agreement. Notwithstanding any
other
provisions of this Agreement, the obligations of the Trustee under this
Agreement are non-recourse to the Trustee, its assets and its property, and
shall be payable solely from the assets of the Trust Fund, and following
realization of such assets, any claims of any party hereto shall be extinguished
and shall not thereafter be reinstated. No recourse shall be had against
any
principal, director, officer, employee, beneficiary, shareholder, partner,
member, Trustee, agent or affiliate of the Trustee or any person owning,
directly or indirectly, any legal or beneficial interest in the Trustee,
or any
successors or assigns of any of the foregoing (the “Exculpated Parties”) for the
payment of any amount payable under this Agreement. The parties hereto shall
not
enforce the liability and obligations of the Trustee to perform and observe
the
obligations contained in this Agreement by any action or proceeding wherein
a
money judgment establishing any personal liability shall be sought against
the
Trustee, subject to the following sentence, or the Exculpated Parties. The
agreements in this paragraph shall survive termination of this Agreement
and the
performance of all obligations hereunder.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
as
Swap Administrator
|
|
|
By:
|
|
|
Name:
Title:
|
|
|
By:
|
|
|
Name:
Title:
|
|
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
not
in its individual capacity but solely as Trustee under the Pooling
and
Servicing Agreement
|
|
|
By:
|
|
|
Name:
Title:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
GREENWICH
CAPITAL MARKETS, INC., as majority holder of the Class C
Certificates
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
A
SWAP
AGREEMENT
SEE
EXHIBIT Q TO THE POOLING AND SERVICING AGREEMENT
ANNEX
I
The
amounts paid under clause 2(a)(ii) of the Swap Administration Agreement shall
be
calculated as follows:
|
Floating
Amount:
|
|
|
Floating
Rate Payer:
|
Deutsche
Bank National Trust Company
|
|
Cap
Rate:
|
15.00%
|
|
Floating
Amount
|
To
be determined in accordance with the following formula:
The
product of: (i) 250; (ii) the Cap Rate, (iii) the Notional Amount;
and
(iv) the Floating Rate Day Count Fraction;
provided,
however,
the Swap Administrator will only be obligated to pay the Floating
Amount
up to the amount remaining after payments are made under clause
2(a)(i) of
the Swap Administration Agreement.
The
Floating Amount shall be paid to the Indenture Trustee for payment
in
accordance with Section 2.09(e) of the Indenture.
|
|
Floating
Rate Day Count Fraction:
|
Actual/360.
|
|
Notional
Amount:
|
The
amount set forth for such period in the Amortization Schedule
A.
|
SCHEDULE
A TO ANNEX I
SEE
ANNEX
3 TO THE PROSPECTUS SUPPLEMENT
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer - transaction party having borrower contact
Master
Servicer - aggregator of pool assets
Securities
Administrator - waterfall calculator (may be the Trustee, or may be the Master
Servicer)
Back-up
Servicer - named in the transaction (in the event a Back up Servicer becomes
the
Primary Servicer, follow Primary Servicer obligations)
Custodian
- safe keeper of pool assets
Paying
Agent - distributor of funds to ultimate investor
Trustee
-
fiduciary of the transaction
Note:
The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular transaction, the
trustee may perform the “paying agent” and “securities administrator” functions,
while in another transaction, the securities administrator may perform these
functions.
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key:
X
- obligation
[X]
- under consideration for obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Master
Servicer
|
Trustee
|
|
General
Servicing Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
To
the extent applicable
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
|
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
[X]
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
If
applicable
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
X
|
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
X
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
X
|
EXHIBIT
T
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 4.07(a)(iv). If the Trustee is indicated below as to any item, then
the Trustee is primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “4.02 statement” are required to be
included in the periodic Distribution Date statement under Section 4.02,
provided by the Trustee based on information received from the Master Servicer;
and b) items marked “Form 10-D report” are required to be in the Form 10-D
report but not the 4.02 statement, provided by the party indicated. Information
under all other Items of Form 10-D is to be included in the Form 10-D
report.
|
Form
|
Item
|
Description
|
Responsible
Party
|
|
10-D
|
Must
be filed within 15 days of the Distribution Date.
|
||
|
1
|
Distribution
and Pool Performance Information
|
||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
|||
|
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
4.02
statement
|
||
|
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
4.02
statement
|
||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.02
statement
|
||
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
4.02
statement
|
||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of the
general
purpose of such payments and the party receiving such
payments.
|
4.02
statement
|
||
|
(iii)
Principal, interest and other distributions accrued and paid on the
asset-backed securities by type and by class or series and any principal
or interest shortfalls or carryovers.
|
4.02
statement
|
||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.02
statement
|
||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.02
statement
|
||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
4.02
statement
|
||
|
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
4.02
statement
|
||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.02
statement
|
||
|
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term, pool
factors and prepayment amounts.
|
4.02
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
|
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.02
statement.
Form
10-D report: Depositor
|
||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.02
statement
|
||
|
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
Form
10-D report; Servicer
|
||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Servicer
|
||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.02
statement
|
||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Depositor
Form
10-D report: Depositor
Form
10-D report: Depositor
|
||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
Depositor
|
||
|
2
|
Legal
Proceedings
|
||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Seller
Depositor
Trustee
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Trustee
Depositor
Master
Servicer
Originator
Custodian
|
||
|
3
|
Sales
of Securities and Use of Proceeds
|
||
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
||
|
4
|
Defaults
Upon Senior Securities
|
||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
N/A
|
||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
||
|
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
||
|
6
|
Significant
Obligors of Pool Assets
|
||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|||
|
7
|
Significant
Enhancement Provider Information
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
[TBD]
[TBD]
Depositor
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||
|
8
|
Other
Information
|
||
|
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
|
9
|
Exhibits
|
||
|
Distribution
report
|
Trustee
|
||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
|
1.01
|
Entry
into a Material Definitive Agreement
|
||
|
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Depositor
|
||
|
1.02
|
Termination
of a Material Definitive Agreement
|
||
|
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
Depositor
|
||
|
1.03
|
Bankruptcy
or Receivership
|
||
|
Disclosure
is required regarding the bankruptcy or receivership, if known to
the
Depositor, Servicer or Trustee, with respect to any of the following:
Sponsor
(Seller), Depositor, Servicer, Trustee, Swap Provider, Cap Provicer,
Custodian
|
Depositor/Servicer/Trustee
|
||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the 4.02 statement
|
N/A
|
||
|
3.03
|
Material
Modification to Rights of Security Holders
|
||
|
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
Party
requesting material modification
|
||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
|
5.06
|
Change
in Shell Company Status
|
||
|
[Not
applicable to ABS issuers]
|
Depositor
|
||
|
6.01
|
ABS
Informational and Computational Material
|
||
|
[Not
included in reports to be filed under Section 4.07]
|
Depositor
|
||
|
6.02
|
Change
of Master Servicer or Trustee
|
||
|
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, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Trustee
or Master Servicer
|
||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
||
|
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
|
6.05
|
Securities
Act Updating Disclosure
|
||
|
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
||
|
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
|
8.01
|
Other
Events
|
|
|
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
Depositor
|
||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
|
9B
|
Other
Information
|
||
|
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
|
15
|
Exhibits
and Financial Statement Schedules
|
||
|
Item
1112(b) - Significant
Obligor Financial Information
|
N/A
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
[TBD]
[TBD]
Depositor
|
||
|
Seller
Depositor
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
|
||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Seller
Depositor
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
Credit
Enhancer/Support Provider, if any
Significant
Obligor, if any
|
Seller
Depositor
Trustee
(only
with respect to affiliations and relationships with the sponsor,
depositor
or issuing entity)
Issuing
Entity
Master
Servicer
Originator
Custodian
(only with respect to affiliations and relationships with the sponsor,
depositor or issuing entity)
Depositor
Depositor
|
||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
|
Item
1123 -Servicer Compliance Statement
|
Master
Servicer
|
||
SCHEDULE
I
PREPAYMENT
CHARGE SCHEDULE
Available
Upon Request
SCHEDULE
II
|
Distribution
Date
|
Base
Calculation Amount ($)
|
Distribution
Date
|
Base
Calculation Amount ($)
|
|
|
June
25, 2006
|
0.00
|
October
25, 2008
|
1,279,327.92
|
|
|
July
25, 2006
|
3,930,013.27
|
November
25, 2008
|
1,228,249.86
|
|
|
August
25, 2006
|
3,883,988.21
|
December
25, 2008
|
1,179,351.56
|
|
|
September
25, 2006
|
3,825,936.50
|
January
25, 2009
|
1,132,533.52
|
|
|
October
25, 2006
|
3,748,327.58
|
February
25, 2009
|
1,087,703.33
|
|
|
November
25, 2006
|
3,663,304.81
|
March
25, 2009
|
1,044,773.04
|
|
|
December
25, 2006
|
3,571,106.34
|
April
25, 2009
|
1,003,658.20
|
|
|
January
25, 2007
|
3,471,972.71
|
May
25, 2009
|
964,282.00
|
|
|
February
25, 2007
|
3,366,233.65
|
June
25, 2009
|
926,565.77
|
|
|
March
25, 2007
|
3,254,501.48
|
July
25, 2009
|
890,434.25
|
|
|
April
25, 2007
|
3,138,748.36
|
August
25, 2009
|
855,817.44
|
|
|
May
25, 2007
|
3,025,890.98
|
September
25, 2009
|
822,648.70
|
|
|
June
25, 2007
|
2,917,182.73
|
October
25, 2009
|
790,864.31
|
|
|
July
25, 2007
|
2,810,592.89
|
November
25, 2009
|
760,403.54
|
|
|
August
25, 2007
|
2,707,764.72
|
December
25, 2009
|
731,208.41
|
|
|
September
25, 2007
|
2,606,054.74
|
January
25, 2010
|
703,223.41
|
|
|
October
25, 2007
|
2,490,472.83
|
February
25, 2010
|
676,395.60
|
|
|
November
25, 2007
|
2,381,982.40
|
March
25, 2010
|
650,674.49
|
|
|
December
25, 2007
|
2,279,698.25
|
April
25, 2010
|
626,011.83
|
|
|
January
25, 2008
|
2,184,427.01
|
May
25, 2010
|
602,361.56
|
|
|
February
25, 2008
|
2,101,641.39
|
June
25, 2010
|
579,679.71
|
|
|
March
25, 2008
|
2,009,317.50
|
July
25, 2010
|
557,924.25
|
|
|
April
25, 2008
|
1,855,804.65
|
August
25, 2010
|
537,054.70
|
|
|
May
25, 2008
|
1,704,433.61
|
|||
|
June
25, 2008
|
1,569,490.67
|
|||
|
July
25, 2008
|
1,455,212.83
|
|||
|
August
25, 2008
|
1,388,487.07
|
|||
|
September
25, 2008
|
1,332,691.05
|
