Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 8-K First Franklin Mortgage Loan Trust 2006-Ff16 HTML 36K
2: EX-1.1 Underwriting Agreement HTML 1.18M
3: EX-4.1 Pooling and Servicing Agreement HTML 2.91M
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 Seller.
SECTION
2.04
Intentionally
Omitted.
SECTION
2.05
Representations,
Warranties and Covenants of the Servicer.
SECTION
2.06
Representations
and Warranties of the Depositor.
SECTION
2.07
Issuance
of Certificates.
SECTION
2.08
Authorization
to Enter into Basis Risk Cap Agrement, Interest Rate Cap Agreement
and
Interest Rate Swap Agreement.
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
[Reserved].
SECTION
3.28
Solicitations.
SECTION
3.29
Advance
Facility.
ARTICLE
IV FLOW OF FUNDS
SECTION
4.01
Distributions.
SECTION
4.02
[Reserved].
SECTION
4.03
Statements.
SECTION
4.04
Remittance
Reports; Advances.
SECTION
4.05
Swap
Account.
SECTION
4.06
Tax
Treatment of Swap Payments and Swap Termination Payments.
SECTION
4.07
Commission
Reporting.
SECTION
4.08
Net
WAC Rate Carryover Reserve Account.
SECTION
4.09
Distributions
on the REMIC Regular Interests.
SECTION
4.10
Allocation
of Realized Losses.
SECTION
4.11
Cap
Account.
SECTION
4.12
Collateral
Accounts
SECTION
4.13
Rights
and Obligations Under the Basis Risk Cap Agreement, the Interest
Rate Cap
Agreement and the Interest Rate Swap Agreement.
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
Duties
of the Credit Risk Manager.
SECTION
6.09
Limitation
Upon Liability of the Credit Risk Manager.
SECTION
6.10
Removal
of the 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 and the NIMS Insurer.
SECTION
11.09
Further
Assurances.
SECTION
11.10
Reserved.
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-A1 Certificates
Exhibit
A-2
Form
of Class II-A1 Certificates
Exhibit
A-3
Form
of Class II-A2 Certificates
Exhibit
A-4
Form
of Class II-A3 Certificates
Exhibit
A-5
Form
of Class II-A4 Certificates
Exhibit
A-6
Form
of Class M-1 Certificates
Exhibit
A-7
Form
of Class M-2 Certificates
Exhibit
A-8
Form
of Class M-3 Certificates
Exhibit
A-9
Form
of Class M-4 Certificates
Exhibit
A-10
Form
of Class M-5 Certificates
Exhibit
A-11
Form
of Class M-6 Certificates
Exhibit
A-12
Form
of Class M-7 Certificates
Exhibit
A-13
Form
of Class M-8 Certificates
Exhibit
A-14
Form
of Class M-9 Certificates
Exhibit
A-15
Form
of Class 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
Form
of Cap Allocation Agreement
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
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-1
Form
of Basis Risk Cap Agreement
Exhibit
O-2
Form
of Interest Rate Cap Agreement
Exhibit
P
Form
of Annual Statement as to Compliance
Exhibit
Q
Form
of Interest Rate Swap Agreement
Exhibit
R-1
Form
of Watchlist Report
Exhibit
R-2
Form
of Loss Severity Report
Exhibit
R-3
Form
of Prepayment Premiums Report
Exhibit
R-4
Form
of Analytics Report
Exhibit
S
Servicing
Criteria
Exhibit
T
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
Exhibit
U
Form
of Certification to be provided by the Credit Risk
Manager
Schedule
I
Prepayment
Charge Schedule
This
Pooling and Servicing Agreement is dated as of November 1, 2006 (the
“Agreement”), among FINANCIAL ASSET SECURITIES CORP., as depositor (the
“Depositor”), NATIONAL CITY HOME LOAN SERVICES, INC., 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 twenty-one classes
of
certificates, designated as (i) the Class I-A1 Certificates, (ii) the Class
II-A1 Certificates, (iii) the Class II-A2 Certificates, (iv) Class II-A3
Certificates, (v) the Class II-A4 Certificates, (vi) the Class M-1 Certificates
(vii) the Class M-2 Certificates, (viii) the Class M-3 Certificates, (ix)
the
Class M-4 Certificates, (x) the Class M-5 Certificates, (xi) the Class
M-6
Certificates, (xii) the Class M-7 Certificates, (xiii) the Class M-8
Certificates, (xiv) the Class M-9 Certificates, (xv) the Class 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 Servicer Prepayment Charge Payment Amounts, the Supplemental
Interest Trust, the Interest Rate Swap Agreement, the Cap Account, the
Interest
Rate Cap Agreement, the Cap Allocation Agreement and the Basis Risk Cap
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.
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2)
Calculated
in accordance with the definition of “Uncertificated REMIC 1 Pass-Through
Rate” herein.
REMIC
2
As
provided herein, the Trustee shall elect to treat the segregated pool of
assets
consisting of the REMIC 1 Regular Interests as a REMIC for federal income
tax
purposes, and such segregated pool of assets shall be designated as “REMIC 2.”
The Class R-2 Interest shall evidence the sole class of “residual interests” in
REMIC 2 for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
2 Pass-Through Rate, the initial Uncertificated Principal Balance and,
for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii),
the
“latest possible maturity date” for each of the REMIC 2 Regular Interests (as
defined herein). None of the REMIC 2 Regular Interests shall be
certificated.
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:
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2)
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
(3)
Subject
to increase and limitation as set forth in the definition of
“Pass-Through
Rate” herein.
(4)
The
Class C Interest will accrue interest at its variable Pass-Through
Rate on
the Notional Amount of the Class C Interest outstanding from
time to time
which shall equal the aggregate Uncertificated Principal Balance
of the
REMIC 2 Regular Interests (other than REMIC 2 Regular Interest
LTP). The
Class C Interest will not accrue interest on its Certificate
Principal
Balance.
(5)
The
Class P Interest will not accrue
interest.
(6)
For
federal income tax purposes, the Class IO Interest will not have
a
Certificate Principal Balance, but will have a notional amount
equal to
the Uncertificated Notional Amount of REMIC 2 Regular Interest
LTIO.
(7)
For
federal income tax purposes, the Class IO Interest will not have
a
Pass-Through Rate, but will be entitled to 100% of the amounts
distributed
on REMIC 2 Regular Interest
LTIO.
REMIC
4
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class C Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC 4.”
The Class R-4 Interest represents the sole class of “residual interests” in
REMIC 4 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the designation, Pass-Through
Rate ,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated Class of Certificates that represents a “regular
interest” in REMIC 4 created hereunder:
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:
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.
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.
“Account”:
Either of the Collection Account or Distribution Account.
“Accrual
Period”: With respect to the Floating Rate Certificates and each Distribution
Date, the period commencing on the preceding Distribution Date (or in the
case
of the first such Accrual Period, commencing on the Closing Date) and ending
on
the day preceding the current Distribution Date. With respect to the Class
C
Certificates and each Distribution Date, the calendar month prior to the
month
of such Distribution Date.
“Adjustable-Rate
Mortgage Loan”: A first lien Mortgage Loan which provides at any period during
the life of such loan for the adjustment of the Mortgage Rate payable in
respect
thereto. The Adjustable-Rate Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the applicable Maximum Mortgage Rate for such Mortgage Loan (or
the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the first
day
of the month preceding the month in which the related Distribution Date
occurs
minus the sum of (i) the Servicing Fee Rate and (ii) the Credit Risk Manager
Fee
Rate.
“Adjusted
Net Mortgage Rate”: With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest
equal
to the applicable Mortgage Rate for such Mortgage Loan as of the first
day of
the month preceding the month in which the related Distribution Date occurs
minus the sum of (i) the Servicing Fee Rate and (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, 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) or the Swap Provider (including any Net Swap Payment or Swap Termination
Payment owed to the Swap Provider, but excluding any Swap Termination Payment
owed to the Swap Provider resulting from a Swap Provider Trigger Event,
(b)
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.
“Basis
Risk Cap Agreement”: The Basis Risk Cap Agreement, dated the Closing Date,
between the Basis Risk Cap Provider and the Trustee, including any schedule,
confirmations, credit support annex or other credit support document relating
thereto, and attached hereto as Exhibit O-1.
“Basis
Risk Cap Amount”: The Basis Risk Cap Amount for any Class of the Floating-Rate
Certificates is equal to (i) the aggregate amount received by the Trust
from the
Basis Risk Cap Agreement multiplied by (ii) a fraction equal to (a) the
Certificate Principal Balance of such Class immediately prior to the applicable
Distribution Date divided by (b) the aggregate Certificate Principal Balance
of
the Floating-Rate Certificates immediately prior to the applicable Distribution
Date.
“Basis
Risk Cap Credit Support Annex”: The credit support annex, dated the Closing
Date, between the Trustee and the Basis Risk Cap Provider, which is annexed
to
and forms part of the Basis Risk Cap Agreement.
“Basis
Risk Cap Provider”: The cap provider under the Basis Risk Cap Agreement.
Initially, the Basis Risk Cap Provider shall be HSBC Bank USA, National
Association.
“Book-Entry
Certificates”: Any of the Certificates that shall be registered in the name of
the Depository or its nominee, the ownership of which is reflected on the
books
of the Depository or on the books of a Person maintaining an account with
the
Depository (directly, as a “Depository Participant”, or indirectly, as an
indirect participant in accordance with the rules of the Depository and
as
described in Section 5.02 hereof). On the Closing Date, the Floating Rate
Certificates shall be Book-Entry Certificates.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings institutions in the State of Delaware, the State of New York, the
State
of Texas, the State of California or in the city in which the Corporate
Trust
Office of the Trustee is located are authorized or obligated by law or
executive
order to be closed.
“Cap
Account”: The account or accounts created and maintained pursuant to Section
4.11. The Cap Account must be an Eligible Account.
“Cap
Allocation Agreement”: The Cap Allocation Agreement, dated as of November 30,2006, between the Trustee and the Cap Trustee, a form of which is attached
hereto as Exhibit B.
“Cap
Trustee”: Deutsche Bank National Trust Company, a national banking association,
not in its individual capacity but solely in its capacity as Cap Trustee,
and
any successor thereto.
“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-A1
LTIA1
0.125
0.250
II-A1
LTIIA1
0.050
0.100
II-A2
LTIIA2
0.100
0.200
II-A3
LTIIA3
0.140
0.280
II-A4
LTIIA4
0.210
0.420
M-1
LTM1
0.220
0.330
M-2
LTM2
0.280
0.420
M-3
LTM3
0.330
0.495
M-4
LTM4
0.390
0.585
M-5
LTM5
0.410
0.615
M-6
LTM6
0.470
0.705
M-7
LTM7
0.800
1.200
M-8
LTM8
1.050
1.575
M-9
LTM9
2.000
3.000
__________
(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 Floating Rate Certificates
and the Class P Certificates then outstanding.
“Certificate
Register” and “Certificate Registrar”: The register maintained and registrar
appointed pursuant to Section 5.02 hereof.
“Certification”.
As defined in Section 3.22(b)(ii).
“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-A1 Certificate, Class II-A1 Certificate, Class II-A2
Certificate, Class II-A3 Certificate or Class II-A4 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 for purposes of the REMIC Provisions.
“Class
I-A1 Certificate”: Any one of the Class I-A1 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-A1 Certificate”: Any one of the Class II-A1 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-A2 Certificate”: Any one of the Class II-A2 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-A3 Certificate”: Any one of the Class II-A3 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-A4 Certificate”: Any one of the Class II-A4 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-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-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 Sequential
Class M 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 Sequential Class M 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) 84.70%
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-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 Sequential
Class M 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 Sequential Class M 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) 87.60% and (ii) the aggregate Stated Principal Balance of
the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period, to
the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the
related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
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 Sequential
Class M 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 Sequential Class M 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) 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-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 Sequential
Class M 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 Sequential Class M 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) 92.60% and (ii) the aggregate Stated Principal Balance of
the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period, to
the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the
related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
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 Sequential
Class M 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 Sequential Class M 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) 94.00%
and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage
Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent
received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-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 Sequential
Class M 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 Sequential Class M 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) 96.00% 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-15, 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-21 and evidencing the ownership of the
Class
R-4 Interest, the Class R-5 Interest and the Class R-6 Interest.
“Close
of
Business”: As used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The segregated account or accounts created and maintained by the
Servicer pursuant to Section 3.10(a), which shall be titled “Deutsche Bank
National Trust Company, as Trustee, in trust for registered Holders of
First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16,” 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 1761 East St. Andrew Place, Santa Ana, CA92705-4934, Attention: Trust Administration-GC06ZA, 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 Seller.
“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-A1
LTIIA1
Class
II-A1
LTIIA2
Class
II-A2
LTIIA3
Class
II-A3
LTIIA4
Class
II-A4
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 agreement between the Credit Risk Manager and
the Servicer regarding the loss mitigation and advisory services to be
provided
by the Credit Risk Manager.
“Credit
Risk Manager”: Clayton Fixed Income Services Inc., a Colorado corporation,
formerly known as The Murrayhill Company, and 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 0.012% 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 November 1, 2006, among the
Custodian, the Trustee and the Servicer.
“Custodian”:
Wells Fargo Bank, N.A., as custodian of the Mortgage Files, or any successor
thereto, pursuant to the Custodial Agreement.
“Cut-off
Date”: With respect to each Mortgage Loan, November 1, 2006.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid Stated
Principal Balance thereof as of the Cut-off Date of such Mortgage Loan
(or as of
the applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan), after giving effect to scheduled payments due on or before
the
Cut-off Date, whether or not received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less
than
the then outstanding Stated Principal Balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy
Code.
“Definitive
Certificates”: As defined in Section 5.02(c) hereof.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by one or more
Qualified Substitute Mortgage Loans.
“Delinquency
Percentage”: For any Distribution Date, the percentage obtained by dividing (x)
the aggregate Stated Principal Balance of Mortgage Loans that are Delinquent
60
days or more (including Mortgage Loans that are in foreclosure, that have
been
converted to REO Properties or that are in bankruptcy and are Delinquent
60 days
or more) by (y) the aggregate Stated Principal Balance of the Mortgage
Loans, in
each case, as of the last day of the previous calendar month.
“Delinquent”:
With respect to any Mortgage Loan and related Monthly Payment, the Monthly
Payment due on a Due Date which is not made by the Close of Business on
the next
scheduled Due Date for such Mortgage Loan. For example, a Mortgage Loan
is 60 or
more days Delinquent if the Monthly Payment due on a Due Date is not made
by the
Close of Business on the second scheduled Due Date after such Due
Date.
“Depositor”:
Financial Asset Securities Corp., a Delaware corporation, or any successor
in
interest.
“Depository”:
The initial Depository shall be The Depository Trust Company, whose nominee
is
Cede & Co., or any other organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
The
Depository shall initially be the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing corporation” as
defined in Section 8-102(3) of the Uniform Commercial Code of the State
of New
York.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by any REMIC other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicer on behalf
of
the Trustee) shall not be considered to Directly Operate an REO Property
solely
because the Trustee (or the Servicer on behalf of the Trustee) establishes
rental terms, chooses tenants, enters into or renews leases, deals with
taxes
and insurance, or makes decisions as to repairs or capital expenditures
with
respect to such REO Property.
“Disqualified
Organization”: A “disqualified organization” under Section 860E of the Code,
which as of the Closing Date is any of: (i) the United States, any state
or
political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing,
(ii) any
organization (other than a cooperative described in Section 521 of the
Code)
which is exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the Code,
(iii) any
organization described in Section 1381(a)(2)(C) of the Code or (iv) an
“electing
large partnership” within the meaning of Section 775 of the Code. A corporation
will not be treated as an instrumentality of the United States or of any
state
or political subdivision thereof, if all of its activities are subject
to tax
and, a majority of its board of directors is not selected by a governmental
unit. The term “United States”, “state” and “international organizations” shall
have the meanings set forth in Section 7701 of the Code.
“Distribution
Account”: The trust account or accounts created and maintained by the Trustee
pursuant to Section 3.10(b) which shall be titled “Distribution Account,
Deutsche Bank National Trust Company, as Trustee, in trust for the registered
Certificateholders of First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates, Series 2006-FF16” 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 December 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.
“Electronic
Recording”: A mortgage or a mortgage-related document created, generated, sent,
communicated, received, or stored by electronic means (that complies with
the
requirements of the Electronic Signatures in Global and National Commerce
Act or
the Uniform Electronic Transactions Act, as applicable) that has been accepted
for recording by a participating county land records office which accepts
such
electronic record of a mortgage or a mortgage-related document as an alternative
to recordation of the original paper form of such document.
“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 Moody’s (or comparable ratings if S&P, Fitch and
Moody’s 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.
“Estimated
Swap Termination Payment”: As defined in the Interest Rate Swap
Agreement.
“Excess
Overcollateralized Amount”: With respect to the Floating Rate Certificates and
any Distribution Date, the excess, if any, of the sum of (i) the
Overcollateralized Amount for such Distribution Date, assuming that 100%
of the
Principal Remittance Amount is applied as a principal payment on such
Distribution Date and (ii) any amounts received under the Interest Rate
Swap
Agreement for such purpose over (iii) the Overcollateralization Target
Amount
for such Distribution Date.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the Monthly Interest Distributable Amount payable on the
Class C
Certificates on such Distribution Date as reduced by Realized Losses allocated
thereto with respect to such Distribution Date pursuant to Section 4.08
and (y)
the Overcollateralization Deficiency Amount for such Distribution
Date.
“Fannie
Mae”: 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 Seller
or
the Servicer pursuant to or as contemplated by Section 2.03, Section 3.16(c)
or
Section 10.01), a determination made by the Servicer that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
“Fitch”:
Fitch Ratings, or its successor in interest.
“Fixed-Rate
Mortgage Loan”: A first 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) the related Notional Amount (as
defined in the Interest Rate Swap Agreement),
(iii)
250 and (iv) a fraction, the numerator of which is the actual number of
days
elapsed from and including the previous Floating Rate Payer Payment Date
(as
defined in the Interest Rate Swap Agreement) to but excluding the current
Floating Rate Payer Payment 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.
“Freddie
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-A1 Certificates.
“Group
I
Initial Deposit”: An amount equal to $107,991.64 deposited with the Trustee by
the Depositor on the Closing Date.
“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 Fannie Mae and Freddie Mac loan
limits.
The aggregate principal balance of the Group I Mortgage Loans as of the
Cut-off
Date is equal to $390,236,281.
“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, (ii)(a) the Extra Principal Distribution Amount for such Distribution
Date
multiplied by (b) the Group I Allocation Percentage and (iii) with respect
to
the first Distribution Date, the Group I Initial Deposit.
“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 related Prepayment Period 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 related Prepayment Period, (v) the principal
portion of any related Substitution Adjustments deposited in the Collection
Account during the related Prepayment Period 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) 67.00%
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-A1 Certificate, Class II-A2 Certificate, Class II-A3
Certificate or Class II-A4 Certificate.
“Group
II
Initial Deposit”: An amount equal to $643,137.40 deposited with the Trustee by
the Depositor on the Closing Date.
“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 Fannie
Mae and
Freddie Mac loan limits. The aggregate principal balance of the Group II
Mortgage Loans as of the Cut-off Date is equal to $813,719,304.
“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, (ii)(a) the Extra Principal Distribution Amount for such Distribution
Date
multiplied by (b) the Group II Allocation Percentage and (iii) with respect
to
the first Distribution Date, the Group II Initial Deposit.
“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 related Prepayment
Period
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 related Prepayment Period,
(v)
the principal portion of any related Substitution Adjustments deposited
in the
Collection Account during the related Prepayment Period 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) 58.00%
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 M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6,
Class M-7, Class M-8, 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
covering a Mortgage Loan to the extent such proceeds are received by the
Servicer and are not to be applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the procedures
that the
Servicer would follow in servicing mortgage loans held for its own account,
subject to the terms and conditions of the related Mortgage Note and
Mortgage.
“Interest
Determination Date”: With respect to the Floating Rate Certificates and each
Accrual Period, the second LIBOR Business Day preceding the commencement
of such
Accrual Period.
“Interest
Rate Cap Agreement”: The interest rate cap agreement, dated the Closing Date,
between the Trustee and the Interest Rate Cap Provider, including any schedule,
confirmations, credit support annex or other credit support document relating
thereto, and attached hereto as Exhibit O-2.
“Interest
Rate Cap Credit Support Annex”: The credit support annex, dated the Closing
Date, between the Cap Trustee and the Interest Rate Cap Provider, which
is
annexed to and forms part of the Interest Rate Cap Agreement.
“Interest
Rate Cap Provider”: The cap provider under the Interest Rate Cap Agreement.
Initially, the Interest Rate Cap Provider shall be HSBC Bank USA, National
Association.
“Interest
Rate Swap Agreement”: The interest rate swap agreement, dated the Closing Date,
between the Supplemental Interest Trust Trustee and the Swap Provider,
including
any schedule, confirmations, credit support annex or other credit support
document relating thereto, and attached hereto as Exhibit Q.
“Late
Collections”: With respect to any Mortgage Loan, all amounts received subsequent
to the Determination Date immediately following any related Due Period,
whether
as late payments of Monthly Payments or as Insurance Proceeds, Liquidation
Proceeds or otherwise, which represent late payments or collections of
principal
and/or interest due (without regard to any acceleration of payments under
the
related Mortgage and Mortgage Note) but delinquent on a contractual basis
for
such Due Period and not previously recovered.
“LIBOR”:
With respect to each Accrual Period, the rate determined by the Trustee
on the
related Interest Determination Date on the basis of the London interbank
offered
rate for one-month United States dollar deposits, as such rate appears
on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date. If such rate does not appear on Telerate Page 3750,
the rate
for such Interest Determination Date will be determined on the basis of
the
offered rates of the Reference Banks for one-month United States dollar
deposits, as of 11:00 a.m. (London time) on such Interest Determination
Date.
The Trustee will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. On such Interest Determination
Date,
LIBOR for the related Accrual Period will be established by the Trustee
as
follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16 of 1%); and
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide
such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(i) LIBOR as determined on the previous Interest Determination Date and
(ii) the
Reserve Interest Rate.
“LIBOR
Business Day”: Any day on which banks in London, England and The City of New
York are open and conducting transactions in foreign currency and
exchange.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the Servicer has determined, in accordance with the servicing procedures
specified herein, as of the end of the related Prepayment Period, that
all
Liquidation Proceeds which it expects to recover with respect to the liquidation
of the Mortgage Loan or disposition of the related REO Property have been
recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i) such
Mortgage Loan is paid in full, (ii) a Final Recovery Determination is made
as to
such Mortgage Loan or (iii) such Mortgage Loan is removed from the Trust
Fund by
reason of its being purchased, sold or replaced pursuant to or as contemplated
by Section 2.03, Section 3.16(c) or Section 10.01. With respect to any
REO
Property, either of the following events: (i) a Final Recovery Determination
is
made as to such REO Property or (ii) such REO Property is removed from
the Trust
Fund by reason of its being sold or purchased pursuant to Section 3.23
or
Section 10.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the Servicer in
connection with (i) the taking of all or a part of a Mortgaged Property
by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan by means of a trustee’s sale, foreclosure sale or
otherwise or (iii) the repurchase, substitution or sale of a Mortgage Loan
or an
REO Property pursuant to or as contemplated by Section 2.03, Section 3.16(c),
Section 3.23 or Section 10.01.
“Loan-to-Value
Ratio”: As of any date and as to any Mortgage Loan, the fraction, expressed as
a
percentage, the numerator of which is the Stated Principal Balance of the
Mortgage Loan and the denominator of which is the Value of the related
Mortgaged
Property.
“Loan
Group”: Either Loan Group I or Loan Group II, as the context
requires.
“Loan
Group I”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group I.
“Loan
Group II”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group II.
“Losses”:
As defined in Section 9.03.
“Lost
Note Affidavit”: With respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost, misplaced or destroyed and has
not been
replaced, an affidavit from the Originator or the Seller 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.
“Master
Consulting Agreement”: The master consulting agreement dated as of April 18,2005, by and between Greenwich Capital Markets, Inc. and the Credit Risk
Manager.
“Maximum
Cap Rate”: For any Distribution Date with respect to the Floating Rate
Certificates, a per annum rate equal to the product of (i) (x) the weighted
average of the Adjusted Net Maximum Mortgage Rates of the Mortgage Loans,
weighted on the basis of the outstanding Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after taking
into
account any Principal Payments received during the related Prepayment Period)
minus the Swap Expense Fee Rate, plus (y) an amount, expressed as a percentage
equal to a fraction, the numerator of which is equal to any Net Swap Payment
and
any Swap Termination Payment made by the Swap Provider and the denominator
of
which is equal to the aggregate Stated Principal Balance of the Mortgage
Loans
as of the last day of the related Due Period (after taking into account
any
Principal Prepayments received during the related Prepayment Period), multiplied
by 12 minus (z) the Swap Expense Fee Rate and (ii) a fraction, the numerator
of
which is 30 and the denominator of which is the actual number of days elapsed
in
the related Accrual Period.
“Maximum
Mortgage Rate”: With respect to each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the maximum Mortgage Rate thereunder.
“Maximum
Uncertificated Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (a) accrued interest at the Uncertificated
REMIC 2 Pass-Through Rate applicable to REMIC 2 Regular Interest LTZZ for
such
Distribution Date on a balance equal to the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTZZ minus the REMIC 2 Overcollateralization Amount,
in
each case for such Distribution Date, over (b) the sum of the Uncertificated
Accrued Interest on REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest
LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest LTIIA3,
REMIC
2 Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular
Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest
LTM4,
REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular
Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest
LTM9,
REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTM11 and REMIC
2
Regular Interest LTM12 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 Floating Rate
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”:
Moody’s Investors Service, Inc., or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first lien on,
or
first 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
November 2, 2006, between the Seller and the Depositor, substantially in
the
form attached hereto as Exhibit C.
“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 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
Floating Rate 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”: With respect to the Floating Rate Certificates, for the first
Distribution Date, such rate shall be 7.562884%, and for any Distribution
Date
following the first Distribution Date, such rate shall be a per annum rate
equal
to the product of (x) the weighted average of the Adjusted Net Mortgage
Rates of
the Mortgage Loans as of the last day of the related Due Period (after
taking
into account any Principal Prepayments received during the related Prepayment
Period) minus the Swap Expense Fee Rate and (y) 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. For federal income tax purposes, the equivalent
of the foregoing shall be expressed as a per annum rate equal to the weighted
average of the Uncertificated REMIC 2 Pass-Through Rates on each REMIC
2 Regular
Interest (other than REMIC 2 Regular Interests LTIO), weighted on the basis
of
the Uncertificated Principal Balance of each such REMIC 2 Regular
Interest.
“Net
WAC
Rate Carryover Amount”: With respect to any Class of Floating Rate Certificates
and any Distribution Date, the sum of (A) the positive excess of (i) the
amount
of interest accrued on such Class of Certificates on such Distribution
Date
calculated at the related Pass-Through Rate (without regard to the related
Net
WAC Rate), over (ii) the amount of interest accrued on such Class of
Certificates at the Net WAC Rate for such Distribution Date and (B) the
Net WAC
Rate Carryover Amount for the previous Distribution Date not previously
paid,
together with interest thereon at a rate equal to the related Pass-Through
Rate
(without regard to the Net WAC Rate) for the most recently ended Accrual
Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 4.08.
“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 Floating Rate 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 Seller or the Depositor, as
applicable.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor 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 Floating Rate
Certificates, the Class C Certificates, the Class C Interest, the Class
IO
Interest, REMIC 6 Regular Interest SWAP IO, the Class P Certificates and
the
Class P Interest, the corresponding amounts set forth opposite such Class
above
in the Preliminary Statement.
“Originator”:
First Franklin, a division of National City Bank.
“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, $1,951,181. With respect to
the Group II Certificates, $4,068,597. With respect to the Mezzanine
Certificates, $6,019,778.
“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 2.00% of the aggregate Cut-off Date Principal
Balance
of the Mortgage Loans and (y) on or after the Stepdown Date provided a
Trigger
Event is not in effect, the greater of (A) 4.00% 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 Floating
Rate
Certificates to zero, the Overcollateralization Target Amount shall be
zero.
“Overcollateralized
Amount”: For any Distribution Date, the amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
minus
(ii) the aggregate Certificate Principal Balance of the Floating Rate
Certificates and the Class P Certificates as of such Distribution Date
after
giving effect to distributions to be made on such Distribution
Date.
“Ownership
Interest”: As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
“Pass-Through
Rate”: With respect to the 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 LTAA, LTIA1,
LTIIA1, 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, Keogh plans and
bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Pool
Balance”: As of any date of determination, the aggregate Stated Principal
Balance of the Mortgage Loans in both Loan Groups as of such date.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Mortgage Loan, the charges or premiums, if any, due
in connection with a full or partial Principal Prepayment of such Mortgage
Loan
in accordance with the terms thereof (other than any Servicer Prepayment
Charge
Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans included in the Trust Fund on such date, attached hereto as Schedule
I
(including the prepayment charge summary attached thereto). The Prepayment
Charge Schedule shall set forth the following information with respect
to each
Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Prepayment Charge; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
The
Prepayment Charge Schedule shall be amended from time to time by the Depositor
in accordance with the provisions of this Agreement and a copy of such
amended
Prepayment Charge Schedule shall be furnished by the Depositor 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 and any Principal Prepayment in
full, 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 November 1,2006)
and ending on the 15th
day of
the calendar month in which such Distribution Date occurs. With respect
to any
Principal Prepayment in part, the calendar month preceding the month in
which
the 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 November 16, 2006 relating
to the public offering of the Floating Rate Certificates.
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased by
the
Seller or the Servicer pursuant to or as contemplated by Section 2.03,
Section
3.16(c) or Section 10.01, and as confirmed by an Officers’ Certificate from the
Seller 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 Fannie Mae.
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan by the Seller 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 or
the
Seller 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 set forth in Section 3.01 of the Mortgage
Loan Purchase Agreement applicable to the Deleted Mortgage Loan. In the
event
that one or more mortgage loans are substituted for one or more Deleted
Mortgage
Loans, the amounts described in clause (i) hereof shall be determined on
the
basis of aggregate Stated Principal Balance, the Mortgage Rates described
in
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”: DBRS, Moody’s 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, the Seller 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 Floating Rate 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, the amount by which (i) interest collectible
on
such Mortgage Loan during such Due Period is less than (ii) one month’s interest
on the Stated Principal Balance of such Mortgage Loan at the Mortgage Rate
for
such Mortgage Loan before giving effect to the application of the Relief
Act.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
1”: The segregated pool of assets subject hereto, constituting the primary
trust
created hereby and to be administered hereunder, with respect to which
a REMIC
election is to be made consisting of: (i) such Mortgage Loans as from time
to
time are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof,
(ii)
any REO Property, together with all collections thereon and proceeds thereof,
(iii) the Trustee’s rights with respect to the Mortgage Loans under all
insurance policies required to be maintained pursuant to this Agreement
and any
proceeds thereof, (iv) the Depositor’s rights under the 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, a REMIC election will not be made with respect to the Net WAC
Rate
Carryover Reserve Account, the Interest Rate Swap Agreement, the Swap Account,
the Supplemental Interest Trust, the Servicer Prepayment Charge Payment
Amounts,
the Interest Rate Cap Agreement, the Cap Account, the Cap Allocation Agreement,
the Basis Risk Cap 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”: The segregated pool of assets consisting of all of the REMIC 1 Regular
Interests and conveyed in trust to the Trustee, for the benefit of REMIC
3, as
holder of the REMIC 2 Regular Interests, and the Class R Certificateholders,
as
Holders of the Class R-2 Interest, pursuant to Article II hereunder, and
all
amounts deposited therein, with respect to which a separate REMIC election
is to
be made.
“REMIC
2
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and related REO Properties then outstanding and (ii)
the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest LTAA
minus
the Marker Rate, divided by (b) 12.
“REMIC
2
Overcollateralization Amount”: With respect to any date of determination, (i)
1.00% of the aggregate Uncertificated Principal Balance of the REMIC 2
Regular
Interests (other than REMIC 2 Regular Interest LTP) minus (ii) the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interest LTIA1, REMIC
2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest
LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8 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, 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.
“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
Fannie Mae 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 McGraw-Hill Companies,
Inc., or its successor in interest.
“SEC”:
Securities and Exchange Commission.
“Seller”:
Greenwich Capital Financial Products, Inc., a Delaware corporation, in
its
capacity as Seller under the Mortgage Loan Purchase Agreement.
“Senior
Credit Enhancement Percentage”: For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of the aggregate
Certificate Principal Balance of the Mezzanine Certificates 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.
“Sequential
Class M 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, the Class M-2 Certificates and the Class
M-3
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 81.80% 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.
“Servicer”:
National City Home Loan Services, Inc., a Delaware corporation, or any
successor
servicer appointed as herein provided, in its capacity as Servicer
hereunder.
“Servicer
Certification”: As defined in Section 4.07(b)(iii) 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, three (3) Business Days
prior to such Distribution Date.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“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, administrative
or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of the REO Property, (iv) taxes, assessments, water rates,
sewer
rates and other charges which are or may become a lien on the Mortgaged
Property
and insurance premiums (v) obtaining broker price opinions, (vi) locating
missing Mortgage Loan documents and (vii) 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”: 0.50%
per annum.
“Servicing
Officer”: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Servicer
to
the Trustee and the Depositor on the Closing Date, as such list may from
time to
time be amended.
“Servicing
Standard”: As defined in Section 3.01.
“Servicing
Transfer Costs”: Shall mean all reasonable costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a predecessor
servicer, including, without limitation, any reasonable costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by
the
Trustee to correct any errors or insufficiencies in the servicing data
or
otherwise to enable the Trustee (or any successor servicer appointed pursuant
to
Section 7.02) to service the Mortgage Loans properly and effectively and
any
fees associated with MERS.
“Startup
Day”: As defined in Section 9.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage
Loan
would be distributed, the outstanding principal balance of such Mortgage
Loan as
of the Cut-off Date as shown in the Mortgage Loan Schedule, minus the sum
of (i)
the principal portion of each Monthly Payment due on a Due Date subsequent
to
the Cut-off Date to the extent received from the Mortgagor or advanced
by the
Servicer and distributed pursuant to Section 4.01 on or before such date
of
determination, (ii) all Principal Prepayments received after the Cut-off
Date to
the extent distributed pursuant to Section 4.01 on or before such date
of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds to
the
extent distributed pursuant to Section 4.01 on or before such date of
determination, and (iv) any Realized Loss incurred with respect thereto
as a
result of a Deficient Valuation made during or prior to the Due Period
for the
most recent Distribution Date coinciding with or preceding such date of
determination; and (b) as of any date of determination coinciding with
or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed,
zero.
With respect to any REO Property: (a) as of any date of determination up
to but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
an
amount (not less than zero) equal to the Stated Principal Balance of the
related
Mortgage Loan as of the date on which such REO Property was acquired on
behalf
of the Trust Fund, minus the aggregate amount of REO Principal Amortization
in
respect of such REO Property for all previously ended calendar months,
to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with
or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
“Stepdown
Date”: The earlier to occur of (i) the Distribution Date following the
Distribution Date on which the aggregate Certificate Principal Balance
of the
Class A Certificates has been reduced to zero and (ii) the later to occur
of (x)
the Distribution Date occurring in December 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 33.00%.
“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”: A segregated account established by a Sub-Servicer which meets the
requirements set forth in Section 3.08 and is otherwise acceptable to the
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer
relating to servicing and administration of certain Mortgage Loans as provided
in Section 3.02.
“Subsequent
Recoveries”:
As
of any Distribution Date, amounts received by the Servicer (net of any
related
expenses permitted to be reimbursed pursuant to Section 3.11) specifically
related to a Mortgage Loan that was the subject of a liquidation or an
REO
Disposition prior to the related Prepayment Period that resulted in a Realized
Loss.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Supplemental
Interest Trust”: As defined in Section 4.05(a).
“Supplemental
Interest Trust Trustee”: Deutsche Bank National Trust Company, a national
banking association, 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
Credit Support Annex”: The credit support annex, dated the Closing Date, between
the Supplemental Interest Trust Trustee and the Interest Rate Swap Provider,
which is annexed to and forms part of the Interest Rate Swap
Agreement.
“Swap
Expense Fee Rate” for any Distribution Date is an amount, expressed as a per
annum rate, equal to the sum of (a) the product of (i) the Net Swap Payment
made
to the Swap Provider divided by the aggregate Principal Balance of the
Mortgage
Loans as of the last day of the related Due Period (after taking into account
any Principal Prepayments received during the related Prepayment Period)
and
(ii) 12 and (b) the product of (i) any Swap Termination Payment (other
than a
Swap Termination Payment resulting from a Swap Provider Trigger Event)
made to
the Swap Provider divided by the aggregate Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after taking into account
any Principal Prepayments received during the related Prepayment Period)
and
(ii) 12.
“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 Interest
Rate
Swap Agreement.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by the Swap Provider
under
the Swap Agreement.
“Swap
Provider”: The
swap
provider under the Interest Rate Swap Agreement. Initially, the Swap Provider
shall be HSBC Bank USA, National Association.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect
to which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate
Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined
in the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event
under the
Interest Rate Swap Agreement with respect to which the Swap Provider is
the sole
Affected Party.
“Swap
Termination Payment”: The payment due to either party under the Interest Rate
Swap Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Tax
Matters Person”: The tax matters person appointed pursuant to Section 9.01(e)
hereof.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of the
REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
by
the Trustee on behalf of each REMIC, together with any and all other information
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal,
state
or local tax laws.
“Termination
Price”: As defined in Section 10.01(a) hereof.
“Terminator”:
As defined in Section 10.01(a) hereof.
“Transaction
Addendum FFMLT 2006-FF16”: The transaction addendum dated as of November 30,2006, by and between Greenwich Capital Markets, Inc. and the Credit Risk
Manager, and acknowledged by the Trustee, relating to the transaction
contemplated by this Agreement.
“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
42.30% 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”), exceeds
the applicable percentages set forth below with respect to such Distribution
Date:
Distribution
Date Occurring In
Percentage
December
2008 through November 2009
1.25%
initially, plus 1/12th
of
1.55% for each month thereafter
December
2009 through November 2010
2.80%
initially, plus 1/12th
of
1.60% for each month thereafter
December
2010 through November 2011
4.40%
initially, plus 1/12th
of
1.30% for each month thereafter
December
2011 through November 2012
5.70%
initially, plus 1/12th
of
0.75% for each month thereafter
December
2012 and thereafter
6.45%
“Trust”:
First Franklin Mortgage Loan Trust 2006-FF16, 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 Trustee under the Interest Rate Swap Agreement
and the
Swap Account, distributions made to the Trustee under the Basis Risk Cap
Agreement, distributions made to the Trustee by the Cap Trustee pursuant
to the
Cap Allocation Agreement, 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”: Such compensation, if any, as set forth in the separate fee
schedule between the Trustee and the Depositor, which compensation shall
be
payable to the Trustee on each Distribution Date pursuant to Section 8.05
as
compensation for all services rendered by it in the execution of the trust
hereby created and in the exercise and performance of any of the powers
and
duties of the Trustee hereunder.
“Uncertificated
Accrued Interest”: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated REMIC Pass-Through Rate on the Uncertificated Principal
Balance
of such REMIC Regular Interest. In each case, Uncertificated Accrued Interest
will be reduced by any Net Prepayment Interest Shortfalls, Relief Act Interest
Shortfalls (allocated to such REMIC Regular Interests based on their respective
entitlements to interest irrespective of any Net Prepayment Interest Shortfalls
and Relief Act Interest Shortfalls for such Distribution Date).
“Uncertificated
Notional Amount”: With respect to REMIC 2 Regular Interest LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal
Balance
of the REMIC 1 Regular Interests ending with the designation “A” listed below:
Distribution
Date
REMIC
1 Regular Interests
1st
through 10th
I-1-A
through I-51-A
11
I-2-A
through I-51-A
12
I-3-A
through I-51-A
13
I-4-A
through I-51-A
14
I-5-A
through I-51-A
15
I-6-A
through I-51-A
16
I-7-A
through I-51-A
17
I-8-A
through I-51-A
18
I-9-A
through I-51-A
19
I-10-A
through I-51-A
20
I-11-A
through I-51-A
21
I-12-A
through I-51-A
22
I-13-A
through I-51-A
23
I-14-A
through I-51-A
24
I-15-A
through I-51-A
25
I-16-A
through I-51-A
26
I-17-A
through I-51-A
27
I-18-A
through I-51-A
28
I-19-A
through I-51-A
29
I-20-A
through I-51-A
30
I-21-A
through I-51-A
31
I-22-A
through I-51-A
32
I-23-A
through I-51-A
33
I-24-A
through I-51-A
34
I-25-A
through I-51-A
35
I-26-A
through I-51-A
36
I-27-A
through I-51-A
37
I-28-A
through I-51-A
38
I-29-A
through I-51-A
39
I-30-A
through I-51-A
40
I-31-A
through I-51-A
41
I-32-A
through I-51-A
42
I-33-A
through I-51-A
43
I-34-A
through I-51-A
44
I-35-A
through I-51-A
45
I-36-A
through I-51-A
46
I-37-A
through I-51-A
47
I-38-A
through I-51-A
48
I-39-A
through I-51-A
49
I-40-A
through I-51-A
50
I-41-A
through I-51-A
51
I-42-A
through I-51-A
52
I-43-A
through I-51-A
53
I-44-A
through I-51-A
54
I-45-A
through I-51-A
55
I-46-A
through I-51-A
56
I-47-A
through I-51-A
57
I-48-A
through I-51-A
58
I-49-A
through I-51-A
59
I-50-A
and I-51-A
60
I-51-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 Floating Rate 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 10.780%. 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)
10.780% 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
1st
through 9th
I-1-A
through I-51-A
Uncertificated
REMIC 1 Pass-Through Rate
10
I-1-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
11
I-2-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
12
I-1-A
Uncertificated
REMIC 1 Pass-Through Rate
I-3-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
13
I-1-A
and I-2-A
Uncertificated
REMIC 1 Pass-Through Rate
I-4-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
14
I-1-A
through I-3-A
Uncertificated
REMIC 1 Pass-Through Rate
I-5-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
15
I-1-A
through I-4-A
Uncertificated
REMIC 1 Pass-Through Rate
I-6-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
16
I-1-A
through I-5-A
Uncertificated
REMIC 1 Pass-Through Rate
I-7-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
17
I-1-A
through I-6-A
Uncertificated
REMIC 1 Pass-Through Rate
I-8-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
18
I-1-A
through I-7-A
Uncertificated
REMIC 1 Pass-Through Rate
I-9-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
19
I-1-A
through I-8-A
Uncertificated
REMIC 1 Pass-Through Rate
I-10-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
20
I-1-A
through I-9-A
Uncertificated
REMIC 1 Pass-Through Rate
I-11-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
21
I-1-A
through I-10-A
Uncertificated
REMIC 1 Pass-Through Rate
I-12-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
22
I-1-A
through I-11-A
Uncertificated
REMIC 1 Pass-Through Rate
I-13-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
23
I-1-A
through I-12-A
Uncertificated
REMIC 1 Pass-Through Rate
I-14-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
24
I-1-A
through I-13-A
Uncertificated
REMIC 1 Pass-Through Rate
I-15-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
25
I-1-A
through I-14-A
Uncertificated
REMIC 1 Pass-Through Rate
I-16-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
26
I-1-A
through I-15-A
Uncertificated
REMIC 1 Pass-Through Rate
I-17-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
27
I-1-A
through I-16-A
Uncertificated
REMIC 1 Pass-Through Rate
I-18-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
28
I-1-A
through I-17-A
Uncertificated
REMIC 1 Pass-Through Rate
I-19-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
29
I-1-A
through I-18-A
Uncertificated
REMIC 1 Pass-Through Rate
I-20-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
30
I-1-A
through I-19-A
Uncertificated
REMIC 1 Pass-Through Rate
I-21-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
31
I-1-A
through I-20-A
Uncertificated
REMIC 1 Pass-Through Rate
I-22-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
32
I-1-A
through I-21-A
Uncertificated
REMIC 1 Pass-Through Rate
I-23-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
33
I-1-A
through I-22-A
Uncertificated
REMIC 1 Pass-Through Rate
I-24-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
34
I-1-A
through I-23-A
Uncertificated
REMIC 1 Pass-Through Rate
I-25-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
35
I-1-A
through I-24-A
Uncertificated
REMIC 1 Pass-Through Rate
I-26-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
36
I-1-A
through I-25-A
Uncertificated
REMIC 1 Pass-Through Rate
I-27-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
37
I-1-A
through I-26-A
Uncertificated
REMIC 1 Pass-Through Rate
I-28-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
38
I-1-A
through I-27-A
Uncertificated
REMIC 1 Pass-Through Rate
I-29-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
39
I-1-A
through I-28-A
Uncertificated
REMIC 1 Pass-Through Rate
I-30-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
40
I-1-A
through I-29-A
Uncertificated
REMIC 1 Pass-Through Rate
I-31-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
41
I-1-A
through I-30-A
Uncertificated
REMIC 1 Pass-Through Rate
I-32-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
42
I-1-A
through I-31-A
Uncertificated
REMIC 1 Pass-Through Rate
I-33-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
43
I-1-A
through I-32-A
Uncertificated
REMIC 1 Pass-Through Rate
I-34-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
44
I-1-A
through I-33-A
Uncertificated
REMIC 1 Pass-Through Rate
I-35-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
45
I-1-A
through I-34-A
Uncertificated
REMIC 1 Pass-Through Rate
I-36-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
46
I-1-A
through I-35-A
Uncertificated
REMIC 1 Pass-Through Rate
I-37-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
47
I-1-A
through I-36-A
Uncertificated
REMIC 1 Pass-Through Rate
I-38-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
48
I-1-A
through I-37-A
Uncertificated
REMIC 1 Pass-Through Rate
I-39-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
49
I-1-A
through I-38-A
Uncertificated
REMIC 1 Pass-Through Rate
I-40-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
50
I-1-A
through I-39-A
Uncertificated
REMIC 1 Pass-Through Rate
I-41-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
51
I-1-A
through I-40-A
Uncertificated
REMIC 1 Pass-Through Rate
I-42-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
52
I-1-A
through I-41-A
Uncertificated
REMIC 1 Pass-Through Rate
I-43-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
53
I-1-A
through I-42-A
Uncertificated
REMIC 1 Pass-Through Rate
I-44-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
54
I-1-A
through I-43-A
Uncertificated
REMIC 1 Pass-Through Rate
I-45-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
55
I-1-A
through I-44-A
Uncertificated
REMIC 1 Pass-Through Rate
I-46-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
56
I-1-A
through I-45-A
Uncertificated
REMIC 1 Pass-Through Rate
I-47-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
57
I-1-A
through I-46-A
Uncertificated
REMIC 1 Pass-Through Rate
I-48-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
58
I-1-A
through I-47-A
Uncertificated
REMIC 1 Pass-Through Rate
I-49-A
through I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
59
I-1-A
through I-48-A
Uncertificated
REMIC 1 Pass-Through Rate
I-50-A
and I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
60
I-1-A
through I-30-A
Uncertificated
REMIC 1 Pass-Through Rate
I-51-A
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
thereafter
I-1-A
through I-50-A
Uncertificated
REMIC 1 Pass-Through Rate
I-1-A
through I-51-A
Uncertificated
REMIC 1 Pass-Through Rate
With
respect to REMIC 2 Regular Interest LTIO and (a) the first 9 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
10th
Distribution Date through the 60th
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 Floating Rate
Certificates and (i) the first Distribution Date, zero, and (ii) any
Distribution Date after the first Distribution Date, the amount, if any,
by
which (a) the sum of (1) the Monthly Interest Distributable Amount for
such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such
Class in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not
paid on
the Certificates of such Class on such preceding Distribution Date, to
the
extent permitted by law, at the Pass-Through Rate for such Class for the
related
Accrual Period.
“Value”:
With respect to any Mortgaged Property, the lesser of (i) the value thereof
as
determined by an appraisal made for the originator of the Mortgage Loan
at the
time of origination of the Mortgage Loan by an appraiser who met the minimum
requirements of Fannie Mae and Freddie Mac and (ii) the purchase price
paid for
the related Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times the Floating Rate Certificates
and
the Class C Certificates shall have 98% of the Voting Rights (allocated
among
the Holders of the Floating Rate Certificates and the Class C Certificates
in
proportion to the then outstanding Certificate Principal Balances of their
respective Certificates), the Class P Certificates shall have 1% of the
Voting
Rights and the Residual Certificates shall have 1% of the Voting Rights.
The
Voting Rights allocated to any Class of Certificates (other than the Class
P
Certificates and the Residual Certificates) shall be allocated among all
Holders
of each such Class in proportion to the outstanding Certificate Principal
Balance of such Certificates, and the Voting Rights allocated to the Class
P
Certificates and the Residual Certificates shall be allocated among all
Holders
of each such Class in proportion to such Holders’ respective Percentage
Interest; provided, however that when none of the Regular Certificates
are
outstanding, 100% of the Voting Rights shall be allocated among Holders
of the
Residual Certificates in accordance with such Holders’ respective Percentage
Interests in the Certificates of such Class.
SECTION
1.02
Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and
any
related definitions or calculations shall be determined without duplication
of
such functions.
SECTION
1.03
Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of the Monthly Interest Distributable
Amount
for the Floating Rate Certificates and the Class C Certificates for any
Distribution Date, (1) the aggregate amount of any Net Prepayment Interest
Shortfalls and any Relief Act Interest Shortfalls incurred in respect of
the
Mortgage Loans for any Distribution Date shall be allocated first, among
the
Class C Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate and,
thereafter, among the Floating Rate Certificates on a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate and (2) the aggregate amount of any Realized Losses
and
Net WAC Rate Carryover Amounts shall be allocated among the Class C Certificates
on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for
the
REMIC 1 Regular Interests for any Distribution Date the aggregate amount
of any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to
REMIC 1
Regular Interest I and to the REMIC 1 Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest, and then, to
REMIC 1
Regular Interests ending with the designation “A”, pro rata based on, and to the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC 1 Pass-Through Rates on the respective Uncertificated Principal Balances
of each such REMIC 1 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for
the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount
of any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall
be
allocated among REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTIA1,
REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC
2
Regular Interest LTIIA3, REMIC
2
Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular
Interest
LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC
2
Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9 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 Supplemental
Interest
Trust Trustee by the Swap Provider and the Swap Account, (vi) payments
made to
the Cap Trustee by the Interest Rate Cap Provider and the Cap Account,
(vii) the
right to receive any amounts payable under the Basis Risk Cap Agreement
and
Basis Risk Cap Agreement and (viii) 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 registered on the MERS® System, an original Assignment, in
form and substance acceptable for recording. The Mortgage shall be assigned
either (A) in blank or (B) to “Deutsche Bank National Trust Company, as Trustee,
without recourse”;
(iv) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments (or to MERS if the Mortgage Loan is registered on the MERS® System
and noting the presence of MIN);
(v) the
original or a certified copy of lender’s title insurance policy;
and
(vi) the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any.
The
Depositor herewith also delivers to the Trustee an executed copy of the
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 or the
Seller
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 Seller 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 Seller does not cure such defect or deliver such
missing
document within such time period, the Servicer shall enforce the obligations
of
the Seller to either repurchase or substitute for such Mortgage Loan in
accordance with Section 2.03. 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 Seller 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 and 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 Seller 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 Seller, (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 Seller to deliver such Assignments for recording as provided above,
promptly
and in any event within 30 days following receipt of notice by the Seller.
Notwithstanding the foregoing, if the Seller 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.
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 Seller, the Depositor, the NIMS Insurer and the Servicer. In addition,
upon
the discovery by the Depositor, the NIMS Insurer or the Servicer (or upon
receipt by the Trustee of written notification of such breach) of a breach
of
any of the representations and warranties made by the Seller 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.
The
Trustee is hereby authorized and directed by the Depositor to execute and
deliver Transaction Addendum FFMLT 2006-FF16 to the Master Consulting Agreement
with the Credit Risk Manager.
SECTION
2.03
Repurchase
or Substitution of Mortgage Loans by the
Seller.
(a) Upon
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by
the
Seller 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 Seller deliver
such
missing document or that the Seller cure such defect or breach within 90
days
from the date the Seller was notified of such missing document, defect
or
breach, and if the Seller does not deliver such missing document or cure
such
defect or breach in all material respects during such period, the Servicer
shall
use commercially reasonable efforts to attempt to enforce the Seller’s
obligation under the Mortgage Loan Purchase Agreement and notify the Seller
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 that, in connection
with any such breach that could not reasonably have been cured within such
120
day period, if the Seller has commenced to cure such breach within such
120 day
period, the Seller shall be permitted to proceed thereafter diligently
and
expeditiously to cure the same within the additional period provided 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 Seller the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
as
the Seller shall furnish to it and as shall be necessary to vest in the
Seller
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 Seller
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 Seller 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 Seller
is not a
member of MERS and repurchases a Mortgage Loan which is registered on the
MERS®
System, the Seller, 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 Seller 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 Seller 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 Seller respecting
such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
(b) Within
90
days of the earlier of discovery by the Depositor or receipt of notice
by the
Depositor of the breach of any representation, warranty or covenant of
the
Depositor set forth in Section 2.06, which materially and adversely affects
the
interests of the Certificateholders in any Mortgage Loan, the Depositor
shall
cure such breach in all material respects..
(c) Within
90
days of the earlier of discovery by the Servicer or receipt of notice by
the
Servicer of the breach of any representation, warranty or covenant of the
Servicer set forth in Section 2.05 which materially and adversely affects
the
interests of the Certificateholders in any Mortgage Loan, the Servicer
shall
cure such breach in all material respects.
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage
Loans
made pursuant to Section 2.03(a) must be effected prior to the last Business
Day
that is within two years after the Closing Date. As to any Deleted Mortgage
Loan
for which the Seller substitutes a Qualified Substitute Mortgage Loan or
Loans,
such substitution shall be effected by the Seller 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 Seller. 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 Seller 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 Seller, 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 Seller 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 Seller 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 Seller
the
related Mortgage File or Files and shall execute and deliver such instruments
of
transfer or assignment, in each case without recourse, as the Seller shall
deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In
addition, the Seller 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 Seller 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 Seller 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 Seller 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 Seller, 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 Seller, 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.
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 a corporation duly organized, validly existing and in good
standing
under the laws of Delaware and is an operating subsidiary of National City
Bank.
As a national bank operating subsidiary, it is regulated by the Office
of the
Comptroller of the Currency and is subject to applicable laws and regulations.
Servicer is authorized to service the related Mortgage Loans in accordance
with
the terms of this Agreement and to carry on its business as now being conducted
as an operating subsidiary of a national bank. The Servicer has the full
corporate power and authority to execute and deliver this Agreement and
to
perform in accordance herewith; the execution, delivery and performance
of this
Agreement by the Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Servicer,
regardless of whether such enforcement is sought in equity or at law; and
all
requisite corporate action has been taken by the Servicer to make this
Agreement
valid and binding upon the Servicer in accordance with its terms, subject
to (1)
bankruptcy, reorganization, insolvency, moratorium or other similar laws
now or
hereafter in effect relating to creditors’ rights generally, including, without
limitation, the effect of statutory or ether laws regarding fraudulent
conveyances or preferential transfers, and (2) general principles of equity
and
public policy upon the specific enforceability of any of the remedies,
covenants
or other provisions of the Agreement and upon the availability of injunctive
relief or other equitable remedies and the application of principles of
equity
(regardless of whether such enforceability is considered in a proceeding
in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors’ rights generally and the discretion of the court before which any
proceeding for such enforcement may be brought;
(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,
(A) may 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) may result in
any
material impairment of the right or ability of the Servicer to carry on
its
business substantially as now conducted, or (C) would 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) would otherwise be likely to 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 accurately and fully reported, and will continue to accurately
and
fully report on a monthly basis, its borrower credit files to each of the
three
national credit repositories in a timely manner.
It
is
understood and agreed that the representations, warranties and covenants
set
forth in this Section 2.05 shall survive delivery of the Mortgage Files
to the
Trustee (or the Custodian on behalf of the Trustee) and shall inure to
the
benefit of the Trustee, the Depositor and the Certificateholders. Upon
discovery
by any of the Depositor, the NIMS Insurer, the Servicer or the Trustee
of a
breach of any of the foregoing representations, warranties and covenants
which
materially and adversely affects the value of any Mortgage Loan, Prepayment
Charge or the interests therein of the Certificateholders, the party discovering
such breach shall give prompt written notice (but in no event later than
two
Business Days following such discovery) to the Servicer, the NIMS Insurer
and
the Trustee. Notwithstanding the foregoing, within 90 days of the earlier
of
discovery by the Servicer or receipt of notice by the Servicer of the breach
of
the representation or covenant of the Servicer set forth in Section 2.05(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
Seller.
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
Authorization
to Enter into Basis Risk Cap Agrement, Interest Rate Cap Agreement
and
Interest Rate Swap Agreement.
(a) The
Trustee is hereby directed to execute and deliver the Basis Risk Cap Agreement
on behalf of Party B (as defined therein) and to exercise the rights, perform
the obligations, and make the representations of Party B thereunder, solely
in
its capacity as Trustee on behalf of Party B (as defined therein) and not
in its
individual capacity. The Servicer, the Depositor and the Certificateholders
(by
acceptance of their Certificates) acknowledge and agree that (i) the Trustee
shall execute and deliver the Basis Risk Cap Agreement on behalf of Party
B (as
defined therein), (ii) the Trustee shall exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely
in its
capacity as Trustee on behalf of Party B (as defined therein) and not in
its
individual capacity, and (iii) the Trustee shall be entitled to exercise
the
rights and obligated to perform the obligations of Party B under the Basis
Risk
Cap Agreement.
(b) The
Trustee (in its capacity as Cap Trustee) is hereby directed to execute
and
deliver the Interest Rate Cap Agreement on behalf of Party B (as defined
therein) and to exercise the rights, perform the obligations, and make
the
representations of Party B thereunder, solely in its capacity as Cap Trustee
on
behalf of Party B (as defined therein) and not in its individual capacity.
The
Servicer, the Depositor and the Certificateholders (by acceptance of their
Certificates) acknowledge and agree that (i) the Trustee (in its capacity
as Cap
Trustee) shall execute and deliver the Interest Rate Cap Agreement on behalf
of
Party B (as defined therein), (ii) the Trustee (in its capacity as Cap
Trustee)
shall exercise the rights, perform the obligations, and make the representations
of Party B thereunder, solely in its capacity as Cap Trustee on behalf
of Party
B (as defined therein) and not in its individual capacity, and (iii) the
Trustee
(in its capacity as Cap Trustee) shall be entitled to exercise the rights
and
obligated to perform the obligations of Party B under the Interest Rate
Cap
Agreement.
(c) The
Trustee (in its capacity as Supplemental Interest Trust Trustee) is hereby
directed to execute and deliver the Interest Rate Swap Agreement on behalf
of
Party B (as defined therein) and to exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely
in its
capacity as Supplemental Interest Trust Trustee on behalf of Party B (as
defined
therein) and not in its individual capacity. The Servicer, the Depositor
and the
Certificateholders (by acceptance of their Certificates) acknowledge and
agree
that (i) the Trustee (in its capacity as Supplemental Interest Trust Trustee)
shall execute and deliver the Interest Rate Swap Agreement on behalf of
Party B
(as defined therein), (ii) the Trustee (in its capacity as Supplemental
Interest
Trust Trustee) shall exercise the rights, perform the obligations, and
make the
representations of Party B thereunder, solely in its capacity as Supplemental
Interest Trust Trustee on behalf of Party B (as defined therein) and not
in its
individual capacity, and (iii) the Trustee (in its capacity as Supplemental
Interest Trust Trustee) shall be entitled to exercise the rights and obligated
to perform the obligations of Party B under the Interest Rate Swap
Agreement
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 and declares
that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC 1 Regular Interests and the Class R Certificates
(in
respect of the Class R-1 Interest). The interests evidenced by the Class
R-1
Interest, together with the REMIC 1 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 1.
(b) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and to the
REMIC
1 Regular Interests for the benefit of the holders of the REMIC 2 Regular
Interests (which are uncertificated) and the Class R Certificates (in respect
of
the Class R-2 Interest). The Trustee acknowledges receipt of the REMIC
1 Regular
Interests and declares that it holds and will hold the same in trust for
the
exclusive use and benefit of the holders of the REMIC 2 Regular Interests
and
the Class R Certificates (in respect of the Class R-2 Interest). The interests
evidenced by the Class R-2 Interest, together with the REMIC 2 Regular
Interests, constitute the entire beneficial ownership interest in REMIC
2.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and to the
REMIC
2 Regular Interests (which are uncertificated) for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates or the Class
P
Certificates), the Class C Interest, the Class P Interest, the Class IO
Interest
and the Class R Certificates (in respect of the Class R-3 Interest). The
Trustee
acknowledges receipt of the REMIC 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 Regular Certificates (other than the Class C Certificates or Class
P
Certificates), the Class C Interest, the Class P Interest, the Class IO
Interest
and the Class R Certificates (in respect of the Class R-3 Interest). The
interests evidenced by the Class R-3 Interest, together with the Regular
Certificates (other than the Class C Certificates or Class P Certificates)
the
Class C Interest, the Class P Interest and the Class IO Interest, constitute
the
entire beneficial ownership interest in REMIC 3.
(d) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and to the
Class
C Interest (which is uncertificated) for the benefit of the Holders of
the Class
C Certificates and the Class R-X Certificates (in respect of the Class
R-4
Interest). The Trustee acknowledges receipt of the Class C Interest and
declares
that it holds and will hold the same in trust for the exclusive use and
benefit
of the Holders of the Class C Certificates and the Class R-X Certificates
(in
respect of the Class R-4 Interest). The interests evidenced by the Class
R-4
Interest, together with the Class C Certificates, constitute the entire
beneficial ownership interest in REMIC 4.
(e) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and to the
Class
P Interest (which is uncertificated) for the benefit of the Holders of
the Class
P Certificates and the Class R-X Certificates (in respect of the Class
R-5
Interest). The Trustee acknowledges receipt of the Class P Interest and
declares
that it holds and will hold the same in trust for the exclusive use and
benefit
of the Holders of the Class P Certificates and the Class R-X Certificates
(in
respect of the Class R-5 Interest). The interests evidenced by the Class
R-5
Interest, together with the Class P Certificates, constitute the entire
beneficial ownership interest in REMIC 5.
(f) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and to the
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 Trustee acknowledges receipt of the Class
IO
Interest and declares that it holds and will hold the same in trust for
the
exclusive use and benefit of the Holders of the REMIC 6 Regular Interest
SWAP IO
and the Class R-X Certificates (in respect of the Class R-6 Interest).
The
interests evidenced by the Class R-6 Interest, together with the REMIC
6 Regular
Interest SWAP IO, constitute the entire beneficial ownership interest in
REMIC
6.
(g) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 and the
acceptance by the Trustee thereof, pursuant to Section 2.01, Section 2.02
and
subsection (a) hereof, (ii) the assignment and delivery to the Trustee
of REMIC
2 (including the Residual Interest therein represented by the Class R-2
Interest) and the acceptance by the Trustee thereof, pursuant to subsection
(b)
hereof, (iii) the assignment and delivery to the Trustee of REMIC 3 (including
the Residual Interest therein represented by the Class R-3 Interest) and
the
acceptance by the Trustee thereof, pursuant to subsection (c) hereof, (iv)
the
assignment and delivery to the Trustee of REMIC 4 (including the Residual
Interest therein represented by the Class R-4 Interest) and the acceptance
by
the Trustee thereof, pursuant to subsection (d) hereof, (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 subsection (e) hereof, 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 subsection (f) hereof, 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, (A) the Class R
Certificates in authorized denominations evidencing the Class R-1 Interest,
the
Class R-2 Interest and the Class R-3 Interest and (B) the Class R-X Certificates
in authorized denominations evidencing the Class R-4 Interest, the Class
R-5
Interest and the Class R-6 Interest.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF
THE
MORTGAGE LOANS
SECTION
3.01
Servicer
to Act as Servicer.
The
Servicer shall service and administer the Mortgage Loans on behalf of the
Trust
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 or (iii) the collection
of such
Prepayment Charge would be in violation of applicable laws. If a Prepayment
Charge is waived as permitted by meeting the standard described in clause
(iii)
above, then the Servicer shall make commercially reasonable efforts to
enforce
the Trustee’s rights under the Mortgage Loan Purchase Agreement including the
obligation of the Seller to pay the amount of such waived Prepayment Charge
to
the Servicer for deposit in the Collection Account for the benefit of the
Holders of the Class P Certificates. If the Servicer makes a good faith
determination 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 Seller under the Mortgage Loan Purchase Agreement
to pay
to the Servicer the amount of such waived Prepayment Charge. If the Seller
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 Seller. 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, on 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.
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.
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
Freddie
Mac or Fannie 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 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 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 Seller, 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) to
pay
any amounts in respect of taxes pursuant to Section 9.01(g);
(iii) to
clear
and terminate the Distribution Account pursuant to Section 10.01;
(iv) 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;
(v) to
pay to
the Trustee, any Trustee Compensation; and
(vi) to
pay to
an Advancing Person reimbursements for Advances and/or Servicing Advances
pursuant to Section 3.29.
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. 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, from its own funds, 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, from its own funds, 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. Such policy or
policies shall be in such form and amount that would meet the requirements
of
Fannie Mae or Freddie Mac if it were the purchaser of the Mortgage Loans,
unless
the Servicer has obtained a waiver of such requirements from Fannie Mae
or
Freddie 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 Fannie Mae or Freddie Mac, unless the Servicer has obtained
a
waiver of such requirements from Fannie Mae or Freddie 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 or agent of 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 to the 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 thirty days after each Distribution Date, the Servicer shall forward,
upon
request, 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.
On
or
before March 1 of each calendar year, commencing in 2007, the Servicer
shall
deliver to the Trustee and the Depositor a statement of compliance (an
“Annual
Statement of Compliance”) addressed to the Trustee and the Depositor, to the
effect that (i) a review of the Servicer’s activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under this Agreement during such period has been made under such officer’s
supervision, and (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 calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation
in any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
The
Servicer shall deliver a similar Annual Statement of Compliance by any
Sub-Servicer to which the Servicer has delegated any servicing responsibilities
with respect to the Mortgage Loans, to the Trustee as described above as
and
when required with respect to the Servicer.
If
the
Servicer cannot deliver the related Annual Statement of Compliance by March
1st
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 supersede 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 1st
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 Assessment 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 1st
of each
calendar year beginning in 2007, the Servicer shall furnish to the Trustee
a
report of a registered public accounting firm reasonably acceptable to
the
Trustee and the Depositor (an “Attestation Report”). Such Attestation Report
shall be in accordance with Rules 1 02(a)(3) and 2-02(g) of Regulation
S-X under
the Securities Act and the Exchange Act.
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 1st
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 supersede any
other
provision in this Agreement or any other agreement to the contrary.
Each
of
the
Trustee
and the
Credit Risk Manager
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” or the “credit risk
manager”, as applicable. 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,
the
Trustee
and the
Credit
Risk Manager
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,
the
Trustee’s
or the
Credit
Risk Manager’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
[Reserved].
SECTION
3.28
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.
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.
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, the Class M-2 Certificates
and the
Class M-3 Certificates, in that order, the Sequential Class M Principal
Distribution Amount until the Certificate Principal Balances thereof have
been
reduced to zero;
(x) 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;
(xi) 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;
(xii) 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;
(xiii) 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;
(xiv) 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
(xv) 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-A1
Certificates has been reduced to zero; second, to the Holders of the Class
II-A2
Certificates, until the Certificate Principal Balance of the Class II-A2
Certificates has been reduced to zero; third,
to
the Holders of the Class II-A3 Certificates, until the Certificate Principal
Balance of the Class II-A3 Certificates has been reduced to zero
and
fourth, to the Holders of the Class II-A4 Certificates, until the Certificate
Principal Balance of the Class II-A4 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, taking into account amounts, if any, received under the Basis
Risk Cap
Agreement but without taking into account amounts, if any, received by
the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
or
the Cap Trustee under the Interest Rate Cap 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 Floating Rate Certificates have been
reduced to zero, any remaining amounts in reduction of the Certificate
Principal
Balance of the Class C Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
(vi) if
such
Distribution Date follows the Prepayment Period during which occurs the
latest
date on which a Prepayment Charge may be required to be paid in respect
of any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction
of the
Certificate Principal Balance thereof, until the Certificate Principal
Balance
thereof is reduced to zero; and
(vii) any
remaining amounts to the Holders of the Residual Certificates (in respect
of the
Class R-3 Interest).
(d) On
each
Distribution Date, after making the distributions of the Available Funds
as set
forth above, the 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 Basis Risk Cap Amount,
from
payments made under the Basis Risk Cap Agreement, in each case up to a
maximum
amount equal to the related Net WAC Rate Carryover Amount for such Distribution
Date;
(ii) sequentially,
the Class M-1 Certificates, the Class M-2 Certificates, the Class M-3
Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the
Class
M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates
and the
Class M-9 Certificates, in that order, the related Basis Risk Cap Amount,
from
payments made under the Basis Risk Cap Agreement, in each case up to a
maximum
amount equal to the related Net WAC Rate Carryover Amount for such Distribution
Date;
(iii) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, on a pro
rata
basis
based on the Net WAC Rate Carryover Amount for each such Class; and
(iv) 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, the related
Net WAC
Rate Carryover Amount.
(e) On
or
before each Distribution Date, Net Swap Payments (whether payable to the
Swap
Provider or to the Supplemental Interest Trust Trustee), any Swap Termination
Payment owed to the Swap Provider not resulting from a Swap Provider Trigger
Event pursuant to the Interest Rate Swap Agreement and any Swap Termination
Payments owed to the Supplemental Interest Trust Trustee will be deposited
by
the Supplemental Interest Trust Trustee into the Swap Account. On each
Distribution Date, the Trustee shall withdraw from amounts on deposit in
the
Swap Account (other than amounts representing Swap Termination Payments
received
by the Supplemental Interest Trust Trustee or Net Swap Payments received
by the
Supplemental Interest Trust Trustee) prior to any distribution to any
Certificates as follows:
(1) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant
to the
Interest Rate Swap Agreement for such Distribution Date;
(2) 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
and
to the extent not paid by the Trustee (in its capacity as Supplemental
Interest
Trust Trustee) from any upfront payment received pursuant to any replacement
interest rate swap agreement;
(f) 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) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed, on a pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount
and
Unpaid Interest Shortfall Amount;
(ii) sequentially,
to the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class
M-7, Class M-8 and Class M-9, in that order, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount, to the extent
remaining undistributed;
(iii) 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, distributable to such Holders as part of the Group
I
Principal Distribution Amount and/or the Group II Principal Distribution
Amount;
(iv) sequentially
to the Class M-1, Class M-2, 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;
(v) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, to the extent remaining undistributed on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(vi) sequentially,
to the Class M-1, Class M-2, 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; and
(vii) any
remaining amounts to the Holders of the Class C Certificates.
Notwithstanding
any of the foregoing, the aggregate amount distributed under Section 4.01(e)(iv)
above on such Distribution Date, when added to the cumulative amount distributed
under 4.01(e)(iv) above on all prior Distribution Dates, will not be permitted
to exceed the cumulative amount of Realized Losses incurred on the Mortgage
Loans since the Cut-off Date through the last day of the related Prepayment
Period (reduced by the aggregate amount of Subsequent Recoveries received
since
the Cut-off date through the last day of the related Prepayment Period).
Any
amounts that would otherwise be distributable from the Supplemental Interest
Trust on any Distribution Date under 4.01(e)(iv) above, but for the foregoing
proviso, will be retained in the Supplemental Interest Trust and will be
included in amounts available for distribution from the Supplemental Interest
Trust on the next succeeding Distribution Date, subject to the foregoing
proviso
in the case of amounts to be distributed under 4.01(e)(iv) above.
(g) On
each
Distribution Date, after making the distributions of the Available Funds,
Net
Monthly Excess Cashflow, amounts on deposit in the Net WAC Rate Carryover
Reserve Account and amounts on deposit in the Swap Account as set forth
above,
the Trustee shall distribute the amount on deposit in the Cap Account as
follows:
(i) 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;
(ii) sequentially,
to the Class M-1, Class M-2, 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, the Net Monthly
Excess Cashflow and amounts on deposit in the Swap Account;
(iii) 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) and Section 4.01(e)(v);
(iv) sequentially
to the Class M-1, Class M-2, 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;
(v) 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
undistributed;
(vi) sequentially,
to the Class M-1, Class M-2, 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; and
(vii) any
remaining amount to the Holders of the Class C Certificates.
(h) 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.
(i) 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.
(j) 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.
(k) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that
is not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests and that the Residual Certificates are to receive no
principal
and interest. If the Trustee determines that the Residual Certificates
are
entitled to any distributions, the Trustee, prior to any such distribution
to
any Residual Certificate, shall notify the Depositor of such impending
distribution but shall make such distribution in accordance with the terms
of
this Agreement until this Agreement is amended as specified in the following
sentence. Upon such notification, the Depositor will request an amendment
to the
Pooling and Servicing Agreement to revise such mistake in the distribution
provisions. The Residual Certificate Holders, by acceptance of their
Certificates, and the Servicer(s), hereby agree to any such amendment and
no
further consent shall be necessary, notwithstanding anything to the contrary
in
Section 11.01 of this Pooling and Servicing Agreement; provided, however,
that
such amendment shall otherwise comply with Section 11.01 hereof.
SECTION
4.02
[Reserved].
SECTION
4.03
Statements.
(a) On
each
Distribution Date, based, as applicable, on information provided to it
by the
Servicer, the Trustee shall prepare and make available to each Holder of
the
Regular Certificates, the NIMS Insurer, the Servicer and the Rating Agencies,
a
statement as to the distributions made on such Distribution Date:
(i) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Regular Certificates, separately identified, allocable to principal
and
the amount of the distribution made to the Holders of the Class P Certificates
allocable to Prepayment Charges and Servicer Prepayment Charge Payment
Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Regular Certificates (other than the Class P Certificates) allocable
to
interest, separately identified;
(iii) the
Net
Monthly Excess Cashflow, the Overcollateralized Amount, the
Overcollateralization Release Amount, the Overcollateralization Deficiency
Amount and the Overcollateralization Target Amount 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 related Due Period;
(vii) the
number, aggregate Stated Principal Balance, weighted average remaining
term to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of
the
related Determination Date;
(viii) the
number and aggregate unpaid Stated Principal Balance of Mortgage Loans
that were
(A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and REO
Properties) using the OTS Method (as described below) (1) 30 to 59 days,
(2) 60
to 89 days and (3) 90 or more days, (B) as to which foreclosure proceedings
have
been commenced and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and
(3) 90 or
more days, (C) in bankruptcy and Delinquent (1) 30 to 59 days, (2) 60 to
89 days
and (3) 90 or more days, in each case as of the Close of Business on the
last
day of the calendar month preceding such Distribution Date and (D) REO
Properties, as well as the aggregate principal balance of Mortgage Loans
that
were liquidated and the net proceeds resulting therefrom;
(ix) the
total
number and cumulative Stated Principal Balance of all REO Properties as
of the
Close of Business of the last day of the calendar month preceding the related
Distribution Date;
(x) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period, separately indicating Principal Prepayments in full and Principal
Prepayments in part;
(xi) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period 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;
(xii) the
aggregate amount of extraordinary Trust Fund expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(xiii) the
Certificate Principal Balance of each Class of Floating Rate Certificates
and
the Class C Certificates, before and after giving effect to the distributions,
and allocations of Realized Losses, made on such Distribution Date;
(xiv) the
Monthly Interest Distributable Amount in respect of each Class of Floating
Rate
Certificates and the Class C Certificates for such Distribution Date and
the
Unpaid Interest Shortfall Amount, if any, with respect to each Class of
Floating
Rate Certificates and the Class C Certificates for such Distribution
Date;
(xv) the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to
Section
3.24;
(xvi) the
Net
WAC Rate Carryover Amount for each Class of Floating Rate Certificates,
if any,
for such Distribution Date and the amount remaining unpaid after reimbursements
therefor on such Distribution Date;
(xvii) whether
the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage
for such Distribution Date and the Realized Loss Percentage for such
Distribution Date;
(xviii) the
total
cashflows received and the general sources thereof (including amounts received
from the Supplemental Interest Trust Trustee under the Interest Rate Swap
Agreement, from the Cap Trustee under the Interest Rate Cap Agreement and
from
the Trustee under the Basis Risk Cap Agreement);
(xix) the
respective Pass-Through Rates applicable to each Class of Floating Rate
Certificates and the Class C Certificates for such Distribution Date and
the
Pass-Through Rate applicable to each Class of Floating Rate Certificates
for the
immediately succeeding Distribution Date;
(xx) the
amount of any Net Swap Payments or Swap Termination Payments paid to the
Swap
Provider; and
(xxi) 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 “https://www.tss.db.com/invr”. Assistance in using
the website can be obtained by calling the Trustee’s customer service desk at
(800) 735-7777. 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 by the Trustee from information provided by the Servicer
and
reported by the Trustee 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.
SECTION
4.04
Remittance
Reports; Advances.
(a) By
the
second Business Day following each Determination Date, but in no event
later
than 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, the Servicer shall deliver or cause to be delivered to the Trustee
by
telecopy or electronic mail (or by such other means as the Servicer and
the
Trustee may agree from time to time) up to two Remittance Reports 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
second
Business Day following each Determination Date, 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 make the distributions contemplated by Section
4.01, to prepare the statements to Certificateholders contemplated by Section
4.03 and 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.
On
or
before 3:00 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. Furthermore,
the
Servicer shall not be required to advance Relief Act Interest
Shortfalls.
SECTION
4.05
Swap
Account.
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit the Interest Rate Swap
Agreement. The Supplemental Interest Trust shall be maintained by the
Supplemental Interest Trust Trustee. 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 First
Franklin
Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series 2006-FF16.”
Such account shall be an Eligible Account and funds on deposit therein
shall be
held separate and apart from, and shall not be commingled with, any other
moneys, including, without limitation, other moneys of the Trustee held
pursuant
to this Agreement. Amounts therein shall be held uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the
Supplemental Interest Trust Trustee shall deposit into the Swap Account:
(i) the
amount of any Net Swap Payment or Swap Termination Payment (other than
any Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed
to the
Swap Provider (after taking into account any upfront payment received from
the
counterparty to a replacement interest rate swap agreement) from funds
collected
and received with respect to the Mortgage Loans prior to the determination
of
Available Funds. 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 C, Class P, Class R and Class R-X Certificates) in
accordance with the terms of this Agreement. Any payments to the Certificates
from amounts deemed received in respect of this notional principal contract
shall not be payments with respect to a Regular Interest in a REMIC within
the
meaning of Code Section 860G(a)(1). However, any payment from the Certificates
(other than the Class C, Class P, Class R and Class R-X Certificates) of
a Class
IO Distribution Amount shall be treated for tax purposes as having been
received
by the Holders of such Certificates in respect of their interests in REMIC 3 and
as having been paid by such Holders to the Supplemental Interest Trust
Trustee
pursuant to the notional principal contract. Thus, each Certificate (other
than
the Class P, Class R and Class R-X Certificates) shall be treated as
representing not only ownership of Regular Interests in REMIC 3, but also
ownership of an interest in, and obligations with respect to, a notional
principal contract.
(f) The
Trustee shall, at the direction of the Depositor, enforce all of its rights
and
exercise any remedies under the Swap Agreement. In the event the Interest
Rate
Swap Agreement is terminated as a result of the designation by either party
thereto of an Early Termination Date (as defined therein), the Trustee
shall, at
the direction of the Depositor, appoint a replacement counterparty to enter
into
a replacement swap agreement. The Trustee shall have no responsibility
with
regard to the selection of a replacement swap provider or the negotiation
of a
replacement interest rate swap agreement. Any Swap Termination Payment
received
by the Trustee shall be deposited in the Swap Account and shall be used
to make
any upfront payment required under a replacement swap agreement and any
upfront
payment received from the counterparty to a replacement swap agreement
shall be
used to pay any Swap Termination Payment owed to the Swap Provider.
(g) For
federal tax return and information reporting, the right of the Holders
of the
Floating Rate Certificates to receive payments from the Supplemental Interest
Trust in respect of any New WAC Cap Carry Forward Amounts may have more
than a
de
minimus value.
SECTION
4.06
Tax
Treatment of Swap Payments and Swap Termination
Payments.
For
federal income tax purposes, each holder of a Floating Rate Certificate
is
deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Net WAC Rate
Carryover Reserve Account or the Swap Account in respect of the Net WAC
Rate
Carryover Amount or the obligation to make payments to the Swap Account.
For
federal income tax purposes, the Trustee will account for payments to each
Floating Rate Certificate as follows: each Floating Rate Certificate will
be
treated as receiving their entire payment from REMIC 3 (regardless of any
Swap
Termination Payment or obligation under the Interest Rate Swap Agreement)
and
subsequently paying their portion of any Swap Termination Payment in respect
of
each such Class’ obligation under the Interest Rate Swap Agreement. In the event
that any such Class is resecuritized in a REMIC, the obligation under the
Interest Rate Swap Agreement to pay any such Swap Termination Payment (or
any
shortfall in 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 Floating Rate
Certificate.
The
REMIC
regular interest corresponding to a Floating Rate Certificate will be entitled
to receive interest and principal payments at the times and in the amounts
equal
to those made on the certificate to which it corresponds, except that (i)
the
maximum interest rate of that REMIC regular interest will equal the Net
WAC Rate
computed for this purpose by limiting the Notional Amount of the Interest
Rate
Swap Agreement to the aggregate Stated Principal Balance of the Mortgage
Loans
and (ii) any Swap Termination Payment will be treated as being payable
solely
from Net Monthly Excess Cashflow. As a result of the foregoing, the amount
of
distributions and taxable income on the REMIC regular interest corresponding
to
a Floating Rate Certificate may exceed the actual amount of distributions
on
such Certificate
SECTION
4.07
Commission
Reporting.
(a) The
Trustee, the Servicer and the Credit Risk Manager shall reasonably cooperate
with the Depositor in connection with the Trust’s satisfying the reporting
requirements under the Exchange Act.
(b) (i)
Within 12 calendar 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 (“EDGAR”), a Distribution Report on Form
10-D, signed by the Depositor, with a copy of (x) the monthly statement
to be
furnished by the Trustee to the Certificateholders for such Distribution
Date
and (y) the reports prepared by the Credit Risk Manager pursuant to Section
6.09. 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 Credit Risk
Manager,
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 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 First Franklin Mortgage Loan Trust 2006-FF16 Asset-Backed
Certificates, Series 2006-FF16” All amounts deposited in the Net WAC Rate
Carryover Reserve Account shall be distributed to the Holders of the Floating
Rate Certificates in the manner set forth in Section 4.01(d).
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount
payable
to the Floating Rate Certificates, the Trustee has been directed by the
Class C
Certificateholders to, and therefore will, deposit into the Net WAC Rate
Carryover Reserve Account the amounts described in Section 4.01(d)(iv),
rather
than distributing such amounts to the Class C Certificateholders. In addition,
any payments received by the Trustee under the Basis Risk Cap Agreement
on each
Distribution Date will be deposited into the Net WAC Rate Carryover Reserve
Account. On each such Distribution Date, the Trustee shall hold all such
amounts
for the benefit of the Holders of the Floating Rate Certificates, and will
distribute such amounts to the Holders of the Floating Rate 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 (other than amounts received under the Basis Risk Cap Agreement)
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 Floating Rate Certificates, all amounts
remaining on deposit in the Net WAC Rate Carryover Reserve Account will
be
released by the Trust and distributed to the Holders of the Class C Certificates
or their 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
Floating Rate Certificates of Net WAC Rate Carryover Amounts will not be
payments with respect to a “regular interest” in a REMIC within the meaning of
Code Section 860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby
agrees to
direct the Trustee, and the Trustee hereby is directed, to deposit into
the Net
WAC Rate Carryover Reserve Account the amounts described above on each
Distribution Date as to which there is any Net WAC Rate Carryover Amount
rather
than distributing such amounts to the Class C Certificateholders. By accepting
a
Class C Certificate, each Class C Certificateholder further agrees that
such
direction is given for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by such acceptance.
Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
For
federal tax return and information reporting, the right of the Holders
of the
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-51-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-51-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-51-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-51-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.
SECTION
4.11
Cap
Account.
(a) No
later
than the Closing Date, the Trustee shall establish and maintain with itself,
a
separate, segregated trust account titled, “Cap Account, Deutsche Bank National
Trust Company, as Cap Trustee, in trust for the registered holders of First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16—Cap Account.” Such account shall be an Eligible Account and amounts
therein shall be held uninvested.
(b) On
each
Distribution Date, pursuant to the Cap Allocation Agreement, the Cap Trustee,
prior to any distribution to any Certificate, shall deposit into the Cap
Account
amounts received pursuant to the Interest Rate Cap Agreement for distribution
in
accordance with Section 4.01(f) above.
(c) It
is the intention of the parties hereto that, for federal and state income
and
state and local franchise tax purposes, the Cap 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 Cap 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 Cap Account be treated
as
a partnership. The
Cap
Account will be an “outside reserve fund” within the meaning of Treasury
Regulation Section 1.860G-2(h). Upon the termination of the Trust Fund,
or the
payment in full of the Floating Rate Certificates, all amounts remaining
on
deposit in the Cap Account shall be released by the Trust Fund and distributed
to the Class C Certificateholders or their designees. The Cap Account shall
be
part of the Trust Fund but not part of any Trust REMIC and any payments
to the
Holders of the Floating Rate Certificates of Net WAC Rate Carryover Amounts
will
not be payments with respect to a “regular interest” in a REMIC within the
meaning of Code Section 860(G)(a)(1).
(d) By
accepting a Class C Certificate, each Class C Certificateholder hereby
agrees to
direct the Trustee, and the Trustee is hereby directed, to deposit into
the Cap
Account the amounts described above on each Distribution Date.
For
federal income tax purposes, the right of the Floating Rate Certificates
to
receive payments from the Cap Account may have more than a de
minimis
value.
SECTION
4.12
Collateral
Accounts
(a) The
Trustee is hereby directed to perform the obligations of the Custodian
as
defined under the Basis Risk Cap Credit Support Annex (the “Basis Risk Cap
Custodian”). On or before the Closing Date, the Basis Risk Cap Custodian shall
establish a Basis Risk Cap Collateral Account. The Basis Risk Cap Collateral
Account shall be held in the name of the Basis Risk Cap Custodian in trust
for
the benefit of the Certificateholders. The Basis Risk Cap Collateral Account
must be an Eligible Account and shall be titled “Basis Risk Cap Collateral
Account, Deutsche Bank National Trust Company, as Basis Risk Cap Custodian
for
registered Holders of the First Franklin Home Loan Trust 2006-FF16, Asset
Backed
Pass-Through Certificates.”
The
Basis
Risk Cap Custodian shall credit to the Basis Risk Cap Collateral Account
all
collateral (whether in the form of cash or securities) posted by the Basis
Risk
Cap Provider to secure the obligations of the Basis Risk Cap Provider in
accordance with the terms of the Basis Risk Cap Agreement. Except for investment
earnings, the Basis Risk Cap Provider shall not have any legal, equitable
or
beneficial interest in the Basis Risk Cap Collateral Account other than
in
accordance with this Agreement, the Basis Risk Cap Agreement and applicable
law.
The Basis Risk Cap Custodian shall maintain and apply all collateral and
earnings thereon on deposit in the Basis Risk Cap Collateral Account in
accordance with the Basis Risk Cap Credit Support Annex.
Cash
collateral posted by the Basis Risk Cap Provider in accordance with the
Basis
Risk Cap Credit Support Annex shall be invested at the direction of the
Basis
Risk Cap Provider in Permitted Investments that mature no later than the
Business Day prior to the next succeeding Distribution Date. All amounts
earned
on amounts on deposit in the Basis Risk Cap Collateral Account (whether
cash
collateral or securities) shall be taxable to the Basis Risk Cap
Provider.
Upon
the
occurrence of an Event of Default, a Termination Event, or an Additional
Termination Event (each as defined in the Basis Risk Cap Agreement), amounts
in
the Basis Risk Cap Collateral Account shall be withdrawn by the Basis Risk
Cap
Custodian and applied to the payment of any termination payment due to
Party B
(as defined in the Basis Risk Cap Agreement) in accordance with the Basis
Risk
Cap Credit Support Annex. Any excess amounts held in such Basis Risk Cap
Collateral Account after payment of all amounts owing to Party B under
the Basis
Risk Cap Agreement shall be withdrawn from the Basis Risk Cap Collateral
Account
and paid to the Basis Risk Cap Provider in accordance with the Basis Risk
Cap
Credit Support Annex.
(b) The
Trustee (in its capacity as Cap Trustee) is hereby directed to perform
the
obligations of the Custodian as defined under the Interest Rate Cap Credit
Support Annex (the “Interest Rate Cap Custodian”). On or before the Closing
Date, the Interest Rate Cap Custodian shall establish a Interest Rate Cap
Collateral Account. The Interest Rate Cap Collateral Account shall be held
in
the name of the Interest Rate Cap Custodian in trust for the benefit of
the
Certificateholders. The Interest Rate Cap Collateral Account must be an
Eligible
Account and shall be titled “Interest Rate Cap Collateral Account, Deutsche Bank
National Trust Company, as Interest Rate Cap Custodian for registered Holders
of
the First Franklin Home Loan Trust 2006-FF16, Asset Backed Pass-Through
Certificates.”
The
Interest Rate Cap Custodian shall credit to the Interest Rate Cap Collateral
Account all collateral (whether in the form of cash or securities) posted
by the
Interest Rate Cap Provider to secure the obligations of the Interest Rate
Cap
Provider in accordance with the terms of the Interest Rate Cap Agreement.
Except
for investment earnings, the Interest Rate Cap Provider shall not have
any
legal, equitable or beneficial interest in the Interest Rate Cap Collateral
Account other than in accordance with this Agreement, the Interest Rate
Cap
Agreement and applicable law. The Interest Rate Cap Custodian shall maintain
and
apply all collateral and earnings thereon on deposit in the Interest Rate
Cap
Collateral Account in accordance with Interest Rate Cap Credit Support
Annex.
Cash
collateral posted by the Interest Rate Cap Provider in accordance with
the
Interest Rate Cap Credit Support Annex shall be invested at the direction
of the
Interest Rate Cap Provider in Permitted Investments that mature no later
than
the Business Day prior to the next succeeding Distribution Date. All amounts
earned on amounts on deposit in the Interest Rate Cap Collateral Account
(whether cash collateral or securities) shall be taxable to the Interest
Rate
Cap Provider.
Upon
the
occurrence of an Event of Default, a Termination Event, or an Additional
Termination Event (each as defined in the Interest Rate Cap Agreement),
amounts
in the Interest Rate Cap Collateral Account shall be withdrawn by the Interest
Rate Cap Custodian and applied to the payment of any termination payment
due to
Party B (as defined in the Interest Rate Cap Agreement) in accordance with
the
Interest Rate Cap Credit Support Annex. Any excess amounts held in such
Interest
Rate Cap Collateral Account after payment of all amounts owing to Party
B under
the Interest Rate Cap Agreement shall be withdrawn from the Interest Rate
Cap
Collateral Account and paid to the Interest Rate Cap Provider in accordance
with
the Interest Rate Cap Credit Support Annex.
(c) The
Trustee (in its capacity as Supplemental Interest Trust Trustee) is hereby
directed to perform the obligations of the Custodian as defined under the
Swap
Credit Support Annex (the “Swap Custodian”). On or before the Closing Date, the
Swap Custodian shall establish a Swap Collateral Account. The Swap Collateral
Account shall be held in the name of the Swap Custodian in trust for the
benefit
of the Certificateholders. The Swap Collateral Account must be an Eligible
Account and shall be titled “Swap Collateral Account, Deutsche Bank National
Trust Company, as Swap Custodian for registered Holders of the First Franklin
Home Loan Trust 2006-FF16, Asset Backed Pass-Through Certificates.”
The
Swap
Custodian shall credit to Swap Collateral Account all collateral (whether
in the
form of cash or securities) posted by the Swap Provider to secure the
obligations of the Swap Provider in accordance with the terms of the Interest
Rate Swap Agreement. Except for investment earnings, the Swap Provider
shall not
have any legal, equitable or beneficial interest in the Swap Collateral
Account
other than in accordance with this Agreement, the Interest Rate Swap Agreement
and applicable law. The Swap Custodian shall maintain and apply all collateral
and earnings thereon on deposit in the Swap Collateral Account in accordance
with Swap Credit Support Annex.
Cash
collateral posted by the Swap Provider in accordance with the Swap Credit
Support Annex shall be invested at the direction of the Swap Provider in
Permitted Investments that mature no later than the Business Day prior
to the
next succeeding Distribution Date. All amounts earned on amounts on deposit
in
the Swap Collateral Account (whether cash collateral or securities) shall
be
taxable to the Swap Provider.
Upon
the
occurrence of an Event of Default, a Termination Event, or an Additional
Termination Event (each as defined in the Interest Rate Swap Agreement),
amounts
in the Swap Collateral Account shall be withdrawn by the Swap Custodian
and
applied to the payment of any termination payment due to Party B (as defined
in
the Interest Rate Swap Agreement) in accordance with the Swap Credit Support
Annex. Any excess amounts held in such Swap Collateral Account after payment
of
all amounts owing to Party B under the Interest Rate Swap Agreement shall
be
withdrawn from the Swap Collateral Account and paid to the Swap Provider
in
accordance with the Swap Credit Support Annex.
SECTION
4.13
Rights
and Obligations Under the Basis Risk Cap Agreement, the Interest
Rate Cap
Agreement and the Interest Rate Swap
Agreement.
(a) In
the
event that the Basis Risk Cap Provider fails to perform any of its obligations
under the Basis Risk Cap Agreement (including, without limitation, its
obligation to make any payment or transfer collateral), or breaches any
of its
representations and warranties thereunder, or in the event that any Event
of
Default, Termination Event, or Additional Termination Event (each as defined
in
the Basis Risk Cap Agreement) occurs with respect to the Basis Risk Cap
Agreement, the Trustee shall, promptly following actual notice of such
failure,
breach or event, notify the Depositor and send any notices and make any
demands,
on behalf of the Trust, required to enforce the rights of the Trust under
the
Basis Risk Cap Agreement.
In
the
event that the Basis Risk Cap Provider’s obligations are guaranteed by a third
party under a guaranty relating to the Basis Risk Cap Agreement (such guaranty
the “Guaranty” and such third party the “Guarantor”), then to the extent that
the Basis Risk Cap Provider fails to make any payment by the close of business
on the day it is required to make payment under the terms of the Basis
Risk Cap
Agreement, the Trustee shall, promptly following actual notice of the Basis
Risk
Cap Provider’s failure to pay, demand that the Guarantor make any and all
payments then required to be made by the Guarantor pursuant to such Guaranty;
provided, that the Trustee shall in no event be liable for any failure
or delay
in the performance by the Basis Risk Cap Provider or any Guarantor of its
obligations hereunder or pursuant to the Basis Risk Cap Agreement and the
Guaranty, nor for any special, indirect or consequential loss or damage
of any
kind whatsoever (including but not limited to lost profits) in connection
therewith.
Upon
an
early termination of the Baisk Risk Cap Agreement other than in connection
with
the optional termination of the Trust, the Trustee will use reasonable
efforts
to appoint a successor basis risk cap provider to enter into a new basis
risk
cap agreement on terms substantially similar to the Baisk Risk Cap Agreement,
with a successor basis risk cap provider meeting all applicable eligibility
requirements. If the Trustee receives a termination payment from the Baisk
Risk
Cap Provider in connection with such early termination, the Trustee will
apply
such termination payment to any upfront payment required to appoint the
successor basis risk cap provider. If the Trustee is required to pay a
termination payment to the Baisk Risk Cap Provider in connection with such
early
termination, the Trustee will apply any upfront payment received from the
successor basis risk cap provider to pay such termination payment.
If
the
Trustee is unable to appoint a successor basis risk cap provider within
30 days
of the early termination, then the Trustee will deposit any termination
payment
received from the original Basis Risk Cap Provider into a separate, non-interest
bearing reserve account and will, on each subsequent Distribution Date,
withdraw
from the amount then remaining on deposit in such reserve account, an amount
equal to the payment, if any, that would have been paid to the Trustee
by the
original Basis Risk Cap Provider calculated in accordance with the terms
of the
original Basis Risk Cap Agreement, and distribute such amount in accordance
with
the terms of Section 4.01(d).
Upon
an
early termination of the Basis Risk Cap Agreement in connection with the
optional termination of the Trust, if the Trustee receives a termination
payment
from the Basis Risk Cap Provider, such termination payment will be distributed
in accordance with Section 4.01(d).
(b) In
the
event that the Interest Rate Cap Provider fails to perform any of its
obligations under the Interest Rate Cap Agreement (including, without
limitation, its obligation to make any payment or transfer collateral),
or
breaches any of its representations and warranties thereunder, or in the
event
that any Event of Default, Termination Event, or Additional Termination
Event
(each as defined in the Interest Rate Cap Agreement) occurs with respect
to the
Interest Rate Cap Agreement, the Trustee (in its capacity as Cap Trustee)
shall,
promptly following actual notice of such failure, breach or event, notify
the
Depositor and send any notices and make any demands, on behalf of the Cap
Trust,
required to enforce the rights of the Cap Trust under the Interest Rate
Cap
Agreement.
In
the
event that the Interest Rate Cap Provider’s obligations are guaranteed by a
third party under a guaranty relating to the Interest Rate Cap Agreement
(such
guaranty the “Guaranty” and such third party the “Guarantor”), then to the
extent that the Interest Rate Cap Provider fails to make any payment by
the
close of business on the day it is required to make payment under the terms
of
the Interest Rate Cap Agreement, the Trustee (in its capacity as Cap Trustee)
shall, promptly following actual notice of the Interest Rate Cap Provider’s
failure to pay, demand that the Guarantor make any and all payments then
required to be made by the Guarantor pursuant to such Guaranty; provided,
that
the Trustee (in its capacity as Cap Trustee) shall in no event be liable
for any
failure or delay in the performance by the Interest Rate Cap Provider or
any
Guarantor of its obligations hereunder or pursuant to the Interest Rate
Cap
Agreement and the Guaranty, nor for any special, indirect or consequential
loss
or damage of any kind whatsoever (including but not limited to lost profits)
in
connection therewith.
Upon
an
early termination of the Interest Rate Cap Agreement other than in connection
with the optional termination of the Trust, the Trustee (in its capacity
as Cap
Trustee) will use reasonable efforts to appoint a successor interest rate
cap
provider to enter into a new interest rate cap agreement on terms substantially
similar to the Interest Rate Cap Agreement, with a successor interest rate
cap
provider meeting all applicable eligibility requirements. If the Trustee
(in its
capacity as Cap Trustee) receives a termination payment from the Interest
Rate
Cap Provider in connection with such early termination, the Trustee (in
its
capacity as Cap Trustee) will apply such termination payment to any upfront
payment required to appoint the successor interest rate cap provider. If
the
Trustee (in its capacity as Cap Trustee) is required to pay a termination
payment to the Interest Rate Cap Provider in connection with such early
termination, the Trustee (in its capacity as Cap Trustee) will apply any
upfront
payment received from the successor interest rate cap provider to pay such
termination payment.
If
the
Trustee (in its capacity as Cap Trustee) is unable to appoint a successor
interest rate cap provider within 30 days of the early termination, then
the
Trustee (in its capacity as Cap Trustee) will deposit any termination payment
received from the original Interest Rate Cap Provider into a separate,
non-interest bearing reserve account and will, on each subsequent Distribution
Date, withdraw from the amount then remaining on deposit in such reserve
account
an amount equal to the payment, if any, that would have been paid to the
Trustee
(in its capacity as Cap Trustee) by the original Interest Rate Cap Provider
calculated in accordance with the terms of the original Interest Rate Cap
Agreement, and distribute such amount in accordance with the terms of Section
4.01(g).
(c) Upon
an
early termination of the Interest Rate Cap Agreement in connection with
the
optional termination of the Trust, if the Trustee (in its capacity as Cap
Trustee) receives a termination payment from the Interest Rate Cap Provider,
such termination payment will be distributed in accordance with Section
4.01(g).
(d) In
the
event that the Swap Provider fails to perform any of its obligations under
the
Interest Rate Swap Agreement (including, without limitation, its obligation
to
make any payment or transfer collateral), or breaches any of its representations
and warranties thereunder, or in the event that any Event of Default,
Termination Event, or Additional Termination Event (each as defined in
the
Interest Rate Swap Agreement) occurs with respect to the Interest Rate
Swap
Agreement, the Trustee (in its capacity as Supplemental Interest Trust
Trustee)
shall, promptly following actual notice of such failure, breach or event,
notify
the Depositor and send any notices and make any demands, on behalf of the
Supplemental Interest Trust, required to enforce the rights of the Supplemental
Interest Trust under the Interest Rate Swap Agreement.
In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to the Interest Rate Swap Agreement (such guaranty
the
“Guaranty” and such third party the “Guarantor”), then to the extent that the
Swap Provider fails to make any payment by the close of business on the
day it
is required to make payment under the terms of the Interest Rate Swap Agreement,
the Trustee (in its capacity as Supplemental Interest Trust Trustee) shall,
promptly following actual notice of the Swap Provider’s failure to pay, demand
that the Guarantor make any and all payments then required to be made by
the
Guarantor pursuant to such Guaranty; provided, that the Trustee (in its
capacity
as Supplemental Interest Trust Trustee) shall in no event be liable for
any
failure or delay in the performance by the Swap Provider or any Guarantor
of its
obligations hereunder or pursuant to the Interest Rate Swap Agreement and
the
Guaranty, nor for any special, indirect or consequential loss or damage
of any
kind whatsoever (including but not limited to lost profits) in connection
therewith.
Upon
an
early termination of the Interest Rate Swap Agreement other than in connection
with the optional termination of the Trust, the Trustee (in its capacity
as
Supplemental Interest Trust Trustee) will use reasonable efforts to appoint
a
successor swap provider to enter into a new interest rate swap agreement
on
terms substantially similar to the Interest Rate Swap Agreement, with a
successor swap provider meeting all applicable eligibility requirements.
If the
Trustee (in its capacity as Supplemental Interest Trust Trustee) receives
a
termination payment from the Swap Provider in connection with such early
termination, the Trustee (in its capacity as Supplemental Interest Trust
Trustee) will apply such termination payment to any upfront payment required
to
appoint the successor swap provider. If the Trustee (in its capacity as
Supplemental Interest Trust Trustee) is required to pay a termination payment
to
the Swap Provider in connection with such early termination, the Trustee
(in its
capacity as Supplemental Interest Trust Trustee) will apply any upfront
payment
received from the successor swap provider to pay such termination
payment.
If
the
Trustee (in its capacity as Supplemental Interest Trust Trustee) is unable
to
appoint a successor swap provider within 30 days of the early termination,
then
the Trustee (in its capacity as Supplemental Interest Trust Trustee) will
deposit any termination payment received from the original Swap Provider
into a
separate, non-interest bearing reserve account and will, on each subsequent
Distribution Date, withdraw from the amount then remaining on deposit in
such
reserve account an amount equal to the Net Swap Payment, if any, that would
have
been paid to the Trustee (in its capacity as Supplemental Interest Trust
Trustee) by the original Swap Provider calculated in accordance with the
terms
of the original Interest Rate Swap Agreement, and distribute such amount
in
accordance with the terms of Section 4.01(f).
Upon
an
early termination of the Interest Rate Swap Agreement in connection with
the
optional termination of the Trust, if the Trustee (in its capacity as
Supplemental Interest Trust Trustee) receives a termination payment from
the
Swap Provider, such termination payment will be distributed in accordance
with
Section 4.01(f).
ARTICLE
V
THE
CERTIFICATES
SECTION
5.01
The
Certificates.
Each
of
the Floating Rate Certificates, the Class P Certificates, the Class C
Certificates and the Residual Certificates shall be substantially in the
forms
annexed hereto as exhibits, and shall, on original issue, be executed,
authenticated and delivered by the Trustee to or upon the order of the
Depositor
concurrently with the sale and assignment to the Trustee of the Trust Fund.
The
Floating Rate Certificates shall be initially evidenced by one or more
Certificates representing a Percentage Interest with a minimum dollar
denomination of $25,000 and integral dollar multiples of $1.00 in excess
thereof, provided that Floating Rate Certificates must be purchased in
minimum
total investments of $100,000 per class, except that one Certificate of
each
such Class of Certificates may be in a different denomination so that the
sum of
the denominations of all outstanding Certificates of such Class shall equal
the
Certificate Principal Balance of such Class on the Closing Date. The Class
P
Certificates, the Class C Certificates and the Residual Certificates are
issuable in any Percentage Interests; provided, however, that the sum of
all
such percentages for each such Class totals 100% and no more than ten
Certificates of each Class may be issued and outstanding at any one
time.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Trustee by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at
the time
when such signatures were affixed, authorized to sign on behalf of the
Trustee
shall bind the Trust, notwithstanding that such individuals or any of them
have
ceased to be so authorized prior to the authentication and delivery of
such
Certificates or did not hold such offices at the date of such Certificate.
No
Certificate shall be entitled to any benefit under this Agreement or be
valid
for any purpose, unless such Certificate shall have been manually authenticated
by the Trustee substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the
only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Subject to Section 5.02(c), the Floating Rate Certificates shall be Book-Entry
Certificates. The other Classes of Certificates shall not be Book-Entry
Certificates.
SECTION
5.02
Registration
of Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall cause to be kept at the Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as
it may
prescribe, the Certificate Registrar shall provide for the registration
of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee shall initially serve as Certificate Registrar for the purpose
of
registering Certificates and transfers and exchanges of Certificates as
herein
provided.
Upon
surrender for registration of transfer of any Certificate at any office
or
agency of the Certificate Registrar maintained for such purpose pursuant
to the
foregoing paragraph which office shall initially be the offices designated
by
the Trustee and, in the case of a Residual Certificate, upon satisfaction
of the
conditions set forth below, the Trustee on behalf of the Trust shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same aggregate Percentage
Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such
office
or agency. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute on behalf of the Trust and authenticate and deliver
the
Certificates which the Certificateholder making the exchange is entitled
to
receive. Every Certificate presented or surrendered for registration of
transfer
or exchange shall (if so required by the Trustee or the Certificate Registrar)
be duly endorsed by, or be accompanied by a written instrument of transfer
satisfactory to the Trustee and the Certificate Registrar duly executed
by, the
Holder thereof or his attorney duly authorized in writing. In addition,
(i) with
respect to each Class R Certificate, the holder thereof may exchange, in
the
manner described above, such Class R Certificate for two separate certificates,
each representing such holder’s respective Percentage Interest in the Class R-1
Interest, the Class R-2 Interest and the Class R-3 Interest that was evidenced
by the Class R Certificate being exchanged and (ii) with respect to each
Class
R-X Certificate, the holder thereof may exchange, in the manner described
above,
such Class R-X Certificate for three separate certificates, each representing
such holder’s respective Percentage Interest in the Class R-4 Interest, the
Class R-5 Interest and the Class R-6 Interest that was evidenced by the
Class
R-X Certificate being exchanged.
(b) Except
as
provided in paragraph (c) below, the Book-Entry Certificates shall at all
times
remain registered in the name of the Depository or its nominee and at all
times:
(i) registration of such Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Certificates; (iii) ownership and transfers of registration
of
such Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its
usual
and customary fees, charges and expenses from its Depository Participants;
(v)
the Trustee shall for all purposes deal with the Depository as representative
of
the Certificate Owners of the Certificates for purposes of exercising the
rights
of Holders under this Agreement, and requests and directions for and votes
of
such representative shall not be deemed to be inconsistent if they are
made with
respect to different Certificate Owners; (vi) the Trustee may rely and
shall be
fully protected in relying upon information furnished by the Depository
with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons shown
on
the books of such indirect participating firms as direct or indirect Certificate
Owners; and (vii) the direct participants of the Depository shall have
no rights
under this Agreement under or with respect to any of the Certificates held
on
their behalf by the Depository, and the Depository may be treated by the
Trustee
and its agents, employees, officers and directors as the absolute owner
of the
Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made
in
accordance with the procedures established by the Depository Participant
or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that
it
represents or of brokerage firms for which it acts as agent in accordance
with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute a Letter of Representations with the Depository or take such other
action as may be necessary or desirable to register a Book-Entry Certificate
to
the Depository. In the event of any conflict between the terms of any such
Letter of Representation and this Agreement, the terms of this Agreement
shall
control.
(c) If
(i)(x)
the Depository or the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Trustee or the Depositor is
unable to
locate a qualified successor or (ii) after the occurrence of a Servicer
Event of
Termination, the Certificate Owners of the Book-Entry Certificates representing
Percentage Interests of such Classes aggregating not less than 51% advise
the
Trustee and Depository through the Financial Intermediaries and the Depository
Participants in writing that the continuation of a book-entry system through
the
Depository to the exclusion of definitive, fully registered certificates
(the
“Definitive Certificates”) to Certificate Owners is no longer in the best
interests of the Certificate Owners. Upon surrender to the Certificate
Registrar
of the Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall, in
the
case of (i) and (ii) above, execute on behalf of the Trust and authenticate
the
Definitive Certificates. Neither the Depositor nor the Trustee shall be
liable
for any delay in delivery of such instructions and may conclusively rely
on, and
shall be protected in relying on, such instructions. Upon the issuance
of
Definitive Certificates, the Trustee, the Certificate Registrar, the Servicer,
any Paying Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) No
transfer, sale, pledge or other disposition of any Class 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, and any applicable state securities laws or is made in
accordance with the Securities Act and laws. In the event of any such transfer
(other than in connection with (i) the initial transfer of any such Certificate
by the Depositor to an Affiliate of the Depositor or, in the case of the
Class
R-X Certificates, the first transfer by an Affiliate of the Depositor or
the
first transfer by the initial transferee of an Affiliate of the Depositor,
(ii)
the transfer of any such Class C, Class P or Residual Certificate to the
issuer
under the Indenture or the indenture trustee under the Indenture or (iii)
a
transfer of any such Class C, Class P or Residual Certificate from the
issuer
under the Indenture or the indenture trustee under the Indenture to the
Depositor or an Affiliate of the Depositor), (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
Securities 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 Securities Act or is being made pursuant to the
Securities 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
Securities 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 Securities Act.
No
transfer of a Class C Certificate, Class P Certificate or Residual Certificate
or any interest therein shall be made to any Plan, any Person acting, directly
or indirectly, on behalf of any such Plan or any Person acquiring such
Certificates with “Plan Assets” of a Plan within the meaning of the Department
of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as
certified by such transferee in the form of Exhibit M, unless the Trustee
is
provided with an Opinion of Counsel for the benefit of the Depositor, the
Trustee and the Servicer and on which they may rely which establishes to
the
satisfaction of the Trustee that the purchase of such Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will
not
subject the Depositor, the Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the
Servicer,
the Trustee or the Trust Fund. Neither a certification nor an Opinion of
Counsel
will be required in connection with (i) the initial transfer of any such
Certificate by the Depositor to an Affiliate of the Depositor, (ii) the
transfer
of any such Class C, Class P or Residual Certificate to the issuer under
the
Indenture or the indenture trustee under the Indenture or (iii) a transfer
of
any such Class C, Class P or Residual Certificate from the issuer under
the
Indenture or the indenture trustee under the Indenture to the Depositor
or an
Affiliate of the Depositor (in which case, the Depositor or any Affiliate
thereof shall have deemed to have represented that such Affiliate is not
a Plan
or a Person investing Plan Assets) and the Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the
Trustee,
shall be a written representation) from the Transferor of the status of
such
transferee as an affiliate of the Depositor.
For
so
long as the Supplemental Interest Trust is in existence, each beneficial
owner
of a Floating Rate Certificate or any interest therein, shall be deemed
to have
represented, by virtue of its acquisition or holding of the Floating Rate
Certificate, or interest therein, that either (i) it is not a Plan or (ii)
(A)
it is an accredited investor within the meaning of Prohibited Transaction
Exemption (“PTE”) 90-59, 55 Fed. Reg. 36724 (September 6, 1990), as amended by
PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE 2000-58, 65 Fed. Reg.
67765
(November 13, 2000) and PTE 2002-41, 67 Fed. Reg. 54487 (August 22, 2002)
(the
“Exemption”) and (B) the acquisition and holding of such Certificate and the
separate right to receive payments from the Supplemental Interest Trust
are
eligible for the exemptive relief available under Prohibited Transaction
Class
Exemption (“PTCE”) 84-14, 91-38, 90-1, 95-60 or 96-23, in the case of a Floating
Rate Certificate.
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
three
preceding paragraphs shall indemnify and hold harmless the Depositor, the
Servicer, the NIMS Insurer, the Trustee and the Trust from and against
any and
all liabilities, claims, costs or expenses incurred by those parties as
a result
of that acquisition or holding.
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of
any
change or impending change in its status as a Permitted Transferee.
(ii) No
Person
shall acquire an Ownership Interest in a Residual Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trustee shall as a condition to registration of the transfer,
require delivery to it, in form and substance satisfactory to it, of each
of the
following:
(A) an
affidavit in the form of Exhibit K hereto from the proposed transferee
to the
effect that such transferee is a Permitted Transferee and that it is not
acquiring its Ownership Interest in the Residual Certificate that is the
subject
of the proposed transfer as a nominee, trustee or agent for any Person
who is
not a Permitted Transferee; and
(B) a
covenant of the proposed transferee to the effect that the proposed transferee
agrees to be bound by and to abide by the transfer restrictions applicable
to
the Residual Certificates.
(iv) Any
attempted or purported transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If
any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of a Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery
that
the registration of transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for
any
registration of transfer of a Residual Certificate that is in fact not
permitted
by this Section or for making any distributions due on such Residual Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Trustee received
the
documents specified in clause (iii). The Trustee shall be entitled to recover
from any Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time such distributions were made all distributions made
on
such Residual Certificate. Any such distributions so recovered by the Trustee
shall be distributed and delivered by the Trustee to the prior Holder of
such
Residual Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest
in a
Residual Certificate in violation of the restrictions in this Section,
then the
Trustee shall have the right but not the obligation, without notice to
the
Holder of such Residual Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of such
Residual Certificate. The proceeds of such sale, net of commissions (which
may
include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the
Trustee
to the previous Holder of such Residual Certificate that is a Permitted
Transferee, except that in the event that the Trustee determines that the
Holder
of such Residual Certificate may be liable for any amount due under this
Section
or any other provisions of this Agreement, the Trustee may withhold a
corresponding amount from such remittance as security for such claim. The
terms
and conditions of any sale under this clause (v) shall be determined in
the sole
discretion of the Trustee and it shall not be liable to any Person having
an
Ownership Interest in a Residual Certificate as a result of its exercise
of such
discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest
in a
Residual Certificate in violation of the restrictions in this Section,
then the
Trustee upon receipt of reasonable compensation will provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3) and
(6) of
the Code, information needed to compute the tax imposed under Section 860E(e)(5)
of the Code on transfers of residual interests to disqualified
organizations.
The
foregoing provisions of this Section shall cease to apply to transfers
occurring
on or after the date on which there shall have been delivered to the Trustee
and
the NIMS Insurer, in form and substance satisfactory to the Trustee and
the NIMS
Insurer, (i) written notification from each Rating Agency that the removal
of
the restrictions on transfer set forth in this Section will not cause such
Rating Agency to downgrade its rating of the Certificates and (ii) an Opinion
of
Counsel to the effect that such removal will not cause any REMIC created
hereunder to fail to qualify as a REMIC.
(e) No
transfer of the Class C Certificates shall be made unless the transferee
of such
Certificates provides to the Trustee the appropriate tax certification
form
(i.e., IRS Form W-9 or IRS Form W-8BEN, W-8IMY, W-8EXP or W-8ECI, as applicable
(or any successor form thereto)), as a condition to such transfer and agrees
to
update such forms (i) upon expiration of any such form, (ii) as required
under
then applicable U.S. Treasury regulations and (iii) promptly upon learning
that
any IRS Form W-9 or IRS Form W-8BEN, W-8IMY, W-8EXP or W-8ECI, as applicable
(or
any successor form thereto), has become obsolete or incorrect. Upon receipt
of
any such tax certification form from a transferee of any Class C Certificate,
the Trustee shall provide a copy of such tax certification form to the
Supplemental Interest Trust Trustee. The Supplemental Interest Trust Trustee
shall provide to the Swap Provider a copy of any such tax certification
form
received from the Trustee.
(f) 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 the 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 the 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 (i) any loss, liability or expense
incurred
in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any
specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of its willful misfeasance, bad
faith or
negligence in the performance of duties hereunder or by reason of its failure
to
perform its obligations or duties hereunder and (ii) any breach of a
representation or warranty regarding the Mortgage Loans. The Servicer or
the
Depositor may initiate any such action which it may deem necessary or desirable
in respect of this Agreement, and the rights and duties of the parties
hereto
and the interests of the Certificateholders hereunder. In such event, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust and the
Servicer
shall be entitled to be reimbursed therefor from the Collection Account
as and
to the extent provided in Section 3.11, any such right of reimbursement
being
prior to the rights of the Certificateholders to receive any amount in
the
Collection Account. The Servicer’s right to indemnity or reimbursement pursuant
to this Section shall survive any resignation or termination of the Servicer
pursuant to Section 6.04 or 7.01 with respect to any losses, expenses,
costs or
liabilities arising prior to such resignation or termination (or arising
from
events that occurred prior to such resignation or termination). This paragraph
shall apply to the Servicer solely in its capacity as Servicer hereunder
and in
no other capacities.
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
Duties
of the Credit Risk Manager.
For
and
on behalf of the Depositor, the Credit Risk Manager will provide reports
and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Charges with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information
provided
pursuant to Credit Risk Management Agreement to the Credit Risk Manager
by the
Servicer. The Credit Risk Manager shall look solely to the Servicer for
all
information and data (including loss and delinquency information and data)
and
loan level information and data relating to the servicing of the Mortgage
Loans
and the Trustee shall not have any obligation to provide any such information
to
the Credit Risk Manager and shall not otherwise have any responsibility
under
the Credit Risk Management Agreement.
On
or
about the 15th calendar day of each month, the Credit Risk Manager shall
have
prepared and shall make available to the Depositor, the Trustee, the Swap
Provider and each Certificateholder, the following reports (each such report
to
be made in a format compatible with EDGAR filing requirements):
(1) Watchlist
Report: A listing of individual Mortgage Loans that are of concern to the
Credit
Risk Manager. Each Watchlist Report shall contain a listing of Mortgage
Loans in
any delinquency status, including current and paid-off loans, and may contain
the comments of the Credit Risk Manager in its sole discretion. The Watchlist
Report shall be presented in substantially the same format attached hereto
as
Exhibit R-1;
(2) Loss
Severity Report: A compilation and summary of all losses, indicating the
loan
loss severity for each Mortgage Pool. Each Loss Severity Report shall include
detail of all losses reported by the Servicer as Realized Losses, except
those
for which the Servicer has not provided detail adequate for reporting purposes.
The Loss Severity Report shall be presented in substantially the same format
attached hereto as Exhibit R-2;
(3) Prepayment
Report: A summary of Prepayment Charges assessed or waived by the Servicer.
The
Prepayment Report shall be presented in substantially the same format attached
hereto as Exhibit R-4; and
(4) Analytics
Report: Analytics Reports shall include statistical and/or graphical portrayals
of (a) the delinquency trend, over time, of the Mortgage Loans; (b) the
constant
prepayment rate “CPR” experience of the Mortgage Loans; and (c) the Standard
Default Assumption experience of the Mortgage Loans. The Analytics Report
shall
be presented in substantially the same format attached hereto as Exhibit
R-5.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Trustee and the Rating Agencies via the Credit
Risk
Manager’s internet website. The Credit Risk Manager’s internet website shall
initially be located at https://reports.clayton.com. The user name for
access to
the website shall be the Certificateholder’s e-mail address and the password
shall be “FFMLT 2006-FF16.” The Trustee shall not have any obligation to review
such reports or otherwise monitor or supervise the activities of the Credit
Risk
Manager.
The
Credit Risk Manager shall reasonably cooperate with the Depositor and the
Trustee in connection with the Trust Fund’s satisfying the reporting
requirements under the 1934 Act with respect to reports prepared by the
Credit
Risk Manager.
The
Credit Risk Manager has not and shall not engage any Subcontractor without
(a)
giving notice to the Sponsor, the Servicer and the Depositor and (b) requiring
any such Subcontractor to provide to the Credit Risk Manager an assessment
report as provided for in Section 3.21 above and an attestation report
as
provided in Section 3.21 above, which reports the Credit Risk Manager shall
include in its assessment and attestation reports.
By
March
15 of each year (or if such day is not a Business Day, the immediately
preceding
Business Day), the Credit Risk Manager shall deliver a signed certification,
in
the form attached hereto as Exhibit U (the “Credit Risk Manager Certification”),
for the benefit of the Depositor, the Sponsor and the Servicer and for
the
benefit of the Person(s) signing the Form 10-K Certification; provided
(i) that
the Credit Risk Manager Certification shall be so provided by March 15
of such
year only to the extent that the Depositor delivers a draft (without exhibits)
of the applicable Annual Report on Form 10-K to the Credit Risk Manager
by the
5th Business Day in March of such year and (ii) in the event that the Depositor
delivers the draft Form 10-K referred to in clause (i) after the 5th Business
Day in March of such year, the Credit Risk Manager shall deliver the Credit
Risk
Manager Certification as soon as practicable but no later than five calendar
days of delivery to the Credit Risk Manager of such draft Form
10-K.
In
the
event that prior to the filing date of the Form 10-K in March of each year,
the
Credit Risk Manager has knowledge or information material to the Credit
Risk
Manager Certification, the Credit Risk Manager shall promptly notify the
Depositor and the Trustee, in writing.
SECTION
6.09
Limitation
Upon Liability of the Credit Risk
Manager.
Neither
the Credit Risk Manager, nor any of its directors, officers, employees,
or
agents shall be under any liability to the Trustee, the Certificateholders,
the
Trustee, the Servicer or the Depositor for any action taken or for refraining
from the taking of any action made in good faith pursuant to this Agreement,
in
reliance upon information provided by the Servicer under the Credit Risk
Management Agreement, or for errors in judgment; provided, however, that
this
provision shall not protect the Credit Risk Manager or any such person
against
liability that would otherwise be imposed by reason of willful malfeasance
or
bad faith in its performance of its duties. The Credit Risk Manager and
any
director, officer, employee, or agent of the Credit Risk Manager may rely
in
good faith on any document of any kind prima
facie
properly
executed and submitted by any Person respecting any matters arising hereunder,
and may rely in good faith upon the accuracy of information furnished by
the
Servicer pursuant to the Credit Risk Management Agreement in the performance
of
its duties thereunder and hereunder.
SECTION
6.10
Removal
of the Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66 2/3% of the Voting Rights in the Trust Fund, in
the
exercise of its or their sole discretion. The Certificateholders shall
provide
written notice of the Credit Risk Manager’s removal to the Trustee. Upon receipt
of such notice, the Trustee shall provide written notice to the Credit
Risk
Manager of its removal, which shall be effective upon receipt of such notice
by
the Credit Risk Manager.
ARTICLE
VII
DEFAULT
SECTION
7.01
Servicer
Events of Termination.
(a) If
any
one of the following events (“Servicer Events of Termination”) shall occur and
be continuing:
(i) (A)
The
failure by the Servicer to make any Advance;
or (B)
any other failure by the Servicer to deposit in the Collection Account
or the
Distribution Account any deposit required to be made under the terms of
this
Agreement which continues unremedied for a period of one Business Day after
the
date upon which written notice of such failure shall have been given to
the
Servicer by the Trustee or to the Servicer and the Trustee by the NIMS
Insurer
or any Holders of a Regular Certificate evidencing at least 25% of the
Voting
Rights; or
(ii) The
failure by the Servicer to make any required Servicing Advance which failure
continues unremedied for a period of 30 days, or the failure by the Servicer
duly to observe or perform, in any material respect, any other covenants,
obligations or agreements of the Servicer as set forth in this Agreement,
which
failure continues unremedied for a period of 30 days (or
if
such failure or breach cannot be remedied within 30 days, then such remedy
shall
have been commenced within 30 days and diligently pursued thereafter; provided,
however, that in no event shall such failure or breach be allowed to exist
for a
period of greater than 90 days), after the date (A) on which written notice
of
such failure, requiring the same to be remedied, shall have been given
to the
Servicer by the Trustee or to the Trustee by the NIMS Insurer or any Holders
of
a Regular Certificate evidencing at least 25% of the Voting Rights or (B)
of
actual knowledge of such failure by a Servicing Officer of the Servicer;
or
(iii) The
entry
against the Servicer of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings, or for the winding up or liquidation of its affairs,
and
the continuance of any such decree or order unstayed and in effect for
a period
of 60 days; or
(iv) The
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator or receiver or liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have
been entered against the Servicer and such decree or order shall have remained
in force undischarged, unbonded or unstayed for a period of 60 days; or
the
Servicer shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors
or
voluntarily suspend payment of its obligations.
(b) then,
and
in each and every such case, so long as a Servicer Event of Termination
shall
not have been remedied within the applicable grace period, (x) with respect
solely to clause (i)(A) above, if such Advance is not made by 5:00 P.M.,
New
York time, on the Business Day immediately following the Servicer Remittance
Date (provided the Trustee shall give the Servicer and the Servicer shall
have
received 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 by the
Distribution Date 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.
Notwithstanding
the termination of the Servicer hereunder, the Servicer shall be entitled
to
reimbursement of all unpaid Servicing Fees and all unreimbursed Advances
and
Servicing Advances in the manner and at the times set forth herein.
SECTION
7.02
Trustee
to Act; Appointment of Successor.
(a) From
the
time the Servicer (and the Trustee, if notice is sent by the Holders) receives
a
notice of termination pursuant to Section 7.01 or 6.04, the Trustee (or
such
other successor Servicer as is approved in accordance with this Agreement)
shall
be the successor in all respects to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein
and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions hereof arising
on and
after its succession. Notwithstanding the foregoing, the parties hereto
agree
that the Trustee, in its capacity as successor Servicer, immediately will
assume
all of the obligations of the Servicer to make advances. Notwithstanding
the
foregoing, the Trustee, in its capacity as successor Servicer, shall not
be
responsible for the lack of information and/or documents that it cannot
obtain
through reasonable efforts. It is understood and agreed by the parties
hereto
that there will be a period of transition (not to exceed 90 days) before
the
transition of servicing obligations is fully effective. As compensation
therefor, the Trustee (or such other successor Servicer) shall be entitled
to
such compensation as the Servicer would have been entitled to hereunder
if no
such notice of termination had been given. Notwithstanding the above, (i)
if the
Trustee is unwilling to act as successor Servicer or (ii) if the Trustee
is
legally unable so to act, the Trustee shall appoint or petition a court
of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer having
a
net worth of not less than $50,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities,
duties
or liabilities of the Servicer hereunder; provided, that the appointment
of any
such successor Servicer shall be approved by the NIMS Insurer (such approval
not
to be unreasonably withheld), as evidenced by the prior written consent
of the
NIMS Insurer, and will not result in the qualification, reduction or withdrawal
of the ratings assigned to the Certificates by the Rating Agencies as evidenced
by a letter to such effect from the Rating Agencies. Pending appointment
of a
successor to the Servicer hereunder, the Trustee shall act in such capacity
as
hereinabove provided. In connection with such appointment and assumption,
the
successor shall be entitled to receive compensation out of payments on
Mortgage
Loans in an amount equal to the compensation which the Servicer would otherwise
have received pursuant to Section 3.18 (or such other compensation as the
Trustee and such successor shall agree, not to exceed the Servicing Fee).
The
appointment of a successor Servicer shall not affect any liability of the
predecessor Servicer which may have arisen under this Agreement prior to
its
termination as Servicer to pay any deductible under an insurance policy
pursuant
to Section 3.14, to reimburse the Trustee pursuant to Section 3.06 or to
indemnify the Trustee or the NIMS Insurer pursuant to Section 8.05(c)),
nor
shall any successor Servicer be liable for any acts or omissions of the
predecessor Servicer or for any breach by such Servicer of any of its
representations or warranties contained herein or in any related document
or
agreement. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
All Servicing Transfer Costs shall be paid by the predecessor Servicer
upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall
be paid
by the successor Servicer or the Trustee (in which case the successor Servicer
or the Trustee, as applicable, shall be entitled to reimbursement therefor
from
the assets of the Trust).
(b) Any
successor to the Servicer, including the Trustee, shall during the term
of its
service as servicer continue to service and administer the Mortgage Loans
for
the benefit of Certificateholders, and maintain in force a policy or policies
of
insurance covering errors and omissions in the performance of its obligations
as
Servicer hereunder and a fidelity bond in respect of its officers, employees
and
agents to the same extent as the Servicer is so required pursuant to Section
3.14.
(c) In
connection with the resignation, removal or expiration of the term of the
Servicer hereunder, or in connection with the resignation or removal of
any
successor to the Servicer (or any other successor to the Servicer appointed
hereunder) acting as successor Servicer hereunder, either (i) the successor
Servicer, (or any other successor to the Servicer appointed hereunder)
acting as
successor Servicer hereunder, shall represent and warrant that it is a
member of
MERS in good standing and shall agree to comply in all material respects
with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, in which case the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to
revise
its records to reflect the transfer of servicing to the successor Servicer
as
necessary under MERS’ rules and regulations or (ii) the predecessor Servicer
shall cooperate with the successor Servicer in causing MERS to execute
and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect
a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the
MERS®
System to the successor Servicer. The predecessor Servicer shall file or
cause
to be filed any such assignment in the appropriate recording office. The
predecessor Servicer shall bear any and all fees of MERS, costs of preparing
any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this paragraph.
SECTION
7.03
Waiver
of Defaults.
The
Majority Certificateholders may, on behalf of all Certificateholders and
with
the consent of the NIMS Insurer, waive any events permitting removal of
the
Servicer as servicer pursuant to this Article VII, provided, however, that
the
Majority Certificateholders may not waive a default in making a required
distribution on a Certificate without the consent of the Holder of such
Certificate and the consent of the NIMS Insurer. Upon any waiver of a past
default, such default shall cease to exist and any Servicer Event of Termination
arising therefrom shall be deemed to have been remedied for every purpose
of
this Agreement. No such waiver shall extend to any subsequent or other
default
or impair any right consequent thereto except to the extent expressly so
waived.
Notice of any such waiver shall be given by the Trustee to the Rating Agencies
and the NIMS Insurer.
SECTIO
N 7.04
Notification
to Certificateholders.
(a) Upon
any
termination or appointment of a successor to the Servicer pursuant to this
Article VII or Section 6.04, the Trustee shall give prompt written notice
thereof to the Certificateholders at their respective addresses appearing
in the
Certificate Register, the NIMS Insurer and each Rating Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute a Servicer Event of
Termination or within 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 laws, rules, regulations and executive orders in effect
from time
to time applicable to banking institutions, including those relating to
the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its request from time to time such identifying information and documentation
as
may be available for such party in order to enable the Trustee to comply
with
Applicable Law.
SECTION
8.03
Trustee
Not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the authentication
of the Trustee on the Certificates) shall be taken as the statements of
the
Depositor, and the Trustee assumes no responsibility for the correctness
of the
same. The Trustee makes no representations as to the validity or sufficiency
of
this Agreement or of the Certificates (other than the signature and
authentication of the Trustee on the Certificates) or of any Mortgage Loan
or
related document or MERS or the MERS System other than with respect to
the
Trustee’s execution and authentication of the Certificates. The Trustee shall
not be accountable for the use or application by the Servicer, or for the
use or
application of any funds paid to the Servicer in respect of the Mortgage
Loans
or deposited in or withdrawn from the Collection Account by the Servicer.
The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage or
any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust or its ability to generate the payments to be distributed
to
Certificateholders under this Agreement, including, without limitation:
the
existence, condition and ownership of any Mortgaged Property; the existence
and
enforceability of any hazard insurance thereon (other than if the Trustee
shall
assume the duties of the Servicer pursuant to Section 7.02); the validity
of the
assignment of any Mortgage Loan to the Trustee or of any intervening assignment;
the completeness of any Mortgage Loan; the performance or enforcement of
any
Mortgage Loan (other than if the Trustee shall assume the duties of the
Servicer
pursuant to Section 7.02); the compliance by the Depositor, the Seller
or the
Servicer with any warranty or representation made under this Agreement
or in any
related document or the accuracy of any such warranty or representation
prior to
the Trustee’s receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; any investment of monies by or at the
direction
of the Servicer or any loss resulting therefrom, it being understood that
the
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 Seller, 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.
(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
any
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.
Any
Person appointed as successor trustee pursuant to this Agreement shall
also be
required to serve as successor successor supplemental interest trust trustee
under the Swap Agreement.
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 this 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 Seller, the Depositor, the Servicer, the NIMS
Insurer
and each Certificateholder upon reasonable prior notice during normal business
hours, access to all records maintained by the Trustee in respect of its
duties
hereunder and access to officers of the Trustee responsible for performing
such
duties. Upon request, the Trustee shall furnish the Depositor, the Servicer,
the
NIMS Insurer and any requesting Certificateholder with its most recent
financial
statements. The Trustee shall cooperate fully with the Seller, the Servicer,
the
NIM Insurer, the Depositor and such Certificateholder and shall make available
to the Seller, the Servicer, the Depositor, the NIMS Insurer and such
Certificateholder for review and copying such books, documents or records
as may
be requested with respect to the Trustee’s duties hereunder. The Seller, the
Depositor, the Servicer 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.
(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 each such REMIC. The
Holder
of the Class R-X Certificate at any time holding the largest Percentage
Interest
thereof shall be the Tax Matters Person with respect to REMIC 4, REMIC
5 and
REMIC 6 and shall act as Tax Matters Person for each such REMIC. The 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 any REMIC to take any action necessary to create or maintain the
status of
each REMIC as a REMIC under the REMIC Provisions and shall assist each
other as
necessary to create or maintain such status. None of the Trustee, the Servicer
or the Holder of any Residual Certificate shall take any action, cause
any REMIC
created hereunder to take any action or fail to take (or fail to cause
to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of such REMIC as a REMIC
or (ii)
result in the imposition of a tax upon such REMIC (including but not limited
to
the tax on prohibited transactions as defined in Code Section 860F(a)(2)
and the
tax on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an “Adverse REMIC Event”) unless the Trustee, the 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) Reserved.
(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.
None
of
the Depositor, the Servicer or the Trustee shall sell, dispose of, or substitute
for any of the Mortgage Loans, except in a disposition pursuant to (i)
the
foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the
termination of any REMIC created hereunder pursuant to Article X of this
Agreement, (iv) a substitution pursuant to Article II of this Agreement
or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement,
nor
acquire any assets for any REMIC, nor sell or dispose of any investments
in the
Distribution Account for gain, nor accept any contributions to either REMIC
after the Closing Date, unless it 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
Joseph P. Kennedy, the late ambassador of the United States to the Court
of St.
James’s, living on the date hereof.
The
Servicer (in such context, the “Terminator”), may, at its option, terminate this
Agreement on any date on which the aggregate Stated Principal Balance of
the
Mortgage Loans (after giving effect to scheduled payments of principal
due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) on such date is equal to or less than 10% of the aggregate Stated
Principal Balance of the Mortgage Loans on the Cut-off Date, by purchasing,
on
the next succeeding Distribution Date, all of the outstanding Mortgage
Loans and
REO Properties at a price equal to the greater of (i) the Stated Principal
Balance of the Mortgage Loans (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties and (ii) fair market
value
of the Mortgage Loans and REO Properties (as determined and as agreed upon
in
their good faith business judgment (determined as provided in the last
sentence
of this paragraph) as of the Close of Business on the third Business Day
next
preceding the date upon which notice of any such termination is furnished
to the
related Certificateholders pursuant to Section 10.01(c) by (x) the Terminator,
(y) the Holders of a majority in Percentage Interest in the Class C Certificates
and (z) if the 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 (the
“Termination Price”); provided, however, such option may only be exercised if
the Termination Price is sufficient to result in the payment of all interest
accrued on, as well as amounts necessary to retire the principal balance
of,
each class of notes issued pursuant to the Indenture and any amounts owed
to the
NIMS Insurer (as it notifies the Trustee and Servicer in writing). If the
determination of the fair market value of the Mortgage Loans and REO Properties
shall be required to be made and agreed upon by the Terminator, the Holders
of a
majority in Percentage Interest in the Class C Certificates and the Trustee
as
provided in (ii) above in their good faith business judgment, such determination
shall be based on an appraisal of the value of the Mortgage Loans and REO
Properties conducted by an independent appraiser mutually agreed upon by
the
Terminator, the Holders of a majority in Percentage Interest in the Class
C
Certificates and the Trustee in their reasonable discretion, and (A) such
appraisal shall be obtained at no expense to the Trustee and (B) notwithstanding
anything to the contrary above, the Trustee may solely and conclusively
rely on,
and shall be protected in relying on, such appraisal in making such
determination.
By
acceptance of a Residual Certificate, the Holders of the Residual Certificates
agree, in connection with any termination hereunder, to assign and transfer
any
amounts in excess of par, and to the extent received in respect of such
termination, to pay any such amounts to the Holders of the Class C
Certificates.
(b) In
connection with any termination pursuant to this Section 10.01:
(i) At
least
twenty (20) days prior to the latest date on which notice of such optional
termination is required to be mailed to the Certificateholders, the Terminator
shall notify in writing (which may be done in electronic format) the Swap
Provider and the Trustee of the final Distribution Date on which the Terminator
intends to terminate the Trust Fund;
(ii) No
later
than 4:00 pm (New York City time) four (4) Business Days prior to the final
Distribution Date specified in the notices required pursuant to Section
10.01,
the Swap Provider shall notify in writing (which may be done in electronic
format) the Terminator and the Trustee of the amount of the Estimated Swap
Termination Payment; and
(iii) Three
(3)
Business Days prior to the final Distribution Date specified in the notices
required pursuant to Sections 10.01, (x) the Terminator shall, no
later than 1:00 pm (New
York
City time) on such day, deliver to the Trustee and the Trustee shall deposit
funds in the Distribution Account in an amount equal to the sum of the
Termination Price (which shall be based on the Estimated Swap Termination
Payment), and (y) if the Trustee shall have determined that the all of
the
requirements for Optional Termination have been met, including without
limitation the deposit required pursuant to the immediately preceding clause
(x)
as well as the requirements specified in Section 10.01, then the Trustee
shall,
on the same Business Day, provide written notice (which may be done in
electronic format) to the Terminator and the Swap Provider confirming (a)
its
receipt of the Termination Price (which shall be based on the Estimated
Swap
Termination Payment), and (b) that all other requirements specified in
Section
10.01 have been met (the “Optional Termination Notice”). Upon the delivery of
the Optional Termination Notice by the Trustee pursuant to the preceding
sentence, (i) the optional termination shall become irrevocable, (ii) the
notice
to Certificateholders of such optional termination provided pursuant to
Section
10.01 shall become unrescindable, (iii) the Swap Provider shall determine
the
Swap Termination Payment in accordance with the Interest Rate Swap Agreement
(which shall not exceed the Estimated Swap Termination Payment), and (iv)
the
Swap Provider shall provide to the Trustee written notice of the amount
of the
Swap Termination Payment not later than two (2) Business Days prior to
the final
Distribution Date specified in the notices required pursuant to Sections
10.01.
Upon
a
termination pursuant to this Section 10.01, the Trustee shall assign to
the
Terminator each of the representations and warranties made by the Originator
and
the Seller pursuant to the Master Agreement and the Assignment Agreement,
without recourse, representation or warranty.
In
connection with any such purchase pursuant to this Section 10.01, 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.
(c) Notice
of
any termination, specifying the Distribution Date (which shall be a date
that
would otherwise be a Distribution Date) upon which the Certificateholders
may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon
the
Trustee receiving notice of such date from the Terminator, by letter to
the
Certificateholders mailed not earlier than the 15th
day and
not later than the 25th
day of
the month next preceding the month of such final distribution specifying
(1) the
Distribution Date upon which final distribution of the Certificates will
be made
upon presentation and surrender of such Certificates at the office or agency
of
the Trustee therein designated, (2) the amount of any such final distribution
and (3) that the Record Date otherwise applicable to such Distribution
Date is
not applicable, distributions being made only upon presentation and surrender
of
the Certificates at the office or agency of the Trustee therein
specified.
(d) 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.
(e) 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 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
or
electronic notice to the Depositor, the Servicer and the Trustee from each
Rating Agency that such action will not result in the reduction or withdrawal
of
the rating of any outstanding Class of Certificates with respect to which
it is
a Rating Agency, adversely affect in any material respect the interests
of any
Certificateholder. No amendment shall be deemed to adversely affect in
any
material respect the interests of any Certificateholder who shall have
consented
thereto, and no Opinion of Counsel or Rating Agency confirmation shall
be
required to address the effect of any such amendment on any such consenting
Certificateholder.
In
addition, this Agreement may be amended from time to time by the Depositor,
the
Servicer and the Trustee with the consent of the NIMS Insurer and the Majority
Certificateholders for the purpose of adding any provisions to or changing
in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Swap Provider or the Holders
of
Certificates; provided, however, that no such amendment or waiver shall
(x)
reduce in any manner the amount of, or delay the timing of, payments on
the
Certificates or distributions which are required to be made on any Certificate
without the consent of the Holder of such Certificate, (y) adversely affect
in
any material respect the interests of the Swap Provider or 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 parties
to this
Agreement shall enter into any amendment to this Agreement that could reasonably
be expected to have a material adverse effect on the interests of the Swap
Provider hereunder (excluding, for the avoidance of doubt, any amendment
to this
Agreement that is entered into solely for the purpose of appointing a successor
servicer or trustee) without the prior written consent of the Swap Provider,
which consent shall not be unreasonably withheld, conditioned or
delayed.
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, National City Home Loan Services, Inc., 150
Allegheny Center, Locator 47-23-501, Pittsburgh, PA15212-5356, Attention:
Investor Reporting Manager, 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, 1761 East St. Andrew Place, Santa Ana, California92705-4934,
Attention: Trust Administration - GC06ZA (telecopy number: (714) 247-6478),
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., 600 Steamboat
Road,
Greenwich, Connecticut06830, Attention: Legal, or such other address as
may be
furnished to the Servicer, the NIMS Insurer and the Trustee in writing
by the
Depositor or (d) in the case of the NIMS Insurer, such address furnished
to the
Depositor, the Servicer and the Trustee in writing by the NIMS Insurer,
or such
other address or telecopy number as may hereafter be furnished to the Depositor,
the Servicer and the Trustee in writing by the NIMS Insurer. Any notice
required
or permitted to be mailed to a Certificateholder shall be given by first
class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Notice of any Servicer Event of Termination shall be given by
telecopy
and by certified mail. Any notice so mailed within the time prescribed
in this
Agreement shall be conclusively presumed to have duly been given when mailed,
whether or not the Certificateholder receives such notice. A copy of any
notice
required to be telecopied hereunder shall also be mailed to the appropriate
party in the manner set forth above.
SECTION
11.06
Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
11.07
Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
11.08
Notice
to the Rating Agencies and the NIMS
Insurer.
(a) Each
of
the Trustee and the Servicer shall be obligated to use its best reasonable
efforts promptly to provide notice to the Rating Agencies and the NIMS
Insurer
with respect to each of the following of which a Responsible Officer of
the
Trustee or Servicer, as the case may be, has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Servicer Event of Termination that has not been cured
or
waived;
(iii) the
resignation or termination of the Servicer or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as successor Servicer pursuant to Section 7.02 hereof,
any
event that would result in the inability of the Trustee to make
Advances.
(b) In
addition, the Trustee shall promptly make available to each Rating Agency
copies
of each Statement to Certificateholders described in Section 4.03 hereof
and
copies of the following:
(1) each
annual statement as to compliance described in Section 3.20 hereof;
(2) each
Attestation Report described in Section 3.21 hereof; and
(3) 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) Dominion Bond Rating
Service, One Exchange Plaza, 55 Broadway, 15th
Floor,
New York, New York 10066 and (ii) Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc., 55 Water Street, 41st Floor, New York, NY10041,
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
Reserved.
SECTION
11.11
Benefits
of Agreement.
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.
The
Swap
Provider shall be an express third party beneficiary of this Agreement
as if a
party hereto to the extent of Swap Provider's rights, as are explicitly
specified herein.
Other
than as set forth above, nothing in this Agreement or in the Certificates,
expressed or implied, shall give to any Person, other than the
Certificateholders and the parties hereto and their successors hereunder,
any
benefit or any legal or equitable right, remedy or claim under this
Agreement.
SECTION
11.12
Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and the Servicer.
Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any
purpose of this Agreement and conclusive in favor of the Trustee and the
Trust,
if made in the manner provided in this Section 11.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by
a
signer acting in a capacity other than his or her individual capacity,
such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect
of
anything done, omitted or suffered to be done by the Trustee or the Trust
in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
SECTION
11.13
Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.20,
3.21 and
4.07 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/
Pat Leo
Name:
Pat
Leo
Title:
Vice
President
NATIONAL
CITY HOME LOAN SERVICES, INC.,
as
Servicer
By:
/s/
Steven A. Baranet
Name:
Steven
A. Baranet
Title:
Vice
President
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee and Supplemental Interest Trust Trustee
By:
/s/
Marion Hogan
Name:
Marion
Hogan
Title:
Associate
By:
/s/
Melissa Wilman
Name:
Melissa
Wilman
Title:
Vice
President
For
purposes of Sections 6.08, 6.09 and 6.10:
CLAYTON
FIXED INCOME SERVICES INC.
By:
/s/
Kevin
J. Kanouff
Name:
Kevin
J. Kanouff
Title:
President
and General Counsel
STATE
OF CONNECTICUT
)
)
ss.:
COUNTY
OF
)
On
the
____ day of November, 2006 before me, a notary public in and for said State,
personally appeared ___________________known to me to be a ____________________
of Financial Asset Securities Corp., a Delaware corporation that executed
the
within instrument, and also known to me to be the person who executed it
on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the
day and year in this certificate first above written.
Notary
Public
STATE
OF_____________
)
)
ss.:
COUNTY
OF___________
)
On
the____ day of November, 2006 before me, a notary public in and for said
State,
personally appeared ________________________known to me to be a
___________________ of National City Home Loan Services, Inc., 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 November, 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
STATE
OF CALIFORNIA
)
)
ss.:
COUNTY
OF ORANGE
)
On
the
___ day of November, 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-A1 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.
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-A1 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-A1 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-A1 Certificate (obtained by dividing the Denomination
of this Class I-A1 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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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-A1 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-A1 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-A1 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-A1 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the I-A1 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class I-A1 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 (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 December 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-2
FORM
OF
CLASS II-A1 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.
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-A1 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-A1 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-A1 Certificate (obtained by dividing the Denomination
of this Class II-A1 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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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-A1 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-A1 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-A1 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-A1 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the II-A1 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A1 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 (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 December 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-A2 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.
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-A2 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-A2 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-A2 Certificate (obtained by dividing the Denomination
of this Class II-A2 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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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-A2 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-A2 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-A2 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-A2 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the II-A2 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A2 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 (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 December 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-A3 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.
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-A3 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-A3 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-A3 Certificate (obtained by dividing the Denomination
of this Class II-A3 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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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-A3 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-A3 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-A3 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-A3 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the II-A3 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A3 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 (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 December 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-A4 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.
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-A4 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-A4 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-A4 Certificate (obtained by dividing the Denomination
of this Class II-A4 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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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-A4 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-A4 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-A4 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-A4 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the II-A4 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A4 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 (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 December 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-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES AND THE CLASS II-A4
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
36,721,000.00
Original
Class Certificate Principal Balance of this Class
:
$
36,721,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AF 7
Class
:
M-1
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-1 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-1 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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-A1 CERTIFICATES, THE CLASS II-A1 CERTIFICATES, THE CLASS II-A2, THE CLASS
II-A3 CERTIFICATES, THE CLASS II-A4 CERTIFICATES
AND THE
CLASS M-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
32,507,000.00
Original
Class Certificate Principal Balance of this Class
:
$
32,507,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AG 5
Class
:
M-2
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-2 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-2 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES, THE CLASS II-A4
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.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
19,865,000.00
Original
Class Certificate Principal Balance of this Class
:
$
19,865,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AH 3
Class
:
M-3
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-3 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-3 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES, THE CLASS II-A4
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.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
17,457,000.00
Original
Class Certificate Principal Balance of this Class
:
$
17,457,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AJ 9
Class
:
M-4
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-4 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-4 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES, THE CLASS II-A4
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.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
17,457,000.00
Original
Class Certificate Principal Balance of this Class
:
$
17,457,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AK 6
Class
:
M-5
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-5 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-5 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES, THE CLASS II-A4
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.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
16,254,000.00
Original
Class Certificate Principal Balance of this Class
:
$
16,254,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AL 4
Class
:
M-6
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-6 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-6 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES, THE CLASS II-A4
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.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
13,845,000.00
Original
Class Certificate Principal Balance of this Class
:
$
13,845,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AM 2
Class
:
M-7
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-7 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-7 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES, THE CLASS II-A4
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.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
8,428,000.00
Original
Class Certificate Principal Balance of this Class
:
$
8,428,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AN 0
Class
:
M-8
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-8 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-8 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES, THE CLASS II-A4
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.
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 MADE EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
:
$
12,040,000.00
Original
Class Certificate Principal Balance of this Class
:
$
12,040,000.00
Percentage
Interest
:
100.00%
Pass-Through
Rate
:
Variable
CUSIP
:
320275
AP 5
Class
:
M-9
Assumed
Maturity Date
:
December
2036
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
Series
2006-FF16
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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-9 Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class M-9 Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
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.
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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the M-9 Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-9 Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 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 December 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 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.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS I-A1 CERTIFICATES, THE CLASS II-A1
CERTIFICATES, THE CLASS II-A2, THE CLASS II-A3 CERTIFICATES, THE CLASS II-A4
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 AND THE CLASS M-9 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.
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the C Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class C Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 (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 December 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.
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 November 1, 2006 (the “Agreement”) among the Depositor,
National City Home Loan Services, Inc., 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the P Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class P Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 (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 December 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.
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 November 1, 2006
(the
“Agreement”) among the Depositor, National City Home Loan Services, Inc., 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the R Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class R Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16 Asset-Backed Certificates, Series
2006-FF16 (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 December 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.
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 November 1, 2006
(the
“Agreement”) among the Depositor, National City Home Loan Services, Inc., 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:
November __, 2006
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
By:
This
is
one of the R-X Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class R-X Certificate]
First
Franklin Mortgage Loan Trust 2006-FF16
Asset-Backed
Certificates,
SERIES
2006-FF16
This
Certificate is one of a duly authorized issue of Certificates designated as
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16 (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 December 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
FORM
OF
CAP ALLOCATION AGREEMENT
CAP
ALLOCATION AGREEMENT
This
Cap
Allocation Agreement, dated as of November 30, 2006 (this “Agreement”), between
Deutsche Bank National Trust Company (“Deutsche Bank”), as cap trustee for the
cap trust (in such capacity, the “Cap Trustee”) and as trustee under the Pooling
and Servicing Agreement, as hereinafter defined (in such capacity, the
“Trustee”) and Greenwich
Capital Financial Products, Inc. (“GCFP”).
WHEREAS,
Deutsche Bank, on behalf of a separate trust established hereunder which
holds
an Interest Rate Cap Agreement (the “Cap Agreement”), a copy of which is
attached hereto as Exhibit A, between the Cap Trustee,
on
behalf of the Cap Trust
and
HSBC
Bank USA, National Association
(the
“Cap Provider”) is a counterparty to the Cap Agreement;
and
WHEREAS,
it is desirable to irrevocably appoint the Cap Trustee, and the Cap Trustee
desires to accept such appointment, to receive and distribute funds payable
by
the Cap Provider to the Cap Trustee, on behalf of the Cap Trust under the
Cap
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 November 1, 2006 (the “Pooling and Servicing Agreement”), among
Financial Asset Securities Corp., as Depositor, National City Home Loan
Services, Inc., as servicer and the Trustee relating to the First Franklin
Home
Loan Trust 2006-FF16 (the “Trust”), Asset-Backed Certificates, Series
2006-2006-FF16 (the “Certificates”), or in the related Indenture as the case may
be, as in effect on the date hereof.
2.Cap
Trust.
There
is hereby established a separate trust (the “Cap Trust”), into which the Cap
Trustee shall deposit the Cap Agreement. The Cap Trust shall be maintained
by
the Cap Trustee. The sole assets of the Cap Trust shall be the Cap Agreement
and
the Cap Trust Account.
3.Cap
Trustee.
(a) The
Cap
Trustee, on behalf of the Cap Trust, is hereby irrevocably appointed to receive
all funds paid to the Cap Trustee by the Cap Provider, or its successors
in
interest under the Cap Agreement (including any Cap Termination Payment)
and the
Cap Trustee accepts such appointment and hereby agrees to receive such amounts,
deposit such amounts into the Cap Trust Account and to distribute on each
Distribution Date such amounts in the following order of priority:
(i) first,
for deposit into the Cap Account (established under the Pooling and Servicing
Agreement), an amount equal to the sum of the following amounts remaining
outstanding after distribution of the Net Monthly Excess Cashflow and any
Net
Swap Payments received under the Interest Rate Swap Agreement with the Trust:
(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 GCFP, or its designee, any amounts remaining after payment of (i) above,
provided,
however,
upon the
issuance of notes by an issuer (the “NIM Trust”), secured by all or a portion of
the Class C Certificates and the Class P Certificates (the “NIM Notes”), GCFP,
or its designee, hereby instructs the Cap Trustee to make any payments under
this clause 3(a)(ii):
(A) to
the
Indenture Trustee for the NIM Trust, for deposit into the Note Account (each
as
defined in the related Indenture), for distribution in accordance with the
terms
of the Indenture until satisfaction and discharge of the Indenture;
and
(B) after
satisfaction and discharge of the Indenture, to the Holders of the Class
C
Certificates, pro
rata
based on
the outstanding Notional Amount of each such Certificate.
(b) The
Cap
Trustee agrees to hold any amounts received from the Cap Provider 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, GCFP and the NIMS Insurer, if any) as
set
forth herein. The rights, duties and liabilities of the Cap Trustee in respect
of this Agreement shall be as follows:
(i) The
Cap
Trustee 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 Cap Trustee shall not be
answerable or accountable except for its own bad faith, willful misconduct
or
negligence. The Cap Trustee 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
Cap Trustee, shall be likely to involve expense or liability to the Cap Trustee,
unless the Cap Trustee shall have received an agreement satisfactory to it
in
its sole discretion to indemnify it against such liability and
expense.
(ii) The
Cap
Trustee 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 Cap Trustee or exercising any right or power conferred upon the Cap Trustee
under this Agreement.
(iii) The
Cap
Trustee may perform any duties hereunder either directly or by or through
agents
or attorneys of the Cap Trustee. The Cap Trustee shall not be liable for
the
acts or omissions of its agents or attorneys so long as the Cap Trustee chose
such Persons with due care.
4.Cap
Trust Account.
The Cap
Trustee shall segregate and hold all funds received from the Cap Provider
(including any Cap Termination Payment) separate and apart from any of its
own
funds and general assets and shall establish and maintain in the name of
the Cap
Trustee one or more segregated accounts (the “Cap Trust Account”).
5.
[Reserved]
6.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 Cap Trustee
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 Cap Trustee
and the 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).
7. Replacement
of Cap Trustee.
Any
corporation, bank, trust company or association into which the Cap Trustee
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 Cap Trustee shall be a party, or any corporation,
bank, trust company or association succeeding to all or substantially all
the
corporate trust business of the Cap Trustee, shall be the successor of the
Cap
Trustee 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 Cap Trustee and no appointment of a successor
Cap
Trustee shall become effective until the appointment by GCFP, or its designee,
of a successor Cap Trustee acceptable to the NIMS Insurer, if any. Any successor
Cap Trustee shall execute such documents or instruments necessary or appropriate
to vest in and confirm to such successor Cap Trustee all such rights and
powers
conferred by this Agreement.
The
Cap
Trustee 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 cap
trustee shall not have accepted the appointment hereunder within 30 days
after
the giving by the resigning Cap Trustee of such notice of resignation, the
resigning Cap Trustee may petition any court of competent jurisdiction for
the
appointment of a successor Cap Trustee acceptable to the NIMS Insurer, if
any.
In
the
event of a resignation or removal of the Cap Trustee, GCFP, or its designee,
shall promptly appoint a successor Cap Trustee 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 Cap
Trustee.
8. Cap
Trustee Obligations.
Whenever
the Cap Trustee, on behalf of the Cap Trust, as a party to the Cap Agreement,
has the option or is requested in such capacity, whether such request is
by the
Cap Provider, to take any action or to give any consent, approval or waiver
that
it is on behalf of the Cap 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 Cap 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 GCFP, or its designee, 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 Cap
Trustee to the parties hereto and the NIMS Insurer, if any), the Cap Trustee
may
abstain from taking such action or giving such consent, approval or
waiver.
The
Cap
Trustee shall forward to the parties hereto and the NIMS Insurer, if any,
on the
Distribution Date following its receipt thereof copies of any and all notices,
statements, reports and/or other material communications and information
(collectively, the “Cap Reports”) that it receives in connection with the Cap
Agreement or from the counterparty thereto.
9. 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 Cap Trustee irrevocably submits
to
the jurisdiction of each such court in respect of any such action or proceeding.
The Cap Trustee 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 GCFP and the NIMS Insurer, if
any.
(d) This
Agreement may not be assigned or transferred without the prior written consent
of GCFP and the NIMS Insurer, if any; provided, however, the parties hereto
acknowledge and agree to the assignment of the rights of GCFP, or its designee,
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.
10.Third-Party
Beneficiary. Each
of
the Trustee, GCFP or its designee 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. If any default occurs on the part of the Cap Provider under the
Cap
Agreement in the making of a payment due under the Cap Agreement or in any
other
obligation of the Cap Provider under the Cap Agreement, the Cap Trustee may
and,
upon the request of the Trustee, GCFP or its designee or the Indenture Trustee,
shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
11.Cap
Trustee and Trustee Rights.
The Cap
Trustee 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 Cap Trustee.
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 Cap Trustee.
12.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
not
in its individual capacity but solely as Cap Trustee under this
Agreement
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 FINANCIAL PRODUCTS, INC.
By:
Name:
Title:
EXHIBIT
A
INTEREST
RATE CAP AGREEMENT
SEE
EXHIBIT [ ] TO THE POOLING AND
SERVICING AGREEMENT
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01
Seller
Representations and Warranties Relating to the Mortgage
Loans.
Section
3.02
Seller
Representations and Warranties Relating to the Seller
Section
3.03
Remedies
for Breach of Representations and Warranties
ARTICLE
IV
SELLER’S
COVENANTS
Section
4.01
Covenants
of the Seller
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
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of November 2, 2006 (the “Agreement”), between
Greenwich Capital Financial Products, Inc. (the “Seller”) and Financial Asset
Securities Corp. (the “Purchaser”).
WITNESSETH
WHEREAS,
the Seller is the owner of (a) the notes or other evidence of indebtedness
(the
“Mortgage Notes”) so indicated on Schedule I hereto referred to below and (b)
the other documents or instruments constituting the Mortgage File (collectively,
the “Mortgage Loans”); and
WHEREAS,
the Seller, as of the date hereof, owns 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 Seller sell the Mortgage Loans to the
Purchaser pursuant to the terms of this Agreement; and
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement dated as of November1, 2006 (the “Pooling and Servicing Agreement”) among the Purchaser as
depositor, National City Home Loan Services, Inc. as servicer and Deutsche
Bank
National Trust Company as trustee (the “Trustee”), the Purchaser will convey the
Mortgage Loans to First Franklin Mortgage Loan Trust 2006-FF16 (the
“Trust”).
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01Definitions.
All
capitalized terms used but not defined herein and below shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
“Seller
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—High Loan-to-Value
Ratios Increase Risk of Loss,” 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 MORTGAGE POOL,” the first sentence of the seventh
paragraph under “YIELD, PREPAYMENT AND MATURITY CONSIDERATIONS” and “THE
SELLER.”
ARTICLE
II
SALE
OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01Sale
of Mortgage Loans.
The
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,
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 (iv) the right to receive any amounts under the Cap Contract
and
(v) all proceeds of any of the foregoing. In addition to the sale of the
Mortgage Loans, the Originator will direct the Trustee (in its capacity as
trustee of the supplemental interest trust created under the Pooling and
Servicing Agreement) to enter into the Interest Rate Swap
Agreement.
Section
2.02Obligations
of the Seller and Seller Upon Sale.
In
connection with any transfer pursuant to Section 2.01 hereof, the Seller
further
agrees, at its own expense on or prior to the Closing Date, (a) to cause
its
books and records 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 file, which
forms a part of Exhibit D to the Pooling and Servicing Agreement, shall also
be
marked as Schedule I to this Agreement and is hereby incorporated into and
made
a part of this Agreement.
In
connection with any conveyance by the Seller, the Seller 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, 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 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,
substitution agreement or guarantee, if any.
The
Seller 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 Seller 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 Seller 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 Seller, 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
Seller 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 Seller 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 Seller shall have 120 days
to
cure such defect or deliver such missing document to the Purchaser. If the
Seller does not cure such defect or deliver such missing document within
such
time period, the Seller shall either repurchase or substitute for such Mortgage
Loan pursuant to Section 2.03 of the Pooling and Servicing
Agreement.
The
Seller 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 Seller
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 Seller 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 Seller 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 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 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 Seller, shall cause to be completed such
endorsements “Pay to the order of Deutsche Bank National Trust Company, as
Trustee, without recourse.”
The
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
Seller to the Purchaser of all the Seller’s right, title and interest in and to
the Mortgage Loans and other property described above. In the event the
transaction set forth herein is deemed not to be a sale, the Seller hereby
grants to the Purchaser a security interest in all of the Seller’s right, title
and interest in, to and under the Mortgage Loans and other property described
above, whether now existing or hereafter created, to secure all of the Seller’s
obligations hereunder; and this Agreement shall constitute a security agreement
under applicable law.
Section
2.03Payment
of Purchase Price for the Mortgage Loans.
In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on the Closing Date, the Purchaser agrees to pay to the Seller on the Closing
Date (the “Purchase Price”) by transfer of (i) immediately available funds in an
amount equal to the net sale proceeds of the Adjustable-Rate Certificates
and
the Residual Certificates, (ii) the Class C Certificates and the Class P
Certificates (collectively the “Retained Certificates”) which Retained
Certificates shall be registered in the name of Greenwich Capital Financial
Products, Inc. or its designee and (iii) any investment income earned on
amounts
on deposit in the Pre-Funding Accounts. The Seller shall pay, and be billed
directly for, all expenses incurred by the Purchaser in connection with the
issuance of the Certificates, including, without limitation, printing fees
incurred in connection with the prospectus relating to the Certificates,
blue
sky registration fees and expenses, fees and expenses of Purchaser’s counsel,
fees of the rating agencies requested to rate the Certificates, accountant’s
fees and expenses and the fees and expenses of the Trustee and other
out-of-pocket costs, if any.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01Seller
Representations and Warranties Relating to the Mortgage Loans.
The
Seller and the Purchaser understand, acknowledge and agree that, the
representations and warranties set forth in this Section 3.01 are made as
of the
Closing Date or as of the date specifically provided herein.
The
Seller hereby represents and warrants with respect to the Mortgage Loans
to the
Purchaser that as of the Closing Date or as of such date specifically provided
herein:
(a) The
information set forth in the mortgage loan schedule delivered to the Seller
by
the Originator is complete, true and correct as of the Cut-off
Date;
(b) The
Seller has not advanced funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required
by the
Mortgage Note or Mortgage and there has been no delinquency, exclusive of
any
period of grace, in any payment thereunder during the last twelve
months;
(c) At
the
time of origination, and to the best of the Seller’s knowledge, 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;
(d) 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 Purchaser or its designee;
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
insurer under the title insurer, to the extent required by the policy, and
which
assumption agreement has been delivered to the Purchaser or its designee
and the
terms of which are reflected in the Mortgage Loan Schedule;
(e) 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;
(f) All
buildings upon the Mortgaged Property are insured by an insurer that satisfies
the requirements of First Franklin Financial Corporation’s (the “Originator”)
underwriting guidelines against loss by fire, hazards of extended coverage
and
such other hazards as are customary in the area where the Mortgaged Property
is
located, in an amount that is at least equal to the lesser of (i) the amount
necessary to fully compensate for any damage or loss to the improvements
which
are a part of such property on a replacement cost basis or (ii) the outstanding
principal balance of the Mortgage Loan, in each case in an amount not less
than
such amount as is necessary to prevent the Mortgagor and/or the mortgagee
from
becoming a co-insurer. 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 Fannie Mae and
Freddie
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;
(g) Prior
to
the Closing Date, any and all requirements of any federal, state or local
law
including, without limitation, usury, truth in lending, real estate settlement
procedures, predatory and abusive lending, consumer credit protection, equal
credit opportunity, fair housing or disclosure laws applicable to the
origination and servicing of mortgage loans of a type similar to the Mortgage
Loans have been complied with;
(h) The
Mortgage has not been satisfied, canceled, 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;
(i) The
Mortgage is a valid, existing and enforceable first lien 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 and which
do not adversely affect the Value of the Mortgaged Property, and (C) 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 lien and first priority security
interest on the property described therein and the Seller has full right
to sell
and assign the same;
(j) 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;
(k) 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;
(l) 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 and 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;
(m) Prior
to
the sale of the Mortgage Loan by the Seller, the Seller was the sole legal,
beneficial and equitable owner of the Mortgage Note and the Mortgage and
had
full right to transfer and sell the Mortgage Loan free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest;
(n) All
parties which had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, were (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.
(o) The
Mortgage Loan was covered by an American Land Title Association (“ALTA”)
lender’s title insurance policy, which has an adjustable-rate mortgage
endorsement in the case of the adjustable-rate Mortgage Loans, in the form
of
ALTA 6.0 or 6.1 acceptable to prudent lenders, issued by a title insurer
acceptable to prudent lenders and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring (subject to the exceptions
contained in (i)(A) and (B) above) the Originator its successors and assigns
as
to the first priority lien of the Mortgage in the original principal amount
of
the Mortgage Loan and 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. 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, its successors
and
assigns, is the sole insured of such lender’s title insurance policy, and such
lender’s title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by
this
Agreement. No claims have been made under such lender’s title insurance policy,
and no prior holder of the related Mortgage, including the Seller, has done,
by
act or omission, anything which would impair the coverage of such lender’s title
insurance policy;
(p) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note (other than the delinquencies mentioned in
clause
(b)) and no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration, and the Seller has not waived any default,
breach, violation or event of acceleration;
(q) 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;
(r) All
improvements that 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
encroached upon the Mortgaged Property. Each appraisal has been performed
in
accordance with the provisions of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989;
(s) The
Mortgage Loan was originated (for purposes of the Secondary Mortgage Market
Enhancement Act of 1984) by the Originator 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 Housing and Urban Development;
(t) Principal
payments on the Mortgage Loan commenced no more than two (2) months after
the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Rate. With respect to each Mortgage Loan, the Mortgage Note
is
payable on the first day of each month. The Mortgage Note is payable in Monthly
Payments. With respect to the adjustable-rate Mortgage Loans, the Monthly
Payments are changed on each Adjustment Date to an amount which will fully
amortize the Stated Principal Balance of the Mortgage Loan over its remaining
term at the Mortgage Rate. Interest on the Mortgage Loan is calculated on
the
basis of a 360 day year consisting of twelve 30 day months. The Mortgage
Note
does not permit negative amortization. No adjustable-rate Mortgage Loan permits
the Mortgagor to convert the Mortgage Loan to a fixed-rate Mortgage
Loan;
(u) The
origination, servicing and collection practices used by the Originator and
any
servicer of the Mortgage Loan, with respect to each Mortgage Note and Mortgage
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 Seller
and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. No escrow deposits
or
Escrow Payments or other charges or payments due the Seller have been
capitalized under any Mortgage or the related Mortgage Note;
(v) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(w) 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. The Mortgagor has not notified the Seller
and the Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers Civil Relief Act;
(x) The
Mortgage Loan was underwritten in accordance with the underwriting standards
of
the Originator in effect at the time the Mortgage Loan was originated; and
the
Mortgage Note and Mortgage are on forms acceptable to Fannie Mae and Freddie
Mac;
(y) 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
(i) above;
(z) The
Mortgage File contains an appraisal of the related Mortgaged Property which
satisfied the standards of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, and the rules and regulations thereunder, as amended
from time to time, and was made and signed by an appraiser who met the minimum
requirements of Fannie Mae and Freddie Mac or complied with the Originator’s
automated appraisal methodology as set forth in the Originator’s underwriting
guidelines, duly appointed by the Originator, 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 the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, and the rules
and
regulations thereunder;
(aa) 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;
(bb) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are
(A)
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor, (B) paid
by
any source other than the Mortgagor or (C) contains any other similar provisions
which may constitute a “buydown” provision. The Mortgage Loan is not a graduated
payment mortgage loan and the Mortgage Loan does not have a shared appreciation
or other contingent interest feature;
(cc) 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 adjustable-rate or fixed-rate mortgage loans, as applicable; and if the
Mortgage Loan is a Refinanced Mortgage Loan, the Mortgagor has received all
disclosure and rescission materials required by applicable law with respect
to
the making of a refinanced Mortgage Loan, and evidence of such receipt is
and
will remain in the Mortgage File;
(dd) 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;
(ee) 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
Seller;
(ff) 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;
(gg) To
the
best of the Seller’s knowledge, no error, omission, misrepresentation,
negligence, fraud or similar occurrence with respect to a Mortgage Loan has
taken place on the part of any person, including, without limitation, the
Mortgagor, any appraiser, any builder or developer, or any other party involved
in the origination, modification or amendment of the Mortgage Loan or in
the
application of any insurance in relation to such Mortgage Loan;
(hh) The
Assignment is in recordable form and is acceptable for recording under the
laws
of the jurisdiction in which the Mortgaged Property is located;
(ii) Any
principal advances made to the Mortgagor prior to the Closing 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 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 Fannie Mae
and
Freddie Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(jj) No
Mortgage Loan has a balloon payment feature;
(kk) 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
Fannie Mae’s eligibility requirements;
(ll) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and there is no pending action or proceeding directly involving
any
Mortgaged Property of which the Seller is aware in which compliance with
any
environmental law, rule or regulation is an issue; and to the best of the
Seller’s knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite
to
the use and enjoyment of such property;
(mm) Except
as
previously disclosed to the Purchaser in writing, the Originator has made
no
mortgage loan on any Mortgaged Property other than the Mortgage Loan. With
respect to the Mortgage Loans, when measured by aggregate Stated Principal
Balance as of the Cut-off Date, none of the Mortgage Loans are secured by
a
Mortgaged Property which was, as of the date of origination of such Mortgage
Loan, subject to a mortgage, deed of trust, deed to secure debt or other
security instrument originated by the Originator creating a lien subordinate
to
the lien of the Mortgage;
(nn) The
Mortgage Loan was selected from among the outstanding adjustable-rate and
fixed-rate one to four family mortgage loans in the Seller’s portfolio as which
the representations and warranties herein could be made and such selection
was
not made in a manner so as to adversely affect the interests of the
Purchaser;
(oo) The
Seller has not dealt with any broker or agent or other Person who might be
entitled to a fee, commission or compensation in connection with the transaction
contemplated by this Agreement other than the Purchaser except as the Seller
has
previously disclosed to the Purchaser in writing;
(pp) The
Mortgaged Property consists of a parcel of real property of not more than
ten
acres with a single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a low rise or high rise
condominium project, or an individual unit in a planned unit development.
The
Mortgaged Property is improved with a Residential Dwelling. Without limiting
the
foregoing, the Mortgaged Property does not consist of any of the following
property types: (a) co-operative units, (b) log homes, (c) earthen homes,
(d)
underground homes, (e) mobile homes and (f) manufactured homes (as defined
in
the Fannie Mae Seller-Servicer’s Guide), except when the appraisal indicates
that the home is of comparable construction to a stick or beam construction
home, is readily marketable, has been permanently affixed to the site and
is not
in a mobile home “park.” The Mortgaged Property is either a fee simple estate or
a long term residential lease. If the Mortgage Loan is secured by a long
term
residential lease, unless otherwise specifically disclosed in the related
Mortgage Loan Schedule, (A) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without the
lessor’s consent (or the lessors consent has been obtained and such consent is
in the Mortgage File) and the acquisition by the holder of the Mortgage of
the
rights of the lessee upon foreclosure or assignment in lieu of foreclosure
or
provide the holder of the Mortgage with substantially similar protection;
(B)
the terms of such lease do not (x) allow the termination thereof upon the
lessee’s default without the holder of the Mortgage being entitled to receive
written notice of, and opportunity to cure, such default or (y) prohibit
the
holder of the Mortgage from being insured under the hazard insurance policy
relating to the Mortgaged Property, (C) the original term of such lease is
not
less than 15 years; (D) the term of such lease does not terminate earlier
than
ten years after the maturity date of the Mortgage Note; and (E) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates
for
residential properties is a widely accepted practice;
(qq) At
the
time of origination, the Loan-to-Value Ratio of the Mortgage Loan was not
greater than 103%. With respect to the Mortgage Loans, when measured by
aggregate Stated Principal Balance as of the Cut-off Date, with respect to
no
less than 80% of the Mortgage Loans, the calculation of the Loan-to-Value
Ratio
at the time of origination was determined based on a full formal appraisal
acceptable to Fannie Mae and Freddie Mac or complied with the Originator’s
automated appraisal methodology as set forth in the Originator’s underwriting
guidelines;
(rr) The
Mortgage, and if required by applicable law the related Mortgage Note, contains
a 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, at the option
of
the mortgagee;
(ss) No
Mortgage Loan has an annual percentage rate or total points and few that
exceed
the thresholds set by Home Ownership and Equity Protection Act of 1994 (“HOEPA”)
and its implementing regulations, including 12 CFR§ 226.32(a)(1)(i) and no
Mortgage Loan is in violation of any comparable state law or ordinance similar
to HOEPA and (ii) and no mortgage loan is in violation of any comparable
state
law;
(tt) The
information set forth in the Prepayment Charge Schedule is complete, true
and
correct in all material respects as of the Cut-off Date, and each Prepayment
Charge is permissible, enforceable and collectible under applicable federal,
state and local law (except to the extent that (i) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors’ rights generally or (ii) the collectability
thereof may be limited due to acceleration in connection with a foreclosure
or
other involuntary payoff);
(uu) As
of the
Cut-off Date, the Mortgage Loan was not prepaid in full prior to the sale
of the
Mortgage Loans by the Seller, and the Seller had not received any notification
from a Mortgagor that a prepayment in full would be made after the sale of
the
Mortgage Loans by the Seller;
(vv) The
Mortgage Loan had an original term of maturity of not more than 360
months;
(ww) Each
Mortgage Loan constitutes a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code;
(xx) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension credit. The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based on such
methodology, the Originator made a reasonable determination that at the time
of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan;
(yy) No
Mortgage Loan originated before October 1, 2002 has a Prepayment Charge term
longer than five years after its date of origination and no Group I Mortgage
Loan originated on or after October 1, 2002 has a Prepayment Charge term
longer
than three years after its date of origination;
(zz) No
Mortgage Loan was originated on or after October 1, 2002 and before March7,2003 which is secured by property located in the State of Georgia. No Mortgage
Loan was originated on or after March 7, 2003, which is a “high cost home loan”
as defined under the Georgia Fair Lending Act;
(aaa) No
Mortgage Loan is classified as a high cost mortgage loan under HOEPA. No
Mortgage Loan is a “high cost home,”“covered” (excluding home loans defined as
“covered home loans” in the New Jersey Home Ownership Security Act of 2002 that
were originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees);
(bbb) All
Mortgage Loans were originated in compliance with all applicable laws,
including, but not limited to, all applicable anti-predatory lending laws
and
none of the mortgage loans are “High Cost” as defined by the applicable
predatory and abusive lending laws;
(ccc) No
Mortgage Loan is a high cost loan or a covered loan, as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS Glossary
Revised, which is now Version 5.7, Appendix E);
(ddd) 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;
(eee) With
respect to each Group I Mortgage Loan, no Mortgagor was required to purchase
any
credit life, disability, accident or health insurance product as a condition
of
obtaining the extension of credit; no Mortgagor obtained a prepaid
single-premium credit-life, credit disability, credit unemployment or credit
property insurance policy in connection with the origination of any Mortgage
Loan.;
(fff) With
respect to each Group I Mortgage Loan, all points, fees and charges related
to
each such Group I Mortgage Loan (whether or not financed, assessed, collected
or
to be collected in connection with the origination and servicing of such
Group I
Mortgage Loan) were disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation and no Mortgagor 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, which
miscellaneous fees and charges, in total, do not exceed 0.25 percent of the
amount of the Mortgage Loan;
(ggg) With
respect to each Group I Mortgage Loan, no Mortgagor was encouraged or required
to select a mortgage loan product offered by the Originator which is a higher
cost product designed for less creditworthy borrowers, taking into account
such
facts as, without limitation, the Mortgage Loan’s requirements and the
Mortgagor’s credit history, income, assets and liabilities. For a Mortgagor who
seeks financing through a mortgage loan originator’s higher-priced subprime
lending channel, the Mortgagor should be directed towards or offered the
mortgage loan originator’s standard mortgage line if the Mortgagor is able to
qualify for one of the standard products;
(hhh) With
respect to each Group I Mortgage Loan, 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 Group I Mortgage Loan
have
been disclosed in writing to the Mortgagor in accordance with applicable
state
and federal law and regulation;
(iii) With
respect to each Group I Mortgage Loan, the Originator has fully and accurately
furnished complete information on the related Mortgagor’s credit files to
Equifax, Experian and Trans Union Credit Information Company, in accordance
with
the Fair Credit Reporting Act and its implementing regulations, on a monthly
basis;
(jjj) With
respect to each Group I Mortgage Loan, the related mortgage note is dated
within
one year of the Closing Date; and
(kkk) The
original principal balance of each Group I Mortgage Loan is within Freddie
Mac’s
dollar amount limits for conforming one-to-four family mortgage
loans;
(lll) With
respect to each Group I Mortgage Loan, no Loan is a “High Cost Home Loan”
governed by the Indiana Home Loan Practices Act, Ind. Code Ann. §§ 24-9-1-1 et
seq.;
(mmm) With
respect to any Group I 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 Servicer
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;
(nnn) (i)
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).
OR
(ii)
If
any of the Group I Mortgage Loans underlying the Security are “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), the
Seller:
(a) Represents
that it currently operates or actively participates in an on-going and active
program or business (A) to originate mortgages, and/or (B) to make periodic
purchases of mortgage loans from originators or other sellers, and/or (C)
to
issue and/or purchase securities or bonds supported by the mortgages, with
a
portion of the proceeds generated by such program or business being used
to
purchase or originate mortgages made to borrowers who are:
(x)
low-income
families (families with incomes of 80% or less of area median income)
living in low-income areas (a census tract or block numbering area
in
which the median income does not exceed 80 percent of the area
median
income) and/or
(y)
very
low-income families (families with incomes of 60% or less of area
median
income),
and
(b)
Agrees that Freddie Mac for a period of two (2) years following the date
of the
agreement may contact the Seller to confirm that it continues to operate
or
actively participate in the mortgage program or business and to obtain other
nonproprietary information about the Seller’s activities that may assist Freddie
Mac in completing its regulatory reporting requirements. The Seller will
make
reasonable efforts to provide such information to Freddie Mac.
Section
3.02Seller
Representations and Warranties Relating to the Seller.
The
Seller represents, warrants and covenants to the Purchaser as of the Closing
Date or as of such other date specifically provided herein:
(a) The
Seller is duly organized, validly existing and in good standing as a corporation
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;
(b) The
Seller 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 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, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terns except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(c) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’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 Seller is a party or which may be applicable to the
Seller or its assets;
(d) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller 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 Seller 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 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 Seller
was the owner of the related Mortgage 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 Seller retains record title, the 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
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
Seller
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 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 Seller
of,
or compliance by the Seller 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 Seller. The sale of the Mortgage Loans
is in
the ordinary course of business of the Seller and the assignment and conveyance
of the Mortgage Notes and the Mortgages by the 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 Seller held good, marketable and indefeasible title to,
and
was the sole owner and holder 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 Seller has full right and authority under all
governmental and regulatory bodies having jurisdiction over the Seller, 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 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
Seller 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 Seller 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.
Section
3.03Remedies
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. With respect to
the
representations and warranties contained herein that are made to the knowledge
or the best knowledge of the Seller, or as to which the Seller has no knowledge,
if it is discovered that the substance of any such representation and warranty
is inaccurate and the inaccuracy materially and adversely affects the value
of
the related Mortgage Loan, or the interest therein of the Purchaser or the
Purchaser’s assignee, designee or transferee, then notwithstanding the Seller’s
lack of knowledge with respect to the substance of such representation and
warranty being inaccurate at the time the representation and warranty was
made,
such inaccuracy shall be deemed a breach of the applicable representation
and
warranty and the Seller shall take such action described in the following
paragraphs of this Section 3.03 in respect of such Mortgage Loan. Upon discovery
by either the Seller 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 Section 3.01(ss), (yy), (zz), (aaa),
(bbb) and (ddd) will be deemed to materially and adversely affect the value
of
the related Mortgage Loan or the interest of the Purchaser.
Within
120 days of the earlier of either discovery by or notice to the Seller of
any
breach of a representation or warranty made by the Seller that materially
and
adversely affects the value of a Mortgage Loan or the Mortgage Loans or the
interest therein of the Purchaser, the Seller shall use its best efforts
promptly to cure such breach in all material respects and, if such breach
cannot
be cured, the Seller shall, at the Purchaser’s option, repurchase such Mortgage
Loan at the Purchase Price. 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 120 days of the earlier of either discovery by or notice
to the
Seller of such breach, all of the Mortgage Loans shall, at the Purchaser’s
option be repurchased by the Seller at the Purchase Price. The Seller may,
at
the request of the Purchaser and assuming the Seller 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 Seller 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 either discovery by or notice
to
the Seller of a breach of the representation of the Seller set forth in Section
3.01(ww), the Seller shall repurchase such Mortgage Loan at the Purchase
Price
or substitute a Qualified Substitute Mortgage Loan for such Mortgage Loan,
in
each case, in accordance with the provisions set forth above.
Notwithstanding
the foregoing, within 90 days of the earlier of discovery by the Seller or
receipt of notice by the Seller of the breach of the representation of the
Seller set forth in Section 3.01(tt) above which materially and adversely
affects the interests of the Holders of the Class P Certificates in any
Prepayment Charge, the Seller 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.
At
the
time of substitution or repurchase of any deficient Mortgage Loan, the Purchaser
and the Seller shall arrange for the reassignment of the repurchased or
substituted Mortgage Loan to the Seller and the delivery to the Seller of
any
documents held by the Trustee relating to the deficient or repurchased Mortgage
Loan. In the event the Purchase Price is deposited in the Collection Account.
The Seller 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.
As
to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller 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 Seller 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 Seller. 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 Seller
shall thereafter be entitled to retain all amounts subsequently received
by the
Seller 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 Seller 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 Seller set forth in this
Section 3.03 to cure, repurchase and substitute for a defective Mortgage
Loan
and the obligations of the Seller 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 or 3.02.
ARTICLE
IV
SELLER’S
COVENANTS
Section
4.01Covenants
of the Seller.
The
Seller hereby covenants that except for the transfer hereunder, the Seller
will
not 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 Seller 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 Seller 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 Seller; provided,
however,
that
nothing in this Section 4.01 shall prevent or be deemed to prohibit the Seller
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 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
5.01Indemnification.
(a) The
Seller 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 Seller Information furnished by the Seller
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 Seller 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 Seller
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.
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, the Seller,
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 Seller and the Purchaser in such
proportions as shall be appropriate to reflect the relative benefits received
by
the Seller 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 Seller, each officer of the Seller, and each person, if any, who controls
the Seller within the meaning of Section 15 of the Securities Act shall have
the
same rights to contribution as the Seller.
(d) The
Seller 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 Seller to perform
its
duties in compliance with the terms of this Agreement or (ii) arising from
a
breach by the Seller of its representations and warranties in Sections 3.01
and
3.02 of this Agreement. The Seller 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 Seller 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
6.01Termination.
The
respective obligations and responsibilities of the Seller and the Purchaser
created hereby shall terminate, except for the Seller’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
7.01Amendment.
This
Agreement may be amended from time to time by the Seller and the Purchaser,
by
written agreement
signed by the Seller and the Purchaser.
Section
7.02Governing
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
7.03Notices.
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 Seller,
Greenwich Capital Financial Products, Inc., 600 Steamboat Road, Greenwich,
Connecticut06830, Attention: Legal, or such other address as may hereafter
be
furnished to the Purchaser in writing by the Seller and (ii) if to the
Purchaser, Financial Asset Securities Corp., 600 Steamboat Road, Greenwich,
Connecticut06830, Attention: Legal, or such other address as may hereafter
be
furnished to the Seller in writing by the Purchaser.
Section
7.04Severability
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
7.05Counterparts.
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
7.06Further
Agreements.
The
Purchaser and the Seller 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 Seller, the Seller 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
Seller 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 Seller as are reasonably required in connection with such transactions
and the offering of investment grade securities rated by the Rating
Agencies.
Section
7.07Intention
of the Parties.
It is
the intention of the parties that the Purchaser is purchasing, and the Seller
is
selling, the Mortgage Loans rather than pledging the Mortgage Loans to secure
a
loan by the Purchaser to the 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 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
Seller will cooperate with all reasonable requests made by the Purchaser
in the
course of such review.
Section
7.08Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and the Trustee.
The
obligations of the Seller 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 the Seller may assign its obligations hereunder to any Person
into
which the Seller is merged or any corporation resulting from any merger,
conversion or consolidation to which the Seller is a party or any Person
succeeding to the business of the Seller. 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 Seller acknowledges and consents to the assignment
by
the Purchaser to the Trustee of all of the Purchaser’s rights against the Seller
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 the Seller 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
7.09Survival.
The
representations and warranties set forth in Sections 3.01 and 3.02 and the
provisions of Article V hereof shall survive the purchase of the Mortgage
Loans
hereunder.
IN
WITNESS WHEREOF, the Seller 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:
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., as Seller
Custodial
Agreement, dated as of November 1, 2006, among Deutsche Bank National
Trust Company as the Trustee, National City Home Loan Services,
Inc. as Servicer and Wells
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
November 1, 2006, among Financial Asset Securities Corp. as Depositor, National
City Home Loan Services, Inc., 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
Wells
Fargo Bank, N.A.
Please
acknowledge the execution of the above request by your signature and date
below:
Pooling
and Servicing Agreement dated as of November 1, 2006, among Financial
Asset Securities Corp. as Depositor, National City Home Loan Services,
Inc., as Servicer, and Deutsche Bank National Trust Company 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:$_______
Custodial
Agreement, dated as of November 1, 2006, among Deutsche Bank National
Trust Company as the Trustee, National City Home Loan Sevices, Inc.
as
Servicer and Wells
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.
Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as
of November 1, 2006 among Financial Asset Securities Corp., as Depositor,
National City Home Loan Services, Inc., as Servicer and Deutsche
Bank
National Trust Company, as Trustee with respect to First Franklin
Mortgage
Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as Trust Administrator, 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: __________
Custodial
Agreement, dated as of November 1, 2006, among Deutsche Bank National
Trust Company as the Trustee, National City Home Loan Sevices, Inc.
as
Servicer and Wells
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.
First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates Series 2006-FF16
Ladies
and Gentlemen:
Pursuant
to Section 3 of the Custodial Agreement, dated as of November 1, 2006, among
Deutsche Bank National Trust Company as the Trustee, National City Home Loan
Sevices, Inc. as Servicer and Wells
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.
WELLS
FARGO BANK, N.A.
By:
Name:
Title:
EXHIBIT
G
FORM
OF
CUSTODIAL AGREEMENT
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee
for
the
First Franklin Mortgage Loan Trust 2006-FF16,
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
EXHIBIT
9
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
THIS
CUSTODIAL AGREEMENT, dated as of November 1, 2006, among Deutsche Bank
National
Trust Company, having an address at 1761
East
St. Andrew Place, Santa Ana, California92705-4934, not individually but
solely
as trustee for First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates, Series 2006-FF16 (the “Trustee”), Wells Fargo Bank, N.A. as
custodian, having an address at 24 Executive Park, Suite 100, Irvine, California92614 (the “Custodian”) and National City Home Loan Services, Inc. as servicer
(the “Servicer”), having an address at 150 Allegheny Center, Locator 47-23-501,
Pittsburgh, Pennsylvania15212-5356.
WITNESSETH
WHEREAS,
Financial Asset Securities Corp. (the “Depositor”) has agreed to purchase
certain first-lien, fixed-rate and adjustable-rate mortgage loans (the
“Mortgage
Loans”) from Greenwich Capital Financial Products, Inc. (the “Seller”), pursuant
to the terms and conditions of a Mortgage Loan Purchase Agreement, dated
as of
November 16, 2006, between the Depositor and the Seller (the “Purchase
Agreement”);
WHEREAS,
the Servicer is to service the Mortgage Loans on behalf of First Franklin
Mortgage Loan Trust 2006-FF16, under a Pooling and Servicing Agreement,
dated as
of November 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 (or the Electronic
Recording thereof), 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 (or
the
Electronic Recording thereof) except with respect to MERS Designated Mortgage
Loans. 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 assignments of Mortgage (or the Electronic
Recording thereof) if any, evidencing a complete chain of assignments from
the
Servicer to the Last Endorsee (or, in the case of a MERS Designated Mortgage
Loan, MERS) with evidence of recording thereon;
(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 (or the Electronic Recording thereof), if
any.
If
any of
the documents referred to in Section 2(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 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, 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 Seller 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 Seller
does not
cure such defect or deliver such missing document within such time period,
the
Servicer shall enforce the obligations of the Seller 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.
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 in connection herewith shall be paid by the Trustee out of a
portion of the Trustee Fee payable to the Trustee, as set forth in the
Pooling
and Servicing Agreement. By each Determination Date, the Custodian shall
notify
the Trustee of the amount of fees and expenses owed to the Custodian with
respect to the related Distribution Date. Unless otherwise provided herein,
the
payment of the Custodian’s expenses in connection herewith, shall be the
obligation of the Trustee, which such obligation surviving the termination
of
this Agreement or the resignation or removal of the Custodian.
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 (at the expense of the Trust Fund). 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 Fannie Mae in the Fannie Mae Servicing
Guide
or by Freddie Mac in the Freddie Mac Sellers’ & 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., 600 Steamboat Road, Greenwich, Connecticut 08630, Attention: Legal
and
(iii) in the case of the Seller, Greenwich Capital Financial Products,
Inc., 600
Steamboat Road, Greenwich, Connecticut 08630, Attention Legal, 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 Custodian 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: First Franklin Mortgage Loan Trust
2006-FF16
(“Issuing
Entity”), Greenwich Capital Financial Products, Inc. (“Sponsor”), the Depositor,
the Servicer, the Trustee, Lehman
Brothers Special Financing Inc.
(“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 Trustee for First Franklin
Mortgage
Loan Trust 2006-FF16, 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 First Franklin Mortgage Loan Trust 2006-FF16 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 First Franklin Mortgage Loan Trust 2006-FF16, (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 First Franklin Mortgage
Loan Trust 2006-FF16 or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the First Franklin
Mortgage Loan Trust 2006-FF16 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 First Franklin Mortgage Loan Trust 2006-FF16,
Asset-Backed
Certificates, Series 2006-FF16
By:
Name:
Title:
By:
Name:
Title:
WELLS
FARGO
BANK, N.A.,
as
Custodian
By:
Name:
Title:
NATIONAL
CITY HOME LOAN SERVICES, INC.,
as
Servicer
By:
Name:
Title:
EXHIBIT
1
FORM
OF
TRUST RECEIPT AND INITIAL CERTIFICATION
_____,
2006
Trust
Receipt #: ___
Original
Principal Balance of the Mortgage Loans:$_______
Custodial
Agreement, dated as of November 1, 2006, among Deutsche Bank
National
Trust Company as the Trustee, National City Home Loan Services,
Inc. as
Servicer and Wells
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
(i), (ii), (iii), (iv) and (v) 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.
WELLS
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: __________
Custodial
Agreement, dated as of November 1, 2006, among Deutsche Bank
National
Trust Company as the Trustee, National City Home Loan Services,
Inc. as
Servicer and Wells
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.
Custodial
Agreement, dated as of November 1, 2006, among Deutsche Bank
National
Trust Company as the Trustee, National City Home Loan Services,
Inc. as Servicer and Wells
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
November 1, 2006, among Financial Asset Securities Corp. as Depositor,
National
City Home Loan Mortgages, Inc., 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
Wells
Fargo Bank, N.A.
Please
acknowledge the execution of the above request by your signature and date
below:
Pursuant
to Section 3 of the Custodial Agreement, dated as of November 1, 2006, among
Deutsche Bank National Trust Company as the Trustee, National City Home Loan
Services, Inc. as Servicer and Wells
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.
WELLS
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 the 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 First Franklin Mortgage Loan Trust 2006-FF16,
Asset-Backed Certificates Series 2006-FF16, 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__.
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 dated November 1, 2006 (the “Pooling and Servicing
Agreement”), among Financial Asset Securities Corp. (the “Owner”), Deutsche Bank
National Trust Company and National City Home Loan Services, Inc. (“NCHLS”),
hereby constitutes and appoints NCHLS, by and through NCHLS’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 NCHLS 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
NCHLS to the Owner under the Pooling and Servicing Agreement, or (ii) be
construed to grant NCHLS 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.
National
City Home Loan Sevices, Inc. 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
NCHLS 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.
First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates Series 2006-FF16
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.
First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates Series 2006-FF16
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:
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in
securities.
ANNEX
2 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyers Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
_________
The
Buyer
owned $_________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_________
The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$___________ in securities (other than the excluded securities referred to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“FAMILY OF INVESTMENT COMPANIES” as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The
term
“SECURITIES” as used herein does not include (i) securities of issuers that are
affiliated with the Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
FORM
OF
TRANSFER AFFIDAVIT FOR RESIDUAL CERTIFICATES
PURSUANT
TO SECTION 5.02(D)
FIRST
FRANKLIN MORTGAGE LOAN TRUST 2006-FF16
ASSET-BACKED
CERTIFICATES, SERIES 2006-FF16
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 November 1, 2006
(the “Agreement”),
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
National City Home Loan Services, Inc., 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__
First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates Series 2006-FF16
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.
First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates Series 2006-FF16
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance First Franklin
Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates Series 2006-FF16,
Class
[C][P][R[-X]] (the “Certificates”), issued pursuant to a Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) dated as of November 1, 2006
among Financial Asset Securities Corp. as depositor (the “Depositor”), National
City Home Loan Sevices, Inc. 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,
Keogh 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:
First
Franklin Mortgage Loan Trust 2006-FF16 Asset-Backed
Certificates, Series 2006-FF16
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 First Franklin Mortgage Loan Trust 2006-FF16 (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: National City Home Loan Sevices, Inc.
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:
First
Franklin Mortgage Loan Trust 2006-FF16 (the “Trust”) Asset-Backed
Certificates, Series 2006-FF16
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 November 1, 2006 (the “Pooling and
Servicing Agreement”), among the Depositor as depositor, National City Home Loan
Sevices, Inc. 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:
First
Franklin Mortgage Loan Trust, Series 2006-FF16 Asset-Backed
Certificates, Series 2006-FF16
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 November 1, 2006 (the “Pooling and Servicing
Agreement”), among the Depositor, National City Home Loan Sevices, Inc. as
servicer and Deutsche Bank National Trust Company as trustee.
Deutsche
Bank National Trust Company, not individually but solely in its
capacity
as Trustee on behalf of the trust with respect to the First Franklin
Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
HSBC Bank USA, National Association (“Party
A”)and
Deutsche Bank National Trust Company, not individually, but solely as trustee
(the “Trustee”) on behalf of the trust with respect to the First
Franklin Mortgage Loan Trust 2006 FF16 (the
“Trust”) (“Party
B”)
created
under the Pooling and Servicing Agreement, dated as of November 1, 2006,
among
Financial Asset Securities Corp., as Depositor, National City Home Loan
Services, Inc., as Servicer and Deutsche Bank National Trust Company, as
Trustee(the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and us
to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit Support
Annex to the Schedule.
1.
This
Confirmation shall supplement, form a part of, and be subject
to an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such
form on the
date hereof, with a Schedule as set forth in Item 3 of this
Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted
in 1994 by the
International Swaps and Derivatives Association, Inc., with
Paragraph 13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein
shall be the
sole Transaction governed by such ISDA Master Agreement. In
the event of
any inconsistency among any of the following documents, the
relevant
document first listed shall govern: (i) this Confirmation,
exclusive of
the provisions set forth in Item 3 hereof and Annex A hereto;
(ii) the
provisions set forth in Item 3 hereof, which are incorporated
by reference
into the Schedule; (iii) the Credit Support Annex; (iv) the
Definitions;
and (v) the ISDA Master
Agreement.
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section”“of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
2.
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
Type
of Transaction:
Interest
Rate Cap
Notional
Amount:
With
respect to any Calculation Period, the lesser of (i) the amount
set forth
for such period on Schedule I attached hereto, and (ii) the aggregate
Certificate Principal Balance of the Floating Rate Certificates
immediately preceding the Distribution Date which occurs in the
calendar
month of the Floating Rate Payer Payment Date for such Calculation
Period
(determined for this purpose without regard to any adjustment
of the
Floating Rate Payer Payment Date or Distribution Date relating
to business
days).
The
25th
calendar day of each month during the Term of this Transaction,
commencing
December 25, 2006, and ending on the Termination Date, subject
to
adjustment in accordance with the Business Day
Convention.
Floating
Rate Payer
Payment
Dates:
Early
Payment - One Business Day preceding the 25th
calendar day of each month during the Term of this Transaction,
commencing
December 25, 2006, and ending on the Termination Date, subject
to
adjustment in accordance with the Business Day
Convention
Cap
Rate:
With
respect to any Calculation Period, the rate set forth for such
period on
Schedule I attached hereto
Floating
Rate Option:
USD-LIBOR-BBA;
provided, however, that if the Floating Rate Option for any Calculation
Period is greater than 10.500%, then the Floating Rate Option
for such
Calculation Period shall be deemed to be 10.500%.
Designated
Maturity:
One
month
Floating
Rate Day
Count
Fraction:
Actual/360
Reset
Dates:
The
first day of each Calculation Period.
Compounding:
Inapplicable
Business
Days:
New
York
Business
Day Convention:
Following
Calculation
Agent:
Party
A
3.
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
Part
1.
Termination
Provisions.
For
the
purposes of this Agreement:-
(a)“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
(b)
“Specified
Transaction”
will have the meaning specified in Section
14.
(c)
Events
of Default.
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
(i)
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will apply
to
Party B; provided, however, that Section 5(a)(i) is hereby amended
by
replacing the word “third” with the word “first”; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i), any
failure
by Party A to comply with or perform any obligation to be complied
with or
performed by Party A under the Credit Support Annex shall not constitute
an Event of Default under Section 5(a)(i) unless (A) a Required
Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local
Business Days, and (B) such failure is not remedied on or before
the third
Local Business Day after notice of such failure is given to Party
A.
(ii)
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will not apply to Party A and will
not
apply to Party B.
(iii)
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to comply
with or
perform any obligation to be complied with or performed by Party
A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more Local Business Days,
and (B) such failure is not remedied on or before the third Local
Business
Day after notice of such failure is given to Party
A.
(iv)
The
“Misrepresentation”
provisions of Section 5(a)(iv) will not apply to Party A and will
not
apply to Party B.
(v)
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will not apply to Party A and will
not apply
to Party B.
(vi)
The
“Cross
Default”
provisions of Section 5(a)(vi) will not apply to Party A and will
not
apply to Party B.
(vii)
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented by
Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
(viii)
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
not apply
to Party B.
(d)Termination
Events.
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6
of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
(ii)
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
(iii)
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
(iv)
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and will
not
apply to Party B.
(e)
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will not
apply to
Party B.
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
(i)
Market
Quotation will apply, provided, however, that, in the event of
a
Derivative Provider Trigger Event, the following provisions will
apply:
(A)
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
“Market
Quotation”means,
with respect to one or more Terminated Transactions, a Firm Offer which is
(1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
(B)
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by Party
B)
equal to:
(a)
If
a Market Quotation for the relevant Terminated Transaction or group
of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days after
the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case no
later
than one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
(b)
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding and
one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon acceptance,
the Settlement Amount shall equal the Termination Currency Equivalent
of
the amount (whether positive or negative) of the lowest of such
Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
(c)
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal Party
B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
(C)
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
(D)
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect of
the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided, however, that (x) the amounts payable under the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding any
other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
(E)
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party B shall
be
entitled to accept only the lowest of such Market Quotations (for
the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed as
a positive
number or, if any of such Market Quotations is expressed as a negative
number, the Market Quotation expressed as a negative number with
the
largest absolute value).
(ii)
The
Second Method will apply.
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)Tax
Representations.
(i)
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the
accuracy and effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance
is
placed on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(B)
Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
is a national banking association organized under the federal laws of the
United
States and its U.S. taxpayer identification number is 20-1177241.
(B) Party
B
makes the following representation(s):
None.
(b)
Tax
Provisions.
(i)
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party B
shall not
be required to pay any additional amounts referred to
therein.
(ii)
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a) For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
Party
required to deliver document
Form/Document/
Certificate
Date
by which to
be
delivered
Party
A
A
correct, complete and duly executed U.S. Internal Revenue Service
Form W-9
or other applicable form (or successor thereto), together with
appropriate
attachments, that eliminates U.S. federal withholding and backup
withholding Tax on payments to Party A under this
Agreement.
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party B, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
Party
B
Party
B will deliver at closing a U.S. Internal Revenue Service Form
W-9 or
other applicable form (or successor thereto) relating to the beneficial
owner of payments to Party B under this Agreement, together with
appropriate attachments, and may deliver other tax forms relating
to the beneficial owner of payments to Party B under this
Agreement
from time to time.
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party A, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
(b) For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
Party
required to deliver document
Form/Document/
Certificate
Date
by which to
be
delivered
Covered
by Section 3(d) Representation
Party
A and
Party
B
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it
to execute
and deliver the Agreement, this Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support Document,
as
the case may be
Upon
the execution and delivery of this Agreement
Yes
Party
A and
Party
B
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, this Confirmation, and any relevant Credit Support Document,
as
the case may be
Upon
the execution and delivery of this Agreement
Yes
Party
A
Annual
Financial Statements as
set forth in Party A’s Call Report
containing consolidated financial statements certified by independent
certified public accountants and prepared in accordance with generally
accepted accounting principles in the country in which Party A
is
organized
Promptly
upon request made by Party B
Yes
Party
A
Quarterly
Financial Statements as set forth in Party A’s Call Report containing
unaudited, consolidated financial statements of Party A’s fiscal quarter
prepared in accordance with generally accepted accounting principles
in
the country in which Party A is organized
Promptly
upon request made by Party B
Yes
Party
A
An
opinion of counsel to Party A satisfactory in form and substance
to Party
B
Upon
the execution and delivery of this Agreement
No
Part
4. Miscellaneous.
(a)
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
(c)
Offices.
The provisions of Section 10(a) will apply to this Agreement; neither
Party A nor Party B has any Offices other than as set forth in
the Notices
Section and Party A agrees that, for purposes of Section 6(b) of
this
Agreement, it shall not in the future have any Office other than
one in
the United States.
(d)
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
Party
A
is not a Multibranch Party.
Party
B is not a Multibranch Party.
(e)
Calculation
Agent.
The Calculation Agent is Party A; provided, however, that if an
Event of
Default shall have occurred with respect to Party A, Party B shall
have
the right to appoint as Calculation Agent a third party, reasonably
acceptable to Party A, the cost for which shall be borne by Party
A.
(f)
Credit
Support Document.
Party
A:
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
Party
B: The
Credit Support Annex, solely in respect of Party B’s obligations under Paragraph
3(b) of the Credit Support Annex.
(g)
Credit
Support Provider.
Party
A: The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B: None.
(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
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
(i)
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will apply
to
each Transaction hereunder.
(j)
Affiliate.“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party A and Party B shall be deemed to have no Affiliates
for
purposes of this Agreement, including for purposes of Section
6(b)(ii).
Part
5. Others
Provisions.
(a)
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions as
published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a “Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
(b)
Amendments
to ISDA Master Agreement.
(i)
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
(ii)
Conditions
Precedent. Section
2(a)(iii) is hereby amended by adding the following at the end thereof:
Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default
with
respect to Party B or Potential Event of Default with respect to Party B
has
occurred and been continuing for more than 30 Local Business Days and no
Early
Termination Date in respect of the Affected Transactions has occurred or
been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth in
Section 2(a)(iii)(1) with respect to such specific occurrence of such Event
of
Default or such Potential Event of Default (the “Specific
Event”);
provided, however, for the avoidance of doubt, the obligations of Party A
under
Section 2(a)(i) shall be subject to the condition precedent set forth in
Section
2(a)(iii)(1) (subject to the foregoing) with respect to any subsequent
occurrence of the same Event of Default with respect to Party B or Potential
Event of Default with respect to Party B after the Specific Event has ceased
to
be continuing and with respect to any occurrence of any other Event of Default
with respect to Party B or Potential Event of Default with respect to Party
B
that occurs subsequent to the Specific Event.
(iii)
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
“to
another account in the same legal and tax jurisdiction as the original
account”.
(iv)
Representations.
Section 3 is hereby amended by adding at the end thereof the following
subsection (g):
“(g)
Relationship
Between Parties.
(1)
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party.
(2)
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and has
made its
own decision subject to Section 6(n) of this Agreement to enter
into the
Transaction and (ii) It understands the terms, conditions and risks
of the
Transaction and is willing and able to accept those terms and conditions
and to assume those risks, financially and otherwise.
(3)
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
(4)
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
(5)
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R. 35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
(v)
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words “or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
(vi)
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
(vii)
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby amended
by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
(c)
Additional
Termination Events.
The following Additional Termination Events will
apply:
(i)
First
Rating Trigger Collateral.
If
(A) it is not the case that a Moody’s Second Trigger Ratings Event has
occurred and been continuing for 30 or more Local Business Days
and (B)
Party
A has failed to comply with or perform any obligation to be complied
with
or performed by Party A in accordance with the Credit Support Annex,
then
an Additional Termination Event shall have occurred with respect
to Party
A and Party A shall be the sole Affected Party with respect to
such
Additional Termination Event.
(ii)
Second
Rating Trigger Replacement.
If
(A) a Required Ratings Downgrade Event has occurred and been continuing
for 30 or more Local Business Days and (B) (i) at least one Eligible
Replacement has made a Firm Offer to be the transferee of all of
Party A’s
rights and obligations under this Agreement (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible Replacement
upon acceptance by the offeree) and/or (ii) an Eligible Guarantor
has made
a Firm Offer to provide an Eligible Guarantee (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party A and
Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
(iii)
[Reserved]
(iv)
Regulation
AB. If,
upon the occurrence of a Swap Disclosure Event (as defined in Part
5(e)
below) Party A has not, within five (5) 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 Part 5(e)(iii) below, then an Additional Termination Event
shall
have occurred with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
(v)
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to
Certificateholders of an Optional Termination becoming unrescindable
in
accordance with Article X of the Pooling and Servicing Agreement.
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however, that notwithstanding anything
to the
contrary in Section 6(b)(iv), only Party B may designate an Early
Termination Date in respect of this Additional Termination Event.
(d)
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least equal
to the
Required Ratings Threshold (such event, a “Required
Ratings Downgrade Event”),
then Party A shall, as soon as reasonably practicable and so long
as a
Required Ratings Downgrade Event is in effect, at its own expense,
using
commercially reasonable efforts, procure either (A) a Permitted
Transfer
or (B) an Eligible Guarantee from an Eligible Guarantor.
(e)
Compliance
with Regulation AB.
(i) It
shall
be a swap disclosure event (“Swap Disclosure Event”) if, at any time after the
date hereof while the Depositor has reporting obligations with respect to
this
Transaction pursuant to Regulation AB, the Depositor or Greenwich Capital
Financial Products, Inc. (the “Sponsor”) notifies Party A that the aggregate
“significance percentage” (calculated in accordance with the provisions of Item
1115 of Regulation AB) of all derivative instruments provided by Party A and any
of its affiliates to Party B (collectively, the “Aggregate Significance
Percentage”) is 10% or more.
(ii) Upon
the
occurrence of a Swap Disclosure Event while the Depositor has reporting
obligations with respect to this Transaction pursuant to Regulation AB, Party
A,
at its own cost and expense (and without any expense or liability to the
Depositor, the Sponsor, the Underwriters, the Depositor, the Trustee or the
Issuing Entity), 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%, either, at the sole discretion of Party
A,
the information required under Item 1115(b)(1) or Item 1115(b)(2) 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 the Approved Ratings Thresholds, that (x) provides the information
specified in clause (a) above to the Depositor and Sponsor and (y) enters
into
documentation substantially similar to the documentation then in place between
Party A and Party B
(iii)
For
so long as the Aggregate Significance Percentage is 10% or more the Depositor
has reporting obligations with respect to this Transaction, Party A shall
provide any updates to the information provided pursuant to clause (ii)(a)
above
to the Sponsor and the Depositor within five (5) Business Days following
the
availability thereof (but in no event more than 45 days after the end of
each of
Party A’s fiscal quarter for any quarterly update, and in no event more than 90
days after the end of Party A’s fiscal year for any annual update).
(iv) All
information provided pursuant to clause (ii) 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 (EDGAR).
The
parties hereto acknowledge that electronic files in Adobe Acrobat format
will be
deemed to satisfy the requirements of this Part 5(e)(iv). In addition, any
such
information, if audited, shall be accompanied by any necessary auditor’s
consents or, if such information is unaudited, shall be accompanied by an
appropriate agreed-upon procedures letter from Party A’s accountants. 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) Each
of
the Depositor and Sponsor shall be an express third party beneficiary of
this
Agreement as if a party hereto to the extent of Depositor’s and Sponsor’s rights
explicitly specified herein.
(f)
Transfers.
(i) Section
7
is hereby amended to read in its entirety as follows:
“Subject
to Section 6(b)(ii), Part 5(d), and Part 5(e), neither Party A nor Party
B is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or interests
under the Agreement or any Transaction without (a) the prior written consent
of
the other party and (b) prior written notice to the Cap Rating Agencies.”
(ii)
If
an Eligible Replacement has made a Firm Offer (which remains an
offer that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
(g)
Non-Recourse.
Party A acknowledges and agree that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely in accordance
with
the priority of payments and other terms of the Pooling and Servicing
Agreement and that Party A will not have any recourse to any of
the
directors, officers, employees, shareholders or affiliates of the
Party B
with respect to any claims, losses, damages, liabilities, indemnities
or
other obligations in connection with any transactions contemplated
hereby.
This provision will survive the termination of this
Agreement.
(h)
Limitation
on Events of Default. Notwithstanding
the provisions of Sections 5 and 6, if at any time and so long
as Party B
has satisfied in full all its payment obligations under Section
2(a)(i)
and has at the time no future payment obligations, whether absolute
or
contingent, under such Section, then unless Party A is required
pursuant
to appropriate proceedings to return to Party B or otherwise returns
to
Party B upon demand of Party B any portion of any such payment,
(a) the
occurrence of an event described in Section 5(a) with respect to
Party B
shall not constitute an Event of Default or Potential Event of
Default
with respect to Party B as Defaulting Party and (b) Party A shall
be
entitled to designate an Early Termination Date pursuant to Section
6 only
as a result of the occurrence of a Termination Event set forth
in either
Section 5(b)(i) or 5(b)(ii) with respect to Party A as the Affected
Party,
or Section 5(b)(iii) with respect to Party A as the Burdened Party.
For
purposes of the Transaction to which this Agreement relates, Party
B’s
only obligation under Section 2(a)(i) is to pay the Fixed Amount
on the
Fixed Amount Payer Payment Date.
(i)
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Cap Rating Agency has been given prior written notice of such
designation or transfer.
(j)
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
(k)
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Cap Rating
Agencies
has been provided prior written notice of the same.
(l)
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving of
notice or
passage of time or both would constitute) an Event of Default or
Termination Event with respect to such party, promptly to give
the other
Party and to each Cap Rating Agency notice of such event or condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any federal or state bankruptcy or similar law
for a
period of one year (or, if longer, the applicable preference period) and
one day
following payment in full of the Certificates and any Notes. This provision
will
survive the termination of this Agreement.
(n)
Trustee
Liability Limitations.
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed by Deutsche Bank National Trust Company (“Deutsche”)
not in its individual capacity, but solely as Trustee under the
Pooling
and Servicing Agreement in the exercise of the powers and authority
conferred and invested in it thereunder; (b) Deutsche has been
directed
pursuant to the Pooling and Servicing Agreement to enter into this
Agreement and to perform its obligations hereunder; (c) each of
the
representations, undertakings and agreements herein made on behalf
of the
Trust is made and intended not as personal representations of the
Trustee
but is made and intended for the purpose of binding only the Trust;
and
(d) under no circumstances shallDeutsche
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
(o)
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) in any respect,
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.
(p)
Agent
for Party B. Party
A acknowledges that Party B has appointed Deutsche Bank National
Trust
Company as Trustee as its agent under the Pooling and Servicing
Agreement
to carry out certain functions on behalf of Party B, and that Deutsche
Bank National Trust Company as Trustee shall be entitled to give
notices
and to perform and satisfy the obligations of Party B hereunder
on behalf
of Party B.
(q)
Escrow
Payments.
If
(whether by reason of the time difference between the cities in
which
payments are to be made or otherwise) it is not possible for simultaneous
payments to be made on any date on which both parties are required
to make
payments hereunder, either Party may at its option and in its sole
discretion notify the other Party that payments on that date are
to be
made in escrow. In this case deposit of the payment due earlier
on that
date shall be made by 2:00 pm (local time at the place for the
earlier
payment) on that date with an escrow agent selected by the notifying
party, accompanied by irrevocable payment instructions (i) to release
the
deposited payment to the intended recipient upon receipt by the
escrow
agent of the required deposit of any corresponding payment payable
by the
other party on the same date accompanied by irrevocable payment
instructions to the same effect or (ii) if the required deposit
of the
corresponding payment is not made on that same date, to return
the payment
deposited to the party that paid it into escrow. The party that
elects to
have payments made in escrow shall pay all costs of the escrow
arrangements.
(r)
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any
time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
(s)
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in respect
of
any in respect of any suit, action or proceeding relating to this
Agreement or any Credit Support Document.
(t)
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency - Crossborder) as published and copyrighted in 1992
by the
International Swaps and Derivatives Association,
Inc.
(u)
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A to
Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
(v)
Additional
representations.
(i)
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that:--
(1)
Party
A’s obligations under this Agreement rank pari passu with all of
Party A’s
other unsecured, unsubordinated obligations except those obligations
preferred by operation of law.
(2)
Party
A 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 therefor
are
satisfied in full).
(ii)
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the Transaction
as principal and not as agent of any person. Party B represents
to Party A
on the date on which Party B enters into this Agreement that it
is
entering into the Agreement and the Transaction in its capacity
as
Trustee.
(w)
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if any,
of any
other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and 560
thereof and the applicable definitions in Section 101 thereof),
the
parties acknowledge and agree that all Transactions entered into
hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the parties
under
Section 6 of this Agreement will constitute contractual rights
to
liquidate Transactions, that any margin or collateral provided
under any
margin, collateral, security, pledge, or similar agreement related
hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to
the rights
under, and protections afforded by, Sections 362, 546, 556, and
560 of the
Bankruptcy Code.
(x)
[Reserved]
(y)
[Reserved]
(z)Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement”means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (e) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Cap
Rating Agencies”
means,
with respect to any date of determination, each of S&P and Moody’s, to the
extent that each such rating agency is then providing a rating for any of
the
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates,
Series
2006-FF16 (the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
“Derivative
Provider Trigger Event”
means
(i) an Event of Default with respect to which Party A is a Defaulting Party,
(ii) a Termination Event with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A or
an Eligible Replacement to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee have been
provided to S&P, and either (A) a law firm has given a legal opinion
confirming that none of the guarantor’s payments to Party B under such guarantee
will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor is
required to pay such additional amount as is necessary to ensure that the
net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had no
such
withholding been required.
“Eligible
Guarantor”means
an
entity that (A) has credit ratings at least equal to the Approved Ratings
Threshold or (B) has credit ratings at least equal to the Required Ratings
Threshold, provided, for the avoidance of doubt, that an Eligible Guarantee
of
an Eligible Guarantor with credit ratings below the Approved Ratings Threshold
will not cause a Collateral Event (as defined in the Credit Support Annex)
not
to occur or continue.
“Eligible
Replacement”
means an
entity (i) that has credit ratings at least equal to the Approved Ratings
Threshold, (ii) has credit ratings at least equal to the Required Ratings
Threshold, provided, for the avoidance of doubt, that an Eligible Guarantee
of
an Eligible Guarantor with credit ratings below the Approved Ratings Threshold
will not cause a Collateral Event (as defined in the Credit Support Annex)
not
to occur or continue, or (iii) the present and future obligations (for the
avoidance of doubt, not limited to payment obligations) of which entity to
Party
B under this Agreement are guaranteed pursuant to an Eligible Guarantee provided
by an Eligible Guarantor.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as the
counterparty to this Agreement or enter a Replacement Transaction that will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Moody’s Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold”means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Rating Threshold.
“Moody’s
Second Trigger Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer”means
a
transfer by novation by Party A to a transferee (the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with
respect to which transfer each of the following conditions is
satisfied:
(a) the
Transferee is an Eligible Replacement that 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), (b) as of the date of such transfer the
Transferee would not be required to withhold or deduct on account of Tax
from
any payments under this Agreement or would be required to gross up for such
Tax
under Section 2(d)(i)(4), (c) an Event of Default or Termination Event would
not
occur as a result of such transfer, (d) Party B has consented in writing
to the
transfer, such consent not to be unreasonably withheld, (e) the transfer
would
not give rise to a taxable event or any other adverse Tax consequences to
Party
B or its interest holders, as determined by Party B in its sole discretion,
(f)
pursuant to a written instrument (the “Transfer Agreement”), the Transferee
acquires and assumes all rights and obligations of Party A under the Agreement
and the relevant Transaction, (g) Party B shall have determined, in its sole
discretion, acting in a commercially reasonable manner, that such Transfer
Agreement is effective to transfer to the Transferee all, but not less than
all,
of Party A’s rights and obligations under the Agreement and all relevant
Transactions; (h) Party A will be responsible for any costs or expenses incurred
in connection with such transfer (including any replacement cost of entering
into a replacement transaction); (i) each Cap Rating Agency has been given
prior
written notice of such transfer; and (j) such transfer otherwise complies
with
the terms of the Pooling and Servicing Agreement.
“Relevant
Entity”means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
shall
have the meaning assigned thereto in Part 5(d).
“Required
Ratings Threshold”means
each of the S&P Required Ratings Threshold and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The McGraw-Hill Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
S&P of “BBB+”.
[Remainder
of this page intentionally left blank.]
4.
Account
Details and Settlement Information:
Payments
to Party A:
HSBC
Bank USA, National Association
ABA
# 021-001-088
For
credit to Department 299
A/C:
000-04929-8
HSBC
Derivative Products Group
Payments
to Party B:
ABA
021001033
ABA
name Deutsche Bank Trust Company - Americas
Bene
Acct. 014-19-663
Bene
Acct. Name NYLTD Funds Control - Stars West
Ref:
First Franklin 2006-FF16 (GC06ZA) Cap
payment
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.
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,
HSBC
BANK
USA, NATIONAL ASSOCIATION
By: _______________________________
Name:
Title:
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts and
confirms the terms of the foregoing as of the date hereof.
Deutsche
Bank National Trust Company, not individually but solely in its capacity
as
Trustee on behalf of the trust with respect to the First Franklin Mortgage
Loan
Trust 2006-FF16, Asset-Backed Certificates, Series 2006-FF16
By: _______________________________
Name:
Title:
SCHEDULE
I
(all
such
dates subject to No Adjustment with respect to Fixed Rate Payer Period End
Dates
and adjustment in accordance with the Following Business Day Convention with
respect to Floating Rate Payer Period End Dates)
HSBC
Bank
USA, National Association (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Deutsche
Bank National Trust Company, not individually but solely in its capacity
as
Trustee on behalf of the trust with respect to the First Franklin Mortgage
Loan
Trust 2006-FF16, Asset-Backed Certificates, Series 2006-FF16
(hereinafter
referred to as “Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may
be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated November 30, 2006 between
Party
A and Party B, Reference Number 412205HN/412206HN.
Paragraph
13. Elections and Variables.
(a)
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
(b)
Credit
Support Obligations.
(i)
Delivery
Amount, Return Amount and Credit Support
Amount.
(A)
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I) by deleting
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
(1)
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
(2)
the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party,
and
(3)
the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party.
(B)
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
of
(1)
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b) the
S&P
Credit Support Amount for such Valuation Date,
(2)
the
amount by which (a) the Moody’s First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s First Trigger Credit Support Amount for such Valuation Date,
and
(3)
the
amount by which (a) the Moody’s Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s Second Trigger Credit Support Amount for such Valuation
Date.
(C)
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the S&P
Credit Support Amount, the Moody’s First Trigger Credit Support Amount, or
the Moody’s Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
(ii)
Eligible
Collateral.
On
any
date, the following items will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
Collateral
S&P
Valuation
Percentage
Moody’s
First
Trigger Valuation
Percentage
Moody’s
Second
Trigger Valuation
Percentage
(A) Cash
100%
100%
100%
(B) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
98.5%
100%
100%
(C) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not
more than
ten years
89.9%
100%
94%
(D) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
83.9%
100%
87%
(iii)
Other
Eligible Support.
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
(iv)
Threshold.
(A)
“Independent
Amount”
means zero with respect to Party A and Party
B.
(B)
“Threshold”
means, with respect to Party A and any Valuation Date, zero if
(i) a
Collateral Event has occurred and has been continuing (x) for at
least 30
days or (y) since this Annex was executed, or (ii) a S&P Required
Ratings Downgrade Event has occurred and is continuing; otherwise,
infinity.
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
(C)
“Minimum
Transfer Amount”means
USD 100,000 with respect to Party A and Party B; provided, however,
that
if the aggregate Certificate Principal Balance of Certificates
rated by
S&P ceases to be more than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
(D)
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 1,000.
(c)
Valuation
and Timing.
(i)
“Valuation
Agent”
means Party A; provided, however, that if an Event of Default shall
have
occurred with respect to which Party A is the Defaulting Party,
Party B
shall have the right to designate as Valuation Agent an independent
party,
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A. All calculations by the Valuation Agent must be made in
accordance with standard market practice, including, in the event
of a
dispute as to the Value of any Eligible Credit Support or Posted
Credit
Support, by making reference to quotations received by the Valuation
Agent
from one or more Pricing Sources.
(ii)
“Valuation
Date”means
each Local Business Day on which any of the S&P Credit Support Amount,
the Moody’s First Trigger Credit Support Amount or the Moody’s Second
Trigger Credit Support Amount is greater than
zero.
(iii)
“Valuation
Time”means
the close of business in the city of the Valuation Agent on the
Local
Business Day immediately preceding the Valuation Date or date of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv)
“Notification
Time”means
11:00 a.m., New York time, on a Local Business Day.
(v)
External
Verification.
Notwithstanding anything to the contrary in the definitions of
Valuation
Agent or Valuation Date, at any time at which Party A (or, to the
extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value of Posted Credit Suppport on each Valuation Date based
on internal marks and (B) verify such calculations with external
marks
monthly by obtaining on the last Local Business Day of each calendar
month
two external marks for each Transaction to which this Annex relates
and
for all Posted Credit Suport; such verification of the Secured
Party’s
Exposure shall be based on the higher of the two external marks.
Each
external mark in respect of a Transaction shall be obtained from
an
independent Reference Market-maker that would be eligible and willing
to
enter into such Transaction in the absence of the current derivative
provider, provided that an external mark may not be obtained from
the same
Reference Market-maker more than four times in any 12-month period.
The
Valuation Agent shall obtain these external marks directly or through
an
independent third party, in either case at no cost to Party B.
The
Valuation Agent shall calculate on each Valuation Date (for purposes
of
this paragraph, the last Local Business Day in each calendar month
referred to above shall be considered a Valuation Date) the Secured
Party’s Exposure based on the greater of the Valuation Agent’s internal
marks and the external marks received. If the S&P Value on any such
Valuation Date of all Posted Credit Support then held by the Secured
Party
is less than the S&P Credit Support Amount on such Valuation Date (in
each case as determined pursuant to this paragraph), Party A shall,
within
three Local Business Days of such Valuation Date, Transfer to the
Secured
Party Eligible Credit Support having an S&P Value as of the date of
Transfer at least equal to such deficiency.
(vi)
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its Credit
Support Provider) does not have a long-term unsubordinated and
unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations of
the Secured
Party’s Exposure and the S&P Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation Agent
shall
also provide to S&P any external marks received pursuant to the
preceding paragraph.
(d)
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party if
the
Termination Event occurs with respect to that party): With respect
to
Party A: any Additional Termination Event with respect to which
Party A is
the sole Affected Party. With respect to Party B:
None.
(e)
Substitution.
(i)
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
(ii)
Consent.
If
specified here as applicable, then the Pledgor must obtain the
Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
(f)
Dispute
Resolution.
(i)
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
(ii)
Value.
Notwithstanding anything to the contrary in Paragraph 12, for the
purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Moody’s First Trigger
Value, and Moody’s Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1)(x) the bid price at the Valuation Time for
such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the bid price for such securities quoted at the Valuation
Time by any principal market maker for such securities selected by the Valuation
Agent, or (z) if no such bid price is listed or quoted for such date, the
bid
price listed or quoted (as the case may be) at the Valuation Time for the
day
next preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and (B) the
accrued interest on such securities (except to the extent Transferred to
the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable price
referred to in the immediately preceding clause (A)) as of such
date.
(iii)
Alternative.
The provisions of Paragraph 5 will
apply.
(g)
Holding
and Using Posted
Collateral.
(i)
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or any Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b).
Party
B
may appoint as Custodian (A) the entity then serving as [Trustee] or (B)
any
entity other than the entity then serving as [Trustee] if such other entity
(or,
to the extent applicable, its parent company or credit support provider)
shall
then have a short-term unsecured and unsubordinated debt rating from S&P of
at least “A-1.”
Initially,
the Custodian
for
Party B is: Not applicable.
(ii)
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B, but
the
provisions of Paragraph 6(c)(ii) will apply to Party B.
(h)
Distributions
and Interest Amount.
(i)
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral in
the form
of Cash that is held by Party B or its
Custodian.
(ii)
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on any
other
Local Business Day on which Posted Collateral in the form of Cash
is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and received
such
funds and such funds are available to Party B.
(iii)
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
(i)
Additional
Representation(s).
There are no additional representations by either
party.
(j)
Other
Eligible Support and Other Posted Support.
(i)
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
(ii)
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
(k)
Demands
and Notices.All
demands, specifications and notices under this Annex will be made
pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may from
time to
time designate by giving notice (in accordance with the terms of
this
paragraph) to the other party:
If
to
Party A, [at the address specified pursuant to the Notices Section of this
Agreement].
If
to
Party B, [at the address specified pursuant to the Notices Section of this
Agreement].
If
to
Party B’s Custodian: [
]
(l)
Address
for Transfers.
Each Transfer hereunder shall be made to the address [specified
below or
to an address] specified in writing from time to time by the party
to
which such Transfer will be made.
[Party
A
account details]
[Party
B
account details]
[Party
B’s Custodian account details]
(m)
Other
Provisions.
(i)
Collateral
Account.
Party B shall open and maintain a segregated account, which shall
be an
[Eligible Account], and hold, record and identify all Posted Collateral
in
such segregated account.
(ii)
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in Paragraph
2,
the acknowledgement in the final sentence of Paragraph 8(a) and
the
representations in Paragraph 9.
(iii)
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Moody’s First Trigger Value,
Moody’s Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting the
word
“Value” and inserting in lieu thereof “S&P Value, Moody’s First
Trigger Value, or Moody’s Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Moody’s First Trigger Value, and Moody’s
Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, Moody’s First Trigger Value, or Moody’s Second Trigger
Value, as may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, Moody’s First Trigger Value, or Moody’s
Second Trigger Value” and (2) deleting the second instance of the words
“the Value” and inserting in lieu thereof “such disputed S&P Value,
Moody’s First Trigger Value, or Moody’s Second Trigger Value”. Each of
Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended by
deleting
the word “Value” and inserting in lieu thereof “least of the S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value”.
(iv)
Form
of Annex.Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form of
ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New
York Law
Only version) as published and copyrighted in 1994 by the International
Swaps and Derivatives Association,
Inc.
(v)
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default to exist
with
respect to Party B except that Paragraph 7(i) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in Paragraph
7,
any failure by Party A to comply with or perform any obligation
to be
complied with or performed by Party A under the Credit Support
Annex shall
only be an Event of Default if (A) either
(i) a Moody’s Required Ratings Downgrade Event has occurred and been
continuing for 30 or more Local Business Days, or (ii) a S&P Required
Ratings Downgrade Event has occurred and been continuing for 30
or more
Local Business Days, and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
(vi)
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the Pledgor
will
be responsible for, and will reimburse the Secured Party for, all
transfer
and other taxes and other costs involved in any Transfer of Eligible
Collateral.
(vii)
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately after
“the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
(viii)
Notice
of Failure to Post Collateral. Upon
any failure by Party A to post collateral as required under this
Agreement, Party B shall, no later than the next Business Day after
the
date such collateral was required to be posted, give a written
notice of
such failure to Party A and to Depositor. For the avoidance of
doubt,
notwithstanding anything in this Agreement to the contrary, the
failure of
Party B to comply with the requirements of this paragraph shall
not
constitute an Event of Default or Termination Event.
(ix)
Additional
Definitions.
As used
in this Annex:
“Collateral
Event”means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means:
any day on which (A) commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in New York and the location
of Party A, Party B and any Custodian, and (B) in relation to a Transfer
of
Eligible Collateral, any day on which the clearance system agreed between
the
parties for the delivery of Eligible Collateral is open for acceptance and
execution of settlement instructions (or in the case of a Transfer of Cash
or
other Eligible Collateral for which delivery is contemplated by other means
a
day on which commercial banks are open for business (including dealings in
foreign exchange and foreign deposits) in New York and the location of Party
A,
Party B and any Custodian.
“Moody’s
First Trigger Event”means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s First Trigger Ratings Threshold.
“Moody’s
First Trigger Credit Support Amount”means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which (I) a Moody’s First Trigger Event has occurred
and has been continuing (x) for at least 30 Local Business Days
or (y)
since this Annex was executed and (II) it is not the case that
a Moody’s
Second Trigger Event has occurred and been continuing for at least
30
Local Business Days, an amount equal to the greater of (a) zero
and (b)
the sum of (i) the Secured Party’s Exposure for such Valuation Date and
(ii) the sum, for each Transaction to which this Annex relates,
of the
product of the applicable Moody’s First Trigger Factor set forth in Table
1 and the Notional Amount for such Transaction for the Calculation
Period
which includes such Valuation Date; or
(B)
for
any other Valuation Date, zero,
over
(II)
the
Threshold for Party A such Valuation Date.
“Moody’s
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Moody’s First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Moody’s
Second Trigger Event”means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which it is the case that a Moody’s Second Trigger
Event has occurred and been continuing for at least 30 Local Business
Days, an amount equal to the greatest of (a) zero, (b) the aggregate
amount of the next payment due to be paid by Party A under each
Transaction to which this Annex relates, and (c) the sum of (x)
the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates, of
(1)
if
such Transaction is not a Transaction-Specific Hedge, the product of the
applicable Moody’s Second Trigger Factor set forth in Table 2 and the Notional
Amount for such Transaction for the Calculation Period which includes such
Valuation Date;
or
(2)
the
product of the applicable Moody’s Second Trigger Factor set forth in Table 3 and
the Notional Amount for such Transaction for the Calculation Period which
includes such Valuation Date; or
(B)
for
any other Valuation Date, zero,
over
(II)
the
Threshold for Party A for such Valuation Date.
“Moody’s
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Moody’s Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Pricing
Sources”
means
the sources of financial information commonly known as Bloomberg, Bridge
Information Services, Data Resources Inc., Interactive Data Services,
International Securities Market Association, Merrill Lynch Securities Pricing
Service, Muller Data Corporation, Reuters, Wood Gundy, Trepp Pricing, JJ
Kenny,
S&P and Telerate.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which (i) an S&P Rating Threshold Event has
occurred and been continuing for at least 30 days, or (ii) a S&P
Required Ratings Downgrade Event has occurred and is continuing,
an amount
equal to the sum of (1) 100.0% of the Secured Party’s Exposure for such
Valuation Date and (2) for each Transaction to which this Annex
relates,
of the product of the Volatility Buffer for such Transaction and
the
Notional Amount of such Transaction for the Calculation Period
of such
Transaction which includes such Valuation Date, or
(B)
for
any other Valuation Date, zero,
over
(II)
the
Threshold for Party A for such Valuation Date.
“S&P
Rating Threshold Event”
means,
on any date, no Relevant Entity has credit ratings from S&P which equal or
exceed the S&P Approved Ratings Threshold.
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were the
only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge”means
any
Transaction that is an interest rate cap, interest rate floor or interest
rate
swaption, or an interest rate swap if (x) the notional amount of the interest
rate swap is “balance guaranteed” or (y) the notional amount of the interest
rate swap for any Calculation Period otherwise is not a specific dollar amount
that is fixed at the inception of the Transaction.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Moody’s First Trigger
Value, or Moody’s Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Moody’s First
Trigger Valuation Percentage, or Moody’s Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each case
as set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Moody’s
First Trigger Value, and the related Moody’s Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following table.
The
higher of the S&P short-term credit rating of (i) Party A and (ii) the
Credit Support Provider of Party A, if applicable
Remaining
Weighted Average Maturity
up
to 3 years
Remaining
Weighted Average Maturity
up
to 5 years
Remaining
Weighted Average Maturity
up
to 10 years
Remaining
Weighted Average Maturity
up
to 30 years
At
least “A-2”
2.75%
3.25%
4.00%
4.75%
“A-3”
3.25%
4.00%
5.00%
6.25%
“BB+”
or
lower
3.50%
4.50%
6.75%
7.50%
[Remainder
of this page intentionally left blank]
Table
1
Moody’s
First Trigger Factor
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.15%
More
than 1 but not more than 2
0.30%
More
than 2 but not more than 3
0.40%
More
than 3 but not more than 4
0.60%
More
than 4 but not more than 5
0.70%
More
than 5 but not more than 6
0.80%
More
than 6 but not more than 7
1.00%
More
than 7 but not more than 8
1.10%
More
than 8 but not more than 9
1.20%
More
than 9 but not more than 10
1.30%
More
than 10 but not more than 11
1.40%
More
than 11 but not more than 12
1.50%
More
than 12 but not more than 13
1.60%
More
than 13 but not more than 14
1.70%
More
than 14 but not more than 15
1.80%
More
than 15 but not more than 16
1.90%
More
than 16 but not more than 17
2.00%
More
than 17 but not more than 18
2.00%
More
than 18 but not more than 19
2.00%
More
than 19 but not more than 20
2.00%
More
than 20 but not more than 21
2.00%
More
than 21 but not more than 22
2.00%
More
than 22 but not more than 23
2.00%
More
than 23 but not more than 24
2.00%
More
than 24 but not more than 25
2.00%
More
than 25 but not more than 26
2.00%
More
than 26 but not more than 27
2.00%
More
than 27 but not more than 28
2.00%
More
than 28 but not more than 29
2.00%
More
than 29
2.00%
Table
2
Moody’s
Second Trigger Factor for Interest Rate Swaps with Fixed Notional
Amounts
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.50%
More
than 1 but not more than 2
1.00%
More
than 2 but not more than 3
1.50%
More
than 3 but not more than 4
1.90%
More
than 4 but not more than 5
2.40%
More
than 5 but not more than 6
2.80%
More
than 6 but not more than 7
3.20%
More
than 7 but not more than 8
3.60%
More
than 8 but not more than 9
4.00%
More
than 9 but not more than 10
4.40%
More
than 10 but not more than 11
4.70%
More
than 11 but not more than 12
5.00%
More
than 12 but not more than 13
5.40%
More
than 13 but not more than 14
5.70%
More
than 14 but not more than 15
6.00%
More
than 15 but not more than 16
6.30%
More
than 16 but not more than 17
6.60%
More
than 17 but not more than 18
6.90%
More
than 18 but not more than 19
7.20%
More
than 19 but not more than 20
7.50%
More
than 20 but not more than 21
7.80%
More
than 21 but not more than 22
8.00%
More
than 22 but not more than 23
8.00%
More
than 23 but not more than 24
8.00%
More
than 24 but not more than 25
8.00%
More
than 25 but not more than 26
8.00%
More
than 26 but not more than 27
8.00%
More
than 27 but not more than 28
8.00%
More
than 28 but not more than 29
8.00%
More
than 29
8.00%
Table
3
Moody’s
Second Trigger Factor for Transaction-Specific Hedges
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.65%
More
than 1 but not more than 2
1.30%
More
than 2 but not more than 3
1.90%
More
than 3 but not more than 4
2.50%
More
than 4 but not more than 5
3.10%
More
than 5 but not more than 6
3.60%
More
than 6 but not more than 7
4.20%
More
than 7 but not more than 8
4.70%
More
than 8 but not more than 9
5.20%
More
than 9 but not more than 10
5.70%
More
than 10 but not more than 11
6.10%
More
than 11 but not more than 12
6.50%
More
than 12 but not more than 13
7.00%
More
than 13 but not more than 14
7.40%
More
than 14 but not more than 15
7.80%
More
than 15 but not more than 16
8.20%
More
than 16 but not more than 17
8.60%
More
than 17 but not more than 18
9.00%
More
than 18 but not more than 19
9.40%
More
than 19 but not more than 20
9.70%
More
than 20 but not more than 21
10.00%
More
than 21 but not more than 22
10.00%
More
than 22 but not more than 23
10.00%
More
than 23 but not more than 24
10.00%
More
than 24 but not more than 25
10.00%
More
than 25 but not more than 26
10.00%
More
than 26 but not more than 27
10.00%
More
than 27 but not more than 28
10.00%
More
than 28 but not more than 29
10.00%
More
than 29
10.00%
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
HSBC
Bank USA, National Association
Deutsche
Bank National Trust Company, not individually but solely in its
capacity
as Trustee on behalf of the trust with respect to the First Franklin
Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates, Series
2006-FF16
Deutsche
Bank National Trust Company, not individually but solely in its
capacity
as Cap Trustee on behalf of the Cap Trust with respect to the First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates,
Series
2006-FF16
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
HSBC Bank USA, National Association (“Party
A”)and
Deutsche Bank National Trust Company, not individually, but solely as cap
trustee (the “Cap Trustee”) on behalf of the cap trust with respect to the First
Franklin Mortgage Loan Trust 2006-FF16(the
“Cap
Trust”) (“Party
B”)
created
under the Pooling and Servicing Agreement, dated as of November 1, 2006,
among
Financial Asset Securities Corp., as Depositor, National City Home Loan
Services, Inc., as Servicer and Deutsche Bank National Trust Company, as
Trustee(the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and us
to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit Support
Annex to the Schedule.
1.
This
Confirmation shall supplement, form a part of, and be subject to
an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such form
on the
date hereof, with a Schedule as set forth in Item 3 of this Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted in 1994
by the
International Swaps and Derivatives Association, Inc., with Paragraph
13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein shall
be the
sole Transaction governed by such ISDA Master Agreement. In the
event of
any inconsistency among any of the following documents, the relevant
document first listed shall govern: (i) this Confirmation, exclusive
of
the provisions set forth in Item 3 hereof and Annex A hereto; (ii)
the
provisions set forth in Item 3 hereof, which are incorporated by
reference
into the Schedule; (iii) the Credit Support Annex; (iv) the Definitions;
and (v) the ISDA Master Agreement.
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section”“of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
2.
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
Type
of Transaction:
Interest
Rate Cap
Notional
Amount:
With
respect to any Calculation Period, the amount set forth for such
period on
Schedule I attached hereto.
The
25th
calendar day of each month during the Term of this Transaction,
commencing
September 25, 2007, and ending on the Termination Date, subject
to
adjustment in accordance with the Business Day
Convention.
Floating
Rate Payer
Payment
Dates:
Early
Payment - One Business Day preceding the 25th
calendar day of each month during the Term of this Transaction,
commencing
September 25, 2007, and ending on the Termination Date, subject
to
adjustment in accordance with the Business Day
Convention.
Cap
Rate:
5.300%
Floating
Rate Option:
USD-LIBOR-BBA;
provided, however, that if the Floating Rate Option for any Calculation
Period is greater than 9.000%, then the Floating Rate Option for
such
Calculation Period shall be deemed to be 9.000%.
Floating
Amount:
To
be determined in accordance with the following formula:
The
greater of (i) 250*(Floating Rate Option-Cap Rate)*Notional
Amount*Floating Rate Day Count Fraction, and (ii) zero.
Designated
Maturity:
One
month
Floating
Rate Day
Count
Fraction:
Actual/360
Reset
Dates:
The
first day of each Calculation Period.
Compounding:
Inapplicable
Business
Days:
New
York
Business
Day Convention:
Following
Calculation
Agent:
Party
A
3.
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
Part
1.
Termination
Provisions.
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
(b)
“Specified
Transaction”
will have the meaning specified in Section
14.
(c)
Events
of Default.
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
(i)
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will apply
to
Party B; provided, however, that Section 5(a)(i) is hereby amended
by
replacing the word “third” with the word “first”; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i), any
failure
by Party A to comply with or perform any obligation to be complied
with or
performed by Party A under the Credit Support Annex shall not constitute
an Event of Default under Section 5(a)(i) unless (A) a Required
Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local
Business Days, and (B) such failure is not remedied on or before
the third
Local Business Day after notice of such failure is given to Party
A.
(ii)
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will not
apply to
Party B.
(iii)
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to comply
with or
perform any obligation to be complied with or performed by Party
A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business Days,
and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
(iv)
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will not
apply to
Party B.
(v)
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will not
apply to
Party B.
(vi)
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will not
apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
“Specified
Indebtedness” will have the meaning specified in Section 14 , except that such
term shall not include obligations in respect of deposits received in the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the Shareholders’ Equity of Party A (as set forth in Party A’s Call Report) or,
if applicable, the Eligible Guarantor.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in the
most recent annual audited financial statements of such entity) of (i) its
capital stock (including preferred stock) outstanding, taken at par value,
(ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury
stock,
each to be determined in accordance with generally accepted accounting
principles.
(vii)
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented by
Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
(viii)
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
not apply
to Party B.
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6
of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
(ii)
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
(iii)
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
(iv)
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and will
not
apply to Party B.
(e)
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will not
apply to
Party B.
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
(i)
Market
Quotation will apply, provided, however, that, in the event of
a
Derivative Provider Trigger Event, the following provisions will
apply:
(A)
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
“Market
Quotation”means,
with respect to one or more Terminated Transactions, a Firm Offer which is
(1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be
included.
(B)
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by Party
B)
equal to:
(a)
If
a Market Quotation for the relevant Terminated Transaction or group
of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days after
the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case no
later
than one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
(b)
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding and
one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon acceptance,
the Settlement Amount shall equal the Termination Currency Equivalent
of
the amount (whether positive or negative) of the lowest of such
Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
(c)
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal Party
B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
(C)
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
(D)
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect of
the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided, however, that (x) the amounts payable under the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding any
other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
(E)
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party B shall
be
entitled to accept only the lowest of such Market Quotations (for
the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed as
a positive
number or, if any of such Market Quotations is expressed as a negative
number, the Market Quotation expressed as a negative number with
the
largest absolute value).
(ii)
The
Second Method will apply.
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)Tax
Representations.
(i)
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the
accuracy and effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance
is
placed on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(B)
Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
is a national banking association organized under the federal laws of the
United
States and its U.S. taxpayer identification number is 20-1177241.
(B)
Party
B
makes the following representation(s):
None.
(b)
Tax
Provisions.
(i)
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party B
shall not
be required to pay any additional amounts referred to
therein.
(ii)
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a) For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
Party
required to deliver document
Form/Document/
Certificate
Date
by which to
be
delivered
Party
A
A
correct, complete and duly executed U.S. Internal Revenue Service
Form W-9
or other applicable form (or successor thereto), together with
appropriate
attachments, that eliminates U.S. federal withholding and backup
withholding Tax on payments to Party A under this
Agreement.
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party B, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
Party
B
Party
B will deliver at closing a U.S. Internal Revenue Service Form
W-9 or
other applicable form (or successor thereto) relating to the beneficial
owner of payments to Party B under this Agreement, together with
appropriate attachments, and may deliver other tax forms relating
to the
beneficial owner of payments to Party B under this Agreement from
time to
time.
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party A, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
(b) For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
Party
required to deliver document
Form/Document/
Certificate
Date
by which to
be
delivered
Covered
by Section 3(d) Representation
Party
A and
Party
B
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it
to execute
and deliver the Agreement, this Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support Document,
as
the case may be
Upon
the execution and delivery of this Agreement
Yes
Party
A and
Party
B
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, this Confirmation, and any relevant Credit Support Document,
as
the case may be
Upon
the execution and delivery of this Agreement
Yes
Party
A
Annual
Financial Statements as set forth in Party A’s Call Report containing
consolidated financial statements certified by independent certified
public accountants and prepared in accordance with generally accepted
accounting principles in the country in which Party A is
organized
Promptly
upon request made by Party B
Yes
Party
A
Quarterly
Financial Statements as set forth in Party A’s Call Report containing
unaudited, consolidated financial statements of Party A’s fiscal quarter
prepared in accordance with generally accepted accounting principles
in
the country in which Party A is organized
Promptly
upon request made by Party B
Yes
Party
A
An
opinion of counsel to Party A satisfactory in form and substance
to Party
B
Upon
the execution and delivery of this Agreement
No
Part
4. Miscellaneous.
(a)
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
(b)Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
(c)
Offices.
The provisions of Section 10(a) will apply to this Agreement; neither
Party A nor Party B has any Offices other than as set forth in
the Notices
Section and Party A agrees that, for purposes of Section 6(b) of
this
Agreement, it shall not in the future have any Office other than
one in
the United States.
(d)
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
Party
A
is not a Multibranch Party.
Party
B is not a Multibranch Party.
(e)
Calculation
Agent.
The Calculation Agent is Party A; provided, however, that if an
Event of
Default shall have occurred with respect to Party A, Party B shall
have
the right to appoint as Calculation Agent a third party, reasonably
acceptable to Party A, the cost for which shall be borne by Party
A.
(f)Credit
Support Document.
Party
A:
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
Party
B:
The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
(g)
Credit
Support Provider.
Party
A:
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
Party
B:
None.
(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
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
(i)
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will apply
to
each Transaction hereunder.
(j)
Affiliate.“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party A and Party B shall be deemed to have no Affiliates
for
purposes of this Agreement, including for purposes of Section
6(b)(ii).
Part
5. Others
Provisions.
(a)
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions as
published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a “Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
(b) Amendments
to ISDA Master Agreement.
(i)
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
(ii)
Conditions
Precedent. Section
2(a)(iii) is hereby amended by adding the following at the end thereof:
Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default
with
respect to Party B or Potential Event of Default with respect to Party B
has
occurred and been continuing for more than 30 Local Business Days and no
Early
Termination Date in respect of the Affected Transactions has occurred or
been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth in
Section 2(a)(iii)(1) with respect to such specific occurrence of such Event
of
Default or such Potential Event of Default (the “Specific
Event”);
provided, however, for the avoidance of doubt, the obligations of Party A
under
Section 2(a)(i) shall be subject to the condition precedent set forth in
Section
2(a)(iii)(1) (subject to the foregoing) with respect to any subsequent
occurrence of the same Event of Default with respect to Party B or Potential
Event of Default with respect to Party B after the Specific Event has ceased
to
be continuing and with respect to any occurrence of any other Event of Default
with respect to Party B or Potential Event of Default with respect to Party
B
that occurs subsequent to the Specific Event.
(iii)
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
“to
another account in the same legal and tax jurisdiction as the original
account”.
(iv)
Representations.
Section 3 is hereby amended by adding at the end thereof the following
subsection (g):
“(g)
Relationship
Between Parties.
(1)
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party.
(2)
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and has
made its
own decision subject to Section 6(n) of this Agreement to enter
into the
Transaction and (ii) It understands the terms, conditions and risks
of the
Transaction and is willing and able to accept those terms and conditions
and to assume those risks, financially and otherwise.
(3)
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
(4)
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
(5)
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R. 35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
(v)
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words “or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
(vi)
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
(vii)
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby amended
by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
(c)
Additional
Termination Events.
The following Additional Termination Events will
apply:
(i)
First
Rating Trigger Collateral.
If
(A) it is not the case that a Moody’s Second Trigger Ratings Event has
occurred and been continuing for 30 or more Local Business Days
and (B)
Party
A has failed to comply with or perform any obligation to be complied
with
or performed by Party A in accordance with the Credit Support Annex,
then
an Additional Termination Event shall have occurred with respect
to Party
A and Party A shall be the sole Affected Party with respect to
such
Additional Termination Event.
(ii)
Second
Rating Trigger Replacement.
If
(A) a Required Ratings Downgrade Event has occurred and been continuing
for 30 or more Local Business Days and (B) (i) at least one Eligible
Replacement has made a Firm Offer to be the transferee of all of
Party A’s
rights and obligations under this Agreement (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible Replacement
upon acceptance by the offeree) and/or (ii) an Eligible Guarantor
has made
a Firm Offer to provide an Eligible Guarantee (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party A and
Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
(iii)
[Reserved]
(iv)
Regulation
AB.
If, upon the occurrence of a Swap Disclosure Event (as defined
in Part
5(e) below) Party A has not, within five (5) 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 Part 5(e)(iii) below, then an Additional Termination Event
shall
have occurred with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
(v)
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to
Certificateholders of an Optional Termination becoming unrescindable
in
accordance with Article X of the Pooling and Servicing Agreement.
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however, that notwithstanding anything
to the
contrary in Section 6(b)(iv), only Party B may designate an Early
Termination Date in respect of this Additional Termination Event.
(d)
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least equal
to the
Required Ratings Threshold (such event, a “Required
Ratings Downgrade Event”),
then Party A shall, as soon as reasonably practicable and so long
as a
Required Ratings Downgrade Event is in effect, at its own expense,
using
commercially reasonable efforts, procure either (A) a Permitted
Transfer
or (B) an Eligible Guarantee from an Eligible Guarantor.
(e)
Compliance
with Regulation AB.
(i) It
shall
be a swap disclosure event (“Swap Disclosure Event”) if, at any time after the
date hereof while the Depositor has reporting obligations with respect to
this
Transaction pursuant to Regulation AB, the Depositor or Greenwich Capital
Financial Products, Inc. (the “Sponsor”) notifies Party A that the aggregate
“significance percentage” (calculated in accordance with the provisions of Item
1115 of Regulation AB) of all derivative instruments provided by Party A
and any
of its affiliates to Party B (collectively, the “Aggregate Significance
Percentage”) is 10% or more.
(ii) Upon
the
occurrence of a Swap Disclosure Event while the Depositor has reporting
obligations with respect to this Transaction pursuant to Regulation AB, Party
A,
at its own cost and expense (and without any expense or liability to the
Depositor, the Sponsor, the Underwriters, the Depositor, the Trustee or the
Issuing Entity), 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%, either, at the sole discretion of Party
A,
the information required under Item 1115(b)(1) or Item 1115(b)(2) 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 the Approved Ratings Thresholds (and which satisfies the Rating Agency
Condition), that (x) provides the information specified in clause (a) above
to
the Depositor and Sponsor and (y) enters into documentation substantially
similar to the documentation then in place between Party A and Party
B
(iii)
For
so long as the Aggregate Significance Percentage is 10% or more the Depositor
has reporting obligations with respect to this Transaction, Party A shall
provide any updates to the information provided pursuant to clause (ii)(a)
above
to the Sponsor and the Depositor within five (5) Business Days following
the
availability thereof (but in no event more than 45 days after the end of
each of
Party A’s fiscal quarter for any quarterly update, and in no event more than 90
days after the end of Party A’s fiscal year for any annual update).
(iv) All
information provided pursuant to clause (ii) 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 (EDGAR).
The
parties hereto acknowledge that electronic files in Adobe Acrobat format
will be
deemed to satisfy the requirements of this Part 5(e)(iv). In addition, any
such
information, if audited, shall be accompanied by any necessary auditor’s
consents or, if such information is unaudited, shall be accompanied by an
appropriate agreed-upon procedures letter from Party A’s accountants. 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) Each
of
the Depositor and Sponsor shall be an express third party beneficiary of
this
Agreement as if a party hereto to the extent of Depositor’s and Sponsor’s rights
explicitly specified herein.
(f)
Transfers.
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Subject
to Section 6(b)(ii), Part 5(d), and Part 5(e), neither Party A nor Party
B is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or interests
under the Agreement or any Transaction without (a) the prior written consent
of
the other party and (b) satisfaction of the Rating Agency Condition with
respect
to S&P.”
(ii)
If
an Eligible Replacement has made a Firm Offer (which remains an
offer that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
(g)
Non-Recourse.
Party A acknowledges and agree that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely in accordance
with
the priority of payments and other terms of the Pooling and Servicing
Agreement and that Party A will not have any recourse to any of
the
directors, officers, employees, shareholders or affiliates of the
Party B
with respect to any claims, losses, damages, liabilities, indemnities
or
other obligations in connection with any transactions contemplated
hereby.
This provision will survive the termination of this
Agreement.
(h)
Limitation
on Events of Default. Notwithstanding
the provisions of Sections 5 and 6, if at any time and so long
as Party B
has satisfied in full all its payment obligations under Section
2(a)(i)
and has at the time no future payment obligations, whether absolute
or
contingent, under such Section, then unless Party A is required
pursuant
to appropriate proceedings to return to Party B or otherwise returns
to
Party B upon demand of Party B any portion of any such payment,
(a) the
occurrence of an event described in Section 5(a) with respect to
Party B
shall not constitute an Event of Default or Potential Event of
Default
with respect to Party B as Defaulting Party and (b) Party A shall
be
entitled to designate an Early Termination Date pursuant to Section
6 only
as a result of the occurrence of a Termination Event set forth
in either
Section 5(b)(i) or 5(b)(ii) with respect to Party A as the Affected
Party,
or Section 5(b)(iii) with respect to Party A as the Burdened Party.
For
purposes of the Transaction to which this Agreement relates, Party
B’s
only obligation under Section 2(a)(i) is to pay the Fixed Amount
on the
Fixed Amount Payer Payment Date.
(i)
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Cap Rating Agency has been given prior written notice of such
designation or transfer.
(j)
No
Set-off. Except
as expressly provided for in Section 2(c), Section 6 or Part 1(f)(i)(D)
hereof, and notwithstanding any other provision of this Agreement
or any
other existing or future agreement, each party irrevocably waives
any and
all rights it may have to set off, net, recoup or otherwise withhold
or
suspend or condition payment or performance of any obligation between
it
and the other party hereunder against any obligation between it
and the
other party under any other agreements. Section 6(e) shall be amended
by
deleting the following sentence: “The amount, if any, payable in respect
of an Early Termination Date and determined pursuant to this Section
will
be subject to any Set-off.”.
(k)
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Cap Agencies
has
been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to S&P.
(l)
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving of
notice or
passage of time or both would constitute) an Event of Default or
Termination Event with respect to such party, promptly to give
the other
Party and to each Cap Rating Agency notice of such event or condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the Cap
Trustee or the trust formed pursuant to the Pooling and Servicing Agreement,
any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any federal or state bankruptcy or similar law
for a
period of one year (or, if longer, the applicable preference period) and
one day
following payment in full of the Certificates and any Notes. This provision
will
survive the termination of this Agreement.
(n)
Cap
Trustee Liability Limitations.
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed by Deutsche Bank National Trust Company (“Deutsche”)
not in its individual capacity, but solely as Cap Trustee under
the
Pooling and Servicing Agreement in the exercise of the powers and
authority conferred and invested in it thereunder; (b) Deutsche
has been
directed pursuant to the Pooling and Servicing Agreement to enter
into
this Agreement and to perform its obligations hereunder; (c) each
of the
representations, undertakings and agreements herein made on behalf
of the
Cap Trust is made and intended not as personal representations
of the Cap
Trustee but is made and intended for the purpose of binding only
the Cap
Trust; and (d) under no circumstances shallDeutsche
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
(o)
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) in any respect,
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.
(p)
Agent
for Party B. Party
A acknowledges that Party B has appointed Deutsche Bank National
Trust
Company as Trustee as its agent under the Pooling and Servicing
Agreement
to carry out certain functions on behalf of Party B, and that Deutsche
Bank National Trust Company as Trustee shall be entitled to give
notices
and to perform and satisfy the obligations of Party B hereunder
on behalf
of Party B.
(q)
Escrow
Payments.
If
(whether by reason of the time difference between the cities in
which
payments are to be made or otherwise) it is not possible for simultaneous
payments to be made on any date on which both parties are required
to make
payments hereunder, either Party may at its option and in its sole
discretion notify the other Party that payments on that date are
to be
made in escrow. In this case deposit of the payment due earlier
on that
date shall be made by 2:00 pm (local time at the place for the
earlier
payment) on that date with an escrow agent selected by the notifying
party, accompanied by irrevocable payment instructions (i) to release
the
deposited payment to the intended recipient upon receipt by the
escrow
agent of the required deposit of any corresponding payment payable
by the
other party on the same date accompanied by irrevocable payment
instructions to the same effect or (ii) if the required deposit
of the
corresponding payment is not made on that same date, to return
the payment
deposited to the party that paid it into escrow. The party that
elects to
have payments made in escrow shall pay all costs of the escrow
arrangements.
(r)
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any
time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
(s)
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in respect
of
any in respect of any suit, action or proceeding relating to this
Agreement or any Credit Support Document.
(t)
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency - Crossborder) as published and copyrighted in 1992
by the
International Swaps and Derivatives Association,
Inc.
(u)
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A to
Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
(v)
Additional
representations.
(i)
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that:--
(1)
Party
A’s obligations under this Agreement rank pari passu with all of
Party A’s
other unsecured, unsubordinated obligations except those obligations
preferred by operation of law.
(2)
Party
A 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 therefor
are
satisfied in full).
(ii)
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the Transaction
as principal and not as agent of any person. Party B represents
to Party A
on the date on which Party B enters into this Agreement that it
is
entering into the Agreement and the Transaction in its capacity
as Cap
Trustee.
(w)
Acknowledgements.
(ii)
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if any,
of any
other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and 560
thereof and the applicable definitions in Section 101 thereof),
the
parties acknowledge and agree that all Transactions entered into
hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the parties
under
Section 6 of this Agreement will constitute contractual rights
to
liquidate Transactions, that any margin or collateral provided
under any
margin, collateral, security, pledge, or similar agreement related
hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to
the rights
under, and protections afforded by, Sections 362, 546, 556, and
560 of the
Bankruptcy Code.
(x)
[Reserved]
(y)
[Reserved]
(z) Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement”means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (e) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Cap
Rating Agencies”
means,
with respect to any date of determination, each of S&P and Moody’s, to the
extent that each such rating agency is then providing a rating for any of
the
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates,
Series
2006-FF16 (the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
“Derivative
Provider Trigger Event”
means
(i) an Event of Default with respect to which Party A is a Defaulting Party,
(ii) a Termination Event with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A or
an Eligible Replacement to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor’s payments to
Party B under such guarantee will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor is
required to pay such additional amount as is necessary to ensure that the
net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had no
such
withholding been required.
“Eligible
Guarantor”means
an
entity that (A) has credit ratings at least equal to the Approved Ratings
Threshold or (B) has credit ratings at least equal to the Required Ratings
Threshold, provided, for the avoidance of doubt, that an Eligible Guarantee
of
an Eligible Guarantor with credit ratings below the Approved Ratings Threshold
will not cause a Collateral Event (as defined in the Credit Support Annex)
not
to occur or continue.
“Eligible
Replacement”
means an
entity (i) that has credit ratings at least equal to the Approved Ratings
Threshold, (ii) has credit ratings at least equal to the Required Ratings
Threshold, provided, for the avoidance of doubt, that an Eligible Guarantee
of
an Eligible Guarantor with credit ratings below the Approved Ratings Threshold
will not cause a Collateral Event (as defined in the Credit Support Annex)
not
to occur or continue, or (iii) the present and future obligations (for the
avoidance of doubt, not limited to payment obligations) of which entity to
Party
B under this Agreement are guaranteed pursuant to an Eligible Guarantee provided
by an Eligible Guarantor.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as the
counterparty to this Agreement or enter a Replacement Transaction that will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Moody’s Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold”means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Rating Threshold.
“Moody’s
Second Trigger Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer”means
a
transfer by novation by Party A to a transferee (the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with
respect to which transfer each of the following conditions is
satisfied:
(a) the
Transferee is an Eligible Replacement that 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), (b) as of the date of such transfer, the
Transferee would not be required to withhold or deduct on account of Tax
from
any payments under this Agreement or would be required to gross up for such
Tax
under Section 2(d)(i)(4), (c) an Event of Default or Termination Event would
not
occur as a result of such transfer, (d) Party B has consented in writing
to the
transfer, such consent not to be unreasonably withheld, (e) the transfer
would
not give rise to a taxable event or any other adverse Tax consequences to
Party
B or its interest holders, as determined by Party B in its sole discretion,
(f)
pursuant to a written instrument (the “Transfer Agreement”), the Transferee
acquires and assumes all rights and obligations of Party A under the Agreement
and the relevant Transaction, (g) Party B shall have determined, in its sole
discretion, acting in a commercially reasonable manner, that such Transfer
Agreement is effective to transfer to the Transferee all, but not less than
all,
of Party A’s rights and obligations under the Agreement and all relevant
Transactions; (h) Party A will be responsible for any costs or expenses incurred
in connection with such transfer (including any replacement cost of entering
into a replacement transaction); (i) either (A) Moody’s has been given prior
written notice of such transfer and the Rating Agency Condition is satisfied
with respect to S&P or (B) each Cap Rating Agency has been given prior
written notice of such transfer and such transfer is in connection with the
assignment and assumption of this Agreement without modification of its terms,
other than party names, dates relevant to the effective date of such transfer,
tax representations (provided that the representations in Part 2(a)(i) are
not
modified) and any other representations regarding the status of the substitute
counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2) or Part
5(v)(ii), notice information and account details; and (j) such transfer
otherwise complies with the terms of the Pooling and Servicing Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Cap Rating Agency specified in connection with such proposed act or
omission, that the party acting or failing to act must consult with each
of the
specified Cap Rating Agencies and receive from each such Cap Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes.
“Relevant
Entity”means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
shall
have the meaning assigned thereto in Part 5(d).
“Required
Ratings Threshold”means
each of the S&P Required Ratings Threshold and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The McGraw-Hill Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
S&P of “BBB+”.
[Remainder
of this page intentionally left blank.]
4. Account
Details and Settlement Information:
Payments
to Party A:
HSBC
Bank USA, National Association
ABA
# 021-001-088
For
credit to Department 299
A/C:
000-04929-8
HSBC
Derivative Products Group
Payments
to Party B:
ABA 021001033
ABA
name Deutsche Bank
Trust Company - Americas
Bene
Acct. 014-19-663
Bene
Acct. Name NYLTD Funds
Control - Stars West
Ref:
First Franklin 2006-FF16 (GC06ZA) Cap
payment
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.
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,
HSBC
BANK
USA, NATIONAL ASSOCIATION
By:
Name:
Title:
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts and
confirms the terms of the foregoing as of the date hereof.
Deutsche
Bank National Trust Company, not individually but solely in its capacity
as Cap
Trustee on behalf of the Cap Trust with respect to the First Franklin Mortgage
Loan Trust 2006-FF16, Asset-Backed Certificates, Series 2006-FF16
By:
Name:
Title:
SCHEDULE
I
(all
such
dates subject to No Adjustment with respect to Fixed Rate Payer Period End
Dates
and adjustment in accordance with the Following Business Day Convention with
respect to Floating Rate Payer Period End Dates)
HSBC
Bank
USA, National Association (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Deutsche
Bank National Trust Company, not individually but solely in its capacity
as Cap
Trustee on behalf of the Cap Trust with respect to the First Franklin Mortgage
Loan Trust 2006-FF16, Asset-Backed Certificates, Series 2006-FF16
(hereinafter
referred to as “Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may
be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated November 30, 2006 between
Party
A and Party B, Reference Number 412202HN/412203HN.
Paragraph
13. Elections and Variables.
(a)
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
(b)
Credit
Support Obligations.
(i)
Delivery
Amount, Return Amount and Credit Support
Amount.
(A)
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I) by deleting
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
(1)
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
(2)
the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party,
and
(3)
the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party.
(B)
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
of
(1)
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b) the
S&P
Credit Support Amount for such Valuation Date,
(2)
the
amount by which (a) the Moody’s First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s First Trigger Credit Support Amount for such Valuation Date,
and
(3)
the
amount by which (a) the Moody’s Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s Second Trigger Credit Support Amount for such Valuation
Date.
(C)
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the S&P
Credit Support Amount, the Moody’s First Trigger Credit Support Amount, or
the Moody’s Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
(ii)
Eligible
Collateral.
On
any
date, the following items will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
Collateral
S&P
Valuation
Percentage
Moody’s
First
Trigger Valuation
Percentage
Moody’s
Second
Trigger Valuation
Percentage
(A) Cash
100%
100%
100%
(B) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
98.5%
100%
100%
(C) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not
more than
ten years
89.9%
100%
94%
(D) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
83.9%
100%
87%
(iii)
Other
Eligible Support.
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
(iv)
Threshold.
(A)
“Independent
Amount”
means zero with respect to Party A and Party
B.
(B)
“Threshold”
means, with respect to Party A and any Valuation Date, zero if
(i) a
Collateral Event has occurred and has been continuing (x) for at
least 30
days or (y) since this Annex was executed, or (ii) a S&P Required
Ratings Downgrade Event has occurred and is continuing; otherwise,
infinity.
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
(C)
“Minimum
Transfer Amount”means
USD 100,000 with respect to Party A and Party B; provided, however,
that
if the aggregate Certificate Principal Balance of Certificates
rated by
S&P ceases to be more than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
(D)
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 1,000.
(c)
Valuation
and Timing.
(i)
“Valuation
Agent”
means Party A; provided, however, that if an Event of Default shall
have
occurred with respect to which Party A is the Defaulting Party,
Party B
shall have the right to designate as Valuation Agent an independent
party,
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A. All calculations by the Valuation Agent must be made in
accordance with standard market practice, including, in the event
of a
dispute as to the Value of any Eligible Credit Support or Posted
Credit
Support, by making reference to quotations received by the Valuation
Agent
from one or more Pricing Sources.
(ii)
“Valuation
Date”means
each Local Business Day on which any of the S&P Credit Support Amount,
the Moody’s First Trigger Credit Support Amount or the Moody’s Second
Trigger Credit Support Amount is greater than
zero.
(iii)
“Valuation
Time”means
the close of business in the city of the Valuation Agent on the
Local
Business Day immediately preceding the Valuation Date or date of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv)
“Notification
Time”means
11:00 a.m., New York time, on a Local Business Day.
(v)
External
Verification.
Notwithstanding anything to the contrary in the definitions of
Valuation
Agent or Valuation Date, at any time at which Party A (or, to the
extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value of Posted Credit Suppport on each Valuation Date based
on internal marks and (B) verify such calculations with external
marks
monthly by obtaining on the last Local Business Day of each calendar
month
two external marks for each Transaction to which this Annex relates
and
for all Posted Credit Suport; such verification of the Secured
Party’s
Exposure shall be based on the higher of the two external marks.
Each
external mark in respect of a Transaction shall be obtained from
an
independent Reference Market-maker that would be eligible and willing
to
enter into such Transaction in the absence of the current derivative
provider, provided that an external mark may not be obtained from
the same
Reference Market-maker more than four times in any 12-month period.
The
Valuation Agent shall obtain these external marks directly or through
an
independent third party, in either case at no cost to Party B.
The
Valuation Agent shall calculate on each Valuation Date (for purposes
of
this paragraph, the last Local Business Day in each calendar month
referred to above shall be considered a Valuation Date) the Secured
Party’s Exposure based on the greater of the Valuation Agent’s internal
marks and the external marks received. If the S&P Value on any such
Valuation Date of all Posted Credit Support then held by the Secured
Party
is less than the S&P Credit Support Amount on such Valuation Date (in
each case as determined pursuant to this paragraph), Party A shall,
within
three Local Business Days of such Valuation Date, Transfer to the
Secured
Party Eligible Credit Support having an S&P Value as of the date of
Transfer at least equal to such deficiency.
(vi)
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its Credit
Support Provider) does not have a long-term unsubordinated and
unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations of
the Secured
Party’s Exposure and the S&P Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation Agent
shall
also provide to S&P any external marks received pursuant to the
preceding paragraph.
(d)
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party if
the
Termination Event occurs with respect to that party): With respect
to
Party A: any Additional Termination Event with respect to which
Party A is
the sole Affected Party. With respect to Party B:
None.
(e)
Substitution.
(i)
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
(ii)
Consent.
If
specified here as applicable, then the Pledgor must obtain the
Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
(f)
Dispute
Resolution.
(i)
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
(ii)
Value.
Notwithstanding anything to the contrary in Paragraph 12, for the
purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Moody’s First Trigger
Value, and Moody’s Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1)(x) the bid price at the Valuation Time for
such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the bid price for such securities quoted at the Valuation
Time by any principal market maker for such securities selected by the Valuation
Agent, or (z) if no such bid price is listed or quoted for such date, the
bid
price listed or quoted (as the case may be) at the Valuation Time for the
day
next preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and (B) the
accrued interest on such securities (except to the extent Transferred to
the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable price
referred to in the immediately preceding clause (A)) as of such
date.
(iii)
Alternative.
The provisions of Paragraph 5 will
apply.
(g)
Holding
and Using Posted
Collateral.
(i)
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or any Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b).
Party
B
may appoint as Custodian (A) the entity then serving as [Trustee] or (B)
any
entity other than the entity then serving as [Trustee] if such other entity
(or,
to the extent applicable, its parent company or credit support provider)
shall
then have a short-term unsecured and unsubordinated debt rating from S&P of
at least “A-1.”
Initially,
the Custodian
for
Party B is: Not applicable.
(ii)
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B, but
the
provisions of Paragraph 6(c)(ii) will apply to Party B.
(h)
Distributions
and Interest Amount.
(i)
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral in
the form
of Cash that is held by Party B or its
Custodian.
(ii)
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on any
other
Local Business Day on which Posted Collateral in the form of Cash
is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and received
such
funds and such funds are available to Party B.
(iii)
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
(i)
Additional
Representation(s).
There are no additional representations by either
party.
(j)
Other
Eligible Support and Other Posted Support.
(i)
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
(ii)
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
(k)
Demands
and Notices.All
demands, specifications and notices under this Annex will be made
pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may from
time to
time designate by giving notice (in accordance with the terms of
this
paragraph) to the other party:
If
to
Party A, [at the address specified pursuant to the Notices Section of this
Agreement].
If
to
Party B, [at the address specified pursuant to the Notices Section of this
Agreement].
If
to
Party B’s Custodian: [
]
(l)
Address
for Transfers.
Each Transfer hereunder shall be made to the address [specified
below or
to an address] specified in writing from time to time by the party
to
which such Transfer will be made.
[Party
A
account details]
[Party
B
account details]
[Party
B’s Custodian account details]
(m)
Other
Provisions.
(i)
Collateral
Account.
Party B shall open and maintain a segregated account, which shall
be an
[Eligible Account], and hold, record and identify all Posted Collateral
in
such segregated account.
(ii)
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in Paragraph
2,
the acknowledgement in the final sentence of Paragraph 8(a) and
the
representations in Paragraph 9.
(iii)
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Moody’s First Trigger Value,
Moody’s Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting the
word
“Value” and inserting in lieu thereof “S&P Value, Moody’s First
Trigger Value, or Moody’s Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Moody’s First Trigger Value, and Moody’s
Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, Moody’s First Trigger Value, or Moody’s Second Trigger
Value, as may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, Moody’s First Trigger Value, or Moody’s
Second Trigger Value” and (2) deleting the second instance of the words
“the Value” and inserting in lieu thereof “such disputed S&P Value,
Moody’s First Trigger Value, or Moody’s Second Trigger Value”. Each of
Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended by
deleting
the word “Value” and inserting in lieu thereof “least of the S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value”.
(iv)
Form
of Annex.Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form of
ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New
York Law
Only version) as published and copyrighted in 1994 by the International
Swaps and Derivatives Association,
Inc.
(v)
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default to exist
with
respect to Party B except that Paragraph 7(i) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in Paragraph
7,
any failure by Party A to comply with or perform any obligation
to be
complied with or performed by Party A under the Credit Support
Annex shall
only be an Event of Default if (A) either
(i) a Moody’s Required Ratings Downgrade Event has occurred and been
continuing for 30 or more Local Business Days, or (ii) a S&P Required
Ratings Downgrade Event has occurred and been continuing for 30
or more
Local Business Days, and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
(vi)
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the Pledgor
will
be responsible for, and will reimburse the Secured Party for, all
transfer
and other taxes and other costs involved in any Transfer of Eligible
Collateral.
(vii)
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately after
“the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
(viii)
Notice
of Failure to Post Collateral. Upon
any failure by Party A to post collateral as required under this
Agreement, Party B shall, no later than the next Business Day after
the
date such collateral was required to be posted, give a written
notice of
such failure to Party A and to Depositor. For the avoidance of
doubt,
notwithstanding anything in this Agreement to the contrary, the
failure of
Party B to comply with the requirements of this paragraph shall
not
constitute an Event of Default or Termination Event.
(ix)Additional
Definitions.
As used
in this Annex:
“Collateral
Event”means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means:
any day on which (A) commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in New York and the location
of Party A, Party B and any Custodian, and (B) in relation to a Transfer
of
Eligible Collateral, any day on which the clearance system agreed between
the
parties for the delivery of Eligible Collateral is open for acceptance and
execution of settlement instructions (or in the case of a Transfer of Cash
or
other Eligible Collateral for which delivery is contemplated by other means
a
day on which commercial banks are open for business (including dealings in
foreign exchange and foreign deposits) in New York and the location of Party
A,
Party B and any Custodian.
“Moody’s
First Trigger Event”means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s First Trigger Ratings Threshold.
“Moody’s
First Trigger Credit Support Amount”means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which (I) a Moody’s First Trigger Event has occurred
and has been continuing (x) for at least 30 Local Business Days
or (y)
since this Annex was executed and (II) it is not the case that
a Moody’s
Second Trigger Event has occurred and been continuing for at least
30
Local Business Days, an amount equal to the greater of (a) zero
and (b)
the sum of (i) the Secured Party’s Exposure for such Valuation Date and
(ii) the sum, for each Transaction to which this Annex relates,
of the
product of the applicable Moody’s First Trigger Factor set forth in Table
1 and the Notional Amount for such Transaction for the Calculation
Period
which includes such Valuation Date; or
(B)
for
any other Valuation Date, zero,
over
(II) the
Threshold for Party A such Valuation Date.
“Moody’s
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Moody’s First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Moody’s
Second Trigger Event”means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which it is the case that a Moody’s Second Trigger
Event has occurred and been continuing for at least 30 Local Business
Days, an amount equal to the greatest of (a) zero, (b) the aggregate
amount of the next payment due to be paid by Party A under each
Transaction to which this Annex relates, and (c) the sum of (x)
the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates, of
(1)
if
such Transaction is not a Transaction-Specific Hedge, the product of the
applicable Moody’s Second Trigger Factor set forth in Table 2 and the Notional
Amount for such Transaction for the Calculation Period which includes such
Valuation Date;
or
(2)
the
product of the applicable Moody’s Second Trigger Factor set forth in Table 3 and
the Notional Amount for such Transaction for the Calculation Period which
includes such Valuation Date; or
(B)
for
any other Valuation Date, zero,
over
(II) the
Threshold for Party A for such Valuation Date.
“Moody’s
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Moody’s Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Pricing
Sources”
means
the sources of financial information commonly known as Bloomberg, Bridge
Information Services, Data Resources Inc., Interactive Data Services,
International Securities Market Association, Merrill Lynch Securities Pricing
Service, Muller Data Corporation, Reuters, Wood Gundy, Trepp Pricing, JJ
Kenny,
S&P and Telerate.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which (i) an S&P Rating Threshold Event has
occurred and been continuing for at least 30 days, or (ii) a S&P
Required Ratings Downgrade Event has occurred and is continuing,
an amount
equal to the sum of (1) 100.0% of the Secured Party’s Exposure for such
Valuation Date and (2) for each Transaction to which this Annex
relates,
of the product of the Volatility Buffer for such Transaction and
the
Notional Amount of such Transaction for the Calculation Period
of such
Transaction which includes such Valuation Date, or
(B)
for
any other Valuation Date, zero,
over
(II) the
Threshold for Party A for such Valuation Date.
“S&P
Rating Threshold Event”
means,
on any date, no Relevant Entity has credit ratings from S&P which equal or
exceed the S&P Approved Ratings Threshold.
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were the
only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge”means
any
Transaction that is an interest rate cap, interest rate floor or interest
rate
swaption, or an interest rate swap if (x) the notional amount of the interest
rate swap is “balance guaranteed” or (y) the notional amount of the interest
rate swap for any Calculation Period otherwise is not a specific dollar amount
that is fixed at the inception of the Transaction.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Moody’s First Trigger
Value, or Moody’s Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Moody’s First
Trigger Valuation Percentage, or Moody’s Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each case
as set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Moody’s
First Trigger Value, and the related Moody’s Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following table.
The
higher of the S&P short-term credit rating of (i) Party A and (ii) the
Credit Support Provider of Party A, if applicable
Remaining
Weighted Average Maturity
up
to 3 years
Remaining
Weighted Average Maturity
up
to 5 years
Remaining
Weighted Average Maturity
up
to 10 years
Remaining
Weighted Average Maturity
up
to 30 years
At
least “A-2”
2.75%
3.25%
4.00%
4.75%
“A-3”
3.25%
4.00%
5.00%
6.25%
“BB+”
or
lower
3.50%
4.50%
6.75%
7.50%
[Remainder
of this page intentionally left blank]
Table
1
Moody’s
First Trigger Factor
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.15%
More
than 1 but not more than 2
0.30%
More
than 2 but not more than 3
0.40%
More
than 3 but not more than 4
0.60%
More
than 4 but not more than 5
0.70%
More
than 5 but not more than 6
0.80%
More
than 6 but not more than 7
1.00%
More
than 7 but not more than 8
1.10%
More
than 8 but not more than 9
1.20%
More
than 9 but not more than 10
1.30%
More
than 10 but not more than 11
1.40%
More
than 11 but not more than 12
1.50%
More
than 12 but not more than 13
1.60%
More
than 13 but not more than 14
1.70%
More
than 14 but not more than 15
1.80%
More
than 15 but not more than 16
1.90%
More
than 16 but not more than 17
2.00%
More
than 17 but not more than 18
2.00%
More
than 18 but not more than 19
2.00%
More
than 19 but not more than 20
2.00%
More
than 20 but not more than 21
2.00%
More
than 21 but not more than 22
2.00%
More
than 22 but not more than 23
2.00%
More
than 23 but not more than 24
2.00%
More
than 24 but not more than 25
2.00%
More
than 25 but not more than 26
2.00%
More
than 26 but not more than 27
2.00%
More
than 27 but not more than 28
2.00%
More
than 28 but not more than 29
2.00%
More
than 29
2.00%
Table
2
Moody’s
Second Trigger Factor for Interest Rate Swaps with Fixed Notional
Amounts
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.50%
More
than 1 but not more than 2
1.00%
More
than 2 but not more than 3
1.50%
More
than 3 but not more than 4
1.90%
More
than 4 but not more than 5
2.40%
More
than 5 but not more than 6
2.80%
More
than 6 but not more than 7
3.20%
More
than 7 but not more than 8
3.60%
More
than 8 but not more than 9
4.00%
More
than 9 but not more than 10
4.40%
More
than 10 but not more than 11
4.70%
More
than 11 but not more than 12
5.00%
More
than 12 but not more than 13
5.40%
More
than 13 but not more than 14
5.70%
More
than 14 but not more than 15
6.00%
More
than 15 but not more than 16
6.30%
More
than 16 but not more than 17
6.60%
More
than 17 but not more than 18
6.90%
More
than 18 but not more than 19
7.20%
More
than 19 but not more than 20
7.50%
More
than 20 but not more than 21
7.80%
More
than 21 but not more than 22
8.00%
More
than 22 but not more than 23
8.00%
More
than 23 but not more than 24
8.00%
More
than 24 but not more than 25
8.00%
More
than 25 but not more than 26
8.00%
More
than 26 but not more than 27
8.00%
More
than 27 but not more than 28
8.00%
More
than 28 but not more than 29
8.00%
More
than 29
8.00%
Table
3
Moody’s
Second Trigger Factor for Transaction-Specific Hedges
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.65%
More
than 1 but not more than 2
1.30%
More
than 2 but not more than 3
1.90%
More
than 3 but not more than 4
2.50%
More
than 4 but not more than 5
3.10%
More
than 5 but not more than 6
3.60%
More
than 6 but not more than 7
4.20%
More
than 7 but not more than 8
4.70%
More
than 8 but not more than 9
5.20%
More
than 9 but not more than 10
5.70%
More
than 10 but not more than 11
6.10%
More
than 11 but not more than 12
6.50%
More
than 12 but not more than 13
7.00%
More
than 13 but not more than 14
7.40%
More
than 14 but not more than 15
7.80%
More
than 15 but not more than 16
8.20%
More
than 16 but not more than 17
8.60%
More
than 17 but not more than 18
9.00%
More
than 18 but not more than 19
9.40%
More
than 19 but not more than 20
9.70%
More
than 20 but not more than 21
10.00%
More
than 21 but not more than 22
10.00%
More
than 22 but not more than 23
10.00%
More
than 23 but not more than 24
10.00%
More
than 24 but not more than 25
10.00%
More
than 25 but not more than 26
10.00%
More
than 26 but not more than 27
10.00%
More
than 27 but not more than 28
10.00%
More
than 28 but not more than 29
10.00%
More
than 29
10.00%
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
HSBC
Bank USA, National Association
Deutsche
Bank National Trust Company, not individually but solely in its
capacity
as Cap Trustee on behalf of the Cap Trust with respect to the First
Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates,
Series
2006-FF16
By: ____________________________________
Name
Title:
Date:
By:
______________________________________
Name:
Title:
Date:
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
______________.
Deutsche
Bank National Trust Company, not individually but solely in its
capacity
as Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest Trust with respect to the First Franklin Mortgage Loan
Trust
2006-FF16, Asset-Backed Certificates, Series 2006-FF16
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
HSBC Bank USA, National Association (“Party
A”)and
Deutsche Bank National Trust Company, not individually, but solely as
supplemental interest trust trustee (the “Supplemental Interest Trust Trustee”)
on behalf of the supplemental interest trust with respect to the First
Franklin Mortgage Loan Trust 2006 FF16 (the
“Supplemental Interest Trust”) (“Party
B”)
created
under the Pooling and Servicing Agreement, dated as of November 1, 2006,
among
Financial Asset Securities Corp., as Depositor, National City Home Loan
Services, Inc., as Servicer and Deutsche Bank National Trust Company, as
Trustee(the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and us
to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit Support
Annex to the Schedule.
1.
This
Confirmation shall supplement, form a part of, and be subject
to an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such
form on the
date hereof, with a Schedule as set forth in Item 3 of this
Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted
in 1994 by the
International Swaps and Derivatives Association, Inc., with
Paragraph 13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein
shall be the
sole Transaction governed by such ISDA Master Agreement. In
the event of
any inconsistency among any of the following documents, the
relevant
document first listed shall govern: (i) this Confirmation,
exclusive of
the provisions set forth in Item 3 hereof and Annex A hereto;
(ii) the
provisions set forth in Item 3 hereof, which are incorporated
by reference
into the Schedule; (iii) the Credit Support Annex; (iv) the
Definitions;
and (v) the ISDA Master
Agreement.
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section”“of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
2.
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
Type
of Transaction:
Interest
Rate Swap
Notional
Amount:
With
respect to any Calculation Period, the amount set forth for such
period on
Schedule I attached hereto.
November25, 2011, subject to adjustment in accordance with the Business
Day
Convention; provided, however, that for the purpose of determining
the
final Fixed Rate Payer Period End Date, Termination Date shall
be subject
to No Adjustment.
Fixed
Amounts:
Fixed
Rate Payer:
Party
B
Fixed
Rate Payer
Period
End Dates:
The
25th
calendar day of each month during the Term of this Transaction,
commencing
September 25, 2007, and ending on the Termination Date, with
No
Adjustment.
Early
Payment - One Business Day preceding the 25th
calendar day of each month during the Term of this Transaction,
commencing
September 25, 2007, and ending on the Termination Date,
subject to adjustment in accordance with the Business Day
Convention.
Fixed
Rate:
5.200%
Fixed
Amount:
To
be determined in accordance with the following formula:
250*Fixed
Rate*Notional Amount*Fixed Rate Day Count Fraction
Fixed
Rate Day
Count
Fraction:
30/360
Floating
Amounts:
Floating
Rate Payer:
Party
A
Floating
Rate Payer
Period
End Dates:
The
25th
calendar day of each month during the Term of this Transaction,
commencing
September 25, 2007, and ending on the Termination Date, subject
to
adjustment in accordance with the Business Day
Convention.
Floating
Rate Payer
Payment
Dates:
Early
Payment - One Business Day preceding the 25th
calendar day of each month during the Term of this Transaction,
commencing
September 25, 2007, and ending on the Termination Date, subject
to
adjustment in accordance with the Business Day
Convention.
Floating
Rate Option:
USD-LIBOR-BBA
Floating
Amount:
To
be determined in accordance with the following formula:
250*Floating
Rate Option*Notional Amount*Floating Rate Day Count
Fraction
Designated
Maturity:
One
month
Floating
Rate Day
Count
Fraction:
Actual/360
Reset
Dates:
The
first day of each Calculation Period.
Compounding:
Inapplicable
Business
Days:
New
York
Business
Day Convention:
Following
Calculation
Agent:
Party
A
Additional
Payments:
Party
A agrees to pay USD 3,621,000.00
to
the Master Servicer in accordance with the payment instructions
set forth
in Section 4 for value November 30, 2006, subject to adjustment
in
accordance with the Following Business Day
Convention
3.
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
Part
1.
Termination
Provisions.
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
(b)
“Specified
Transaction”
will have the meaning specified in Section
14.
(c)
Events
of Default.
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
(i)
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will apply
to
Party B; provided, however, that Section 5(a)(i) is hereby amended
by
replacing the word “third” with the word “first”; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i), any
failure
by Party A to comply with or perform any obligation to be complied
with or
performed by Party A under the Credit Support Annex shall not constitute
an Event of Default under Section 5(a)(i) unless (A) a Required
Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local
Business Days, and (B) such failure is not remedied on or before
the third
Local Business Day after notice of such failure is given to Party
A.
(ii)
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will not
apply to
Party B.
(iii)
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to comply
with or
perform any obligation to be complied with or performed by Party
A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business Days,
and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
(iv)
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will not
apply to
Party B.
(v)
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will not
apply to
Party B.
(vi)
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will not
apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
“Specified
Indebtedness” will have the meaning specified in Section 14 , except that such
term shall not include obligations in respect of deposits received in the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the Shareholders’ Equity of Party A (as set forth in Party A’s Call Report) or,
if applicable, the Eligible Guarantor.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in the
most recent annual audited financial statements of such entity) of (i) its
capital stock (including preferred stock) outstanding, taken at par value,
(ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury
stock,
each to be determined in accordance with generally accepted accounting
principles.
(vii)
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented by
Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
(viii)
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
apply to
Party B.
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6
of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
(ii)
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
(iii)
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
(iv)
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and will
not
apply to Party B.
(e)
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will not
apply to
Party B.
(f) Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
(i)
Market
Quotation will apply, provided, however, that, in the event of
a
Derivative Provider Trigger Event, the following provisions will
apply:
(A)
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
“Market
Quotation”means,
with respect to one or more Terminated Transactions, a Firm Offer which is
(1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be
included.
(B)
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by Party
B)
equal to:
(a)
If
a Market Quotation for the relevant Terminated Transaction or group
of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days after
the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case no
later
than one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
(b)
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding and
one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon acceptance,
the Settlement Amount shall equal the Termination Currency Equivalent
of
the amount (whether positive or negative) of the lowest of such
Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
(c)
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal Party
B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
(C)
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
(D)
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect of
the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided, however, that (x) the amounts payable under the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding any
other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
(E)
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party B shall
be
entitled to accept only the lowest of such Market Quotations (for
the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed as
a positive
number or, if any of such Market Quotations is expressed as a negative
number, the Market Quotation expressed as a negative number with
the
largest absolute value).
(ii)
The
Second Method will apply.
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
(i)
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the
accuracy and effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance
is
placed on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(B)
Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
is a national banking association organized under the federal laws of the
United
States and its U.S. taxpayer identification number is 20-1177241.
(B)
Party
B
makes the following representation(s):
None.
(b)
Tax
Provisions.
(i)
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party B
shall not
be required to pay any additional amounts referred to
therein.
(ii)
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a) For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
Party
required to deliver document
Form/Document/
Certificate
Date
by which to
be
delivered
Party
A
A
correct, complete and duly executed U.S. Internal Revenue Service
Form W-9
or other applicable form (or successor thereto), together with
appropriate
attachments, that eliminates U.S. federal withholding and backup
withholding Tax on payments to Party A under this
Agreement.
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party B, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
Party
B
Party
B will deliver at closing a U.S. Internal Revenue Service Form
W-9 or
other applicable form (or successor thereto) relating to the beneficial
owner of payments to Party B under this Agreement, together with
appropriate attachments, and may deliver other tax forms relating
to the beneficial owner of payments to Party B under this
Agreement
from time to time.
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party A, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
(b) For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
Party
required to deliver document
Form/Document/
Certificate
Date
by which to
be
delivered
Covered
by Section 3(d) Representation
Party
A and
Party
B
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it
to execute
and deliver the Agreement, this Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support Document,
as
the case may be
Upon
the execution and delivery of this Agreement
Yes
Party
A and
Party
B
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, this Confirmation, and any relevant Credit Support Document,
as
the case may be
Upon
the execution and delivery of this Agreement
Yes
Party
A
Annual
Financial Statements as set forth in Party A’s Call Report containing
consolidated financial statements certified by independent certified
public accountants and prepared in accordance with generally accepted
accounting principles in the country in which Party A is
organized
Promptly
upon request made by Party B
Yes
Party
A
Quarterly
Financial Statements as set forth in Party A’s Call Report containing
unaudited, consolidated financial statements of Party A’s fiscal quarter
prepared in accordance with generally accepted accounting principles
in
the country in which Party A is organized
Promptly
upon request made by Party B
Yes
Party
A
An
opinion of counsel to Party A satisfactory in form and substance
to Party
B
Upon
the execution and delivery of this Agreement
No
Part
4. Miscellaneous.
(a)
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
(c)
Offices.
The provisions of Section 10(a) will apply to this Agreement; neither
Party A nor Party B has any Offices other than as set forth in
the Notices
Section and Party A agrees that, for purposes of Section 6(b) of
this
Agreement, it shall not in the future have any Office other than
one in
the United States.
(d)
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
Party
A
is not a Multibranch Party.
Party
B is not a Multibranch Party.
(e)
Calculation
Agent.
The Calculation Agent is Party A; provided, however, that if an
Event of
Default shall have occurred with respect to Party A, Party B shall
have
the right to appoint as Calculation Agent a third party, reasonably
acceptable to Party A, the cost for which shall be borne by Party
A.
(f)
Credit
Support Document.
Party
A:
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
Party
B: The
Credit Support Annex, solely in respect of Party B’s obligations under Paragraph
3(b) of the Credit Support Annex.
(g)
Credit
Support Provider.
Party
A: The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B: None.
(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
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
(i)
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will apply
to
each Transaction hereunder.
(j)
Affiliate.“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party A and Party B shall be deemed to have no Affiliates
for
purposes of this Agreement, including for purposes of Section
6(b)(ii).
Part
5. Others
Provisions.
(a)
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions as
published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a “Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
(b)
Amendments
to ISDA Master Agreement.
(i)
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
(ii)
Conditions
Precedent. Section
2(a)(iii) is hereby amended by adding the following at the end thereof:
Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default
with
respect to Party B or Potential Event of Default with respect to Party B
has
occurred and been continuing for more than 30 Local Business Days and no
Early
Termination Date in respect of the Affected Transactions has occurred or
been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth in
Section 2(a)(iii)(1) with respect to such specific occurrence of such Event
of
Default or such Potential Event of Default (the “Specific
Event”);
provided, however, for the avoidance of doubt, the obligations of Party A
under
Section 2(a)(i) shall be subject to the condition precedent set forth in
Section
2(a)(iii)(1) (subject to the foregoing) with respect to any subsequent
occurrence of the same Event of Default with respect to Party B or Potential
Event of Default with respect to Party B after the Specific Event has ceased
to
be continuing and with respect to any occurrence of any other Event of Default
with respect to Party B or Potential Event of Default with respect to Party
B
that occurs subsequent to the Specific Event.
(iii)
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
“to
another account in the same legal and tax jurisdiction as the original
account”.
(iv)
Representations.
Section 3 is hereby amended by adding at the end thereof the following
subsection (g):
“(g)
Relationship
Between Parties.
(1)
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party.
(2)
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and has
made its
own decision subject to Section 6(n) of this Agreement to enter
into the
Transaction and (ii) It understands the terms, conditions and risks
of the
Transaction and is willing and able to accept those terms and conditions
and to assume those risks, financially and otherwise.
(3)
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
(4)
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
(5)
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R. 35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
(v)
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words “or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
(vi)
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
(vii)
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby amended
by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
(c)
Additional
Termination Events.
The following Additional Termination Events will
apply:
(i)
First
Rating Trigger Collateral.
If
(A) it is not the case that a Moody’s Second Trigger Ratings Event has
occurred and been continuing for 30 or more Local Business Days
and (B)
Party
A has failed to comply with or perform any obligation to be complied
with
or performed by Party A in accordance with the Credit Support
Annex, then
an Additional Termination Event shall have occurred with respect
to Party
A and Party A shall be the sole Affected Party with respect to
such
Additional Termination Event.
(ii)
Second
Rating Trigger Replacement.
If
(A) a Required Ratings Downgrade Event has occurred and been
continuing
for 30 or more Local Business Days and (B) (i) at least one
Eligible
Replacement has made a Firm Offer to be the transferee of all
of Party A’s
rights and obligations under this Agreement (and such Firm
Offer remains
an offer that will become legally binding upon such Eligible
Replacement
upon acceptance by the offeree) and/or (ii) an Eligible Guarantor
has made
a Firm Offer to provide an Eligible Guarantee (and such Firm
Offer remains
an offer that will become legally binding upon such Eligible
Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party
A and Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
(iii)
Amendment
of Pooling and Servicing Agreement.
If, without the prior written consent of Party A where such consent
is
required under the Pooling and Servicing Agreement (such consent
not to be
unreasonably withheld), an amendment is made to the Pooling and
Servicing
Agreement which amendment could reasonably be expected to have
a material
adverse effect on the interests of Party A (excluding, for the
avoidance
of doubt, any amendment to the Pooling and Servicing Agreement
that is
entered into solely for the purpose of appointing a successor servicer,
master servicer, securities administrator, trustee or other service
provider) under this Agreement, an Additional Termination Event
shall have
occurred with respect to Party B and Party B shall be the sole
Affected
Party with respect to such Additional Termination Event.
(iv)
Regulation
AB.
If, upon the occurrence of a Swap Disclosure Event (as defined
in Part
5(e) below) Party A has not, within five (5) 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 Part 5(e)(iii) below, then an Additional Termination Event
shall
have occurred with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
(v)
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to
Certificateholders of an Optional Termination becoming unrescindable
in
accordance with Article X of the Pooling and Servicing Agreement
(such
notice, the “Optional
Termination Notice”).
With respect to such Additional Termination Event: (A) Party B
shall be
the sole Affected Party; (B) notwithstanding anything to the contrary
in
Section 6(b)(iv) or Section 6(c)(i), the final Distribution Date
specified
in the Optional Termination Notice is hereby designated as the
Early
Termination Date for this Additional Termination Event in respect
of all
Affected Transactions; (C) Section 2(a)(iii)(2) shall not be applicable
to
any Affected Transaction in
connection with the Early Termination Date resulting from this
Additional
Termination Event; notwithstanding anything to the contrary in
Section
6(c)(ii), payments and deliveries under Section 2(a)(i) or Section
2(e) in
respect of the Terminated Transactions resulting from this Additional
Termination Event will be required to be made through and including
the
Early Termination Date designated
as a result of this Additional Termination Event; provided, for
the
avoidance of doubt, that any such payments or deliveries that are
made on
or prior to such Early Termination Date will not be treated as
Unpaid
Amounts in determining the amount payable in respect of such Early
Termination Date; (D) notwithstanding anything to the contrary
in Section
6(d)(i), (I) if, no later than 4:00 pm New York City time on the
day that
is four Business Days prior to the final Distribution Date specified
in
the Optional Termination Notice, the [Securities Administrator]
requests
the amount of the Estimated Swap Termination Payment, Party A shall
provide to the [Securities Administrator] in writing (which may
be done in
electronic format) the amount of the Estimated Swap Termination
Payment no
later than 2:00 pm New York City time on the following Business
Day and
(II) if the [Securities Administrator] provides written notice
(which may
be done in electronic format) to Party A no later than two Business
Days
prior to the final Distribution Date specified in the Optional
Termination
Notice that all requirements of the Optional Termination have been
met,
then Party A shall, no later than one Business Day prior to the
final
Distribution Date specified in the Optional Termination Notice,
make the
calculations contemplated by Section 6(e) of the ISDA Master Agreement
(as
amended herein) and provide to the [Securities Administrator] in
writing
(which may be done in electronic format) the amount payable by
either
Party B or Party A in respect of the related Early Termination
Date in
connection with this Additional Termination Event; provided, however,
that
the amount payable by Party B, if any, in respect of the related
Early
Termination Date shall be the lesser of (x) the amount calculated
to be
due by Party B pursuant to Section 6(e) and (y) the Estimated Swap
Termination Payment; and (E) notwithstanding anything to the contrary
in
this Agreement, any amount due from Party B to Party A in respect
of this
Additional Termination Event will be payable on the final Distribution
Date specified in the Optional Termination Notice and any amount
due from
Party A to Party B in respect of this Additional Termination Event
will be
payable one Business Day prior to the final Distribution Date specified
in
the Optional Termination Notice.
The
[Securities Administrator] shall be an express third party beneficiary of
this
Agreement as if a party hereto to the extent of the [Securities Administrator]’s
rights specified herein.
(d)
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least equal
to the
Required Ratings Threshold (such event, a “Required
Ratings Downgrade Event”),
then Party A shall, as soon as reasonably practicable and so long
as a
Required Ratings Downgrade Event is in effect, at its own expense,
using
commercially reasonable efforts, procure either (A) a Permitted
Transfer
or (B) an Eligible Guarantee from an Eligible Guarantor.
(e)
Compliance
with Regulation AB.
(i) It
shall
be a swap disclosure event (“Swap Disclosure Event”) if, at any time after the
date hereof while the Depositor has reporting obligations with respect to
this
Transaction pursuant to Regulation AB, the Depositor or Greenwich Capital
Financial Products, Inc. (the “Sponsor”) notifies Party A that the aggregate
“significance percentage” (calculated in accordance with the provisions of Item
1115 of Regulation AB) of all derivative instruments provided by Party A
and any
of its affiliates to Party B (collectively, the “Aggregate Significance
Percentage”) is 10% or more.
(ii) Upon
the
occurrence of a Swap Disclosure Event while the Depositor has reporting
obligations with respect to this Transaction pursuant to Regulation AB, Party
A,
at its own cost and expense (and without any expense or liability to the
Depositor, the Sponsor, the Underwriters, the Depositor, the Trustee or the
Issuing Entity), 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%, either, at the sole discretion of Party
A,
the information required under Item 1115(b)(1) or Item 1115(b)(2) 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 the Approved Ratings Thresholds (and which satisfies the Rating Agency
Condition), that (x) provides the information specified in clause (a) above
to
the Depositor and Sponsor and (y) enters into documentation substantially
similar to the documentation then in place between Party A and Party
B
(iii)
For
so long as the Aggregate Significance Percentage is 10% or more the Depositor
has reporting obligations with respect to this Transaction, Party A shall
provide any updates to the information provided pursuant to clause (ii)(a)
above
to the Sponsor and the Depositor within five (5) Business Days following
the
availability thereof (but in no event more than 45 days after the end of
each of
Party A’s fiscal quarter for any quarterly update, and in no event more than 90
days after the end of Party A’s fiscal year for any annual update).
(iv) All
information provided pursuant to clause (ii) 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 (EDGAR).
The
parties hereto acknowledge that electronic files in Adobe Acrobat format
will be
deemed to satisfy the requirements of this Part 5(e)(iv). In addition, any
such
information, if audited, shall be accompanied by any necessary auditor’s
consents or, if such information is unaudited, shall be accompanied by an
appropriate agreed-upon procedures letter from Party A’s accountants. 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) Each
of
the Depositor and Sponsor shall be an express third party beneficiary of
this
Agreement as if a party hereto to the extent of Depositor’s and Sponsor’s rights
explicitly specified herein.
(f)
Transfers.
(i) Section
7
is hereby amended to read in its entirety as follows:
“Subject
to Section 6(b)(ii), Part 5(d), and Part 5(e), neither Party A nor Party
B is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or interests
under the Agreement or any Transaction without (a) the prior written consent
of
the other party and (b) satisfaction of the Rating Agency Condition with
respect
to S&P.”
(ii)
If
an Eligible Replacement has made a Firm Offer (which remains an
offer that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
(g)
Non-Recourse.
Party A acknowledges and agree that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from the
Supplemental Interest Trust and the proceeds thereof, in accordance
with
the priority of payments and other terms of the Pooling and Servicing
Agreement and that Party A will not have any recourse to any of
the
directors, officers, employees, shareholders or affiliates of the
Party B
with respect to any claims, losses, damages, liabilities, indemnities
or
other obligations in connection with any transactions contemplated
hereby.
In the event that the Supplemental Interest Trust and the proceeds
thereof, should be insufficient to satisfy all claims outstanding
and
following the realization of the account held by the Supplemental
Interest
Trust and the proceeds thereof, any claims against or obligations
of Party
B under the ISDA Master Agreement or any other confirmation thereunder
still outstanding shall be extinguished and thereafter not revive.
The
Supplemental Interest Trust Trustee shall not have liability for
any
failure or delay in making a payment hereunder to Party A due to
any
failure or delay in receiving amounts in the account held by the
Supplemental Interest Trust from the Trust created pursuant to
the Pooling
and Servicing Agreement. This provision will survive the termination
of
this Agreement.
(h)
Timing
ofPayments
by Party B upon Early Termination.
Notwithstanding anything to the contrary in Section 6(d)(ii), to
the
extent that all or a portion (in either case, the “Unfunded Amount”) of
any amount that is calculated as being due in respect of any Early
Termination Date under Section 6(e) from Party B to Party A will
be paid
by Party B from amounts other than any upfront payment paid to
Party B by
an Eligible Replacement that has entered a Replacement Transaction
with
Party B, then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would
have been
payable as determined in accordance with Section 6(d)(ii), and
on any
subsequent Distribution Dates until paid in full (or if such Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which
the
payment would have been payable as determined in accordance with
Section
6(d)(ii) is a Distribution Date, such payment will be payable on
such
Distribution Date.
(i)
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been given prior written notice of
such
designation or transfer.
(j)
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
(k)
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Swap Agencies
has
been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to S&P.
(l)
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving of
notice or
passage of time or both would constitute) an Event of Default or
Termination Event with respect to such party, promptly to give
the other
Party and to each Swap Rating Agency notice of such event or condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the
Supplemental Interest Trust, or the trust formed pursuant to the Pooling
and
Servicing Agreement, any bankruptcy, reorganization, arrangement, insolvency
or
liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of the
Certificates and any Notes. This provision will survive the termination of
this
Agreement.
(n)
Supplemental
Interest Trust Trustee Liability Limitations.
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed by Deutsche Bank National Trust Company (“Deutsche”)
not in its individual capacity, but solely as Supplemental Interest
Trust
Trustee under the Pooling and Servicing Agreement in the exercise
of the
powers and authority conferred and invested in it thereunder; (b)
Deutsche
has been directed pursuant to the Pooling and Servicing Agreement
to enter
into this Agreement and to perform its obligations hereunder; (c)
each of
the representations, undertakings and agreements herein made on
behalf of
the Supplemental Interest Trust is made and intended not as personal
representations of the Supplemental Interest Trust Trustee but
is made and
intended for the purpose of binding only the Supplemental Interest
Trust;
and (d) under no circumstances shallDeutsche
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
(o)
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) in any respect,
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.
(p)
Agent
for Party B. Party
A acknowledges that Party B has appointed Deutsche Bank National
Trust
Company as Trustee as its agent under the Pooling and Servicing
Agreement
to carry out certain functions on behalf of Party B, and that Deutsche
Bank National Trust Company as Trustee shall be entitled to give
notices
and to perform and satisfy the obligations of Party B hereunder
on behalf
of Party B.
(q)
Escrow
Payments.
If
(whether by reason of the time difference between the cities in
which
payments are to be made or otherwise) it is not possible for simultaneous
payments to be made on any date on which both parties are required
to make
payments hereunder, either Party may at its option and in its sole
discretion notify the other Party that payments on that date are
to be
made in escrow. In this case deposit of the payment due earlier
on that
date shall be made by 2:00 pm (local time at the place for the
earlier
payment) on that date with an escrow agent selected by the notifying
party, accompanied by irrevocable payment instructions (i) to release
the
deposited payment to the intended recipient upon receipt by the
escrow
agent of the required deposit of any corresponding payment payable
by the
other party on the same date accompanied by irrevocable payment
instructions to the same effect or (ii) if the required deposit
of the
corresponding payment is not made on that same date, to return
the payment
deposited to the party that paid it into escrow. The party that
elects to
have payments made in escrow shall pay all costs of the escrow
arrangements.
(r)
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any
time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
(s)
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in respect
of
any in respect of any suit, action or proceeding relating to this
Agreement or any Credit Support Document.
(t)
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency -
Crossborder) as published and copyrighted in 1992 by the International
Swaps and Derivatives Association,
Inc.
(u)
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A to
Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
(v)
Additional
representations.
(i)
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that:--
(1)
Party
A’s obligations under this Agreement rank pari passu with all of
Party A’s
other unsecured, unsubordinated obligations except those obligations
preferred by operation of law.
(2)
Party
A 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 therefor
are
satisfied in full).
(ii)
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the Transaction
as principal and not as agent of any person. Party B represents
to Party A
on the date on which Party B enters into this Agreement that it
is
entering into the Agreement and the Transaction in its capacity
as
Supplemental Interest Trustee.
(w)
Acknowledgements.
(ii)
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if any,
of any
other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and 560
thereof and the applicable definitions in Section 101 thereof),
the
parties acknowledge and agree that all Transactions entered into
hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the parties
under
Section 6 of this Agreement will constitute contractual rights
to
liquidate Transactions, that any margin or collateral provided
under any
margin, collateral, security, pledge, or similar agreement related
hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to
the rights
under, and protections afforded by, Sections 362, 546, 556, and
560 of the
Bankruptcy Code.
(x)
[Reserved]
(y)
[Reserved]
(z)Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold, the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement”means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (e) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Call
Report”means
the
public portion of any report of the financial condition and income required
by
the Office of the Comptroller of the Currency.
“Derivative
Provider Trigger Event”
means
(i) an Event of Default with respect to which Party A is a Defaulting Party,
(ii) a Termination Event with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A or
an Eligible Replacement to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor’s payments to
Party B under such guarantee will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor is
required to pay such additional amount as is necessary to ensure that the
net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had no
such
withholding been required.
“Eligible
Guarantor”means
an
entity that (A) has credit ratings at least equal to the Approved Ratings
Threshold or (B) has credit ratings at least equal to the Required Ratings
Threshold, provided, for the avoidance of doubt, that an Eligible Guarantee
of
an Eligible Guarantor with credit ratings below the Approved Ratings Threshold
will not cause a Collateral Event (as defined in the Credit Support Annex)
not
to occur or continue.
“Eligible
Replacement”
means an
entity that has credit ratings at least equal to the Approved Ratings Threshold,
(ii) has credit ratings at least equal to the Required Ratings Threshold,
provided, for the avoidance of doubt, that an Eligible Guarantee of an Eligible
Guarantor with credit ratings below the Approved Ratings Threshold will not
cause a Collateral Event (as defined in the Credit Support Annex) not to
occur
or continue, or (iii) the present and future obligations (for the avoidance
of
doubt, not limited to payment obligations) of which entity to Party B under
this
Agreement are guaranteed pursuant to an Eligible Guarantee provided by an
Eligible Guarantor.
“Estimated
Swap Termination Payment”
means,
with respect to an Early Termination Date, an amount determined by Party
A in
good faith and in a commercially reasonable manner as the maximum payment
that
could be owed by Party B to Party A in respect of such Early Termination
Date
pursuant to Section 6(e) of the ISDA Master Agreement, taking into account
then
current market conditions.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as the
counterparty to this Agreement or enter a Replacement Transaction that will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Moody’s Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold”means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event” means
that no
Relevant Entity has credit ratings from Moody’s at least equal to the Moody’s
Second Trigger Rating Threshold.
“Moody’s
Second Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer”means
a
transfer by novation by Party A to a transferee (the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible Replacement that
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), (b) as of the date
of
such transfer, the Transferee would not be required to withhold or deduct
on
account of Tax from any payments under this Agreement or would be required
to
gross up for such Tax under Section 2(d)(i)(4), (c) an Event of Default or
Termination Event would not occur as a result of such transfer, (d) Party
B has
consented in writing to the transfer, such consent not to be unreasonably
withheld, (e) the transfer would not give rise to a taxable event or any
other
adverse Tax consequences to Party B or its interest holders, as determined
by
Party B in its sole discretion, (f) pursuant to a written instrument (the
“Transfer Agreement”), the Transferee acquires and assumes all rights and
obligations of Party A under the Agreement and the relevant Transaction,
(g)
Party B shall have determined, in its sole discretion, acting in a commercially
reasonable manner, that such Transfer Agreement is effective to transfer
to the
Transferee all, but not less than all, of Party A’s rights and obligations under
the Agreement and all relevant Transactions; (h) Party A will be responsible
for
any costs or expenses incurred in connection with such transfer (including
any
replacement cost of entering into a replacement transaction); (i) either
(A)
Moody’s has been given prior written notice of such transfer and the Rating
Agency Condition is satisfied with respect to S&P or (B) each Swap Rating
Agency has been given prior written notice of such transfer and such transfer
is
in connection with the assignment and assumption of this Agreement without
modification of its terms, other than party names, dates relevant to the
effective date of such transfer, tax representations (provided that the
representations in Part 2(a)(i) are not modified) and any other representations
regarding the status of the substitute counterparty of the type included
in Part
5(b)(iv), Part 5(v)(i)(2) or Part 5(v)(ii), notice information and account
details; and (j) such transfer otherwise complies with the terms of the Pooling
and Servicing Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Swap Rating Agency specified in connection with such proposed act or
omission, that the party acting or failing to act must consult with each
of the
specified Swap Rating Agencies and receive from each such Swap Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes.
“Relevant
Entity”means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
shall
have the meaning assigned thereto in Part 5(d).
“Required
Ratings Threshold”means
each of the S&P Required Ratings Threshold and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The McGraw-Hill Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
S&P of “BBB+”.
“Swap
Rating Agencies”
means,
with respect to any date of determination, each of S&P and Moody’s, to the
extent that each such rating agency is then providing a rating for any of
the
First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates,
Series
2006-FF16 (the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
[Remainder
of this page intentionally left blank.]
4.
Account
Details and Settlement Information:
Payments
to Party A:
HSBC
Bank USA, National Association
ABA
# 021-001-088
For
credit to Department 299
A/C:
000-04929-8
HSBC
Derivative Products Group
Payments
to Party B:
ABA
021001033
ABA
name Deutsche Bank Trust Company - Americas
Bene
Acct. 014-19-663
Bene
Acct. Name NYLTD Funds Control - Stars West
Ref:
First Franklin 2006-FF16 (GC06ZA) Swap
payment
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.
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,
HSBC
BANK
USA, NATIONAL ASSOCIATION
By: _______________________________
Name:
Title:
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts and
confirms the terms of the foregoing as of the date hereof.
Deutsche
Bank National Trust Company, not individually but solely in its capacity
as
Supplemental Interest Trust Trustee on behalf of the Supplemental Interest
Trust
with respect to the First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates, Series 2006-FF16
By: _______________________________
Name:
Title:
SCHEDULE
I
(all
such
dates subject to No Adjustment with respect to Fixed Rate Payer Period End
Dates
and adjustment in accordance with the Following Business Day Convention with
respect to Floating Rate Payer Period End Dates)
HSBC
Bank
USA, National Association (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Deutsche
Bank National Trust Company, not individually but solely in its capacity
as
Supplemental Interest Trust Trustee on behalf of the Supplemental Interest
Trust
with respect to the First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed
Certificates, Series 2006-FF16
(hereinafter
referred to as “Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may
be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated November 30, 2006 between
Party
A and Party B, Reference Number 412192HN.
Paragraph
13. Elections and Variables.
(a)
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
(b)
Credit
Support Obligations.
(i)
Delivery
Amount, Return Amount and Credit Support
Amount.
(A)
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I) by deleting
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
(1)
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
(2)
the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party,
and
(3)
the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party.
(B)
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
of
(1)
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b) the
S&P
Credit Support Amount for such Valuation Date,
(2)
the
amount by which (a) the Moody’s First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s First Trigger Credit Support Amount for such Valuation Date,
and
(3)
the
amount by which (a) the Moody’s Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s Second Trigger Credit Support Amount for such Valuation
Date.
(C)
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the S&P
Credit Support Amount, the Moody’s First Trigger Credit Support Amount, or
the Moody’s Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
(ii)
Eligible
Collateral.
On
any
date, the following items will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
Collateral
S&P
Valuation
Percentage
Moody’s
First
Trigger Valuation
Percentage
Moody’s
Second
Trigger Valuation
Percentage
(A) Cash
100%
100%
100%
(B) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
98.5%
100%
100%
(C) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not
more than
ten years
89.9%
100%
94%
(D) Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
83.9%
100%
87%
(iii)
Other
Eligible Support.
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
(iv)
Threshold.
(A)
“Independent
Amount”
means zero with respect to Party A and Party
B.
(B)
“Threshold”
means, with respect to Party A and any Valuation Date, zero if
(i) a
Collateral Event has occurred and has been continuing (x) for at
least 30
days or (y) since this Annex was executed, or (ii) a S&P Required
Ratings Downgrade Event has occurred and is continuing; otherwise,
infinity.
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
(C)
“Minimum
Transfer Amount”means
USD 100,000 with respect to Party A and Party B; provided, however,
that
if the aggregate Certificate Principal Balance of Certificates
rated by
S&P ceases to be more than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
(D)
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 1,000.
(c)
Valuation
and Timing.
(i)
“Valuation
Agent”
means Party A; provided, however, that if an Event of Default shall
have
occurred with respect to which Party A is the Defaulting Party,
Party B
shall have the right to designate as Valuation Agent an independent
party,
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A. All calculations by the Valuation Agent must be made in
accordance with standard market practice, including, in the event
of a
dispute as to the Value of any Eligible Credit Support or Posted
Credit
Support, by making reference to quotations received by the Valuation
Agent
from one or more Pricing Sources.
(ii)
“Valuation
Date”means
each Local Business Day on which any of the S&P Credit Support Amount,
the Moody’s First Trigger Credit Support Amount or the Moody’s Second
Trigger Credit Support Amount is greater than
zero.
(iii)
“Valuation
Time”means
the close of business in the city of the Valuation Agent on the
Local
Business Day immediately preceding the Valuation Date or date of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv)
“Notification
Time”means
11:00 a.m., New York time, on a Local Business Day.
(v)
External
Verification.
Notwithstanding anything to the contrary in the definitions of
Valuation
Agent or Valuation Date, at any time at which Party A (or, to the
extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value of Posted Credit Suppport on each Valuation Date based
on internal marks and (B) verify such calculations with external
marks
monthly by obtaining on the last Local Business Day of each calendar
month
two external marks for each Transaction to which this Annex relates
and
for all Posted Credit Suport; such verification of the Secured
Party’s
Exposure shall be based on the higher of the two external marks.
Each
external mark in respect of a Transaction shall be obtained from
an
independent Reference Market-maker that would be eligible and willing
to
enter into such Transaction in the absence of the current derivative
provider, provided that an external mark may not be obtained from
the same
Reference Market-maker more than four times in any 12-month period.
The
Valuation Agent shall obtain these external marks directly or through
an
independent third party, in either case at no cost to Party B.
The
Valuation Agent shall calculate on each Valuation Date (for purposes
of
this paragraph, the last Local Business Day in each calendar month
referred to above shall be considered a Valuation Date) the Secured
Party’s Exposure based on the greater of the Valuation Agent’s internal
marks and the external marks received. If the S&P Value on any such
Valuation Date of all Posted Credit Support then held by the Secured
Party
is less than the S&P Credit Support Amount on such Valuation Date (in
each case as determined pursuant to this paragraph), Party A shall,
within
three Local Business Days of such Valuation Date, Transfer to the
Secured
Party Eligible Credit Support having an S&P Value as of the date of
Transfer at least equal to such deficiency.
(vi)
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its Credit
Support Provider) does not have a long-term unsubordinated and
unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations of
the Secured
Party’s Exposure and the S&P Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation Agent
shall
also provide to S&P any external marks received pursuant to the
preceding paragraph.
(d)
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party if
the
Termination Event occurs with respect to that party): With respect
to
Party A: any Additional Termination Event with respect to which
Party A is
the sole Affected Party. With respect to Party B:
None.
(e)
Substitution.
(i)
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
(ii)
Consent.
If
specified here as applicable, then the Pledgor must obtain the
Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
(f)
Dispute
Resolution.
(i)
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
(ii)
Value.
Notwithstanding anything to the contrary in Paragraph 12, for the
purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Moody’s First Trigger
Value, and Moody’s Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1)(x) the bid price at the Valuation Time for
such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the bid price for such securities quoted at the Valuation
Time by any principal market maker for such securities selected by the Valuation
Agent, or (z) if no such bid price is listed or quoted for such date, the
bid
price listed or quoted (as the case may be) at the Valuation Time for the
day
next preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and (B) the
accrued interest on such securities (except to the extent Transferred to
the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable price
referred to in the immediately preceding clause (A)) as of such
date.
(iii)
Alternative.
The provisions of Paragraph 5 will
apply.
(g)
Holding
and Using Posted
Collateral.
(i)
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or any Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b).
Party
B
may appoint as Custodian (A) the entity then serving as [Trustee] or (B)
any
entity other than the entity then serving as [Trustee] if such other entity
(or,
to the extent applicable, its parent company or credit support provider)
shall
then have a short-term unsecured and unsubordinated debt rating from S&P of
at least “A-1.”
Initially,
the Custodian
for
Party B is: Not applicable.
(ii)
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B, but
the
provisions of Paragraph 6(c)(ii) will apply to Party B.
(h)
Distributions
and Interest Amount.
(i)
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral in
the form
of Cash that is held by Party B or its
Custodian.
(ii)
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on any
other
Local Business Day on which Posted Collateral in the form of Cash
is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and received
such
funds and such funds are available to Party B.
(iii)
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
(i)
Additional
Representation(s).
There are no additional representations by either
party.
(j)
Other
Eligible Support and Other Posted Support.
(i)
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
(ii)
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
(k)
Demands
and Notices.All
demands, specifications and notices under this Annex will be made
pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may from
time to
time designate by giving notice (in accordance with the terms of
this
paragraph) to the other party:
If
to
Party A, [at the address specified pursuant to the Notices Section of this
Agreement].
If
to
Party B, [at the address specified pursuant to the Notices Section of this
Agreement].
If
to
Party B’s Custodian: [
]
(l)
Address
for Transfers.
Each Transfer hereunder shall be made to the address [specified
below or
to an address] specified in writing from time to time by the party
to
which such Transfer will be made.
[Party
A
account details]
[Party
B
account details]
[Party
B’s Custodian account details]
(m)
Other
Provisions.
(i)
Collateral
Account.
Party B shall open and maintain a segregated account, which shall
be an
[Eligible Account], and hold, record and identify all Posted Collateral
in
such segregated account.
(ii)
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in Paragraph
2,
the acknowledgement in the final sentence of Paragraph 8(a) and
the
representations in Paragraph 9.
(iii)
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Moody’s First Trigger Value,
Moody’s Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting the
word
“Value” and inserting in lieu thereof “S&P Value, Moody’s First
Trigger Value, or Moody’s Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Moody’s First Trigger Value, and Moody’s
Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, Moody’s First Trigger Value, or Moody’s Second Trigger
Value, as may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, Moody’s First Trigger Value, or Moody’s
Second Trigger Value” and (2) deleting the second instance of the words
“the Value” and inserting in lieu thereof “such disputed S&P Value,
Moody’s First Trigger Value, or Moody’s Second Trigger Value”. Each of
Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended by
deleting
the word “Value” and inserting in lieu thereof “least of the S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value”.
(iv)
Form
of Annex.Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form of
ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New
York Law
Only version) as published and copyrighted in 1994 by the International
Swaps and Derivatives Association,
Inc.
(v)
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default to exist
with
respect to Party B except that Paragraph 7(i) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in Paragraph
7,
any failure by Party A to comply with or perform any obligation
to be
complied with or performed by Party A under the Credit Support
Annex shall
only be an Event of Default if (A) either
(i) a Moody’s Required Ratings Downgrade Event has occurred and been
continuing for 30 or more Local Business Days, or (ii) a S&P Required
Ratings Downgrade Event has occurred and been continuing for 30
or more
Local Business Days, and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
(vi)
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the Pledgor
will
be responsible for, and will reimburse the Secured Party for, all
transfer
and other taxes and other costs involved in any Transfer of Eligible
Collateral.
(vii)
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately after
“the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
(viii)
Notice
of Failure to Post Collateral. Upon
any failure by Party A to post collateral as required under this
Agreement, Party B shall, no later than the next Business Day after
the
date such collateral was required to be posted, give a written
notice of
such failure to Party A and to Depositor. For the avoidance of
doubt,
notwithstanding anything in this Agreement to the contrary, the
failure of
Party B to comply with the requirements of this paragraph shall
not
constitute an Event of Default or Termination Event.
(ix)Additional
Definitions.
As used
in this Annex:
“Collateral
Event”means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means:
any day on which (A) commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in New York and the location
of Party A, Party B and any Custodian, and (B) in relation to a Transfer
of
Eligible Collateral, any day on which the clearance system agreed between
the
parties for the delivery of Eligible Collateral is open for acceptance and
execution of settlement instructions (or in the case of a Transfer of Cash
or
other Eligible Collateral for which delivery is contemplated by other means
a
day on which commercial banks are open for business (including dealings in
foreign exchange and foreign deposits) in New York and the location of Party
A,
Party B and any Custodian.
“Moody’s
First Trigger Event”means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s First Trigger Ratings Threshold.
“Moody’s
First Trigger Credit Support Amount”means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which (I) a Moody’s First Trigger Event has occurred
and has been continuing (x) for at least 30 Local Business Days
or (y)
since this Annex was executed and (II) it is not the case that
a Moody’s
Second Trigger Event has occurred and been continuing for at least
30
Local Business Days, an amount equal to the greater of (a) zero
and (b)
the sum of (i) the Secured Party’s Exposure for such Valuation Date and
(ii) the sum, for each Transaction to which this Annex relates,
of the
product of the applicable Moody’s First Trigger Factor set forth in Table
1 and the Notional Amount for such Transaction for the Calculation
Period
which includes such Valuation Date; or
(B)
for
any other Valuation Date, zero,
over
(II) the
Threshold for Party A such Valuation Date.
“Moody’s
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Moody’s First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Moody’s
Second Trigger Event”means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which it is the case that a Moody’s Second Trigger
Event has occurred and been continuing for at least 30 Local Business
Days, an amount equal to the greatest of (a) zero, (b) the aggregate
amount of the next payment due to be paid by Party A under each
Transaction to which this Annex relates, and (c) the sum of (x)
the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates, of
(1)
if
such Transaction is not a Transaction-Specific Hedge, the product of the
applicable Moody’s Second Trigger Factor set forth in Table 2 and the Notional
Amount for such Transaction for the Calculation Period which includes such
Valuation Date;
or
(2)
the
product of the applicable Moody’s Second Trigger Factor set forth in Table 3 and
the Notional Amount for such Transaction for the Calculation Period which
includes such Valuation Date; or
(B)
for
any other Valuation Date, zero,
over
(II) the
Threshold for Party A for such Valuation Date.
“Moody’s
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Moody’s Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Pricing
Sources”
means
the sources of financial information commonly known as Bloomberg, Bridge
Information Services, Data Resources Inc., Interactive Data Services,
International Securities Market Association, Merrill Lynch Securities Pricing
Service, Muller Data Corporation, Reuters, Wood Gundy, Trepp Pricing, JJ
Kenny,
S&P and Telerate.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I)
(A)
for
any Valuation Date on which (i) an S&P Rating Threshold Event has
occurred and been continuing for at least 30 days, or (ii) a S&P
Required Ratings Downgrade Event has occurred and is continuing,
an amount
equal to the sum of (1) 100.0% of the Secured Party’s Exposure for such
Valuation Date and (2) for each Transaction to which this Annex
relates,
the product of the Volatility Buffer for such Transaction and the
Notional
Amount of such Transaction for the Calculation Period of such Transaction
which includes such Valuation Date, or
(B)
for
any other Valuation Date, zero,
over
(II) the
Threshold for Party A for such Valuation Date.
“S&P
Rating Threshold Event”
means,
on any date, no Relevant Entity has credit ratings from S&P which equal or
exceed the S&P Approved Ratings Threshold.
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were the
only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge”means
any
Transaction that is an interest rate cap, interest rate floor or interest
rate
swaption, or an interest rate swap if (x) the notional amount of the interest
rate swap is “balance guaranteed” or (y) the notional amount of the interest
rate swap for any Calculation Period otherwise is not a specific dollar amount
that is fixed at the inception of the Transaction.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Moody’s First Trigger
Value, or Moody’s Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Moody’s First
Trigger Valuation Percentage, or Moody’s Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each case
as set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Moody’s
First Trigger Value, and the related Moody’s Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following table.
The
higher of the S&P short-term credit rating of (i) Party A and (ii) the
Credit Support Provider of Party A, if applicable
Remaining
Weighted Average Maturity
up
to 3 years
Remaining
Weighted Average Maturity
up
to 5 years
Remaining
Weighted Average Maturity
up
to 10 years
Remaining
Weighted Average Maturity
up
to 30 years
At
least “A-2”
2.75%
3.25%
4.00%
4.75%
“A-3”
3.25%
4.00%
5.00%
6.25%
“BB+”
or
lower
3.50%
4.50%
6.75%
7.50%
[Remainder
of this page intentionally left blank]
Table
1
Moody’s
First Trigger Factor
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.15%
More
than 1 but not more than 2
0.30%
More
than 2 but not more than 3
0.40%
More
than 3 but not more than 4
0.60%
More
than 4 but not more than 5
0.70%
More
than 5 but not more than 6
0.80%
More
than 6 but not more than 7
1.00%
More
than 7 but not more than 8
1.10%
More
than 8 but not more than 9
1.20%
More
than 9 but not more than 10
1.30%
More
than 10 but not more than 11
1.40%
More
than 11 but not more than 12
1.50%
More
than 12 but not more than 13
1.60%
More
than 13 but not more than 14
1.70%
More
than 14 but not more than 15
1.80%
More
than 15 but not more than 16
1.90%
More
than 16 but not more than 17
2.00%
More
than 17 but not more than 18
2.00%
More
than 18 but not more than 19
2.00%
More
than 19 but not more than 20
2.00%
More
than 20 but not more than 21
2.00%
More
than 21 but not more than 22
2.00%
More
than 22 but not more than 23
2.00%
More
than 23 but not more than 24
2.00%
More
than 24 but not more than 25
2.00%
More
than 25 but not more than 26
2.00%
More
than 26 but not more than 27
2.00%
More
than 27 but not more than 28
2.00%
More
than 28 but not more than 29
2.00%
More
than 29
2.00%
Table
2
Moody’s
Second Trigger Factor for Interest Rate Swaps with Fixed Notional
Amounts
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.50%
More
than 1 but not more than 2
1.00%
More
than 2 but not more than 3
1.50%
More
than 3 but not more than 4
1.90%
More
than 4 but not more than 5
2.40%
More
than 5 but not more than 6
2.80%
More
than 6 but not more than 7
3.20%
More
than 7 but not more than 8
3.60%
More
than 8 but not more than 9
4.00%
More
than 9 but not more than 10
4.40%
More
than 10 but not more than 11
4.70%
More
than 11 but not more than 12
5.00%
More
than 12 but not more than 13
5.40%
More
than 13 but not more than 14
5.70%
More
than 14 but not more than 15
6.00%
More
than 15 but not more than 16
6.30%
More
than 16 but not more than 17
6.60%
More
than 17 but not more than 18
6.90%
More
than 18 but not more than 19
7.20%
More
than 19 but not more than 20
7.50%
More
than 20 but not more than 21
7.80%
More
than 21 but not more than 22
8.00%
More
than 22 but not more than 23
8.00%
More
than 23 but not more than 24
8.00%
More
than 24 but not more than 25
8.00%
More
than 25 but not more than 26
8.00%
More
than 26 but not more than 27
8.00%
More
than 27 but not more than 28
8.00%
More
than 28 but not more than 29
8.00%
More
than 29
8.00%
Table
3
Moody’s
Second Trigger Factor for Transaction-Specific Hedges
Remaining
Weighted
Average Life
of
Hedge in Years
Daily
Collateral
Posting
1
or less
0.65%
More
than 1 but not more than 2
1.30%
More
than 2 but not more than 3
1.90%
More
than 3 but not more than 4
2.50%
More
than 4 but not more than 5
3.10%
More
than 5 but not more than 6
3.60%
More
than 6 but not more than 7
4.20%
More
than 7 but not more than 8
4.70%
More
than 8 but not more than 9
5.20%
More
than 9 but not more than 10
5.70%
More
than 10 but not more than 11
6.10%
More
than 11 but not more than 12
6.50%
More
than 12 but not more than 13
7.00%
More
than 13 but not more than 14
7.40%
More
than 14 but not more than 15
7.80%
More
than 15 but not more than 16
8.20%
More
than 16 but not more than 17
8.60%
More
than 17 but not more than 18
9.00%
More
than 18 but not more than 19
9.40%
More
than 19 but not more than 20
9.70%
More
than 20 but not more than 21
10.00%
More
than 21 but not more than 22
10.00%
More
than 22 but not more than 23
10.00%
More
than 23 but not more than 24
10.00%
More
than 24 but not more than 25
10.00%
More
than 25 but not more than 26
10.00%
More
than 26 but not more than 27
10.00%
More
than 27 but not more than 28
10.00%
More
than 28 but not more than 29
10.00%
More
than 29
10.00%
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
HSBC
Bank USA, National Association
Deutsche
Bank National Trust Company, not individually but solely in its
capacity
as Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest Trust with respect to the First Franklin Mortgage Loan
Trust
2006-FF16, Asset-Backed Certificates, Series 2006-FF16
By: _____________________________
Name
Title:
Date:
By:
______________________________________
Name:
Title:
Date:
EXHIBIT
R-1
FORM
OF
WATCHLIST REPORT
Available
Upon Request
EXHIBIT
R-2
FORM
OF
LOSS SEVERITY REPORT
Available
Upon Request
EXHIBIT
R-3
FORM
PREPAYMENT PREMIUMS REPORT
Available
Upon Request
EXHIBIT
R-4
FORM
OF
ANALYTICS REPORT
Available
Upon Request
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
Credit
Risk Manager
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.
X
X
X
1122(d)(1)(iii)
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
1122(d)(1)(iv)
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
X
X
Cash
Collection and Administration
1122(d)(2)(i)
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
X
X
X
1122(d)(2)(ii)
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
X
X
X
1122(d)(2)(iii)
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
X
X
1122(d)(2)(iv)
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
X
X
X
1122(d)(2)(v)
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
X
X
X
1122(d)(2)(vi)
Unissued
checks are safeguarded so as to prevent unauthorized access.
X
1122(d)(2)(vii)
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
X
X
X
Investor
Remittances and Reporting
1122(d)(3)(i)
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
X
X
X
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
1122(d)(4)(ii)
Pool
assets and related documents are safeguarded as required by the
transaction agreements
X
1122(d)(4)(iii)
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
X
1122(d)(4)(iv)
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
X
1122(d)(4)(v)
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
X
1122(d)(4)(vi)
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
X
1122(d)(4)(vii)
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
X
1122(d)(4)(viii)
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
X
1122(d)(4)(ix)
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
X
1122(d)(4)(x)
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
X
1122(d)(4)(xi)
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
X
1122(d)(4)(xii)
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
X
1122(d)(4)(xiii)
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
X
1122(d)(4)(xiv)
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
X
X
1122(d)(4)(xv)
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
X
EXHIBIT
T
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 4.07(a)(iv).
Under
Item 1 of Form 10-D: a) items marked “4.02 statement” are required to be
included in the periodic Distribution Date statement under Section 4.02,
provided by the Trustee based on information received from the Servicer; and
b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the 4.02 statement, provided by the party indicated. Information under
all
other Items of Form 10-D is to be included in the Form 10-D report.
Form
Item
Description
Responsible
Party
10-D
Must
be filed within 15 days of the Distribution Date.
1
Distribution
and Pool Performance Information
Item
1121(a) - Distribution and Pool Performance
Information
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
4.02
statement
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
4.02
statement
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
4.02
statement
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
4.02
statement
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of the
general
purpose of such payments and the party receiving such
payments.
4.02
statement
(iii)
Principal, interest and other distributions accrued and paid on the
asset-backed securities by type and by class or series and any principal
or interest shortfalls or carryovers.
4.02
statement
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
4.02
statement
(4)
Beginning and ending principal balances of the asset-backed
securities.
4.02
statement
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
4.02
statement
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
4.02
statement
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
4.02
statement
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average 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: Servicer
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: Servicer
(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 and Servicer
Form
10-D report: Depositor, and Servicer
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
Depositor
2
Legal
Proceedings
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
Seller
Depositor
Trustee
Depositor
Servicer
Depositor
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)
Trustee
5
Submission
of Matters to a Vote of Security Holders
Obtaining
required financial information or effecting incorporation by
reference
Depositor
Depositor
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.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
All
parties to this Agreement
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.
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
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 Servicer
Depositor
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
All
parties to this Agreement
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
Depositor
Depositor
Depositor
Item
1117 -
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
Seller
Depositor
Trustee
Issuing
entity
Servicer
Depositor
Custodian
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
Credit
Enhancer/Support Provider, if any
Significant
Obligor, if any
Seller
Depositor
Trustee
Issuing
entity
Servicer
Depositor
Custodian
Depositor
Depositor
Item
1122 - Assessment of Compliance with Servicing
Criteria
Each
Party participating in the servicing function
Item
1123 -Servicer Compliance Statement
Servicer
EXHIBIT
U
FORM
OF
CERTIFICATION TO BE PROVIDED BY THE CREDIT RISK MANAGER
FORM
OF
CERTIFICATION
Re:
First Franklin Mortgage Loan Trust Asset-Backed Certificates, Series 2006-FF16,
issued pursuant to the Pooling and Servicing Agreement dated as of November1,2006, among Financial Asset Securities Corporation, as Depositor, National
City
Home Loan Services, Inc., as Servicer, and Deutsche Bank National Trust Company,
as Trustee
CLAYTON
FIXED INCOME SERVICES INC. (the “Credit Risk Manager”) certifies to the
Depositor, Financial Assets Securities Corp., Inc. (the “Sponsor”), the Trustee,
and [10-K Signatory Entity] its officers, directors and affiliates, and with
the
knowledge and intent that they will rely upon this certification,
that:
1.
Based
on the knowledge of the Credit Risk Manager, taken as a whole, the
information in the reports provided during the calendar year immediately
preceding the date of this certificate (the “Relevant Year”) by the Credit
Risk Manager pursuant to the Master Consulting
Agreement dated as of April18, 2005(the
“Master Consulting Agreement”), by and between the Credit Risk Manager and
Greenwich Capital Markets, Inc. and pursuant to Transaction Addendum
FFMLT
2006-FF16 (the “Transaction Addendum FFMLT
2006-FF16”),
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 that each of such reports was provided;
and
2.
The
Credit Risk Manager has fulfilled its obligations under the Master
Consulting Agreement and Transaction Addendum FFMLT 2006-FF16 throughout
the Relevant Year.
CLAYTON
FIXED INCOME SERVICES INC.
By:
Name:
Title:
SCHEDULE
I
PREPAYMENT
CHARGE SCHEDULE
Available
Upon Request
Dates Referenced Herein and Documents Incorporated by Reference
