================================================================================
[-----------],
Depositor
[-----------],
Servicer
and
[-----------],
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of [___________]
---------------------------
[First Franklin Mortgage Loan Trust 2005-FFH4]
[Asset-Backed Certificates, Series 2005-FFH4]
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms........................................................................
SECTION 1.02 Accounting...........................................................................
SECTION 1.03 Allocation of Certain Interest Shortfalls............................................
SECTION 1.04 Rights of the NIMS Insurer...........................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.........................................................
SECTION 2.02 Acceptance by Trustee................................................................
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by the Sponsor..........................
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 Conveyance of Subsequent Mortgage Loans..............................................
SECTION 2.09 Conveyance of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 3, REMIC
4, REMIC 5, REMIC 6 and REMIC 7 by the Trustee; Issuance of Certificates.............
SECTION 2.10 Purposes and Powers of the Trust.....................................................
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, the Distribution Account, the
Pre-Funding Accounts and the Interest Coverage Accounts..............................
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 Intention of the Parties and Interpretation..........................................
SECTION 3.23 Access to Certain Documentation; Filing of Reports by Trustee........................
SECTION 3.24 Title, Management and Disposition of REO Property....................................
SECTION 3.25 Obligations of the Servicer in Respect of Prepayment Interest Shortfalls.............
SECTION 3.26 [Reserved]...........................................................................
SECTION 3.27 Obligations of the Servicer in Respect of Mortgage Rates and Monthly Payments........
SECTION 3.28 [Reserved]...........................................................................
SECTION 3.29 [Reserved]...........................................................................
SECTION 3.30 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 Pre-Funding Accounts.................................................................
SECTION 4.06 Interest Coverage Accounts...........................................................
SECTION 4.07 Net WAC Rate Carryover Reserve Account...............................................
SECTION 4.08 Distributions on the REMIC Regular Interests.........................................
SECTION 4.09 Allocation of Realized Losses........................................................
SECTION 4.10 Swap Account.........................................................................
SECTION 4.11 Tax Treatment of Swap Payments and Swap Termination Payments.........................
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.....................................................................
SECTION 5.02 Registration of Transfer and Exchange of Certificates................................
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates....................................
SECTION 5.04 Persons Deemed Owners................................................................
SECTION 5.05 Appointment of Paying Agent..........................................................
ARTICLE VI
THE SERVICER AND THE DEPOSITOR
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 Credit Risk Manager..................................................................
SECTION 6.07 Inspection...........................................................................
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 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 Benefits of Agreement................................................................
SECTION 11.11 Acts of Certificateholders...........................................................
SECTION 11.12 Third Party Rights...................................................................
Exhibits:
[Exhibit A-1 [Form of Class I-A1 Certificates
Exhibit A-2 Form of Class II-A1 Certificates
Exhibit A-3 Form of Class II-A2 Certificates
Exhibit A-4 Form of Class II-A3 Certificates
Exhibit A-5 Form of Class II-A4 Certificates
Exhibit A-6 Form of Class M-1 Certificates
Exhibit A-7 Form of Class M-2 Certificates
Exhibit A-8 Form of Class M-3 Certificates
Exhibit A-9 Form of Class M-4 Certificates
Exhibit A-10 Form of Class M-5 Certificates
Exhibit A-11 Form of Class M-6 Certificates
Exhibit A-12 Form of Class M-7 Certificates
Exhibit A-13 Form of Class M-8 Certificates
Exhibit A-14 Form of Class M-9 Certificates
Exhibit A-15 Form of Class M-10 Certificates
Exhibit A-16 Form of Class B-1 Certificates
Exhibit A-17 Form of Class B-2 Certificates
Exhibit A-18 Form of Class B-3 Certificates
Exhibit A-19 Form of Class C Certificates
Exhibit A-20 Form of Class P Certificates
Exhibit A-21 Form of Class R Certificates
Exhibit A-22 Form of Class R-X Certificates]
Exhibit B [Reserved]
Exhibit C Form of Mortgage Loan Purchase Agreement
Exhibit D Mortgage Loan Schedule
Exhibit E Request for Release
Exhibit F-1 Form of Trust Receipt and Initial Certification
Exhibit F-2 Form of Final Trust Receipt
Exhibit G Form of Custodial Agreement
Exhibit H Form of Lost Note Affidavit
Exhibit I Form of Limited Power of Attorney
Exhibit J Form of Investment Letter
Exhibit K Form of Transfer Affidavit for Residual Certificates
Exhibit L Form of Transferor Certificate
Exhibit M Form of ERISA Representation Letter
Exhibit N-1 Form Certification to be Provided by the Depositor with Form 10-K
Exhibit N-2 Form Certification to be Provided to the Depositor by the Trustee
Exhibit N-3 Form Certification to be Provided to the Depositor by the Servicer
Exhibit O Form of Cap Contract
Exhibit P Form of Annual Statement as to Compliance
Exhibit Q Form of Addition Notice
Exhibit R Form of Subsequent Transfer Instrument
Exhibit S Form of Interest Rate Swap Agreement
Exhibit T Form of Back-Up Certification to Form 10-K Certificate
Exhibit U Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit V Form 10-D, Form 8-K and Form 10-K Reporting Responsbilities
Schedule I Prepayment Charge Schedule]
This Pooling and Servicing Agreement is dated as of
[___________] (the "Agreement"), among [___________], as depositor (the
"Depositor"), [___________], as servicer (the "Servicer") and [___________], as
trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Trust Fund created hereunder. The Certificates will consist of twenty-two
classes of certificates, designated as [(i) the Class I-A1 Certificates, (ii)
the Class II-A1 Certificates, (iii) the Class II-A2 Certificates, (iv) the Class
II-A3 Certificates, (v) the Class II-A4 Certificates, (vi) the Class M-1
Certificates, (vii) the Class M-2 Certificates (viii) the Class M-3
Certificates, (ix) the Class M-4 Certificates, (x) the Class M-5 Certificates,
(xi) the Class M-6 Certificates, (xii) the Class M-7 Certificates, (xiii) the
Class M-8 Certificates, (xiv) the Class M-9 Certificates, (xv) the Class M-10
Certificates, (xvi) the Class B-1 Certificates, (xvii) the Class B-2
Certificates, (xviii) the Class B-3 Certificates, (xix) the Class C
Certificates, (xx) the Class P Certificates, (xxi) the Class R Certificates and
(xxii) 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 Pre-Funding Accounts,
the Interest Coverage Accounts, any Subsequent Mortgage Loan Interest, the Net
WAC Rate Carryover Reserve Account, the Interest Rate Swap Agreement, the Swap
Acount, any Servicer Prepayment Charge Payment Amounts and the Cap Contract) 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.
Uncertificated REMIC 1 Initial Uncertificated Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date(1)
----------- ----------------- ----------------- ----------------
[I-LT1 Variable(2) $[_______________] [_______________]
I-LT1PF Variable(2) $[_______________] [_______________]
I-LT2 Variable(2) $[_______________] [_______________]
I-LT2PF Variable(2) $[_______________] [_______________]
I-LTP] Variable(2) $[_______________] [_______________]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each REMIC 1 Regular Interest.
(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 will be the sole class of
"residual interests" in REMIC 2 for purposes of the REMIC Provisions (as defined
herein). 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
will be certificated.
Initial
Uncertificated REMIC 2 Uncertificated Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------------------- ----------------------------- ------------------------------- -------------------------
[I Variable(2) $[_______________] [_______________]
I-1-A Variable(2) $[_______________] [_______________]
I-1-B Variable(2) $[_______________] [_______________]
I-2-A Variable(2) $[_______________] [_______________]
I-2-B Variable(2) $[_______________] [_______________]
I-3-A Variable(2) $[_______________] [_______________]
I-3-B Variable(2) $[_______________] [_______________]
I-4-A Variable(2) $[_______________] [_______________]
I-4-B Variable(2) $[_______________] [_______________]
I-5-A Variable(2) $[_______________] [_______________]
I-5-B Variable(2) $[_______________] [_______________]
I-6-A Variable(2) $[_______________] [_______________]
I-6-B Variable(2) $[_______________] [_______________]
I-7-A Variable(2) $[_______________] [_______________]
I-7-B Variable(2) $[_______________] [_______________]
I-8-A Variable(2) $[_______________] [_______________]
I-8-B Variable(2) $[_______________] [_______________]
I-9-A Variable(2) $[_______________] [_______________]
I-9-B Variable(2) $[_______________] [_______________]
I-10-A Variable(2) $[_______________] [_______________]
I-10-B Variable(2) $[_______________] [_______________]
I-11-A Variable(2) $[_______________] [_______________]
I-11-B Variable(2) $[_______________] [_______________]
I-12-A Variable(2) $[_______________] [_______________]
I-12-B Variable(2) $[_______________] [_______________]
I-13-A Variable(2) $[_______________] [_______________]
I-13-B Variable(2) $[_______________] [_______________]
I-14-A Variable(2) $[_______________] [_______________]
I-14-B Variable(2) $[_______________] [_______________]
I-15-A Variable(2) $[_______________] [_______________]
I-15-B Variable(2) $[_______________] [_______________]
I-16-A Variable(2) $[_______________] [_______________]
I-16-B Variable(2) $[_______________] [_______________]
I-17-A Variable(2) $[_______________] [_______________]
I-17-B Variable(2) $[_______________] [_______________]
I-18-A Variable(2) $[_______________] [_______________]
I-18-B Variable(2) $[_______________] [_______________]
I-19-A Variable(2) $[_______________] [_______________]
I-19-B Variable(2) $[_______________] [_______________]
I-20-A Variable(2) $[_______________] [_______________]
I-20-B Variable(2) $[_______________] [_______________]
I-21-A Variable(2) $[_______________] [_______________]
I-21-B Variable(2) $[_______________] [_______________]
I-22-A Variable(2) $[_______________] [_______________]
I-22-B Variable(2) $[_______________] [_______________]
I-23-A Variable(2) $[_______________] [_______________]
I-23-B Variable(2) $[_______________] [_______________]
I-24-A Variable(2) $[_______________] [_______________]
I-24-B Variable(2) $[_______________] [_______________]
I-25-A Variable(2) $[_______________] [_______________]
I-25-B Variable(2) $[_______________] [_______________]
I-26-A Variable(2) $[_______________] [_______________]
I-26-B Variable(2) $[_______________] [_______________]
I-27-A Variable(2) $[_______________] [_______________]
I-27-B Variable(2) $[_______________] [_______________]
I-28-A Variable(2) $[_______________] [_______________]
I-28-B Variable(2) $[_______________] [_______________]
I-29-A Variable(2) $[_______________] [_______________]
I-29-B Variable(2) $[_______________] [_______________]
I-30-A Variable(2) $[_______________] [_______________]
I-30-B Variable(2) $[_______________] [_______________]
I-31-A Variable(2) $[_______________] [_______________]
I-31-B Variable(2) $[_______________] [_______________]
I-32-A Variable(2) $[_______________] [_______________]
I-32-B Variable(2) $[_______________] [_______________]
I-33-A Variable(2) $[_______________] [_______________]
I-33-B Variable(2) $[_______________] [_______________]
I-34-A Variable(2) $[_______________] [_______________]
I-34-B Variable(2) $[_______________] [_______________]
I-35-A Variable(2) $[_______________] [_______________]
I-35-B Variable(2) $[_______________] [_______________]
I-36-A Variable(2) $[_______________] [_______________]
I-36-B Variable(2) $[_______________] [_______________]
I-37-A Variable(2) $[_______________] [_______________]
I-37-B Variable(2) $[_______________] [_______________]
I-38-A Variable(2) $[_______________] [_______________]
I-38-B Variable(2) $[_______________] [_______________]
I-39-A Variable(2) $[_______________] [_______________]
I-39-B Variable(2) $[_______________] [_______________]
I-40-A Variable(2) $[_______________] [_______________]
I-40-B Variable(2) $[_______________] [_______________]
P] Variable(2) $[_______________] [_______________]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each REMIC 2 Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 2
Pass-Through Rate" 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 represent the sole class
of "residual interests" in REMIC 3 for purposes of the REMIC Provisions under
federal income tax law. The following table irrevocably sets forth the
designation, the Uncertificated REMIC 3 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 3 Regular Interests (as defined herein). None of the REMIC 3
Regular Interests will be certificated.
Uncertificated REMIC 3 Initial Uncertificated Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date(1)
----------- ----------------- ----------------- ----------------
[LTAA Variable(2) $[_______________] [_______________]
LTIA1 Variable(2) $[_______________] [_______________]
LTIIA1 Variable(2) $[_______________] [_______________]
LTIIA2 Variable(2) $[_______________] [_______________]
LTIIA3 Variable(2) $[_______________] [_______________]
LTIIA4 Variable(2) $[_______________] [_______________]
LTM1 Variable(2) $[_______________] [_______________]
LTM2 Variable(2) $[_______________] [_______________]
LTM3 Variable(2) $[_______________] [_______________]
LTM4 Variable(2) $[_______________] [_______________]
LTM5 Variable(2) $[_______________] [_______________]
LTM6 Variable(2) $[_______________] [_______________]
LTM7 Variable(2) $[_______________] [_______________]
LTM8 Variable(2) $[_______________] [_______________]
LTM9 Variable(2) $[_______________] [_______________]
LTM10 Variable(2) $[_______________] [_______________]
LTB1 Variable(2) $[_______________] [_______________]
LTB2 Variable(2) $[_______________] [_______________]
LTB3 Variable(2) $[_______________] [_______________]
LTZZ Variable(2) $[_______________] [_______________]
LTP Variable(2) $[_______________] [_______________]
LTIO] Variable(2) (3) [_______________]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month immediately following the maturity date
for the Mortgage Loan with the latest possible maturity date has been
designated as the "latest possible maturity date" for each REMIC 3 Regular
Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 3
Pass-Through Rate" herein.
(3) REMIC 3 Regular Interest LTIO will not have an Uncertificated Principal
Balance, but will accrue interest on its Uncertificated Notional Amount.
REMIC 4
-------
As provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the REMIC 3 Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets shall be
designated as "REMIC 4." The Class R-4 Interest shall evidence the sole class of
"residual interests" in REMIC 4 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 4 created hereunder:
Original Class Certificate Latest Possible
Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------- ----------------- ----------------- ----------------
[Class I-A1............. $[_______________] Variable(2) [_______________]
Class II-A1............. $[_______________] Variable(2) [_______________]
Class II-A2............. $[_______________] Variable(2) [_______________]
Class II-A3............. $[_______________] Variable(2) [_______________]
Class II-A4............. $[_______________] Variable(2) [_______________]
Class M-1............... $[_______________] Variable(2) [_______________]
Class M-2............... $[_______________] Variable(2) [_______________]
Class M-3............... $[_______________] Variable(2) [_______________]
Class M-4............... $[_______________] Variable(2) [_______________]
Class M-5............... $[_______________] Variable(2) [_______________]
Class M-6............... $[_______________] Variable(2) [_______________]
Class M-7............... $[_______________] Variable(2) [_______________]
Class M-8............... $[_______________] Variable(2) [_______________]
Class M-9............... $[_______________] Variable(2) [_______________]
Class M-10.............. $[_______________] Variable(2) [_______________]
Class B-1............... $[_______________] Variable(2) [_______________]
Class B-2............... $[_______________] Variable(2) [_______________]
Class B-3............... $[_______________] Variable(2) [_______________]
Class C Interest........ $[_______________] Variable(2) [_______________]
Class P Interest........ $[_______________] N/A(4) [_______________]
Class IO Interest......] (5) (6) [_______________]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each Class of Certificates that
represents one or more of the "regular interests" in REMIC 4.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
(3) The Class C Interest will accrue interest at their variable Pass-Through
Rate on the Notional Amount of the Class C Interest outstanding from time
to time which shall equal the aggregate of the Uncertificated Principal
Balances of the REMIC 3 Regular Interests (other than REMIC 3 Regular
Interest LTP). The Class C Interest will not accrue interest on its
Certificate Principal Balance.
(4) The Class P Interest will not accrue interest.
(5) For federal income tax purposes, the Class IO Interest will not have a
Class Certificate Principal Balance, but will have a notional amount equal
to the Uncertificated Notional Amount of REMIC 3 Regular Interest LTIO.
(6) 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 3 Regular Interest LTIO.
REMIC 5
-------
As provided herein, the Trustee shall make an election to
treat the Class C 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 Class
designation, Pass-Through Rate and Original Class Certificate Principal Balance
for the Class C Certificates.
Original Class Certificate Latest Possible
Class Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------------- ----------------- ----------------- ----------------
[Class C] $[_______________] Variable(2) [_______________]
----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month immediately following the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for the Class C
Certificates.
(2) The Class C Certificates will receive 100% of amounts received in respect
of the Class C Interest. The Class C Certificates will also be entitled to
Subsequent Mortgage Loan Interest, as a right with respect to a component
of the Class C Certificates that will not be treated as a REMIC regular
interest but rather as separate interest strips from the Subsequent
Mortgage Loans for a specified period of time.
REMIC 6
-------
As provided herein, the Trustee shall make an election to
treat the Class P Interest as a REMIC for federal income tax purposes, and such
segregated pool of assets will 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 sets forth (or describes) the Class
designation, Pass-Through Rate and Original Class Certificate Principal Balance
for the Class P Certificates.
Original Class Certificate Latest Possible
Class Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------------- ----------------- ----------------- ----------------
[Class P] $[_______________] Variable(2) [_______________]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for the Class P Certificates.
(2) The Class P Certificates will receive 100% of amounts received in respect
of the Class P Interest.
REMIC 7
-------
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 7." The Class R-7 Interest represents the sole class of
"residual interests" in REMIC 7 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 7 Regular Interest, which will be uncertificated.
The following table sets forth (or describes) the Class
designation, Pass-Through Rate and Original Class Certificate Principal Balance
for the Class P Certificates.
Original Class Certificate Latest Possible
Class Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------------- ----------------- ----------------- ----------------
[SWAP IO] [_______________] Variable(2) [_______________]
----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for REMIC 7 Regular Interest Swap IO.
(2) REMIC 7 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 Adjustable-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 and all other calculations of interest described herein shall be
made on the basis of a 360-day year consisting of twelve 30-day months. The
Class P Certificates and the Residual Certificates are not entitled to
distributions in respect of interest and, accordingly, will not accrue interest.
"1933 Act": The Securities Act of 1933, as amended.
"Account": Either of the Collection Account or Distribution
Account.
"Accrual Period": With respect to the Class C Certificates and
each Distribution Date, the calendar month prior to the month of such
Distribution Date. With respect to the Adjustable-Rate Certificates and each
Distribution Date, the period commencing on the preceding Distribution Date (or
in the case of the first such Accrual Period, commencing on the Closing Date)
and ending on the day preceding such Distribution Date.
"Addition Notice": With respect to the transfer of Subsequent
Mortgage Loans to the Trust Fund pursuant to Section 2.08, a notice of the
Depositor's designation of the Subsequent Mortgage Loans to be sold to the Trust
Fund and the aggregate principal balance of such Subsequent Mortgage Loans as of
the Subsequent Cut-off Date. The Addition Notice shall be given not later than
three Business Days prior to the related Subsequent Transfer Date and shall be
substantially in the form attached hereto as Exhibit Q.
"Adjustable-Rate Certificates": Any Class A Certificate,
Mezzanine Certificate or Class B Certificate.
"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 the Custodian Fee Rate, the Servicing
Fee Rate and 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 the Custodian Fee Rate, the Servicing
Fee Rate and 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 or Class B
Certificates, the sum of (i) any Realized Losses allocated to such Class of
Certificates on such Distribution Date and (ii) the amount of any Allocated
Realized Loss Amount for such Class of Certificates remaining unpaid from the
previous Distribution Date as reduced by an amount equal to the increase in the
related Certificate Principal Balance due to the receipt of Subsequent
Recoveries.
"Assessment of Compliance": As defined in Section 3.14.
"Attestation Report": As defined in Section 3.14.
"Attesting Party": As defined in Section 3.14.
"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 Preliminary Statement.
"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 on the Mortgage Loans due on the related Due Date and received
on or prior to the related Determination Date, (b) Net Liquidation Proceeds,
Insurance Proceeds, Subsequent Recoveries, partial 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 prior calendar month and all Principal Prepayments in
full 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, (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, (h) with
respect to the Distribution Date immediately following the end of the Funding
Period, any amounts in the Pre-Funding Accounts (exclusive of any investment
income therein) after giving effect to any purchase of Subsequent Mortgage Loans
and (i) with respect to each Distribution Date during the Funding Period and on
the Distribution Date immediately following the end of the Funding Period, any
amounts withdrawn by the Trustee from the Interest Coverage Accounts for
distribution on the Certificates on such Distribution Date over (ii) the sum of
(a) amounts reimbursable or payable to the Servicer pursuant to Section 3.11(a),
the Trustee pursuant to Section 3.11(b) or the Swap Provider (including any New
Swap Payment and Swap Termination Payment owed to the Swap Provider but
excluding any Swap Termination Payment owed to the Swap Provider resulting from
a Swap Provider Trigger Event) (b) amounts deposited in the Collection Account
or the Distribution Account pursuant to clauses (a) through (g) above, as the
case may be, in error, (c) the amount of any Prepayment Charges collected by the
Servicer in connection with the full or partial prepayment of any of the
Mortgage Loans and any Servicer Prepayment Charge Payment Amount, (d) any
indemnification payments or expense reimbursements made by the Trust Fund
pursuant to Section 8.05, and (e) any Net Swap Payment or Swap Termination
Payment owed to the Swap Provider (other than any Swap Termination Payment owed
to the Swap Provider resulting from a Swap Provider Trigger Event).
"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 Adjustable-Rate
Certificates, the sum of (i) LIBOR plus (ii) the related Certificate Margin.
"Book-Entry Certificates": Any of the Certificates that shall
be registered in the name of the Depository or its nominee, the ownership of
which is reflected on the books of the Depository or on the books of a Person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.02 hereof). On the Closing
Date, the Adjustable-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 Amount": The Cap Amount for any Class of the
Adjustable-Rate Certificates is equal to (i) the aggregate amount received by
the Trust from the Cap Contract multiplied by (ii) a fraction equal to (a) the
Certificate Principal Balance of such Class immediately prior to the applicable
Distribution Date divided by (b) the aggregate Certificate Principal Balance of
the Adjustable-Rate Certificates immediately prior to the applicable
Distribution Date.
"Cap Contract": The Cap Contract between the Trustee, in its
capacity as Supplemental Interest Trust Trustee and the counterparty thereunder,
a form of which is attached hereto as Exhibit O.
"Certificate": Any Regular Certificate or Residual
Certificate.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or non-U.S. Person shall not be a Holder of a Residual
Certificate for any purpose hereof and, solely for the purposes of giving any
consent pursuant to this Agreement, any Certificate registered in the name of
the Depositor 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
Adjustable-Rate Certificates and for purposes of the Marker Rate and the Maximum
Uncertificated Accrued Interest Deferral Amount, the specified REMIC 3 Regular
Interest, as follows:
Certificate Margin
REMIC 3 Regular ------------------
Class Interest (1) (%) (2) (%)
----- -------- ------- -------
[I-A1 LTIA1 [____]% [____]%
II-A1 LTIIA1 [____]% [____]%
II-A2 LTIIA2 [____]% [____]%
II-A3 LTIIA3 [____]% [____]%
II-A4 LTIIA4 [____]% [____]%
M-1 LTM1 [____]% [____]%
M-2 LTM2 [____]% [____]%
M-3 LTM3 [____]% [____]%
M-4 LTM4 [____]% [____]%
M-5 LTM5 [____]% [____]%
M-6 LTM6 [____]% [____]%
M-7 LTM7 [____]% [____]%
M-8 LTM8 [____]% [____]%
M-9 LTM9 [____]% [____]%
M-10 LTM10 [____]% [____]%
B-1 LTB1 [____]% [____]%
B-2 LTB2 [____]% [____]%
B-3] LTB3 [____]% [____]%
----------
(1) For the Accrual Period for each Distribution Date on or prior to
the Optional Termination Date.
(2) For each other Accrual Period.
"Certificate Owner": With respect to each Book-Entry
Certificate, any beneficial owner thereof.
"Certificate Principal Balance": With respect to any Class of
Regular Certificates (other than the Class C Certificates) immediately prior to
any Distribution Date, will be equal to the Initial Certificate Principal
Balance thereof plus any Subsequent Recoveries added to the Certificate
Principal Balance of such Certificate pursuant to Section 4.01, reduced by the
sum of all amounts actually distributed in respect of principal of such Class
and, in the case of a Mezzanine Certificate or Class B Certificate, Realized
Losses allocated thereto on all prior Distribution Dates. With respect to the
Class C Certificates as of any date of determination, an amount equal to the
excess, if any, of (A) the then aggregate Uncertificated Principal Balance of
the REMIC 3 Regular Interests over (B) the then aggregate Certificate Principal
Balance of the Adjustable-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.
"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 B Certificates": Any Class B-1 Certificate, Class B-2
Certificate or Class B-3 Certificate.
"Class B-1 Certificate": Any one of the Class B-1 Certificates
executed by the Trustee, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-16,
representing (i) a Regular Interest in REMIC 4, (ii) the right to receive the
Net WAC Rate Carryover Amount and (iii) the obligation to pay the Class IO
Distribution Amount.
"Class B-1 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Senior Principal
Distribution Amount on such Distribution Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date), (xi) the Certificate Principal Balance of the Class M-10 Certificates
(after taking into account the distribution of the Class M-10 Principal
Distribution Amount on such Distribution Date) and (xii) the Certificate
Principal Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 92.00% 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 B-2 Certificate": Any one of the Class B-2 Certificates
executed by the Trustee, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-17,
representing (i) a Regular Interest in REMIC 4, (ii) the right to receive the
Net WAC Rate Carryover Amount and (iii) the obligation to pay the Class IO
Distribution Amount.
"Class B-2 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Senior Principal
Distribution Amount on such Distribution Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date), (xi) the Certificate Principal Balance of the Class M-10 Certificates
(after taking into account the distribution of the Class M-10 Principal
Distribution Amount on such Distribution Date), (xii) the Certificate Principal
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date) and (xiii) the Certificate Principal Balance of the Class B-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 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 B-3 Certificate": Any one of the Class B-3 Certificates
executed by the Trustee, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-18,
representing (i) a Regular Interest in REMIC 4, (ii) the right to receive the
Net WAC Rate Carryover Amount and (iii) the obligation to pay the Class IO
Distribution Amount.
"Class B-3 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Senior Principal
Distribution Amount on such Distribution Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date), (xi) the Certificate Principal Balance of the Class M-10 Certificates
(after taking into account the distribution of the Class M-10 Principal
Distribution Amount on such Distribution Date), (xii) the Certificate Principal
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (xiii) the Certificate Principal Balance of the Class B-2 Certificates
(after taking into account the distribution of the Class B-2 Principal
Distribution Amount on such Distribution Date), (xix) the Certificate Principal
Balance of the Class B-3 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 95.80% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the related Overcollateralization Floor.
"Class 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-19,
representing (i) a Regular Interest in REMIC 5, (ii) the obligation to pay Net
WAC Rate Carryover Amounts and Swap Termination Payments and (iii) the right to
receive the Class IO Distribution Amount.
"Class C Interest": An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the Holders of the Class C Certificates,
evidencing a Regular Interest in REMIC 4 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 4, (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 4, (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 4, (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 4, (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 4, (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 4, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
"Class IO Distribution Amount": As defined in Section 4.10
hereof. For purposes of clarity, the Class IO Distribution Amount for any
Distribution Date shall equal the amount payable to the Supplemental Interest
Trust Trustee on such Distribution Date in excess of the amount payable on the
Class IO Interest on such Distribution Date, all as further provided in Section
4.10 hereof.
"Class IO Interest": An uncertificated interest in the Trust
Fund evidencing a Regular Interest in REMIC 4.
"Class M-1 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 immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 51.50% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization Floor.
"Class M-2 Certificate": Any one of the Class M-2 Certificates
executed by the Trustee, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-7, representing
(i) a Regular Interest in REMIC 4, (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 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 aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date) and (iii) the Certificate Principal Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 62.00% 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-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 4, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
"Class M-3 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Senior Principal
Distribution Amount on such Distribution Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date) and (iv) the Certificate
Principal Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 66.10% and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization Floor.
"Class M-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 4, (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 aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (v) the Certificate Principal Balance of the Class M-4 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 71.10% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
"Class M-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 4, (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 aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date) and (vi) the Certificate
Principal Balance of the Class M-5 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 75.70% 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-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 4, (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 aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal Balance of the Class M-6 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 78.80% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
"Class M-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 4, (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 aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date) and (viii) the Certificate
Principal Balance of the Class M-7 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 82.70% and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization Floor.
"Class M-8 Certificate": Any one of the Class M- 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 4, (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 aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date) and (ix) the Certificate Principal Balance of the Class M-8 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 85.80% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
"Class M-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 4, (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 aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date) and (x) the Certificate Principal
Balance of the Class M-9 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 88.30% 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-10 Certificate": Any one of the Class M-10
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 right to receive the
Net WAC Rate Carryover Amount and (iii) the obligation to pay the Class IO
Distribution Amount.
"Class M-10 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Senior Principal
Distribution Amount on such Distribution Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date) and (xi) the Certificate Principal Balance of the Class M-10 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 90.70% 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 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-20,
representing the right to distributions as set forth herein and therein and
evidencing a regular interest in REMIC 6.
"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 4 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-21 and evidencing the
ownership of the Class R-1 Interest, the Class R-2 Interest, Class R-3 Interest
and the Class R-4 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-7 Interest": The uncertificated Residual Interest in
REMIC 7.
"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-22 and evidencing the
ownership of the Class R-5 Interest, Class R-6 Interest and the Class R-7
Interest.]
"Close of Business": As used herein, with respect to any
Business Day, 5:00 p.m. (New York time).
"Closing Date": [______________].
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The account or accounts created and
maintained by the Servicer pursuant to Section 3.10(a), which shall be entitled
"[______________], as Trustee, in trust for registered Holders of
[______________],[______________]," 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 [______________], 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 Sponsor.
"Corresponding Certificate": With respect to each REMIC 3
Regular Interest set forth below, the corresponding Regular Certificate set
forth in the table below:
REMIC 3 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
LTM10 Class M-10
LTB1 Class B-1
LTB2 Class B-2
LTB3 Class B-3
LTP Class P]
"Credit Enhancement Percentage": For any Distribution Date,
the percentage equivalent of a fraction, the numerator of which is the sum of
the aggregate Certificate Principal Balance of the Mezzanine Certificates, the
Class B Certificates and the Class C Certificates, and the denominator of which
is the sum of (x) the aggregate Stated Principal Balance of the Mortgage Loans
and (y) any amounts remaining on deposit in the Pre-Funding Accounts (exclusive
of any investment income therein), 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.
"Credit Risk Manager": ▇▇▇▇▇▇▇ Fixed Income Services, Inc.,
formely known as the Murrayhill Company, its successors and assigns.
"Credit Risk Management Agreement": The Credit Risk Manager
Agreement, dated [______________], between the Servicer and the Credit Risk
Manager.
"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
[_____]% per annum.
"Current Report": The Current Report pursuant to Section 13 or
15(d) of the Exchange Act.
"Custodial Agreement": The Custodial Agreement, dated
[______________], among the Custodian, the Trustee and the Servicer.
"Custodian": [______________], as custodian of the Mortgage
Files, or any successor thereto, pursuant to the Custodial Agreement.
"Custodian Fee Rate": [____]% per annum.
"Cut-off Date": With respect to each Initial Mortgage Loan,
[______________].
"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 REO Properties, in foreclosure or bankruptcy and that are also
Delinquent 60 days or more) by (y) the aggregate Stated Principal Balance of the
Mortgage Loans, in each case, as of the last day of the previous calendar month.
"Delinquent": With respect to any Mortgage Loan and related
Monthly Payment, the Monthly Payment due on a Due Date which is not made by the
Close of Business on the next scheduled Due Date for such Mortgage Loan. For
example, a Mortgage Loan is 60 or more days Delinquent if the Monthly Payment
due on a Due Date is not made by the Close of Business on the second scheduled
Due Date after such Due Date.
"Depositor": Financial Asset Securities Corp., a Delaware
corporation, or any successor in interest.
"Depository": The initial Depository shall be [The Depository
Trust Company, whose nominee is Cede & Co.], or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
"Depository Participant": A broker, dealer, bank or other
financial institution or other person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": With respect to any Distribution Date,
the 15th day of the calendar month in which such Distribution Date occurs or, if
such 15th day is not a Business Day, the Business Day immediately preceding such
15th day.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon or any use
of such REO Property in a trade or business conducted by the REMIC other than
through an Independent Contractor; provided, however, that the Trustee (or the
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Disqualified Organization": A "disqualified organization"
under Section 860E of the Code, which as of the Closing Date is any of: (i) the
United States, any state or political subdivision thereof, any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (ii) any organization (other than a cooperative described
in Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by Section 511
of the Code, (iii) any organization described in Section 1381(a)(2)(C) of the
Code or (iv) an "electing large partnership" within the meaning of Section 775
of the Code. A corporation will not be treated as an instrumentality of the
United States or of any state or political subdivision thereof, if all of its
activities are subject to tax and, a majority of its board of directors is not
selected by a governmental unit. The term "United States", "state" and
"international organizations" shall have the meanings set forth in Section 7701
of the Code.
"Distribution Account": The trust account or accounts created
and maintained by the Trustee pursuant to Section 3.10(b) which shall be
entitled "[______________]" 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 [______________].
"Distribution Report": The Asset-Backed Issuer Distribution
Report pursuant to Section 13 or 15(d) of the Exchange Act.
"Due Date": With respect to each Mortgage Loan and any
Distribution Date, the first day of the calendar month in which such
Distribution Date occurs on which the Monthly Payment for such Mortgage Loan was
due (or, in the case of any Mortgage Loan under the terms of which the Monthly
Payment for such Mortgage Loan was due on a day other than the first day of the
calendar month in which such Distribution Date occurs, the day during the
related Due Period on which such Monthly Payment was due), exclusive of any days
of grace.
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the month preceding the month in which
such Distribution Date occurs and ending on the first day of the month in which
such Distribution Date occurs.
"Eligible Account": Any of (i) an account or accounts
maintained with a federal or state chartered depository institution or trust
company the short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the short-term unsecured debt obligations of such holding
company) are rated A-1+ by S&P, F-1 by Fitch and P-1 by ▇▇▇▇▇'▇ (or comparable
ratings if S&P, Fitch and ▇▇▇▇▇'▇ are not the Rating Agencies) at the time any
amounts are held on deposit therein, (ii) an account or accounts the deposits in
which are fully insured by the FDIC up to the insured amount, (iii) a trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity or (iv) an account otherwise acceptable to each
Rating Agency without reduction or withdrawal of their then current ratings of
the Certificates as evidenced by a letter from each Rating Agency to the Trustee
and the NIMS Insurer. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payments": The amounts constituting ground rents,
taxes, assessments, water rates, fire and hazard insurance premiums and other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant to
any Mortgage Loan.
"Excess Overcollateralized Amount": With respect to the
Adjustable-Rate Certificates and any Distribution Date, the excess, if any, of
(i) the Overcollateralized Amount for such Distribution Date, assuming that 100%
of the Principal Remittance Amount is applied as a principal payment on such
Distribution Date and (ii) any amounts received under the Interest Rate Swap
Agreement for such purposes over (iii) the Overcollateralization Target Amount
for such Distribution Date.
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Exchange Act Reports": Any reports required to be filed
pursuant to Sections 3.23 of this Agreement.
"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.
"▇▇▇▇▇▇ ▇▇▇": Federal National Mortgage Association or any
successor thereto.
"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.
"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 Sponsor or the Servicer pursuant to or as contemplated by
Section 2.03, 3.16(c) or 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.
"Floating Swap Payment": With respect to any Distribution
Date, a floating amount equal to the product of (i) Swap LIBOR, (ii) the related
Base Calculation Amount (as defined in the Interest Rate Swap Agreement), (iii)
250 and (iv) a fraction, the numerator of which is the actual number of days
elapsed from and including the previous Floating Rate Payer Payment Date (as
defined in the Interest Rate Swap Agreement) to but excluding the current
Floating Rate Payer Payment (or, for the first Floating Rate Payer Payment Date,
the actual number of days elapsed from the Closing Date to but excluding the
first Floating Rate Payer Payment Date), and the denominator of which is 360.
"Formula Rate": For any Distribution Date and any Class of the
Adjustable-Rate Certificates, the lesser of (i) the Base Rate and (ii) the
Maximum Cap Rate.
"▇▇▇▇▇▇▇ Mac": The Federal Home Loan Mortgage Corporation, or
any successor thereto.
"Funding Period": The period beginning on the Closing Date and
ending on the earlier to occur of (a) the date upon which the amount on deposit
in the Pre-Funding Accounts (exclusive of any investment income therein) has
been reduced to zero or (b) [______________].
"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 Group I Principal Remittance Amount.
"Group I Certificates": Any Class I-A1 Certificate.
"Group I Interest Coverage Account": The account established
and maintained pursuant to Section 4.06, which account contains an amount, to be
paid by the Depositor to the Trustee on the Closing Date, that equals $[0.00].
"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 or amounts withdrawn from the Group I Interest Coverage Account.
"Group I Mortgage Loan": A Mortgage Loan assigned to Loan
Group I with a Stated Principal Balance at origination that conforms to ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇ Mac loan limits.
"Group I Pre-Funding Account": The account established and
maintained pursuant to Section 4.05, as defined herein.
"Group I Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group I Basic Principal Distribution
Amount for such Distribution Date and (ii)(a) the Extra Principal Distribution
Amount for such Distribution Date multiplied by (b) the Group I Allocation
Percentage.
"Group I Principal Remittance Amount": With respect to any
Distribution Date, that portion of Available Funds equal to the sum of (i) each
scheduled payment of principal collected or advanced on the Group I Mortgage
Loans by the Servicer that were due during the related Due Period, (ii) the
principal portion of all partial and 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 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, (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 and (vii) on the
Distribution Date immediately following the end of the Funding Period, any
remaining amounts in the Group I Pre-Funding Account (exclusive of any
investment income therein) after giving effect to any purchase of Subsequent
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)
40.70% 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 Group II Principal Remittance Amount.
"Group II Certificates": Any Class II-A1 Certificate, Class
II-A2 Certificate, Class II-A3 Certificate or Class II-A4 Certificate.
"Group II Interest Coverage Account": The account established
and maintained pursuant to Section 4.06, which account contains an amount, to be
paid by the Depositor to the Trustee on the Closing Date, that equals $[0.00].
"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 or amounts withdrawn from the Group II Interest Coverage Account.
"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 ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac loan limits.
"Group II Pre-Funding Account": The account established and
maintained pursuant to Section 4.05, as defined herein.
"Group II Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group II Basic Principal Distribution
Amount for such Distribution Date and (ii)(a) the Extra Principal Distribution
Amount for such Distribution Date multiplied by (b) the Group II Allocation
Percentage.
"Group II Principal Remittance Amount": With respect to any
Distribution Date, that portion of Available Funds equal to the sum of (i) each
scheduled payment of principal collected or advanced on the Group II Mortgage
Loans by the Servicer that were due during the related Due Period, (ii) the
principal portion of all partial and 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 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, (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 and (vii) on the
Distribution Date immediately following the end of the Funding Period, any
remaining amounts in the Group II Pre-Funding Account (exclusive of any
investment income therein) after giving effect to any purchase of Subsequent
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) 40.70% and (ii) the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Group II Mortgage Loans as of the last day of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) minus the related Overcollateralization Floor.
"Highest Priority": As of any date of determination, the Class
of Mezzanine Certificates or Class B Certificates then outstanding with a
Certificate Principal Balance greater than zero, with the highest priority for
payments pursuant to Section 4.01, in the following order of decreasing
priority: [Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class M-9, Class M-10, Class B-1, Class B-2 Certificates
and Class B-3 Certificates.]
"Indenture": An indenture relating to the issuance of notes
secured by the Class C Certificates, the Class P Certificates and/or the Class R
Certificates (or any portion thereof) which may or may not be guaranteed by the
NIMS Insurer.
"Independent": When used with respect to any specified Person,
any such Person who (a) is in fact independent of the Depositor, the Servicer
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.
"Initial Group I Mortgage Loan": Any of the Group I Mortgage
Loans included in the Trust Fund as of the Closing Date. The aggregate principal
balance of the Initial Group I Mortgage Loans as of the Cut-off Date is equal to
$[______________].
"Initial Group II Mortgage Loan": Any of the Group II Mortgage
Loans included in the Trust Fund as of the Closing Date. The aggregate principal
balance of the Initial Group II Mortgage Loans as of the Cut-off Date is equal
to $[______________].
"Initial Mortgage Loan": Any of the Initial Group I Mortgage
Loans or Initial Group II Mortgage Loans included in the Trust Fund as of the
Closing Date.
"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 Coverage Accounts": The Group I Interest Coverage
Account and the Group II Interest Coverage Account.
"Interest Determination Date": With respect to the
Adjustable-Rate Certificates and each Accrual Period, the second LIBOR Business
Day preceding the commencement of such Accrual Period.
"Interest Rate Swap Agreement": The 1992 ISDA Master Agreement
(Multicurrency-Cross Border) dated as of [______________] (together with the
schedule thereto, the Master Agreement) between the Bank of New York and the
Trustee (in its capacity as Supplemental Interest Trust Trustee).
"Late Collections": With respect to any Mortgage Loan, all
amounts received subsequent to the Determination Date immediately following any
related Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent on a
contractual basis for such Due Period and not previously recovered.
"LIBOR": With respect to each Accrual Period, the rate
determined by the Trustee on the related Interest Determination Date on the
basis of the London interbank offered rate for one-month United States dollar
deposits, as such rate appears on the Telerate Page 3750, as of 11:00 a.m.
(London time) on such Interest Determination Date. If such rate does not appear
on Telerate Page 3750, the rate for such Interest Determination Date will be
determined on the basis of the offered rates of the Reference Banks for
one-month United States dollar deposits, as of 11:00 a.m. (London time) on such
Interest Determination Date. The Trustee will request the principal London
office of each of the Reference Banks to provide a quotation of its rate. On
such Interest Determination Date, LIBOR for the related Accrual Period will be
established by the Trustee as follows:
(i) If on such Interest Determination Date two or more
Reference Banks provide such offered quotations, LIBOR for the related
Accrual Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16 of
1%); and
(ii) If on such Interest Determination Date fewer than two
Reference Banks provide such offered quotations, LIBOR for the related
Accrual Period shall be the higher of (i) LIBOR as determined on the
previous Interest Determination Date and (ii) the Reserve Interest
Rate.
"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 Sponsor 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 3 Pass-Through Rates for REMIC 3 Regular Interest
LTIA1, REMIC 3 Regular Interest LTIIA1, REMIC 3 Regular Interest LTIIA2, REMIC 3
Regular Interest LTIIA3, REMIC 3 Regular Interest LTIIA4, REMIC 3 Regular
Interest LTM1, REMIC 3 Regular Interest LTM2, REMIC 3 Regular Interest LTM3,
REMIC 3 Regular Interest LTM4, REMIC 3 Regular Interest LTM5, REMIC 3 Regular
Interest LTM6, REMIC 3 Regular Interest LTM7, REMIC 3 Regular Interest LTM8,
REMIC 3 Regular Interest LTM9, REMIC 3 Regular Interest LTM10, REMIC 3 Regular
Interest LTB1, REMIC 3 Regular Interest LTB2, REMIC 3 Regular Interest LTB3 and
REMIC 3 Regular Interest LTZZ, with the rate on each such REMIC 3 Regular
Interest (other than REMIC 3 Regular Interest LTZZ) subject to a cap equal to
the lesser of (i) LIBOR plus the related Certificate Margin for the related
Corresponding Certificate and (ii) the Net WAC Rate for the purpose of this
calculation and with the rate on REMIC 3 Regular Interest LTZZ subject to a cap
of zero for the purpose of this calculation; provided, however, that for this
purpose, calculations of the Uncertificated REMIC 3 Pass-Through Rate and the
related caps with respect to each such REMIC 3 Regular Interest (other than
REMIC 3 Regular Interest LTZZ) shall be multiplied by a fraction, the numerator
of which is the actual number of days in the Accrual Period and the denominator
of which is 30. .........
"Maximum Cap Rate": For any Distribution Date and any Class of
the Adjustable-Rate Certificates, a per annum rate equal to the sum (i) the
product of (x) the weighted average of the Adjusted Net Maximum Mortgage Rates
of the Mortgage Loans, weighted on the basis of the outstanding Principal
Balances of the Mortgage Loans as of the first day of the month preceding the
month of such Distribution Date 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 and (ii) an amount, expressed as a percentage, equal to a
fraction, the numerator of which is equal to the Net Swap Payment or 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,
multiplied by 12.
"Maximum Uncertificated Accrued Interest Deferral Amount":
With respect to any Distribution Date, the excess of (a) accrued interest at the
Uncertificated REMIC 3 Pass-Through Rate applicable to REMIC 3 Regular Interest
LTZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC 3 Regular Interest LTZZ minus the REMIC 3
Overcollateralization Amount, in each case for such Distribution Date, over (b)
the sum of the Uncertificated Accrued Interest on REMIC 3 Regular Interest
LTIA1, REMIC 3 Regular Interest LTIIA1, REMIC 3 Regular Interest LTIIA2, REMIC 3
Regular Interest LTIIA3, REMIC 3 Regular Interest LTIIA4, REMIC 3 Regular
Interest LTM1, REMIC 3 Regular Interest LTM2, REMIC 3 Regular Interest LTM3,
REMIC 3 Regular Interest LTM4, REMIC 3 Regular Interest LTM5, REMIC 3 Regular
Interest LTM6, REMIC 3 Regular Interest LTM7, REMIC 3 Regular Interest LTM8,
REMIC 3 Regular Interest LTM9, REMIC 3 Regular Interest LTM10, REMIC 3 Regular
Interest LTB1, REMIC 3 Regular Interest LTB2 and REMIC 3 Regular Interest LTB3
with the rate on each such REMIC 3 Regular Interest subject to a cap equal to
the lesser of (i) LIBOR plus the related Certificate Margin for the related
Corresponding Certificate and (ii) the Net WAC Rate for the purpose of this
calculation; provided, however, that for this purpose, calculations of the
Uncertificated REMIC 3 Pass-Through Rate and the related caps with respect to
each such REMIC 3 Regular Interest shall be multiplied by a fraction, the
numerator of which is the actual number of days in the 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.
"Mezzanine Certificate": [Any Class M-1 Certificate, Class M-2
Certificate, Class M-3 Certificate, Class M-4 Certificate, Class M-5
Certificate, Class M-6 Certificate, Class M-7 Certificate, Class M-8
Certificate, Class M-9 Certificate or Class M-10 Certificate.]
"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.
"Monthly Interest Distributable Amount": With respect to any
Class of the Adjustable-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 or Relief Act Interest Shortfalls.
"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": ▇▇▇▇▇'▇ 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 agreement between the
Sponsor and the Depositor, regarding the transfer of the Mortgage Loans by the
Sponsor to or at the direction of 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 1 on such date, separately identifying the Group I
Mortgage Loans and the Group II Mortgage Loans, attached hereto as Exhibit D, as
supplemented by each schedule of Subsequent Mortgage Loans. The Mortgage Loan
Schedule shall be prepared by the Sponsor 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 (or Subsequent Cut-off Date, with respect to a Subsequent
Mortgage Loan) 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 (or Subsequent Cut-off Date, with respect to a
Subsequent Mortgage Loan);
(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 (or Subsequent Cut-off Date, with
respect to a Subsequent Mortgage Loan);
(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 (or Subsequent
Cut-off Date, with respect to a Subsequent Mortgage Loan);
(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 (or Subsequent Cut-off Date, with
respect to a Subsequent Mortgage Loan);
(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 (or Subsequent Cut-off Date, with respect to a
Subsequent Mortgage Loan): (1) the number of Mortgage Loans (separately
identifying the number of Fixed-Rate Mortgage Loans and the number of
Adjustable-Rate Mortgage Loans); (2) the current Principal Balance of the
Mortgage Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans and
(4) the weighted average remaining term to maturity of the Mortgage Loans. The
Mortgage Loan Schedule shall be amended from time to time by the Servicer in
accordance with the provisions of this Agreement. With respect to any Qualified
Substitute Mortgage Loan, Cut-off Date shall refer to the related Cut-off Date
for such Mortgage Loan, determined in accordance with the definition of Cut-off
Date herein. On the Closing Date, the Depositor will deliver to the Servicer, as
of the Cut-off Date, an electronic copy of the Mortgage Loan Schedule.
"Mortgage Note": The original executed note or other evidence
of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on
Exhibit D from time to time, and any REO Properties acquired in respect thereof
and as supplemented by any Subsequent Mortgage Loans identified on each schedule
of Subsequent Mortgage Loans attached to a Subsequent Transfer Instrument.
"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 (or Subsequent Cut-off Date, with
respect to a Subsequent Mortgage Loan) shall be the rate set forth in the
Mortgage Loan Schedule as the Mortgage Rate in effect immediately following the
Cut-off Date (or Subsequent Cut-off Date, with respect to a Subsequent Mortgage
Loan) 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 Adjustable-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": For any Distribution Date and any Class of the
Adjustable-Rate Certificates, a per annum rate equal to the product of (a) a
fraction, expressed as a percentage, the numerator of which is the sum of (i)
the amount of interest which accrued on the Mortgage Loans in the prior calendar
month for such Distribution Date (after giving effect to Principal Prepayments
received during the related Prepayment Period) at their Adjusted Net Mortgage
Rates and (ii) amounts withdrawn from the Interest Coverage Accounts, if any,
for such Distribution Date minus the amount of any Net Swap Payment or Swap
Termination Payment due from the Trust (other than any Swap Termination Payment
resulting from a Swap Provider Trigger Event) for such Distribution Date and the
denominator of which is equal to the sum of (i) the aggregate stated Principal
Balance of the Mortgage Loans as of the first day of the calendar month
preceding the month of such Distribution Date (or as of the Cut-off Date with
respect to the first Distribution Date), after giving effect to Principal
Prepayments received during the related Prepayment Period and (ii) any amounts
on deposit in the Pre-Funding Accounts as of the first day of the calendar month
preceding the month of such Distribution Date (or as of the Cut-off Date with
respect to the first Distribution Date) and (b) a fraction whose numerator is
360 and whose denominator is the actual number of days in the related Accrual
Period. For federal income tax purposes, the economic equivalent of such rate
shall be expressed as the weighted average (adjusted for the actual number of
days elapsed elapsed in the related Accrual Period) of the REMIC 3 Pass-Through
Rates on the REMIC 3 Regular Interests (other than REMIC 3 Regular Interest
LTIO), weighted on the basis of the Uncertificated Principal Balance of each
such REMIC 3 Regular Interest.
"Net WAC Rate Carryover Amount": With respect to any Class of
the Adjustable-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 Formula 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 Formula Rate for the most
recently ended Accrual Period.
"Net WAC Rate Carryover Reserve Account": The account
established and maintained pursuant to Section 4.07.
"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 of the Uncertificated
Principal Balances of REMIC 3 Regular Interests (other than REMIC 3 Regular
Interest LTP).
"Offered Certificates": The Class A Certificates and the
Mezzanine Certificates offered to the public pursuant to the Prospectus
Supplement.
"Officers' Certificate": A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), or by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of the Servicer, the Sponsor 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 Adjustable-Rate Certificates, the Class C Certificates, the Class C
Interest, the Class IO Interest, REMIC 7 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.
"Original Group I Pre-Funded Amount": The amount deposited by
the Depositor in the Group I Pre-Funding Account on the Closing Date, which
amount is $136,257,723.
"Original Group II Pre-Funded Amount": The amount deposited by
the Depositor in the Group II Pre-Funding Account on the Closing Date, which
amount is $121,265,772.
"Original Pre-Funded Amounts": The Original Group I Pre-Funded
Amount and the Original Group II Pre-Funded Amount.
"Originator": First Franklin, a division of National City Bank
of Indiana, or its successor in interest.
"Overcollateralization Deficiency Amount": With respect to any
Distribution Date, the amount, if any, by which the Overcollateralization Target
Amount exceeds the Overcollateralized Amount on such Distribution Date (assuming
that 100% of the Principal Remittance Amount is applied as a principal
distribution on such Distribution Date).
"Overcollateralization Floor": With respect to the Group I
Certificates, $2,635,229. With respect to the Group II Certificates, $2,277,799.
With respect to the Mezzanine Certificates and the Class B Certificates,
$4,913,028.
"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, an amount equal to (i) prior to the Stepdown Date, 2.10% of
the sum of (a) the aggregate Cut-off Date Principal Balance of the Initial
Mortgage Loans and (b) the Original Pre-Funded Amounts; (ii) on or after the
Stepdown Date so long as a Trigger Event is not in effect, the greater of (a)
4.20% of the then current aggregate outstanding Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal received during the related Due Period and
unscheduled collections of principal received during the related Prepayment
Period) and (b) 0.50% of the sum of (x) the aggregate Cut-off Date Principal
Balance of the Initial Mortgage Loans and (y) the Original Pre-Funded Amounts;
or (iii) on or after the Stepdown Date and 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
Adjustable-Rate Certificates to zero, the Overcollateralization Target Amount
shall be zero.
"Overcollateralized Amount": For any Distribution Date, the
amount equal to (i) the sum of (a) 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) any funds on deposit in the
Pre-Funding Accounts as of the related Determination Date (exclusive of any
investment income therein) minus (ii) the sum of the aggregate Certificate
Principal Balance of the Adjustable-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 any Class of the
Adjustable-Rate Certificates and any Distribution Date, the lesser of (x) the
related Formula Rate for such Distribution Date and (y) 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 3 Regular Interest LTP and (ii) interest on the Uncertificated Balance of
each REMIC 3 Regular Interest listed in clause (y) at a rate equal to the
related Uncertificated REMIC 3 Pass-Through Rate minus the Marker Rate and the
denominator of which is (y) the aggregate Uncertificated Balance of REMIC 3
Regular Interests ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, LTIIA2, LTAII3, ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇,
▇▇▇▇, ▇▇▇▇, ▇▇▇▇, LTM7, LTM8, LTM9, LTM10, LTB1, LTB2, LTB3 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 REMIC 7 Regular 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 the 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 ▇▇▇▇▇'▇ and
the highest available rating category of Fitch and S&P and provided
that each such investment has an original maturity of no more than 365
days; and provided further that, if the only Rating Agency is S&P and
if the depository or trust company is a principal subsidiary of a bank
holding company and the debt obligations of such subsidiary are not
separately rated, the applicable rating shall be that of the bank
holding company; and, provided further that, if the original maturity
of such short- term obligations of a domestic branch of a foreign
depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall be A-1+ in the case of S&P
if S&P is the Rating Agency; and (B) any other demand or time deposit
or deposit which is fully insured by the FDIC;
(iii) repurchase obligations with a term not to exceed 30 days
with respect to any security described in clause (i) above and entered
into with a depository institution or trust company (acting as
principal) rated F-1+ or higher by Fitch, P-1 by ▇▇▇▇▇'▇ and rated
A-1+ or higher by S&P, provided, however, that collateral transferred
pursuant to such repurchase obligation must be of the type described
in clause (i) above and must (A) be valued daily at current market
prices plus accrued interest, (B) pursuant to such valuation, be
equal, at all times, to 105% of the cash transferred by the 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 ▇▇▇▇▇'▇ 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,
▇▇▇▇▇ 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.
"Pre-Funding Accounts": The Group I Pre-Funding Account and
the Group II Pre-Funding Account.
"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 (or Subsequent Cut-off Date, with
respect to a Subsequent Mortgage Loan).
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 interest on the amount of such Principal Prepayment for the
number of days commencing on the date such Principal Prepayment was applied and
ending on the last day of the calendar month preceding the month in which such
Distribution Date occurs.
"Prepayment Period": With respect to any Distribution Date,
the period commencing on the 16th day of the calendar month preceding the month
in which the related Distribution Date occurs (or, in the case of the first
Distribution Date, from [______________]) and ending on the 15th day of the
calendar month in which such Distribution Date occurs.
"Principal Balance": As to any Mortgage Loan other than a
Liquidated Mortgage Loan, and any day, the related Cut-off Date Principal
Balance, minus all collections credited against the Cut-off Date Principal
Balance of any such Mortgage Loan. For purposes of this definition, a Liquidated
Mortgage Loan shall be deemed to have a Principal Balance equal to the Principal
Balance of the related Mortgage Loan as of the final recovery of related
Liquidation Proceeds and a Principal Balance of zero thereafter. As to any REO
Property and any day, the Principal Balance of the related Mortgage Loan
immediately prior to such Mortgage Loan becoming REO Property minus any REO
Principal Amortization received with respect thereto on or prior to such day.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing the full
amount of scheduled interest due on any Due Date in any month or months
subsequent to the month of prepayment.
"Principal Remittance Amount": With respect to any
Distribution Date, the sum of the Group I Principal Remittance Amount and the
Group II Principal Remittance Amount.
"Prospectus Supplement": That certain Prospectus Supplement
dated [______________] relating to the public offering of the Class A
Certificates and the Mezzanine Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 10.01, and as confirmed by an Officers' Certificate from the
party purchasing the Mortgage Loan to the Trustee, an amount equal to the sum of
(i) 100% of the Stated Principal Balance thereof as of the date of purchase (or
such other price as provided in Section 10.01), (ii) in the case of (x) a
Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable Mortgage Rate in effect from time to time from the Due Date as to
which interest was last covered by a payment by the Mortgagor or an Advance by
the Servicer, which payment or Advance had as of the date of purchase been
distributed pursuant to Section 4.01, through the end of the calendar month in
which the purchase is to be effected, and (y) an REO Property, the sum of (1)
accrued interest on such Stated Principal Balance at the applicable Mortgage
Rate in effect from time to time from the Due Date as to which interest was last
covered by a payment by the Mortgagor or an advance by the Servicer through the
end of the calendar month immediately preceding the calendar month in which such
REO Property was acquired, plus (2) REO Imputed Interest for such REO Property
for each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such purchase
is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances that as of the date of purchase had
been distributed as or to cover REO Imputed Interest pursuant to Section 4.04,
(iii) any unreimbursed Servicing Advances and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan or REO Property pursuant to Section 3.24 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, usury or abusive lending law.
"Qualified Insurer": Any insurance company acceptable to
▇▇▇▇▇▇ ▇▇▇.
"Qualified Substitute Mortgage Loan": A mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement
or the Mortgage Loan Purchase Agreement which must, on the date of such
substitution, (i) have an outstanding Stated Principal Balance (or in the case
of a substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Stated Principal Balance), after application of all scheduled payments
of principal and interest due during or prior to the month of substitution, not
in excess of, and not more than 5% less than, the outstanding Stated Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) have a Mortgage Rate not less than
(and not more than one percentage point in excess of) the Mortgage Rate of the
Deleted Mortgage Loan, (iii) if the Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a Maximum Mortgage Rate not less than the
Maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) if the Qualified
Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have a Minimum
Mortgage Rate not less than the Minimum Mortgage Rate of the Deleted Mortgage
Loan, (v) if the Qualified Substitute Mortgage Loan is an Adjustable-Rate
Mortgage Loan, have a Gross Margin equal to or greater than the Gross Margin of
the Deleted Mortgage Loan, (vi) if the Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a next Adjustment Date not more than two
months later than the next Adjustment Date on the Deleted Mortgage Loan, (vii)
[reserved], (viii) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Mortgage Loan, (ix) be current
as of the date of substitution, (x) have a Loan-to-Value Ratio as of the date of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (xi) have a risk grading determined by the
Originator at least equal to the risk grading assigned on the Deleted Mortgage
Loan, (xii) have been underwritten or reunderwritten by the Originator in
accordance with the same underwriting criteria and guidelines as the Deleted
Mortgage Loan, (xiii) [reserved] 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 Balances, 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": Fitch, ▇▇▇▇▇'▇ 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 (i) the Class P Certificates,
the Class C Certificates and the Residual Certificates, the Close of Business on
the last Business Day of the calendar month preceding the month in which the
related Distribution Date occurs and (ii) the Adjustable-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 Adjustable-Rate Certificates are
available pursuant to Section 5.02, the Record Date for such Certificates that
are Definitive Certificates shall be the last Business Day of the calendar month
preceding the month in which the related Distribution Date occurs.
"Reference Banks": Those banks (i) with an established place
of business in London, England, (ii) not controlling, under the control of or
under common control with the Originator or the Servicer or any Affiliate
thereof and (iii) which have been designated as such by the Trustee after
consultation with the Depositor; provided, however, that if fewer than two of
such banks provide a LIBOR rate, then any leading banks selected by the Trustee
after consultation with the Depositor which are engaged in transactions in
United States dollar deposits in the international Eurocurrency market.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of
which were not used to purchase the related Mortgaged Property.
"Regular Certificate": Any of the Adjustable-Rate
Certificates, Class C Certificates or Class P Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Relief Act": The Servicemembers Civil Relief Act, as amended,
or any state law providing for similar relief.
"Relief Act Interest Shortfall": With respect to any
Distribution Date, for any Mortgage Loan with respect to which there has been a
reduction in the amount of interest collectible thereon for the most recently
ended Due Period as a result of the application of the Relief Act or any similar
state or local laws, the amount by which (i) interest collectible on such
Mortgage Loan during such Due Period is less than (ii) one month's interest on
the Principal Balance of such Mortgage Loan at the Mortgage Rate for such
Mortgage Loan before giving effect to the application of the Relief Act or such
state or local laws.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
"REMIC 1": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is to be made consisting of: (i) such
Mortgage Loans as from time to time are subject to this Agreement, together with
the Mortgage Files relating thereto, and together with all collections thereon
and proceeds thereof, (ii) any REO Property, together with all collections
thereon and proceeds thereof, (iii) the Trustee's rights with respect to the
Mortgage Loans under all insurance policies required to be maintained pursuant
to this Agreement and any proceeds thereof, (iv) the Depositor's rights under
the Mortgage Loan Purchase Agreement (including any security interest created
thereby) and (v) the Collection Account, the Distribution Account (subject to
the last sentence of this definition) and any REO Account and such assets that
are deposited therein from time to time and any investments thereof, together
with any and all income, proceeds and payments with respect thereto.
Notwithstanding the foregoing, however, a REMIC election will not be made with
respect to the Pre-Funding Account, the Interest Coverage Accounts, any
Subsequent Mortgage Loan Interest, the Net WAC Rate Carryover Reserve Account,
the Cap Contract or any Servicer Prepayment Charge Payment Amounts.
"REMIC 1 Regular Interests": One 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. The following is a list of each of the REMIC 1 Regular
Interests: REMIC 1 Regular Interest LT1, REMIC 1 Regular Interest LT1PF, REMIC 1
Regular Interest LT2, REMIC 1 Regular Interest LT2PF and REMIC 1 Regular
Interest LTP.
"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 Regular Interest": Any of the 82 separate
non-certificated beneficial ownership interests in REMIC 2 issued hereunder and
designated as a "regular interest" in REMIC 2. Each REMIC 2 Regular Interest
shall accrue interest at the related Uncertificated REMIC 2 Pass-Through Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
"REMIC 3": The segregated pool of assets consisting of all of
the REMIC 2 Regular Interests and conveyed in trust to the Trustee, for the
benefit of REMIC 4, as holder of the REMIC 3 Regular Interests, and the Class R
Certificateholders, as Holders 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 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 3 Pass-Through Rate for REMIC 3
Regular Interest LTAA minus the Marker Rate, divided by (b) 12.
"REMIC 3 Overcollateralization Target Amount": 1.00% of the
Overcollateralization Target Amount.
"REMIC 3 Overcollateralization Amount": With respect to any
date of determination, (i) 1.00% of the aggregate Uncertificated Principal
Balance of the REMIC 3 Regular Interests (other than REMIC 3 Regular Interst
LTP) minus (ii) the aggregate Uncertificated Principal Balance of REMIC 3
Regular Interest LTIA1, REMIC 3 Regular Interest LTIIA1, REMIC 3 Regular
Interest LTIIA2, REMIC 3 Regular Interest LTIIA3, REMIC 3 Regular Interest
LTIIA4, REMIC 3 Regular Interest LTM1, REMIC 3 Regular Interest LTM2, REMIC 3
Regular Interest LTM3, REMIC 3 Regular Interest LTM4, REMIC 3 Regular Interest
LTM5, REMIC 3 Regular Interest LTM6, REMIC 3 Regular Interest LTM7, REMIC 3
Regular Interest LTM8, REMIC 3 Regular Interest LTM9, REMIC 3 Regular Interest
LTM10, REMIC 3 Regular Interest LTB1, REMIC 3 Regular Interest LTB2 and REMIC 3
Regular Interest LTB3, in each case as of such date of determination.
"REMIC 3 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 the amounts on deposit in the Pre-Funding Accounts (exclusive of
any investment income therein) and (ii) 1 minus a fraction, the numerator of
which is two times the aggregate Uncertificated Principal Balance of REMIC 3
Regular Interest LTIA1, REMIC 3 Regular Interest LTIIA1, REMIC 3 Regular
Interest LTIIA2, REMIC 3 Regular Interest LTIIA3, REMIC 3 Regular Interest
LTIIA4, REMIC 3 Regular Interest LTM1, REMIC 3 Regular Interest LTM2, REMIC 3
Regular Interest LTM3, REMIC 3 Regular Interest LTM4, REMIC 3 Regular Interest
LTM5, REMIC 3 Regular Interest LTM6, REMIC 3 Regular Interest LTM7, REMIC 3
Regular Interest LTM8, REMIC 3 Regular Interest LTM9, REMIC 3 Regular Interest
LTM10, REMIC 3 Regular Interest LTB1, REMIC 3 Regular Interest LTB2 and REMIC 3
Regular Interest LTB3 and the denominator of which is the aggregate
Uncertificated Principal Balance of REMIC 3 Regular Interest LTIA1, REMIC 3
Regular Interest LTIIA1, REMIC 3 Regular Interest LTIIA2, REMIC 3 Regular
Interest LTIIA3, REMIC 3 Regular Interest LTIIA4, REMIC 3 Regular Interest LTM1,
REMIC 3 Regular Interest LTM2, REMIC 3 Regular Interest LTM3, REMIC 3 Regular
Interest LTM4, REMIC 3 Regular Interest LTM5, REMIC 3 Regular Interest LTM6,
REMIC 3 Regular Interest LTM7, REMIC 3 Regular Interest LTM8, REMIC 3 Regular
Interest LTM9, REMIC 3 Regular Interest LTM10, REMIC 3 Regular Interest LTB1,
REMIC 3 Regular Interest LTB2, REMIC 3 Regular Interest LTB3REMIC 3 Regular
Interest LTZZ.
"REMIC 3 Regular Interests": One of the separate
non-certificated beneficial ownership interests in REMIC 3 issued hereunder and
designated as a Regular Interest in REMIC 3. Each REMIC 3 Regular Interest shall
accrue interest at the related Uncertificated REMIC 3 Pass-Through Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The following is a list of each of the REMIC 3 Regular
Interests: REMIC 3 Regular Interest LTAA, REMIC 3 Regular Interest LTIA1, REMIC
3 Regular Interest LTIIA1, REMIC 3 Regular Interest LTIIA2, REMIC 3 Regular
Interest LTIIA3, REMIC 3 Regular Interest LTIIA4, REMIC 3 Regular Interest LTM1,
REMIC 3 Regular Interest LTM2, REMIC 3 Regular Interest LTM3, REMIC 3 Regular
Interest LTM4, REMIC 3 Regular Interest LTM5, REMIC 3 Regular Interest LTM6,
REMIC 3 Regular Interest LTM7, REMIC 3 Regular Interest LTM8, REMIC 3 Regular
Interest LTM9, REMIC 3 Regular Interest LTM10, REMIC 3 Regular Interest LTB1,
REMIC 3 Regular Interest LTB2, REMIC 3 Regular Interest LTB3, REMIC 3 Regular
Interest LTZZ, REMIC 3 Regular Interest LTP and REMIC 3 Regular Interest LTIO.
"REMIC 4": The segregated pool of assets consisting of all of
the REMIC 3 Regular Interests conveyed in trust to the Trustee, for the benefit
of the Holders of the Regular Certificates (other than the Class C Certificates
or 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-4
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
"REMIC 5": The segregated pool of assets consisting of the
Class 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-5 Interest), pursuant to Article II hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
"REMIC 6": The segregated pool of assets consisting of the
Class 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-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 7": The segregated pool of assets consisting of the
Class IO Interest conveyed in trust to the Trustee, for the benefit of the
Holders of the REMIC 7 Regular Interest SWAP IO and the Class R-X Certificates
(in respect of the Class R-7 Interest), pursuant to Article II hereunder, and
all amounts deposited therein, with respect to which a separate REMIC election
is to be made.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time.
"REMIC Regular Interests": The REMIC 1 Regular Interests, the
REMIC 2 Regular Interests, the REMIC 3 Regular Interests, the Class C Interest,
the Class P Interest and the Class IO Interest.
"Remittance Report": A report prepared by the Servicer and
delivered to the 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 3.24.
"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 3.24 in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable or
reimbursable to the Servicer pursuant to Section 3.24 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 3.24.
"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 ▇▇▇▇▇▇ ▇▇▇ 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
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or its successor in interest.
"Sponsor": Greenwich Capital Financial Products, Inc., a
Delaware corporation, in its capacity as Sponsor under the Mortgage Loan
Purchase Agreement.
"Senior Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group I Senior Principal Distribution
Amount and (ii) the Group II Senior Principal Distribution Amount.
"Servicer": National City Home Loan Services, Inc., a Delaware
corporation, or any successor servicer appointed as herein provided, in its
capacity as Servicer hereunder.
"Servicer Event of Termination": One or more of the events
described in Section 7.01.
"Servicer Prepayment Charge Payment Amount": The amounts
payable by the Servicer in respect of any waived Prepayment Charges pursuant to
Section 2.05 or Section 3.01.
"Servicer Remittance Date": With respect to any Distribution
Date, the third Business Day prior to such Distribution Date.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.09.
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses (including reasonable attorneys' fees and
expenses) incurred by the Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration, inspection and protection of the Mortgaged Property, (ii) any
enforcement, administrative or judicial proceedings, including foreclosures,
(iii) the management and liquidation of the REO Property, (iv) taxes,
assessments, water rates, sewer rates and other charges which are or may become
a lien on the Mortgaged Property and insurance premiums (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 3.24.
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 Criteria": The "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to time, or
those Servicing Criteria otherwise mutually agreed to by [the Sponsor] and the
applicable Servicer in response to evolving interpretations of Regulation AB and
incorporated into a revised Exhibit U.
"Servicing Fee": With respect to each Mortgage Loan and for
any calendar month, 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 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 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.
Sponsor: [_____].
"Startup Day": As defined in Section 9.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan:
(a) as of any date of determination up to but not including the Distribution
Date on which the proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, the outstanding principal balance of such
Mortgage Loan as of the Cut-off Date as shown in the Mortgage Loan Schedule,
minus the sum of (i) the principal portion of each Monthly Payment due on a Due
Date subsequent to the Cut-off Date to the extent received from the Mortgagor or
advanced by the Servicer and distributed pursuant to Section 4.01 on or before
such date of determination, (ii) all Principal Prepayments received after the
Cut-off Date to the extent distributed pursuant to Section 4.01 on or before
such date of determination, (iii) all Liquidation Proceeds and Insurance
Proceeds to the extent distributed pursuant to Section 4.01 on or before such
date of determination, and (iv) any Realized Loss incurred with respect thereto
as a result of a Deficient Valuation made during or prior to the Due Period for
the most recent Distribution Date coinciding with or preceding such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed, zero.
With respect to any REO Property: (a) as of any date of determination up to but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the related
Mortgage Loan as of the date on which such REO Property was acquired on behalf
of the Trust Fund, minus the aggregate amount of REO Principal Amortization in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, zero.
"Stepdown Date": The earlier to occur of (i) the Distribution
Date on which the aggregate Certificate Principal Balance of the Class A
Certificates has been reduced to zero and (ii) the later to occur of (x) the
Distribution Date occurring in [______________] and (y) the first Distribution
Date on which the 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 [59.30]%.
"Sub-Servicer": Any Person with which the Servicer has entered
into a Sub- Servicing Agreement and which meets the qualifications of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicing Account": An account established by a
Sub-Servicer which meets the requirements set forth in Section 3.08 and is
otherwise acceptable to the Servicer.
"Sub-Servicing Agreement": The written contract between the
Servicer and a Sub- Servicer relating to servicing and administration of certain
Mortgage Loans as provided in Section 3.02.
"Subsequent Cut-off Date": With respect to those Subsequent
Mortgage Loans sold to the Trust Fund pursuant to a Subsequent Transfer
Instrument, the later of (i) first day of the month in which the related
Subsequent Transfer Date occurs or (ii) the date of origination of such Mortgage
Loan.
"Subsequent Group I Mortgage Loan": A Subsequent Mortgage Loan
to be included in Loan Group I.
"Subsequent Group II Mortgage Loan": A Subsequent Mortgage
Loan to be included in Loan Group II.
"Subsequent Mortgage Loan": A Mortgage Loan sold by the
Depositor to the Trust Fund pursuant to Section 2.08, such Mortgage Loan being
identified on the Mortgage Loan Schedule attached to a Subsequent Transfer
Instrument.
"Subsequent Mortgage Loan Interest": Any amount constituting a
monthly payment of interest received or advanced at the Net Mortgage Rate with
respect to (i) a Subsequent Group I Mortgage Loan during the Due Period relating
to the first Distribution Date in excess of 0.00% per annum and (ii) a
Subsequent Group II Mortgage Loan during the Due Period relating to the first
Distribution Date in excess of 0.00% per annum. The Subsequent Mortgage Loan
Interest shall be distributable to the Class C Certificates. The Subsequent
Mortgage Loan Interest shall not be an asset of any REMIC.
"Subsequent Mortgage Loan Purchase Agreement": The agreement
between the Depositor and the Sponsor, regarding the transfer of the Subsequent
Mortgage Loans by the Sponsor to the Depositor.
"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.
"Subsequent Transfer Date": With respect to each Subsequent
Transfer Instrument, the date on which the related Subsequent Mortgage Loans are
sold to the Trust Fund.
"Subsequent Transfer Instrument": Each Subsequent Transfer
Instrument, dated as of a Subsequent Transfer Date, executed by the Trustee and
the Depositor substantially in the form attached hereto as Exhibit R, by which
Subsequent Mortgage Loans are transferred to the Trust Fund.
"Supplemental Interest Trust": As defined in Section 4.10(a).
"Swap Account": The account or accounts created and maintained
pursuant to Section 4.05. The Swap Account must be an Eligible Account.
"Swap Interest Shortfall Amount": Any shortfall of interest
with respect to any Class of Certificates resulting from the application of the
Net WAC Rate due to a discrepancy between the Uncertificated Notional Amount of
the REMIC 7 Regular Interest SWAP-IO and the scheduled notional amount.
"Swap LIBOR": A per annum rate equal to the floating rate
payable by the Swap Provider under the Swap Agreement.
"Swap Provider": The Bank of New York.
"Swap Provider Trigger Event": A Swap Termination Payment that
is triggered upon: (i) an Event of Default under the Interest Rate Swap
Agreement with respect to which the Swap Provider is a Defaulting Party (as
defined in the Interest Rate Swap Agreement), (ii) a Termination Event under the
Interest Rate Swap Agreement with respect to which the Swap Provider is the sole
Affected Party (as defined in the Interest Rate Swap Agreement) or (iii) an
Additional Termination Event under the Interest Rate Swap Agreement with respect
to which the Swap Provider is the sole Affected Party.
"Swap Termination Payment": The payment due to either party
under the Interest Rate Swap Agreement upon the early termination of the
Interest Rate Swap Agreement.
"Substitution Adjustment": As defined in Section 2.03(d)
hereof.
"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.
"Trigger Event": A Trigger Event is in effect with respect to
any Distribution Date on or after the Stepdown Date if:
(a) (i) on any Distribution Date on which the Class A
Certificates remain outstanding, the Delinquency Percentage exceeds [27.00]% of
the Credit Enhancement Percentage; or (ii) on any Distribution Date on which the
aggregate Certificate Principal Balance of the Class A Certificates has been
reduced to zero, the Delinquency Percentage exceeds [41.00]% of the Credit
Enhancement Percentage; or
(b) 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 Initial Mortgage Loans as of the Cut-off Date and the
Original Pre-Funded Amounts exceeds the applicable percentages set forth below
with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
[December 2007 through November 2008 1.40% for the first month, plus an additional 1/12th of
1.75% for each month thereafter.
December 2008 through November 2009 3.15% for the first month, plus an additional 1/12th of
1.80% for each month thereafter.
December 2009 through November 2010 4.95% for the first month, plus an additional 1/12th of
1.40% for each month thereafter.
December 2010 through November 2011 6.35% for the first month, plus an additional 1/12th of
0.75% for each month thereafter.
December 2011 through November 2012 7.10% for the first month, plus an additional 1/12th of
0.05% for each month thereafter.
December 2012 and thereafter 7.15% for each month.]
"Trust": [________________], the trust created hereunder.
"Trust Fund": All of the assets of the Trust, which is the
trust created hereunder consisting of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC
5, REMIC 6, REMIC 7, the Pre-Funding Accounts, the Interest Coverage Accounts,
any Subsequent Mortgage Loan Interest, the Cap Contract, the Interest Rate Swap
Agreement, the Swap Account and the right to receive any amounts from the Net
WAC Rate Carryover Reserve Account and any Servicer Prepayment Charge Payment
Amounts.
"Trustee": [________________], 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 3
Regular Interest LTIO and each Distribution Date listed below, the aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests ending with
the designation "A" listed below:
DISTRIBUTION DATE REMIC 2 REGULAR INTERESTS
----------------- -------------------------
[1st through 12th I-1-A through ▇-▇▇-▇
▇▇ ▇-▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇-▇
▇▇ ▇-▇-▇ through ▇-▇▇-▇
▇▇ ▇-▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇-▇
▇▇ ▇-▇-▇ through ▇-▇▇-▇
▇▇ ▇-▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇-▇
▇▇ ▇-▇-▇ through ▇-▇▇-▇
▇▇ ▇-▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇-▇
▇▇ ▇-▇-▇ through I-40-A
21 I-10-A through I-40-A
22 I-11-A through I-40-A
23 I-12-A through I-40-A
24 I-13-A through I-40-A
25 I-14-A through I-40-A
26 I-15-A through I-40-A
27 I-16-A through I-40-A
28 I-17-A through I-40-A
29 I-18-A through I-40-A
30 I-19-A through I-40-A
31 I-20-A through I-40-A
32 I-21-A through I-40-A
33 I-22-A through I-40-A
34 I-23-A through I-40-A
35 I-24-A through I-40-A
36 I-25-A through I-40-A
37 I-26-A through I-40-A
38 I-27-A through I-40-A
39 I-28-A through I-40-A
40 I-29-A through I-40-A
41 I-30-A through I-40-A
42 I-31-A through I-40-A
43 I-32-A through I-40-A
44 I-33-A through I-40-A
45 I-34-A through I-40-A
46 I-35-A through I-40-A
47 I-36-A through I-40-A
48 I-37-A through I-40-A
49 I-38-A through I-40-A
50 I-39-A and I-40-A
51 I-40-A
thereafter $0.00]
"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 3 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
3 Regular Interests over (B) the then aggregate Certificate Principal Balance of
the Adjustable-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, Uncertificated REMIC 2 Pass-Through Rate or
Uncertificated REMIC 3 Pass-Through Rate, as applicable.
"Uncertificated REMIC 1 Pass-Through Rate": With respect to
REMIC 1 Regular Interest LT1 and REMIC 1 Regular Interest LTP, and (i) the first
Distribution Date, the weighted average of the Adjusted Net Mortgage Rates of
the Initial Group I Mortgage Loans and (ii) thereafter, the weighted average of
the Adjusted Net Mortgage Rates of the Group I Mortgage Loans. With respect to
REMIC 1 Regular Interest LT2, and (i) the first Distribution Date, the weighted
average of the Adjusted Net Mortgage Rates of the Initial Group II Mortgage
Loans and (ii) thereafter, the weighted average of the Adjusted Net Mortgage
Rates of the Group II Mortgage Loans. With respect to REMIC 1 Regular Interest
LT1PF and (i) the first Distribution Date, 0.00% and (ii) thereafter, the
weighted average of the Adjusted Net Mortgage Rates of the Group I Mortgage
Loans. With respect to REMIC 1 Regular Interest LT2PF and (i) the first
Distribution Date, 0.00% and (ii) thereafter, the weighted average of the
Adjusted Net Mortgage Rates of the Group II Mortgage Loans.
"Uncertificated REMIC 2 Pass-Through Rate": With respect to
REMIC 2 Regular Interest I and REMIC 2 Regular Interest P, a per annum rate
equal to the weighted average of the Uncertificated REMIC 1 Pass-Through Rates
on the REMIC 1 Regular Interests (weighted on the basis of the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest). With respect to each
REMIC 2 Regular Interest ending with the designation "A", a per annum rate equal
to the weighted average of the Uncertificated REMIC 1 Pass-Through Rates on the
REMIC 1 Regular Interests (weighted on the basis of the Uncertificated Principal
Balance of each such REMIC 1 Regular Interest) multiplied by 2, subject to a
maximum rate of 9.700%. With respect to each REMIC 2 Regular Interest ending
with the designation "B", the greater of (x) a per annum rate equal to the
excess, if any, of (i) 2 multiplied by the weighted average of the
Uncertificated REMIC 1 Pass-Through Rates on the REMIC 1 Regular Interests
(weighted on the basis of the Uncertificated Principal Balance of each such
REMIC 1 Regular Interest) over (ii) 9.700% and (y) 0.00%.
"Uncertificated REMIC 3 Pass-Through Rate": With respect to
REMIC 3 Regular Interest LTAA, REMIC 3 Regular Interest LTIA1, REMIC 3 Regular
Interest LTIIA1, REMIC 3 Regular Interest LTIIA2, REMIC 3 Regular Interest
LTIIA3, REMIC 3 Regular Interest LTIIA4, REMIC 3 Regular Interest LTM1, REMIC 3
Regular Interest LTM2, REMIC 3 Regular Interest LTM3, REMIC 3 Regular Interest
LTM4, REMIC 3 Regular Interest LTM5, REMIC 3 Regular Interest LTM6, REMIC 3
Regular Interest LTM7, REMIC 3 Regular Interest LTM8, REMIC 3 Regular Interest
LTM9, REMIC 3 Regular Interest LTM10, REMIC 3 Regular Interest LTB1, REMIC 3
Regular Interest LTB2, REMIC 3 Regular Interest LTB3, REMIC 3 Regular Interest
LTZZ and REMIC 3 Regular Interest LTP, a per annum rate (but not less than zero)
equal to the weighted average of (v) with respect to REMIC 2 Regular Interest I,
the Uncertificated REMIC 2 Pass-Through Rate for such REMIC 2 Regular Interest
for each such Distribution Date, (w) with respect to REMIC 2 Regular Interests
ending with the designation "B", the weighted average of the Uncertificated
REMIC 2 Pass-Through Rates for such REMIC 2 Regular Interests, weighted on the
basis of the Uncertificated Principal Balance of such REMIC 2 Regular Interests
for each such Distribution Date and (x) with respect to REMIC 2 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 2
Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC 2 Regular Interest for each such
Distribution Date:
DISTRIBUTION DATE REMIC 2 REGULAR INTEREST RATE
----------------- ------------------------ ----
[1st through 11th I-1-A through I-40-A Uncertificated REMIC 2 Pass-Through Rate
12 I-1-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
Uncertificated REMIC 2 Pass-Through Rate
I-2-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
13 Uncertificated REMIC 2 Pass-Through Rate
I-1-A Uncertificated REMIC 2 Pass-Through Rate
I-3-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
14 Uncertificated REMIC 2 Pass-Through Rate
I-1-A and I-2-A Uncertificated REMIC 2 Pass-Through Rate
I-4-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
15 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-3-A Uncertificated REMIC 2 Pass-Through Rate
I-5-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
16 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-4-A Uncertificated REMIC 2 Pass-Through Rate
I-6-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
17 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-5-A Uncertificated REMIC 2 Pass-Through Rate
I-7-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
18 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-6-A Uncertificated REMIC 2 Pass-Through Rate
I-8-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
19 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-7-A Uncertificated REMIC 2 Pass-Through Rate
I-9-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
20 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-8-A Uncertificated REMIC 2 Pass-Through Rate
I-10-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
21 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-9-A Uncertificated REMIC 2 Pass-Through Rate
I-11-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
22 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-10-A Uncertificated REMIC 2 Pass-Through Rate
I-12-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
23 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-11-A Uncertificated REMIC 2 Pass-Through Rate
I-13-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
24 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-12-A Uncertificated REMIC 2 Pass-Through Rate
I-14-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
25 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-13-A Uncertificated REMIC 2 Pass-Through Rate
I-15-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
26 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-14-A Uncertificated REMIC 2 Pass-Through Rate
I-16-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
27 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-15-A Uncertificated REMIC 2 Pass-Through Rate
I-17-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
28 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-16-A Uncertificated REMIC 2 Pass-Through Rate
I-18-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
29 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-17-A Uncertificated REMIC 2 Pass-Through Rate
I-19-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
30 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-18-A Uncertificated REMIC 2 Pass-Through Rate
I-20-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
31 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-19-A Uncertificated REMIC 2 Pass-Through Rate
I-21-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
32 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-20-A Uncertificated REMIC 2 Pass-Through Rate
I-22-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
33 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-21-A Uncertificated REMIC 2 Pass-Through Rate
I-23-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
34 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-22-A Uncertificated REMIC 2 Pass-Through Rate
I-24-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
35 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-23-A Uncertificated REMIC 2 Pass-Through Rate
I-25-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
36 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-24-A Uncertificated REMIC 2 Pass-Through Rate
I-26-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
37 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-25-A Uncertificated REMIC 2 Pass-Through Rate
I-27-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
38 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-26-A Uncertificated REMIC 2 Pass-Through Rate
I-28-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
39 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-27-A Uncertificated REMIC 2 Pass-Through Rate
I-29-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
40 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-28-A Uncertificated REMIC 2 Pass-Through Rate
I-30-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
41 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-29-A Uncertificated REMIC 2 Pass-Through Rate
I-31-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
42 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-30-A Uncertificated REMIC 2 Pass-Through Rate
I-32-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
43 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-31-A Uncertificated REMIC 2 Pass-Through Rate
I-33-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
44 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-32-A Uncertificated REMIC 2 Pass-Through Rate
I-34-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
45 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-33-A Uncertificated REMIC 2 Pass-Through Rate
I-35-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
46 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-34-A Uncertificated REMIC 2 Pass-Through Rate
I-36-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
47 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-35-A Uncertificated REMIC 2 Pass-Through Rate
I-37-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
48 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-36-A Uncertificated REMIC 2 Pass-Through Rate
I-38-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
49 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-37-A Uncertificated REMIC 2 Pass-Through Rate
I-39-A through I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
50 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-38-A Uncertificated REMIC 2 Pass-Through Rate
I-40-A 2 multiplied by Swap LIBOR, subject to a maximum rate of
51 Uncertificated REMIC 2 Pass-Through Rate
I-1-A through I-39-A Uncertificated REMIC 2 Pass-Through Rate
thereafter I-1-A through I-40-A Uncertificated REMIC 2 Pass-Through Rate]
With respect to REMIC 3 Regular Interest LTIO, and (a) the
first eleven Distribution Dates, the excess of (i) the Uncertificated REMIC 2
Pass-Through Rates for REMIC 2 Regular Interests ending with the designation
"A", over (ii) the Uncertificated REMIC 2 Pass-Through Rates for REMIC 2 Regular
Interests ending with the designation "A", (b) the 12th Distribution Date
through the 51st Distribution Date, the excess of (i) the Uncertificated REMIC 2
Pass-Through Rates for REMIC I Regular Interest 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 Adjustable-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 lesser of (a) the value thereof as determined by an appraisal made for
the originator of the Mortgage Loan at the time of origination of the Mortgage
Loan by an appraiser who met the minimum requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇
Mac, and (b) the value thereof as determined by a review appraisal conducted by
the Originator in the event any such review appraisal determines an appraised
value ten percent or more lower than the value thereof as determined by the
appraisal referred to in clause (i)(a) above and (ii) the purchase price paid
for the related Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan, provided, however, in the case of a Refinanced Mortgage Loan,
such value of the Mortgaged Property is based solely upon the lesser of (1) the
value determined by an appraisal made for the Originator of such Refinanced
Mortgage Loan at the time of origination of such Refinanced Mortgage Loan by an
appraiser who met the minimum requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and (2)
the value thereof as determined by a review appraisal conducted by the
Originator in the event any such review appraisal determines an appraised value
ten percent or more lower than the value thereof as determined by the appraisal
referred to in clause (ii)(1) above.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times the
Adjustable-Rate Certificates and the Class C Certificates shall have 98% of the
Voting Rights (allocated among the Holders of the Adjustable-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 Adjustable-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
Adjustable-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 for any
Distribution Date shall be allocated (i) with respect to the Group I Mortgage
Loans, to REMIC 1 Regular Interest LT1 and REMIC 1 Regular Interest LT1PF, in
each case to the extent of one month's interest at the then applicable
respective Uncertificated REMIC 1 Pass-Through Rate on the respective
Uncertificated Principal Balance of each such Uncertificated REMIC 1 Interest;
provided, however, with respect to the first Distribution Date, such amounts
relating to the Initial Group I Mortgage Loans shall be allocated to REMIC 1
Regular Interest LT1 and such amounts relating to the Subsequent Group I
Mortgage Loans shall be allocated to REMIC 1 Regular Interest LT1PF and (ii)
with respect to the Group II Mortgage Loans, to REMIC 1 Regular Interest LT2 and
REMIC 1 Regular Interest LT2PF, in each case to the extent of one month's
interest at the then applicable respective Uncertificated REMIC 1 Pass-Through
Rate on the respective Uncertificated Principal Balance of each such
Uncertificated REMIC 1 Interest; provided, however, with respect to the first
Distribution Date, such amounts relating to the Initial Group II Mortgage Loans
shall be allocated to REMIC 1 Regular Interest LT2 and such amounts relating to
the Subsequent Group II Mortgage Loans shall be allocated to REMIC 1 Regular
Interest LT2PF.
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 shall be allocated
first, to REMIC 2 Regular Interest I and to the REMIC 2 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 2 Pass-Through
Rates on the respective Uncertificated Principal Balances of each such REMIC 2
Regular Interest, and then, to REMIC 2 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 2 Pass-Through Rates on
the respective Uncertificated Principal Balances of each such REMIC 2 Regular
Interest.
For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC 3 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 3 Regular Interest LTAA, REMIC
3 Regular Interest LTIA1, REMIC 3 Regular Interest LTIIA1, REMIC 3 Regular
Interest LTIIA2, REMIC 3 Regular Interest LTIIA3, REMIC 3 Regular Interest
LTIIA4, REMIC 3 Regular Interest LTM1, REMIC 3 Regular Interest LTM2, REMIC 3
Regular Interest LTM3, REMIC 3 Regular Interest LTM4, REMIC 3 Regular Interest
LTM5, REMIC 3 Regular Interest LTM6, REMIC 3 Regular Interest LTM7, REMIC 3
Regular Interest LTM8, REMIC 3 Regular Interest LTM9, REMIC 3 Regular Interest
LTM10, REMIC 3 Regular Interest LTB1, REMIC 3 Regular Interest LTB2, REMIC 3
Regular Interest LTB3 and REMIC 3 Regular Interest LTZZ PRO RATA based on, and
to the extent of, one month's interest at the then applicable respective
Uncertificated REMIC 3 Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC 3 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) the right to receive
any amounts payable under the Cap Contract and the Interest Rate Swap Agreement,
(vi) all other assets included or to be included in the Trust Fund and (vii) all
proceeds of any of the foregoing. Such assignment includes all interest and
principal due and collected by the Depositor or the Servicer after the Cut-off
Date with respect to the Mortgage Loans.
In connection with such transfer and assignment, the
Depositor, does hereby deliver to, and deposit with the Custodian on behalf of
the Trustee, the following documents or instruments with respect to each Initial
Mortgage Loan so transferred and assigned, and in accordance with Section 2.08,
deliver or caused to be delivered to the Trustee with respect to each Subsequent
Mortgage Loan, the following documents or instruments (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 [________________], as
Trustee, without recourse" or with respect to any lost Mortgage Note,
an original Lost Note Affidavit stating that the original mortgage
note was lost, misplaced or destroyed, together with a copy of the
related mortgage note; provided, however, that such substitutions of
Lost Note Affidavits for original Mortgage Notes may occur only with
respect to Mortgage Loans, the aggregate Cut-off Date Principal
Balance of which is less than or equal to 1.00% of the Pool Balance as
of the Cut-off Date;
(ii) the original Mortgage with evidence of recording thereon,
and the original recorded power of attorney, if the Mortgage was
executed pursuant to a power of attorney, with evidence of recording
thereon or, if such Mortgage or power of attorney has been submitted
for recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a copy
of such Mortgage or power of attorney, as the case may be, certified
to be a true and complete copy of the original submitted for
recording;
(iii) an original Assignment, in form and substance acceptable
for recording. The Mortgage shall be assigned either (A) in blank or
(B) to "[________________], as Trustee, without recourse";
(iv) an original copy of any intervening assignment of Mortgage
showing a complete chain of assignments;
(v) the original or a certified copy of lender's title insurance
policy; and
(vi) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any.
The Depositor herewith also delivers to the Trustee an
executed copy of the Mortgage Loan Purchase Agreement.
If any of the documents referred to in Section 2.01(ii), (iii)
or (iv) above has as of the Closing Date (or Subsequent Transfer Date, with
respect to Subsequent Mortgage Loans) been submitted for recording but either
(x) has not been returned from the applicable public recording office or (y) has
been lost or such public recording office has retained the original of such
document, the obligations of the Depositor to deliver such documents shall be
deemed to be satisfied upon (1) delivery to the Custodian on behalf of the
Trustee no later than the Closing Date (or Subsequent Transfer Date, with
respect to Subsequent Mortgage Loans), of a copy of each such document certified
by the Originator in the case of (x) above or the applicable public recording
office in the case of (y) above to be a true and complete copy of the original
that was submitted for recording and (2) if such copy is certified by the
Originator, delivery to the Custodian 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 Sponsor 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 Sponsor does not cure such
defect or deliver such missing document within such time period, the Servicer
shall enforce the obligations of the Sponsor 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 Trustee (or 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.
The Trustee shall enforce the obligations of the Sponsor 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 Sponsor 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 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
Sponsor, (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 (vi) set forth in the immediately preceding sentence, the Trustee shall
enforce the obligations of the Sponsor to deliver such Assignments for recording
as provided above, promptly and in any event within 30 days following receipt of
notice by the Sponsor. Notwithstanding the foregoing, if the Sponsor 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 not be deemed
to be in breach of its obligations to service in accordance with the Servicing
Standard by any delay in its servicing activities resulting from the failure to
submit the Assignments for recording.
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 Depositor shall deliver or cause the Sponsor to deliver
(by regular mail) to the Servicer copies of all trailing documents required to
be included in the Mortgage File at the same time the originals or certified
copies thereof are delivered to the Custodian, such documents including but not
limited to the mortgagee policy of title insurance and any mortgage loan
documents upon return from the recording office. Except as provided in Section
3.17, the Servicer shall not be responsible for any Custodian fees or other
costs incurred in obtaining such documents or for any such costs it may incur in
connection with performing its obligations pursuant to this Agreement.
The parties hereto understand and agree that it is not
intended that any Mortgage Loan be included in the Trust that is a "High-Cost
Home Loan" as defined by the Homeownership and Equity Protection Act of 1994 or
any other applicable predatory or abusive lending laws.
The Depositor hereby directs the Trustee to execute, deliver
and perform its obligations under the Interest Rate Swap Agreement (in its
capacity as Supplemental Interest Trust Trustee) and the Cap Contract. The
Depositor, the Servicer and the Holders of the Floating Rate Certificates by
their acceptance of such Certificates acknowledge and agree that the Trustee
shall execute, deliver and perform its obligations under the Interest Rate Swap
Agreement and the Cap Contract and shall do so solely in its capacity as Trustee
or as Supplemental Interest Trust Trustee, as the case may be, and not in its
individual capacity. Every provision of this Agreement relating to the conduct
or affecting the liability of or affording protection to the Trustee shall apply
to the Trustee's execution of the Interest Rate Swap Agreement and the Cap
Contract, and the performance of its duties and satisfaction of its obligations
thereunder.
SECTION 2.02 Acceptance by Trustee.
Subject to the provisions of Section 2.01 and subject to the
review described below and any exceptions noted on the exception report
described in the next paragraph below, the Trustee acknowledges receipt by it or
by a 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 a 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 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 Initial 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 Initial Mortgage Loan, or on or prior to the
Subsequent Transfer Date, with respect to each Subsequent 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 a 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 a 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 a 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 (or cause a Custodian on its behalf to
so notify) the Sponsor, the Depositor, the NIMS Insurer and the Servicer upon
receipt by the Trustee of written notification of such findings. 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 Sponsor 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, with respect to the performance of custody-related
functions the Custodian shall fail to satisfy all the related requirements under
this Agreement or the Custodial Agreement.
The Depositor and the Trustee intend that the assignment and
transfer herein contemplated constitute a sale of the Mortgage Loans, the
related Mortgage Notes and the related documents, conveying good title thereto
free and clear of any liens and encumbrances, from the Depositor to the Trustee
in trust for the benefit of the Certificateholders and that such property not be
part of the Depositor's estate or property of the Depositor in the event of any
insolvency by the Depositor. In the event that such conveyance is deemed to be,
or to be made as security for, a loan, the parties intend that the Depositor
shall be deemed to have granted and does hereby grant to the Trustee a first
priority perfected security interest in all of the Depositor's right, title and
interest in and to the Mortgage Loans, the related Mortgage Notes and the
related documents, and that this Agreement shall constitute a security agreement
under applicable law.
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by
the Sponsor.
(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 Sponsor of any representation, warranty or covenant
under the Mortgage Loan Purchase Agreement 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 behalf of
the Trustee) shall promptly notify NIMS Insurer and the Servicer of such defect,
missing document or breach and the Servicer shall request that the Sponsor
deliver such missing document or cure such defect or breach within 120 days from
the date the Sponsor was notified of such missing document, defect or breach,
and if the Sponsor does not deliver such missing document or cure such defect or
breach in all material respects during such period, the Servicer shall enforce
the Sponsor's obligation under the Mortgage Loan Purchase Agreement and notify
the Sponsor 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 120 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 Sponsor has commenced to cure such breach
within such 120 day period, the Sponsor 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 Sponsor the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
the Sponsor shall furnish to it and as shall be necessary to vest in the Sponsor
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 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 Sponsor 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 Sponsor may not substitute for any Mortgage Loan
which breaches a representation or warranty regarding abusive or predatory
lending laws. It is understood and agreed that the obligation of the Sponsor 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 Sponsor 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 Sponsor substitutes a Qualified
Substitute Mortgage Loan or Loans, such substitution shall be effected by the
Sponsor 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 a Custodian on its behalf) shall acknowledge
receipt for such Qualified Substitute Mortgage Loan or Loans and, within 45 days
thereafter, shall review such documents as specified in Section 2.02 and deliver
to the Servicer, with respect to such Qualified Substitute Mortgage Loan or
Loans, a certification substantially in the form attached hereto as Exhibit F-1
(with a copy to the NIMS Insurer), with any applicable exceptions noted thereon.
Within one year of the date of substitution, the Trustee (or the Custodian on
its behalf) 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 Sponsor. 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 Sponsor shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Mortgage Loan. The Servicer shall give or
cause to be given written notice to the 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 Sponsor 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 Sponsor 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 Sponsor 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 Sponsor the related Mortgage File or Files and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Sponsor shall deliver to it and as shall be necessary to vest
therein any Deleted Mortgage Loan released pursuant hereto.
In addition, the Sponsor 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 Sponsor 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 Sponsor 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 Sponsor 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 Sponsor, 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 Sponsor, 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 of Indiana. 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(x) above which materially and adversely
affects the interests of the Holders of the Class P Certificates in any
Prepayment Charge, the Servicer must pay the amount of such waived Prepayment
Charge, for the benefit of the Holders of the Class P Certificates, by
depositing such amount into the Collection Account. The foregoing shall not,
however, limit any remedies available to the Certificateholders, the Depositor
or the Trustee on behalf of the Certificateholders, pursuant to the Mortgage
Loan Purchase Agreement respecting a breach of the representations, warranties
and covenants of the Originator made in its capacity as a party to the Mortgage
Loan Purchase Agreement.
SECTION 2.06 Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Trust, the
Servicer and the Trustee on behalf of the Certificateholders as follows:
(i) This agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a
proceeding at law or in equity);
(ii) Immediately prior to the sale and assignment by the
Depositor to the Trustee on behalf of the Trust of each Mortgage Loan,
the Depositor had good and marketable title to each Mortgage Loan
(insofar as such title was conveyed to it by the Sponsor) 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 Custodian on behalf of the Trustee)
acknowledges the assignment to it of the Mortgage Loans and the delivery to it
(or to a Custodian on its behalf) of the Mortgage Files, subject to the
provisions of Sections 2.01 and 2.02, together with the assignment to it of all
other assets included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the 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 Conveyance of Subsequent Mortgage Loans.
(a) Subject to the conditions set forth in paragraph (b) below
in consideration of the Trustee's delivery on the Subsequent Transfer Dates to
or upon the order of the Depositor of all or a portion of the balance of funds
in the Pre-Funding Accounts, the Depositor shall on any Subsequent Transfer Date
sell, transfer, assign, set over and convey without recourse to the Trust Fund
but subject to the other terms and provisions of this Agreement all of the
right, title and interest of the Depositor in and to (i) the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule attached to the related
Subsequent Transfer Instrument delivered by the Depositor on such Subsequent
Transfer Date, (ii) all interest accruing thereon on and after the Subsequent
Cut-off Date and all collections in respect of interest and principal due after
the Subsequent Cut-off Date and (iii) all items with respect to such Subsequent
Mortgage Loans to be delivered pursuant to Section 2.01 and the other items in
the related Mortgage Files; provided, however, that the Depositor reserves and
retains all right, title and interest in and to principal received and interest
accruing on the Subsequent Mortgage Loans prior to the related Subsequent
Cut-off Date. The transfer to the Trustee for deposit in the Mortgage Pool by
the Depositor of the Subsequent Mortgage Loans identified on the Mortgage Loan
Schedule shall be absolute and is intended by the Depositor, the Servicer, the
Trustee and the Certificateholders to constitute and to be treated as a sale of
the Subsequent Mortgage Loans by the Depositor to the Trust Fund. The related
Mortgage File for each Subsequent Mortgage Loan shall be delivered to the
Custodian (on behalf of the Trustee) at least three Business Days prior to the
related Subsequent Transfer Date.
The purchase price paid by the Trustee from amounts released
from the Group I Pre-Funding Account or the Group II Pre-Funding Account, as
applicable, shall be one-hundred percent (100%) of the aggregate Stated
Principal Balance of the related Subsequent Mortgage Loans so transferred (as
identified on the Mortgage Loan Schedule provided by the Depositor). This
Agreement shall constitute a fixed-price purchase contract in accordance with
Section 860G(a)(3)(A)(ii) of the Code.
(b) The Depositor shall transfer to the Trustee for deposit in
the Mortgage Pool the Subsequent Mortgage Loans and the other property and
rights related thereto as described in paragraph (a) above, and the Trustee
shall release funds from the Group I Pre-Funding Account or the Group II
Pre-Funding Account, as applicable, only upon the satisfaction of each of the
following conditions on or prior to the related Subsequent Transfer Date:
(i) the Depositor shall have provided the Trustee and the
Rating Agencies with a timely Addition Notice and shall have provided
any information reasonably requested by the Trustee with respect to the
Subsequent Mortgage Loans;
(ii) the Depositor shall have delivered to the Trustee a duly
executed Subsequent Transfer Instrument, which shall include a Mortgage
Loan Schedule listing the Subsequent Mortgage Loans, and the Sponsor
shall have delivered a computer file acceptable to the Trustee
containing such Mortgage Loan Schedule to the Trustee at least three
Business Days prior to the related Subsequent Transfer Date;
(iii) as of each Subsequent Transfer Date, as evidenced by
delivery of the Subsequent Transfer Instrument, substantially in the
form of Exhibit R, the Depositor shall not be insolvent nor shall it
have been rendered insolvent by such transfer nor shall it be aware of
any pending insolvency;
(iv) such sale and transfer shall not result in a material
adverse tax consequence to the Trust Fund or the Certificateholders;
(v) the Funding Period shall not have terminated;
(vi) the Depositor shall not have selected the Subsequent
Mortgage Loans in a manner that it believed to be adverse to the
interests of the Certificateholders;
(vii) the Depositor shall have delivered to the Trustee a
Subsequent Transfer Instrument confirming the satisfaction of the
conditions precedent specified in this Section 2.08 and, pursuant to
the Subsequent Transfer Instrument, assigned to the Trustee without
recourse for the benefit of the Certificateholders all the right, title
and interest of the Depositor, in, to and under the Subsequent Mortgage
Loan Purchase Agreement, to the extent of the Subsequent Mortgage
Loans; and
(viii) the Depositor shall have delivered to the Trustee an
Opinion of Counsel addressed to the Trustee and the Rating Agencies
with respect to the transfer of the Subsequent Mortgage Loans
substantially in the form of the Opinion of Counsel delivered to the
Trustee on the Closing Date regarding the true sale of the Subsequent
Mortgage Loans.
(c) [The obligation of the Trust Fund to purchase a Subsequent
Mortgage Loan on any Subsequent Transfer Date is subject to the satisfaction of
the conditions set forth in the immediately preceding paragraph and the accuracy
of the following representations and warranties with respect to each such
Subsequent Mortgage Loan determined as of the applicable Subsequent Cut-off
Date: (i) such Subsequent Mortgage Loan may not be 30 or more days delinquent as
of the last day of the month preceding the Subsequent Cut-off Date; (ii) the
original term to stated maturity of such Subsequent Mortgage Loan will not be
less than 180 months and will not exceed 360 months; (iii) the Subsequent
Mortgage Loan may not provide for negative amortization; (iv) such Subsequent
Mortgage Loan will not have a loan-to-value ratio greater than 103.00%; (v) such
Subsequent Mortgage Loans will have, as of the Subsequent Cut-off Date, a
weighted average term since origination not in excess of 3 months; (vi) such
Subsequent Mortgage Loan, if a Fixed Rate Mortgage Loan, shall have a Mortgage
Rate that is not less than 5.000% per annum or greater than 11.000% per annum;
(vii) such Subsequent Mortgage Loan must have a first payment date occurring on
or before December, 2005 and will include 30 days' interest thereon; (viii) if
the Subsequent Mortgage Loan is an Adjustable-Rate Mortgage Loan, the Subsequent
Mortgage Loan will have a Gross Margin not less than 4.000% per annum; (ix) if
the Subsequent Mortgage Loan is an Adjustable-Rate Mortgage Loan, the Subsequent
Mortgage Loan will have a Maximum Mortgage Rate not less than 11.000% per annum;
(x) if the Subsequent Mortgage Loan is an Adjustable-Rate Mortgage Loan, the
Subsequent Mortgage Loan will have a Minimum Mortgage Rate not less than 5.000%
per annum and (xi) such Subsequent Mortgage Loan shall have been underwritten in
accordance with the criteria set forth under "First Franklin Financial
Corporation--Underwriting Standards" in the Prospectus Supplement.]
(d) [Following the purchase of any Subsequent Group I Mortgage
Loan by the Trust, the Group I Mortgage Loans (including such Subsequent Group I
Mortgage Loans) will: (i) have a weighted average original term to stated
maturity of not more than 360 months; (ii) have a weighted average Mortgage Rate
of not less than 7.250% per annum and not more than 8.750% per annum; (iii) have
a weighted average Loan-to-Value Ratio of not more than 100.00%; (iv) have no
Mortgage Loan with a Stated Principal Balance at origination which does not
conform to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac loan limits; (v) will consist of Mortgage
Loans with Prepayment Charges representing no less than 69.00% by aggregate
Stated Principal Balance of the Group I Mortgage Loans; (vi) have a weighted
average FICO score of not less than 620 and (vii) have no more than 21.00% of
Fixed-Rate Mortgage Loans by aggregate Stated Principal Balance of the Group I
Mortgage Loans. In addition, the Adjustable-Rate Group I Mortgage Loans will
have a weighted average Gross Margin not less than 6.000% per annum. For
purposes of the calculations described in this paragraph, percentages of the
Group I Mortgage Loans will be based on the Stated Principal Balance of the
Initial Group I Mortgage Loans as of the Cut-off Date and the Stated Principal
Balance of the Subsequent Group I Mortgage Loans as of the related Subsequent
Cut-off Date.
Following the purchase of any Subsequent Group II Mortgage
Loan by the Trust, the Group II Mortgage Loans (including such Subsequent Group
II Mortgage Loans) will: (i) have a weighted average original term to stated
maturity of not more than 360 months; (ii) have a weighted average Mortgage Rate
of not less than 7.250% per annum and not more than 8.750% per annum; (iii) have
a weighted average Loan-to-Value Ratio of not more than 101.00%; (iv) have no
Mortgage Loan with a principal balance in excess of $1,100,000; (v) will consist
of Mortgage Loans with Prepayment Charges representing no less than 59.00% by
aggregate Stated Principal Balance of the Group II Mortgage Loans; (vi) have a
weighted average FICO score of not less than 620 and (vii) have no more than
11.00% of Fixed-Rate Mortgage Loans by aggregate Stated Principal Balance of the
Group II Mortgage Loans. In addition, the Adjustable-Rate Group II Mortgage
Loans will have a weighted average Gross Margin not less than 6.000% per annum.
For purposes of the calculations described in this paragraph, percentages of the
Group II Mortgage Loans will be based on the Stated Principal Balance of the
Initial Group II Mortgage Loans as of the Cut-off Date and the Stated Principal
Balance of the Subsequent Group II Mortgage Loans as of the related Subsequent
Cut-off Date.]
(e) Notwithstanding the foregoing, any Subsequent Mortgage
Loan may be rejected by any Rating Agency if the inclusion of any such
Subsequent Mortgage Loan would adversely affect the ratings of any Class of
Certificates. At least one Business Day prior to the Subsequent Transfer Date,
each Rating Agency shall notify the Trustee as to which Subsequent Mortgage
Loans, if any, shall not be included in the transfer on the Subsequent Transfer
Date; provided, however, that the Sponsor shall have delivered to each Rating
Agency at least three Business Days prior to such Subsequent Transfer Date a
computer file acceptable to each Rating Agency describing the characteristics
specified in paragraphs (c) and (d) above.
SECTION 2.09 Conveyance of REMIC Regular Interests and
Acceptance of REMIC 1, REMIC 3, REMIC 4, REMIC 5, REMIC 6 and REMIC 7 by the
Trustee; Issuance of Certificates.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and interest of the
Depositor in and to the assets described in the definition of REMIC 1 for the
benefit of the holders of the REMIC 1 Regular Interests (which are
uncertificated) and the Class R Certificates (in respect of the Class R-1
Interest). The Trustee acknowledges receipt of the assets described in the
definition of REMIC 1 and declares that it holds and will hold the same in trust
for the exclusive use and benefit of the holders of the REMIC 1 Regular
Interests and the Class R Certificates (in respect of the Class R-1 Interest).
The interests evidenced by the Class R-1 Interest, together with the REMIC 1
Regular Interests, constitute the entire beneficial ownership interest in REMIC
1.
(b) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and interest of the
Depositor in and to the REMIC 1 Regular Interests for the benefit of the holders
of the REMIC 2 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-2 Interest). The Trustee acknowledges
receipt of the REMIC 1 Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of the holders of the
REMIC 2 Regular Interests and the Class R Certificates (in respect of the Class
R-2 Interest). The interests evidenced by the Class R-2 Interest, together with
the REMIC 2 Regular Interests, constitute the entire beneficial ownership
interest in REMIC 2.
(c) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and interest of the
Depositor in and to the REMIC 2 Regular Interests for the benefit of the holders
of the REMIC 3 Regular Interests (which are uncertificated) 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
REMIC 3 Regular Interests 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 REMIC 3 Regular Interests, 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 REMIC 3 Regular Interests (which are uncertificated) for
the 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 Trustee acknowledges receipt of the REMIC 3 Regular
Interests and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of the Regular Certificates (other than
the Class C Certificates or Class P Certificates), the Class C Interest, the
Class P Interest, the Class IO Interest) and the Class R Certificates (in
respect of the Class R-3 Interest). The interests evidenced by the Class R-3
Interest, together with the Regular Certificates (other than the Class C
Certificates and the Class P Certificates), the Class C Interest, the Class P
Interest and Class IO Interest 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 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-5 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-5
Interest). The interests evidenced by the Class R-5 Interest, together with the
Class C Certificates, constitute the entire beneficial ownership interest in
REMIC 5.
(f) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and interest of the
Depositor in and to the Class 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 6.
(g) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and interest of the
Depositor in and to the Class IO Interest (which is uncertificated) for the
benefit of the Holders of the REMIC 7 Regular Interest SWAP IO and the Class R-X
Certificates (in respect of the Class R-7 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 7
Regular Interest SWAP IO and the Class R-X Certificates (in respect of the Class
R-7 Interest). The interests evidenced by the Class R-7 Interest, together with
the REMIC 7 Regular Interest SWAP IO, constitute the entire beneficial ownership
interest in REMIC 7.
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, (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, and (vii) the assignment
and delivery to the Trustee of REMIC 7 (including the Residual Interest therein
represented by the Class R-7 Interest) and the acceptance by the Trustee
thereof, pursuant to subsection (g) 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-3 Interest, the Class R-3 Interest and the Class R-4 Interest and
(B) the Class R-X Certificates in authorized denominations evidencing the Class
R-5 Interest, the Class R-6 Interest and the Class R-7 Interest.
SECTION 2.10 Purposes and Powers of the Trust.
The purpose of the common law trust, as created hereunder, is
to engage in the following activities:
(a) acquire and hold the Mortgage Loans and the other assets
of the Trust Fund and the proceeds therefrom;
(b) to issue the Certificates sold to the Depositor in
exchange for the Mortgage Loans;
(c) to make payments on the Certificates;
(d) to engage in those activities that are necessary, suitable
or convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(e) subject to compliance with this Agreement, to engage in
such other activities as may be required in connection with conservation of the
Trust Fund and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing
activities. The Trustee shall not cause the trust to engage in any activity
other than in connection with the foregoing or other than as required or
authorized by the terms of this Agreement while any Certificate is outstanding,
and this Section 2.07 may not be amended, without the consent of the
Certificateholders evidencing 51% or more of the aggregate voting rights of the
Certificates.
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.
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 Sponsor 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 Sponsor under the Mortgage Loan
Purchase Agreement to pay to the Servicer the amount of such waived Prepayment
Charge. If the Sponsor 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 Sponsor. 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 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.
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 ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae approved mortgage servicer. Each
Sub-Servicing Agreement must impose on the Sub-Servicer requirements conforming
to the provisions set forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Agreement. The Servicer will
examine each Sub-Servicing Agreement and will be familiar with the terms
thereof. The terms of any Sub-Servicing Agreement will not be inconsistent with
any of the provisions of this Agreement. Any variation in any Sub-Servicing
Agreements from the provisions set forth in Section 3.08 relating to insurance
or priority requirements of Sub-Servicing Accounts, or credits and charges to
the Sub-Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the NIMS
Insurer and the Trustee copies of all Sub-Servicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(b) As part of its servicing activities hereunder, the
Servicer, for the benefit of the Trustee and the Certificateholders, shall
enforce the obligations of each Sub-Servicer under the related Sub-Servicing
Agreement, including, without limitation, any obligation to make advances in
respect of delinquent payments as required by a Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements, and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Servicer, in its good faith business judgment, would require were it
the owner of the related Mortgage Loans. The Servicer shall pay the costs of
such enforcement at its own expense, and shall be reimbursed therefor only (i)
from a general recovery resulting from such enforcement, to the extent, if any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans, or (ii) from a specific recovery of costs, expenses or attorneys' fees
against the party against whom such enforcement is directed.
SECTION 3.03 Successor Sub-Servicers.
The Servicer, with the consent of the NIMS Insurer, shall be
entitled to terminate any Sub-Servicing Agreement and the rights and obligations
of any Sub-Servicer pursuant to any Sub-Servicing Agreement in accordance with
the terms and conditions of such Sub-Servicing Agreement. In the event of
termination of any Sub-Servicer, all servicing obligations of such Sub-Servicer
shall be assumed simultaneously by the Servicer without any act or deed on the
part of such Sub-Servicer or the Servicer, and the Servicer either shall service
directly the related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 3.02.
Any Sub-Servicing Agreement shall include the provision that
such agreement may be immediately terminated by the Servicer or the Trustee (if
the Trustee is acting as Servicer) without fee, in accordance with the terms of
this Agreement, in the event that the Servicer (or the Trustee, if such party is
then acting as Servicer) shall, for any reason, no longer be the Servicer
(including termination due to a Servicer Event of Termination).
SECTION 3.04 Liability of the Servicer.
Notwithstanding any Sub-Servicing Agreement or the provisions
of this Agreement relating to agreements or arrangements between the Servicer
and a Sub-Servicer or reference to actions taken through a Sub-Servicer or
otherwise, the Servicer shall remain obligated and primarily liable to the
Trustee and the Certificateholders for the servicing and administering of the
Mortgage Loans in accordance with the provisions of Section 3.01 without
diminution of such obligation or liability by virtue of such Sub-Servicing
Agreements or arrangements or by virtue of indemnification from the Sub-Servicer
and to the same extent and under the same terms and conditions as if the
Servicer alone were servicing and administering the Mortgage Loans. The Servicer
shall be entitled to enter into any agreement with a Sub-Servicer for
indemnification of the Servicer by such Sub-Servicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
SECTION 3.05 No Contractual Relationship Between Sub-Servicers
and the NIMS Insurer, the Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such shall be deemed to be between the Sub-Servicer and the
Servicer alone, and the NIMS Insurer, the Trustee or Certificateholders shall
not be deemed parties thereto and shall have no claims, rights, obligations,
duties or liabilities with respect to the Sub-Servicer except as set forth in
Section 3.06. The Servicer shall be solely liable for all fees owed by it to any
Sub-Servicer, irrespective of whether the Servicer's compensation pursuant to
this Agreement is sufficient to pay such fees.
SECTION 3.06 Assumption or Termination of Sub-Servicing
Agreements by Trustee.
In the event the Servicer shall for any reason no longer be
the servicer (including by reason of the occurrence of a Servicer Event of
Termination), the Trustee, pursuant 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 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, 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 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
3.24(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 3.25 in connection with any Prepayment Interest Shortfall; and
(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.
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;
(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 Sponsor 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;
(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; and
(x) to clear and terminate the Collection Account pursuant to
Section 10.01.
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 reimburse itself for expenses incurred pursuant to
Section 9.01(c)(i);
(iv) to clear and terminate the Distribution Account pursuant
to Section 10.01;
(v) to pay any amounts required to be paid to the Trustee
pursuant to this Agreement, including but not limited to funds required
to be paid pursuant to Section 3.06, Section 4.01, Section 7.02 and
Section 8.05;
(vi) to pay to the Trustee, any Trustee Compensation; and
(vii) to pay to an Advancing Person reimbursements for
Advances and/or Servicing Advances pursuant to Section 3.30.
SECTION 3.12 Investment of Funds in the Collection Account,
the Distribution Account, the Pre-Funding Accounts and the Interest Coverage
Accounts.
(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, the Depositor may direct any depository institution
maintaining the Pre-Funding Accounts and the Interest Coverage Accounts, if any,
and the Trustee may invest the funds on deposit in the Distribution Account or
hold such funds uninvested (each such account, for the purposes of this Section
3.12, an "Investment Account"). All investments pursuant to this Section 3.12
shall be in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, (i) no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the Trustee is the obligor thereon or if such investment is managed or advised
by a Person other than the Trustee or an Affiliate of the Trustee, and (ii) no
later than the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if the Trustee is the obligor thereon or if
such investment is managed or advised by the Trustee or any Affiliate. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such), or in the name of a nominee of the Trustee.
The Trustee shall be entitled to sole possession (except with respect to
investment direction of funds held in the Collection Account, any REO Account
and the Pre-Funding Accounts, 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 or Section 3.24, as applicable.
The Servicer shall deposit in the Collection Account or any REO Account, as
applicable, the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such Account immediately upon
realization of such loss.
All income and gain realized from the investment of funds
deposited in the Pre-Funding Accounts held by or on behalf of the Depositor
shall be for the benefit of the Depositor and shall be subject to its withdrawal
in accordance with Section 4.05. The Depositor shall deposit in the Pre-Funding
Accounts the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such accounts immediately upon
realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account shall be for the benefit of the Trustee.
The Trustee shall deposit in the Distribution Account the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such Account immediately upon realization of such loss. Notwithstanding the
foregoing, the Trustee may at its discretion, and without liability, hold the
funds in the Distribution Account uninvested.
(d) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may and, subject to Section 8.01 and Section
8.02(a)(v), upon the request of the NIMS Insurer or the Holders of Certificates
representing more than 50% of the Voting Rights allocated to any Class of
Certificates, shall take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
proceedings.
(e) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation shall not be considered an amount that is
reimbursable or payable to the Trustee pursuant to Section 3.11 or 3.12 or
otherwise payable in respect of extraordinary Trust Fund expenses.
SECTION 3.13 [Reserved].
SECTION 3.14 Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage.
(a) The Servicer shall cause to be maintained for each
Mortgage Loan hazard insurance with extended coverage on the Mortgaged Property
in an amount which is at least equal to the lesser of (i) the current Principal
Balance of such Mortgage Loan and (ii) the amount necessary to fully compensate
for any damage or loss to the improvements that are a part of such property on a
replacement cost basis, in each case in an amount not less than such amount as
is necessary to avoid the application of any coinsurance clause contained in the
related hazard insurance policy. The Servicer shall also cause to be maintained
hazard insurance with extended coverage on each REO Property in an amount which
is at least equal to the lesser of (i) the maximum insurable value of the
improvements which are a part of such property and (ii) the outstanding
Principal Balance of the related Mortgage Loan at the time it became an REO
Property. The Servicer will comply in the performance of this Agreement with all
reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by the Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor in
accordance with the procedures that the Servicer would follow in servicing loans
held for its own account, subject to the terms and conditions of the related
Mortgage and Mortgage Note) shall be deposited in the Collection Account,
subject to withdrawal pursuant to Section 3.11, if received in respect of a
Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section
3.24, if received in respect of an REO Property. Any cost incurred by the
Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
Principal Balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. It is understood and agreed that no earthquake
or other additional insurance is to be required of any Mortgagor other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
or REO Property is at any time in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards and
flood insurance has been made available, the Servicer will cause to be
maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the unpaid Principal Balance of
the related Mortgage Loan and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
In the event that the Servicer shall obtain and maintain a
blanket policy insuring against hazard losses on all of the Mortgage Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first two sentences of this Section 3.14, it being understood and agreed
that such policy may contain a deductible clause on terms substantially
equivalent to those commercially available and maintained by competent
servicers, in which case the Servicer shall, in the event that there shall not
have been maintained on the related Mortgaged Property or REO Property a policy
complying with the first two sentences of this Section 3.14, and there shall
have been one or more losses which would have been covered by such policy,
deposit to the Collection Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. In
connection with its activities as servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Depositor, the Trustee
and Certificateholders, claims under any such blanket policy in a timely fashion
in accordance with the terms of such policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall provide the Trustee and the
NIMS Insurer, upon request, with copies of such insurance policies and fidelity
bond. The Servicer shall also maintain a fidelity bond in the form and amount
that would meet the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, unless the
Servicer has obtained a waiver of such requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac. The Servicer shall be deemed to have complied with this provision if an
Affiliate of the Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. Any such errors and
omissions policy and fidelity bond shall by its terms not be cancelable without
thirty days' prior written notice to the Trustee 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 an 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 3.24.
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:
(1) 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
(2) 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
Trustee (or the Custodian on behalf of the Trustee), 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 Trustee (or the Custodian on behalf of the Trustee) shall, within
three Business Days, release the related Mortgage File to the Servicer or its
designee (which, shall be sent by overnight mail at the Servicer's expense).
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 Trustee (or the
Custodian on behalf of the Trustee) shall, upon any request made by or on behalf
of the Servicer and delivery to the Trustee (or the Custodian on behalf of the
Trustee) 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 Trustee (or the Custodian on behalf of the Trustee) 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 3.24. Except as provided in Section 3.30, 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 3.24(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 3.25. 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.
The Master Servicer and each Servicer shall deliver to the
Master Servicer, the Depositor and the Trustee, not later than March 1st of each
calendar year beginning in 2007, an Officer's Certificate (an "Annual Statement
of Compliance") stating, as to each signatory thereof, that (i) a review of the
activities of the Master Servicer or the related Servicer (as the case may be)
during the preceding calendar year and of its performance under this Agreement
or other applicable servicing agreement (including, but not limited to the
related Servicing Agreement) has been made under such officer's supervision and
(ii) to the best of such officers' knowledge, based on such review, the Master
Servicer or the related Servicer (as the case may be) has fulfilled all of its
obligations under this Agreement or other applicable servicing agreement
(including, but not limited to the related Servicing Agreement) in all material
respects throughout such year, or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known to
such officer and the nature and status of cure provisions thereof. Such Annual
Statement of Compliance shall contain no restrictions or limitations on its use.
In the event that the Master Servicer or the related Servicer (as the case may
be) has delegated any servicing responsibilities with respect to the Mortgage
Loans to a subservicer, the Master Servicer or the related Servicer (as the case
may be)shall deliver a similar Annual Statement of Compliance by that
subservicer to the Trustee as described above as and when required with respect
to the Master Servicer or the related Servicer (as the case may be).
If the Master Servicer or the related Servicer (as the case
may be) cannot deliver the related Annual Statement of Compliance by March 1st
of such year, the Trustee, at its sole option, may permit a cure period for the
Master Servicer or the related Servicer (as the case may be) to deliver such
Annual Statement of Compliance, but in no event later than March 10th of such
year.
Failure of the Master Servicer to timely comply with this
Section 3.13 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,
upon notice immediately terminate all the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Master Servicer for the same. This paragraph
shall supercede any other provision in this Agreement or any other agreement to
the contrary.
SECTION 3.21 Assessments of Compliance and Attestation
Reports.
On and after January 1, 2006, the Master Servicer shall
service and administer the Mortgage Loans in accordance with all applicable
requirements of the Servicing Criteria. Pursuant to Rules 13a-18 and 15d-18 of
the Exchange Act and Item 1123 of Regulation AB, the Master Servicer and the
Custodian (the "Attesting Party") shall deliver to theTrustee on or before March
1 of each calendar year beginning in 2007, a report regarding the Master
Servicer's assessment of compliance (an "Assessment of Compliance") with the
Servicing Criteria during the preceding calendar year. The Assessment of
Compliance, as set forth in Regulation AB, must contain the following:
(a) statement by such officer of its responsibility for
assessing compliance with the Servicing Criteria applicable to the related
Attesting Party;
(b) statement by such officer that such Attesting Party used
the Servicing Criteria attached as Exhibit U hereto, and which will also be
attached to the Assement of Compliance, to assess compliance with the Servicing
Criteria applicable to the related Attesting Party;
(c) An assessment by such officer of the related Attesting
Party'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 such Attesting Party performs with
respect to asset-backed securities transactions taken as a whole involving the
Master 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 related Attesting Party'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 such Attesting Party, which statement shall be based on
the activities such Attesting Party performs with respect to asset-backed
securities transactions taken as a whole involving such Attesting Party, 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 U hereto which are indicated as applicable to the
related Attesting Party.
On or before March 1st of each calendar year beginning in
2007, each Attesting Party shall furnish to the Master Servicer, the Depositor
and the Trustee a report (an "Attestation Report") by a registered public
accounting firm that attests to, and reports on, the Assessment of Compliance
made by the Company, as required by Rules 13a-18 and 15d-18 of the Exchange Act
and Item 1122(b) of Regulation AB, which Attestation Report must be made in
accordance with standards for attestation reports issued or adopted by the
Public Company Accounting Oversight Board.
The Master Servicer shall cause any subservicer, and each
subcontractor determined by the Master 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 subservicer, shall at
a minimum address each of the Servicing Criteria specified on Exhibit U hereto
which are indicated as applicable to any "primary servicer." Notwithstanding the
foregoing, as to any subcontractor (as defined in the related servicing
agreement), 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 Master Servicer cannot deliver any Assessment of
Compliance or Attestation Report by March 1st of such year, the Trustee, at its
sole option, may permit a cure period for the Master Servicer to deliver such
Assessment of Compliance or Attestation Report, but in no event later than March
10th of such year.
Failure of the Master Servicer to timely comply with this
Section 3.14 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,
upon notice immediately terminate all the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Master Servicer for the same. This paragraph
shall supercede any other provision in this Agreement or any other agreement to
the contrary.
The Trustee shall also provide an Assessment of Compliance and
Attestation Report, as and when provided above, which shall at a minimum address
each of the Servicing Criteria specified on Exhibit U hereto which are indicated
as applicable to the "trustee." In addition, the Trustee shall cause the
Custodian to deliver to the Trustee and the Depositor an Assessment of
Compliance and Attestation Report, as and when provided above, which shall at a
minimum address each of the Servicing Criteria specified on Exhibit U hereto
which are indicated as applicable to a "custodian." Notwithstanding the
foregoing, as to any Custodian, 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 Attesting Party shall indemnify and hold harmless the
Trustee and each of its directors, officers, employees, agents, and affiliates
from and against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments and other costs
and expenses arising out of or based upon (a) any breach by such Attesting Party
of any if its obligations under hereunder, including particularly its
obligations to provide any Assessment of Compliance, Attestation Report,
Compliance Statement or any information, data or materials required to be
included in any Echange Act Report, (b) any misstatement or omission in any
information, data or materials provided by such Attesting Party, or (c) the
negligence, bad faith or willful misconduct of such Attesting Party in
connection with its performance hereunder. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Trustee, then each
Attesting Party agrees that it shall contribute to the amount paid or payable by
the Trustee as a result of any claims, losses, damages or liabilities incurred
by the Trustee in such proportion as is appropriate to reflect the relative
fault of the Trustee on the one hand and such Attesting Party on the other. This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
SECTION 3.22 Intention of the Parties and Interpretation.
Each of the parties acknowledges and agrees that the purpose
of Sections 3.20 and 3.21 of this Agreement is to facilitate compliance by the
Sponsor and the Depositor with the provisions of Regulation AB. 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 reasonable requests made by the Sponsor or the
Depositor for delivery of additional or different information as the Sponsor or
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.
SECTION 3.23 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.
(b) (i) Within 15 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 ("▇▇▇▇▇"), a Distribution
Report on Form 10-D, signed by the Master Servicer, with a copy of the monthly
statement to be furnished by the Trustee to the Certificateholders for such
Distribution Date and detailing all data elements specified in Item 1121(a) of
Regulation AB as part of the monthly statement; provided that the Trustee shall
have received no later than [5] days prior to the date such Distribution Report
on Form 10-D is required to be filed, all information required to be provided to
the Trustee as described in clause (a)(iv) below.
The Trustee will prepare and file Current Reports on Form 8-K
in respect of the Trust, signed by the Master Servicer, as and when required;
provided, that, the Trustee shall have received no later than one Business Day
prior to the filing deadline for such Current Report, all information, data, and
exhibits required to be provided or filed with such Current Report and required
to be provided to the Trustee as described in clause (a)(iv) below.
Prior to January 30 in each year commencing in 2007, the
Trustee shall, in accordance with industry standards, file a Form 15 Suspension
Notice with respect to the Trust Fund, if applicable. Prior to (x) March 15,
2007 and (y) unless and until a Form 15 Suspension Notice shall have been filed,
prior to March 15 of each year thereafter, the Master 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 each
Attesting Party (including without limitation the Master Servicer) pursuant to
Sections 3.13 and 3.14 (including with respect to any subservicer or
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, subject to subsection (d) below, file a
Form 10-K, in substance 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 each Attesting Party (including without limitation the Master
Servicer) pursuant to Sections 3.13 and 3.14 (including with respect to any
subservicer or subcontractor, if required to be filed) and with respect to the
Trustee and the Custodian, and the Form 10-K certification signed by the Master
Servicer; provided that the Trustee shall have received no later than March 15
of each calendar year prior to the filing deadline for the Form 10-K all
information, data and exhibits required to be provided or filed with such Form
10-K and required to be provided to the Trustee as described in clause (a)(iv)
below.
As to each item of information required to be included in any
Form 10-D, Form 8-K or Form 10-K relating to the Trust Fund, the related
Attesting Party's obligation to include the information in the applicable report
is subject to receipt from the entity that is indicated in Exhibit V as the
responsible party for providing that information, if other than the Trustee, as
and when required as described above. Each of the Master Servicer, Sponsor and
Depositor hereby agree to notify and provide to the Trustee all information that
is required to be included in any Form 10-D, Form 8-K or Form 10-K relating to
the Trust Fund, with respect to which the related Attesting Party is indicated
in Exhibit V as the responsible party for providing that information. The Swap
Provider will be obligated pursuant to the Swap Agreement to provide to the
Trustee any information that may be required to be included in any Form 10-D,
Form 8-K or Form 10-K. The Trustee shall be responsible for determining the
significance percentage (as defined in Item 1115 of Regulation AB) of the Swap
Provider at any time. The Master Servicer shall be responsible for determining
the pool concentration applicable to any subservicer or originator at any time,
for purposes of disclosure as required by Items 1117 and 1119 of Regulation AB.
The Depositor agrees to promptly furnish to the Trustee, from
time to time upon request, such further information, reports and financial
statements within its control related to this Agreement, the Mortgage Loans as
the Trustee reasonably deems appropriate to prepare and file all necessary
reports with the Commission. The Trustee shall have no responsibility to file
any items other than those specified in this Section 3.16; provided, however,
the Trustee will cooperate with the Depositor in connection with any additional
filings with respect to the Trust Fund as the Depositor deems necessary under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Copies of
all reports filed by the Trustee under the Exchange Act shall be sent to: the
Depositor [__________]. Fees and expenses incurred by the Trustee in connection
with this Section 3.16 shall not be reimbursable from the Trust Fund.
In connection with the filing of any 10-K hereunder, the
Trustee shall sign a certification (a "Form of Back-Up Certification for Form
10-K Certificate," substantially in the form attached hereto as Exhibit T) for
the Depositor regarding certain aspects of the Form 10-K certification signed by
the Depositor, provided, however, that the Trustee shall not be required to
undertake an analysis of any accountant's report attached as an exhibit to the
Form 10-K.
The Depositor agrees to furnish promptly to the Trustee, from
time to time upon request, such additional information, data, reports,
documents, and financial statements within the Depositor's possession or control
as the Trustee reasonably requests as necessary or appropriate to prepare and
file the foregoing reports. The Trustee shall make available to the Depositor
copies of all Exchange Act Reports filed hereunder.
Other than the Exchange Act Reports specified above, the
Trustee shall have no responsibility to file any items or reports with the SEC
under the 1934 Act or otherwise; provided, however, the Trustee will cooperate
with the Depositor in connection with any additional filings with respect to the
Trust as the Depositor deems necessary under the 1934 Act.
The Trustee shall indemnify and hold harmless the Depositor
and its officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of the Trustee's obligations under this Section 3.16 or the Trustee's
negligence, bad faith or willful misconduct in connection therewith.
[The Sponsor shall pay all costs and expenses of the Trustee
related to the preparation and filing of any Current Report on Form 8-K, any
Distribution Report on Form 10-D (other than the costs and expense of the
Trustee associated with the preparation and filing of the Statement to
Certificateholders), or any amendment to any Exchange Act Report. Except as
otherwise provided herein, all expenses incurred by the Trustee in connection
with its preparation and filing of Exchange Act Report s hereunder shall not be
reimbursable from the Trust.][Bear and EMC to discuss]
Any party that signs any Exchange Act Report that the Trustee
is required to file shall provide to the Trustee prompt notice of the execution
of such Exchange Act Report along with the name and contact information for the
person signing such report and shall promptly deliver to the Trustee the
original executed signature page for such report. In addition, each of the
parties agrees to provide to the Trustee such additional information related to
such party as the Trustee may reasonably request, including evidence of the
authorization of the person signing any certification or statement, financial
information and reports, and such other information related to such party or its
performance hereunder.
The Depositor shall indemnify and hold harmless the Trustee
and its officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach of the obligations of the Depositor under this Section 3.16 or the
Depositor's negligence, bad faith or willful misconduct in connection therewith.
The Master Servicer shall indemnify and hold harmless the
Trustee and the Depositor and their respective officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the obligations of the
Master Servicer under this Section 3.16 or the Master Servicer's negligence, bad
faith or willful misconduct in connection therewith.
[The Trustee shall not be responsible or liable in any respect
for any failure to file timely any Exchange Act Report in respect of the Trust
or for any incomplete or deficient filing of any Exchange Act Report in respect
of the Trust resulting from any failure of the Depositor, any Servicer or any
other transaction party to comply fully and timely with any of its obligations
to provide any information or data to the Trustee. In addition, if the Trustee
determines, in its reasonable judgment, that any Exchange Act Report proposed to
be filed in respect of the Trust contains any material misstatement or omission,
the Trustee shall thenceforth be relieved of any and all obligations hereunder
to provide any certification in respect of the Trust (including, particularly,
the certification specified in Item 601(b)(31)(ii) of Regulation S-K) or to
execute and file any Exchange Act Report in respect of the Trust.]
If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Depositor or the Trustee, as applicable, then
the defaulting party, in connection with a breach of its respective obligations
under this Section 3.16 or its respective negligence, bad faith or willful
misconduct in connection therewith, agrees that it shall contribute to the
amount paid or payable by the other parties as a result of the losses, claims,
damages or liabilities of the other party in such proportion as is appropriate
to reflect the relative fault and the relative benefit of the Depositor on the
one hand and the Trustee on the other.
Nothing shall be construed from the foregoing subsections (a),
(b) and (c) to require the Trustee or any officer, director or Affiliate thereof
to sign any Form 10-K or any certification contained therein. Furthermore, the
inability of the Trustee to file a Form 10-K as a result of the lack of required
information as set forth in Section 3.16(a) or required signatures on such Form
10-K or any certification contained therein shall not be regarded as a breach by
the Trustee of any obligation under this Agreement.
Notwithstanding the provisions of Section 11.01, this Section
3.16 may be amended without the consent of the Certificateholders.
SECTION 3.24 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 3.24(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:
(1) 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;
(2) authorize any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(3) 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
(4) 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:
(1) the terms and conditions of any such contract shall not be
inconsistent herewith;
(2) 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;
(3) none of the provisions of this Section 3.24(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
(4) 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
3.24(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 3.24(c) or
this Section 3.24(d).
(e) Subject to the time constraints set forth in Section
3.24(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 3.25 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 3.26 [Reserved].
SECTION 3.27 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 3.27 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 3.28 [Reserved].
SECTION 3.29 [Reserved].
SECTION 3.30 Advance Facility.
The Servicer, with the consent of the NIMS Insurer, is hereby
authorized to enter into a financing or other facility (any such arrangement, an
"Advance Facility") under which (1) the Servicer sells, assigns or pledges to
another Person (together with such Person's successors and assigns, an
"Advancing Person") the Servicer's rights under this Agreement to be reimbursed
for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to
fund some or all Advances and/or Servicing Advances required to be made by the
Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee,
the Certificateholders or any other party (other than the NIMS Insurer consent)
shall be required before the Servicer may enter into an Advance Facility. The
Servicer shall notify the NIMS Insurer and each other party to this Agreement
prior to or promptly after entering into or terminating any Advance Facility.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund Advances and/or Servicing Advances on the Servicer's
behalf, the Servicer shall remain obligated pursuant to this Agreement to make
Advances and Servicing Advances pursuant to and as required by this Agreement.
If the Servicer enters into an Advance Facility, and for so long as an Advancing
Person remains entitled to receive reimbursement for any Advances including
Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing
Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement
Amounts" and together with Advance Reimbursement Amounts, "Reimbursement
Amounts") (in each case to the extent such type of Reimbursement Amount is
included in the Advance Facility), as applicable, pursuant to this Agreement,
then the Servicer shall identify such Reimbursement Amounts consistent with the
reimbursement rights set forth in Section 3.11(a)(ii), (iii), (vi) and (vii) and
remit such Reimbursement Amounts in accordance with Section 3.10(b) or otherwise
in accordance with the documentation establishing the Advance Facility to such
Advancing Person or to a trustee, agent or custodian (an "Advance Facility
Trustee") designated by such Advancing Person. Notwithstanding the foregoing, if
so required pursuant to the terms of the Advance Facility, the Servicer may
direct, and if so directed the Trustee is hereby authorized to and shall pay to
the Advance Facility Trustee the Reimbursement Amounts identified pursuant to
the preceding sentence. Notwithstanding anything to the contrary herein, in no
event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement
Amounts be included in the Available Funds or distributed to Certificateholders.
If the terms of a facility proposed to be entered into with an
Advancing Person by the Trust Fund would not materially and adversely affect the
interests of any Certificateholder, then the NIMS Insurer shall not withhold its
consent to the Trust Fund's entering such facility.
Reimbursement Amounts shall consist solely of amounts in
respect of Advances and/or Servicing Advances made with respect to the Mortgage
Loans for which the Servicer would be permitted to reimburse itself in
accordance with this Agreement, assuming the Servicer or the Advancing Person
had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the
foregoing, except with respect to reimbursement of Nonrecoverable Advances as
set forth in this Agreement, no Person shall be entitled to reimbursement from
funds held in the Collection Account for future distribution to
Certificateholders pursuant to this Agreement. None of the Depositor or the
Trustee shall have any duty or liability with respect to the calculation of any
Reimbursement Amount, nor shall the Depositor or the Trustee have any
responsibility to track or monitor the administration of the Advance Facility
and the Depositor shall not have any responsibility to track, monitor or verify
the payment of Reimbursement Amounts to the related Advancing Person or Advance
Facility Trustee. The Servicer shall maintain and provide to any successor
servicer and (upon request) the Trustee a detailed accounting on a loan by loan
basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to
any Advancing Person. The successor servicer shall be entitled to rely on any
such information provided by the predecessor servicer, and the successor
servicer shall not be liable for any errors in such information. Any successor
Servicer shall reimburse the predecessor Servicer and itself for outstanding
Advances and Servicing Advances, respectively, with respect to each Mortgage
Loan on a first in, first out ("FIFO") basis; provided that the successor
Servicer has received prior written notice from the predecessor Servicer or the
Advancing Person of reimbursement amounts owed to the predecessor Servicer.
Liquidation Proceeds with respect to a Mortgage Loan shall be applied to
reimburse Advances outstanding with respect to that Mortgage Loan before being
applied to reimburse Servicing Advances outstanding with respect to that
Mortgage Loan.
An Advancing Person who receives an assignment or pledge of
the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose
obligations hereunder are limited to the funding or purchase of Advances and/or
Servicing Advances shall not be required to meet the criteria for qualification
of a subservicer set forth in this Agreement.
Upon the direction of and at the expense of the Servicer, the
Trustee agrees to execute such acknowledgments, certificates, and other
documents provided by the Servicer recognizing the interests of any Advance
Facility Trustee in such Reimbursement Amounts as the Servicer may cause to be
made subject to Advance Facilities pursuant to this Section 3.30.
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 3.30 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 3.30, including
amendments to add provisions relating to a successor servicer, may be entered
into by the Trustee, the Depositor and the Servicer without the consent of any
Certificateholder but the consent of the NIMS Insurer, provided such amendment
complies with Section 11.01 hereof. All reasonable costs and expenses (including
attorneys' fees) of each party hereto of any such amendment shall be borne
solely by the Servicer. Prior to entering into an Advance Facility, the Servicer
shall notify the Advancing Person in writing that: (a) the Advances and/or
Servicing Advances purchased, financed by and/or pledged to the Advancing Person
are obligations owed to the Servicer on a non-recourse basis payable only from
the cash flows and proceeds received under this Agreement for reimbursement of
Advances and/or Servicing Advances only to the extent provided herein, and the
Trustee and the Trust are not otherwise obligated or liable to repay any
Advances and/or Servicing Advance financed by the Advancing Person and (b) the
Trustee shall not have any responsibility to track or monitor the administration
of the Advance Facility between the Servicer and the Advancing Person.
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, shall withdraw from the Distribution Account that
portion of Available Funds for such Distribution Date consisting of the Group I
Interest Remittance Amount for such Distribution Date, and make the following
disbursements and transfers in the order of priority described below, in each
case to the extent of the Group I Interest Remittance Amount remaining for such
Distribution Date:
(i) to the Holders of the Group I Certificates, the Monthly
Interest Distributable Amount and the Unpaid Interest Shortfall Amount,
if any, for such Class; and
(ii) concurrently, to the Holders of the Group II
Certificates, on a PRO RATA basis based on the entitlement of each such
Class, an amount equal to the excess, if any, of (x) the amount
required to be distributed pursuant to Section 4.01(a)(II)(i) below for
such Distribution Date over (y) the amount actually distributed
pursuant to such clause from the Group II Interest Remittance Amount.
(II) On each Distribution Date the Trustee shall withdraw from
the Distribution Account that portion of Available Funds for such Distribution
Date consisting of the Group II Interest Remittance Amount for such Distribution
Date, and make the following disbursements and transfers in the order of
priority described below, in each case to the extent of the Group II Interest
Remittance Amount remaining for such Distribution Date.
(i) concurrently, to the Holders of the Group II Certificates,
on a PRO RATA basis based on the entitlement of each such Class, the
Monthly Interest Distributable Amount and the Unpaid Interest Shortfall
Amount, if any, for each such Class; and
(ii) to the Holders of the Group I Certificates, an amount
equal to the excess, if any, of (x) the amount required to be
distributed pursuant to Section 4.01(a)(I)(i) above for such
Distribution Date over (y) the amount actually distributed pursuant to
such clause from the Group I Interest Remittance Amount.
(III) On each Distribution Date, distributions to the extent
of the sum of the Group I Interest Remittance Amount and the Group II Interest
Remittance Amount remaining undistributed for such Distribution Date shall be
distributed sequentially, to the Holders of the Class M-1 Certificates, the
Class M-2 Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class M-7
Certificates, the Class M-8 Certificates, the Class M-9 Certificates, the Class
M-10 Certificates, the Class B-1 Certificates, the Class B-2 Certificates and
the Class B-3 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) first, to the Holders of the Group I Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; and
(ii) second, after taking into account the amount distributed
to the Holders of the Group II Certificates pursuant to Section
4.01(b)(II)(i) below on such Distribution Date, to the Holders of the
Group II Certificates (allocated among the Group II Certificates in the
priority described below), until the Certificate Principal Balances
thereof have been reduced to zero.
(II) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, distributions in respect of
principal to the extent of the Group II Principal Distribution Amount shall be
made in the following amounts and order of priority:
(i) first, to the Holders of the Group II Certificates
(allocated among Group II Certificates in the priority described
below), until the Certificate Principal Balances thereof have been
reduced to zero; and
(ii) second, after taking into account the amount distributed
to the Holders of the Group I Certificates pursuant to Section
4.01(b)(I)(i) above on such Distribution Date, to the Holders of the
Group I Certificates, until the Certificate Principal Balance thereof
has been reduced to zero.
(III) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, distributions in respect of
principal to the extent of the sum of the Group I Principal Distribution Amount
and the Group II Principal Distribution Amount remaining undistributed for such
Distribution Date shall be distributed sequentially, to the Holders of the Class
M-1 Certificates, the Class M-2 Certificates, the Class M-3 Certificates, the
Class M-4 Certificates, the Class M-5 Certificates, the Class M-6 Certificates,
the Class M-7 Certificates, the Class M-8 Certificates, the Class M-9
Certificates, the Class M-10 Certificates, the Class B-1 Certificates, the Class
B-2 Certificates and the Class B-3 Certificates in that order, in each case,
until the Certificate Principal Balance thereof has been reduced to zero.
(IV) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, distributions in respect
of principal to the extent of the Group I Principal Distribution Amount shall be
made in the following amounts and order of priority:
(i) first, to the Holders of the Group I Certificates, the
Group I Senior Principal Distribution Amount until the Certificate
Principal Balance thereof has been reduced to zero; and
(ii) second, 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)(II)(i) below for
such Distribution Date over (y) the amount actually distributed
pursuant to Section 4.01(c)(II)(i) below from the Group II Principal
Distribution Amount on such Distribution Date.
(V) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, distributions in respect
of principal to the extent of the Group II Principal Distribution Amount shall
be made in the following amounts and order of priority:
(i) first, to the Holders of the Group II Certificates
(allocated among Group II Certificates in the priority described
below), the Group II Senior Principal Distribution Amount until the
Certificate Principal Balances thereof have been reduced to zero; and
(ii) second, 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)(I)(i) above for such
Distribution Date over (y) the amount actually distributed pursuant to
Section 4.01(c)(I)(i) above from the Group I Principal Distribution
Amount on such Distribution Date.
(VI) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, distributions in respect
of principal to the extent of the sum of the Group I Principal Distribution
Amount and the Group II Principal Distribution Amount remaining undistributed
for such Distribution Date shall be made in the following amounts and order of
priority:
(i) first, to the Holders of the Class M-1 Certificates, the
Class M-1 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero;
(ii) second, to the Holders of the Class M-2 Certificates, the
Class M-2 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero;
(iii) third, to the Holders of the Class M-3 Certificates, the
Class M-3 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero;
(iv) fourth, 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;
(v) fifth, 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;
(vi) sixth, 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;
(vii) seventh, 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;
(viii) eighth, 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;
(ix) ninth, 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;
(x) tenth, to the Holders of the Class M-10 Certificates, the
Class M-10 Principal Distribution Amount until the Certificate
Principal Balance thereof has been reduced to zero;
(xi) eleventh, to the Holders of the Class B-1 Certificates,
the Class B-1 Principal Distribution Amount until the Certificate
Principal Balance thereof has been reduced to zero;
(xii) twelfth, to the Holders of the Class B-2 Certificates,
the Class B-2 Principal Distribution Amount until the Certificate
Principal Balance thereof has been reduced to zero; and
(xiii) twelfth, to the Holders of the Class B-3 Certificates,
the Class B-3 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-A1 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, the Class B Certificates and the Class C Certificates has been
reduced to zero, all principal distributions will be distributed concurrently,
to the Holders of the Class II-A1 Certificates, the Class II-A2 Certificates,
the Class II-A3 Certificates and the Class II-A4 Certificates, on a PRO RATA
basis based on the Certificate Principal Balance of each such Class.
(c) On each Distribution Date, the Net Monthly Excess Cashflow
shall be distributed as follows:
(i) to the Holders of the Class or Classes of Certificates
then entitled to receive distributions in respect of principal, in an
amount equal to any Extra Principal Distribution Amount, without taking
into account amounts, if any, received under the Interest Rate Swap
Agreement, distributable to such Holders as part of the Group I
Principal Distribution Amount and/or the Group II Principal
Distribution Amount as described under Section 4.01(b) above;
(ii) sequentially, to the Holders of the Class M-1
Certificates, the Class M-2 Certificates, the Class M-3 Certificates,
the Class M-4 Certificates, the Class M-5 Certificates, the Class M-6
Certificates, the Class M-7 Certificates, the Class M-8 Certificates,
the Class M-9 Certificates, the Class M-10 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates, in that order, first, up to the Unpaid Interest Shortfall
Amount for each such Class and second, up to the Allocated Realized
Loss Amount for each such Class;
(iii) to the Net WAC Rate Carryover Reserve Account, the
aggregate of any Net WAC Rate Carryover Amounts for the Floating Rate
Certificates which exceed the amounts received under the Cap Contract,
without taking into account amounts, if any, received under the Swap
Agreement;
(iv) to the Swap Provider, any Swap Termination Payments
resulting from a Swap Provider Trigger Event;
(v) to the Holders of the Class C Certificates, (a) the
Monthly Interest Distributable Amount for such Distribution Date and
(b) on any Distribution Date on which the Certificate Principal
Balances of the Adjustable-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-4 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 Cap Amount, from payments made under the Cap Contract, in each
case up to a maximum amount equal to the related Net WAC Rate Carryover
Amount for such Distribution Date;
(ii) sequentially, the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class M-7
Certificates, the Class M-8 Certificates, the Class M-9 Certificates,
the Class M-10 Certificates, the Class B-1 Certificates, the Class B-2
Certificates and the Class B-3 Certificates, in that order, the related
Cap Amount, from payments made under the Cap Contract, in each case up
to a maximum amount equal to the related Net WAC Rate Carryover Amount
for such Distribution Date;
(iii) concurrently, to each Class of Class A Certificates, the
related Net WAC Rate Carryover Amount remaining undistributed pursuant
to clause (i) above, on a PRO RATA basis based on such respective
remaining Net WAC Rate Carryover Amounts; and
(iv) sequentially, to the Class M-1 Certificates, the Class
M-2 Certificates, the Class M-3 Certificates, the Class M-4
Certificates, the Class M-5 Certificates, the Class M-6 Certificates,
the Class M-7 Certificates, the Class M-8 Certificates, the Class M-9
Certificates, the Class M-10 Certificates, the Class B-1 Certificates,
the Class B-2 Certificates and the Class B-3 Certificates, in that
order, the related Net WAC Rate Carryover Amount remaining
undistributed pursuant to clause (ii) above.
(e) On each Distribution Date, after making the distributions
of the Available Funds, Net Monthly Excess Cashflow and amounts on deposit in
the Net WAC Rate Carryover Reserve Account as set forth above, the Trustee shall
distribute the amount on deposit in the Swap Account as follows:
(i) to the Swap Provider, any Net Swap Payment owed to the
Swap Provider pursuant to the Interest Rate Swap Agreement for such
Distribution Date;
(ii) to the Swap Provider, any Swap Termination Payment owed
to the Swap Provider not due to a Swap Provider Trigger Event pursuant
to the Interest Rate Swap Agreement;
(iii) concurrently, to each Class of Class A Certificates, the
related Monthly Interest Distributable Amount and Unpaid Interest
Shortfall Amount remaining undistributed after the distributions of the
Group I Interest Remittance Amount and the Group II Interest Remittance
Amount, on a PRO RATA basis based on such respective remaining Monthly
Interest Distributable Amount and Unpaid Interest Shortfall Amount;
(iv) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and
Class M-10 Certificates, in that order, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount, to the
extent remaining undistributed after the distributions of the Group I
Interest Remittance Amount, the Group II Interest Remittance Amount and
the Net Monthly Excess Cashflow;
(v) to the Holders of the Class or Classes of Certificates
then entitled to receive distributions in respect of principal, in an
amount equal to any Extra Principal Distribution Amount, without taking
into account amounts, if any, received under the Interest Rate Swap
Agreement, distributable to such Holders as part of the Group I
Principal Distribution Amount and/or the Group II Principal
Distribution Amount, after taking into account distributions made
pursuant to Section 4.01(a)(4)(i);
(vi) sequentially to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and
Class M-10 Certificates, in that order, in each case up to the related
Allocated Realized Loss Amount related to such Certificates for such
Distribution Date remaining undistributed after distribution of the Net
Monthly Excess Cashflow;
(vii) concurrently, to each Class of Class A Certificates, the
related Net WAC Rate Carryover Amount, to the extent remaining
undistributed after distributions are made from the Net WAC Rate
Carryover Reserve Account, on a PRO RATA basis based on such respective
Net WAC Rate Carryover Amounts remaining; and
(viii) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and
Class M-10 Certificates, in that order, the related Net WAC Rate
Carryover Amount, to the extent remaining undistributed after
distributions are made from the Net WAC Rate Carryover Reserve Account.
(f) On each Distribution Date, all amounts representing
Prepayment Charges in respect of the Mortgage Loans received during the related
Prepayment Period and any Servicer Prepayment Charge Amounts paid by the
Servicer during the related Prepayment Period will be withdrawn from the
Distribution Account and distributed by the Trustee to the Holders of the Class
P Certificates and shall not be available for distribution to the Holders of any
other Class of Certificates. The payment of the foregoing amounts to the Holders
of the Class P Certificates shall not reduce the Certificate Principal Balances
thereof.
(g) The Trustee shall make distributions in respect of a
Distribution Date to each Certificateholder of record on the related Record Date
(other than as provided in Section 10.01 respecting the final distribution), in
the case of Certificateholders of the Regular Certificates, by check or money
order mailed to such Certificateholder at the address appearing in the
Certificate Register, or by wire transfer. Distributions among
Certificateholders shall be made in proportion to the Percentage Interests
evidenced by the Certificates held by such Certificateholders.
(h) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, which shall credit the amount of such
distribution to the accounts of its Depository Participants in accordance with
its normal procedures. Each Depository Participant shall be responsible for
disbursing such distribution to the Certificate Owners that it represents and to
each indirect participating brokerage firm (a "brokerage firm" or "indirect
participating firm") for which it acts as agent. Each brokerage firm shall be
responsible for disbursing funds to the Certificate Owners that it represents.
All such credits and disbursements with respect to a Book-Entry Certificate are
to be made by the Depository and the Depository Participants in accordance with
the provisions of the Certificates. None of the Trustee, the Depositor or the
Servicer shall have any responsibility therefor except as otherwise provided by
applicable law.
On each Distribution Date, following the foregoing
distributions, an amount equal to the amount of Subsequent Recoveries deposited
into the Collection Account pursuant to Section 3.10 shall be applied to
increase the Certificate Principal Balance of the Class of Certificates with the
Highest Priority up to the extent of such Realized Losses previously allocated
to that Class of Certificates pursuant to Section 4.08. An amount equal to the
amount of any remaining Subsequent Recoveries shall be applied to increase the
Certificate Principal Balance of the Class of Certificates with the next Highest
Priority, up to the amount of such Realized Losses previously allocated to that
Class of Certificates pursuant to Section 4.08. Holders of such Certificates
will not be entitled to any distribution in respect of interest on the amount of
such increases for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(i) It is the intention of all of the parties hereto that the
Class C Certificates receive all principal and interest received by the Trust on
the Mortgage Loans that is not otherwise distributable to any other Class of
Regular Certificates or REMIC Regular Interests and that the Residual
Certificates are to receive no principal and interest. If the Trustee determines
that the Residual Certificates are entitled to any distributions, the Trustee,
prior to any such distribution to any Residual Certificate, shall notify the
Depositor of such impending distribution but shall make such distribution in
accordance with the terms of this Agreement until this Agreement is amended as
specified in the following sentence. Upon such notification, the Depositor will
request an amendment to the Pooling and Servicing Agreement to revise such
mistake in the distribution provisions. The Residual Certificate Holders, by
acceptance of their Certificates, and the Servicer(s), hereby agree to any such
amendment and no further consent shall be necessary, notwithstanding anything to
the contrary in Section 11.01 of this Pooling and Servicing Agreement; provided,
however, that such amendment shall otherwise comply with Section 11.01 hereof.
SECTION 4.02 [Reserved].
SECTION 4.03 Statements.
(i) Not later than each Distribution Date, the Trustee shall
prepare and make available to each Holder of Certificates, the Master
Servicer, the Swap Provider and the Depositor a statement setting forth
for the Certificates:
(ii) the applicable record dates, accrual periods,
determination dates for calculating distributions and general
distribution dates;
(iii) with respect to each Loan Group, the total cash flows
received and the general sources thereof;
(iv) the amount, if any, of fees or expenses accrued and paid,
with an identification of the payee and the general purpose of such
fees including the related amount of the Servicing Fees paid to or
retained by the Master Servicer for the related Due Period;
(v) with respect to each Loan Group, the amount of any Net
Swap Payment payable to the trust with respect to the related Loan
Group, any related Net Swap Payment payable to the related Swap
Provider, any Swap Termination Payment payable to the trust with
respect to the related Loan Group and any Swap Termination Payment
payable to the Swap Provider;
(vi) with respect to each Loan Group, the amount of the
related distribution to Holders of each Class allocable to principal,
separately identifying (A) the aggregate amount of any Principal
Prepayments included therein, (B) the aggregate of all scheduled
payments of principal included therein and (C) the Extra Principal
Distribution Amount (if any);
(vii) with respect to each Loan Group, the amount of such
distribution to Holders of each Class allocable to interest and the
portion thereof, if any, provided by the related Interest Rate Swap
Agreement and the related Yield Maintenance Agreement and the amount of
coverage remaining under either credit enhancement with respect to each
Loan Group;
(viii) with respect to each Loan Group, the Interest Carry
Forward Amounts and any Basis Risk Shortfall Carry Forward Amounts for
each Class of Certificates (if any);
(ix) the Pass-Through Rate for each Class of Certificates with
respect to the current Accrual Period, and, if applicable, whether such
Pass-Through Rate was limited by the Net Rate Cap;
(x) with respect to each Loan Group, the number and the
aggregate of the Stated Principal Balance of (A) all of the Mortgage
Loans and (B) the Adjustable Rate Mortgage Loans, for the following
Distribution Date, together with updated pool composition information;
(xi) the Certificate Principal Balance or Certificate Notional
Amount, as applicable, of each Class before and after giving effect (i)
to all distributions allocable to principal on such Distribution Date
and (ii) the allocation of any Applied Realized Loss Amounts for such
Distribution Date;
(xii) the number and aggregate Stated Principal Balance of the
Mortgage Loans in each Loan Group (A) Delinquent (exclusive of Mortgage
Loans in foreclosure and bankruptcy) (1) 30 days Delinquent, (2) 60
days Delinquent and (3) 90 days or more Delinquent, (B) in foreclosure
and delinquent (1) 30 days Delinquent, (2) 60 days Delinquent and (3)
90 days or more Delinquent and (C) in bankruptcy and delinquent (1) 30
days Delinquent, (2) 60 days Delinquent and (3) 90 days or more
Delinquent, in each case as of the close of business on the last day of
the calendar month preceding such Distribution Date and separately
identifying such information for the (1) first lien Mortgage Loans, (2)
second lien Mortgage Loans, and (3) Adjustable Rate Mortgage Loans, in
each such Loan Group;
(xiii) with respect to each Loan Group, the amount of, if any,
of excess cashflow or excess spread and the application of such excess
cashflow;
(xiv) with respect to each Loan Group, the aggregate amount of
Advances included in the distribution on such Distribution Date
(including the general purpose of such Advances), the aggregate amount
of unreimbursed Advances at the close of business on the Distribution
Date, and the general source of funds for reimbursements;
(xv) with respect to each Loan Group, the cumulative amount of
Applied Realized Loss Amounts through the end of the preceding month;
(xvi) with respect to each Loan Group and if applicable,
material modifications, extensions or waivers to Mortgage Loan terms,
fees, penalties or payments during the preceding calendar month or that
have become material over time;
(xvii) with respect to any Mortgage Loan that was liquidated
during the preceding calendar month, the loan number and Stated
Principal Balance of, and Realized Loss on, such Mortgage Loan as of
the close of business on the Determination Date preceding such
Distribution Date;
(xviii) with respect to each Loan Group, the aggregate Stated
Principal Balance of, and Realized Loss on, such Mortgage Loans as of
the end of the related Prepayment Period;
(xix) with respect to each Loan Group, the total number and
principal balance of any real estate owned or REO Properties as of the
end of the related Prepayment Period;
(xx) with respect to each Loan Group, the three month rolling
average of the percent equivalent of a fraction, the numerator of which
is the aggregate Stated Principal Balance of the Mortgage Loans in such
Loan Group that are 60 days or more delinquent or are in bankruptcy or
foreclosure or are REO Properties, and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans in such
Loan Group, in each case as of the close of business on the last day of
the calendar month preceding such Distribution Date and separately
identifying such information for the (1) first lien Mortgage Loans, and
(2) Adjustable Rate Mortgage Loans;
(xxi) the Realized Losses during the related Prepayment Period
and the cumulative Realized Losses through the end of the preceding
month;
(xxii) with respect to each Loan Group, information on loss,
delinquency or other tests used for determining early amortization,
liquidation, stepdowns or other performance triggers as more completely
described in the prospectus supplement and whether the trigger was met;
(xxiii) with respect to each Loan Group, the amount of the
Prepayment Charges remitted by the Master Servicer and the amount on
deposit in the Reserve Fund;
(xxiv) updated pool composition data including the following
with respect to each Loan Group: average loan balance, weighted average
mortgage rate, weighted average loan-to-value ratio at origination,
weighted average FICO at originationweighted average remaining term;
[NOTE - Item 1121(a)(8) requires updated pool composition information,
the foregoing is a suggestion of what to provide]
(xxv) with respect to each Loan Group, information regarding
any new issuance of securities backed by the same asset pool, any pool
asset changes, such as additions or removals of Mortgage Loans from the
Trust Fund, if applicable;
(xxvi) any material changes in the solicitation,
credit-granting, underwriting, origination, acquisition or Mortgage
Loan selection criteria or procedures, as applicable, used to
originate, acquire or select Mortgage Loans for the Trust Fund;
(xxvii) with respect to each Loan Group, material breaches of
Mortgage Loan representations or warranties or transaction covenants;
and
(xxviii) the special hazard amount, fraud loss amount and
bankruptcy amount, if applicable, as of the close of business on the
applicable distribution date and a description of any change in the
calculation of these amounts.
(xxix) The Depositor agrees that there will be no material
changes in the solicitation, credit-granting, underwriting,
origination, acquisition or Mortgage Loan selection criteria or
procedures, as applicable, used to originate, acquire or select
Mortgage Loans for the Trust Fund and (xxv) above may be omitted. The
Depositor agrees with the Trustee that there will be no new issuance of
securities backed by the same asset pool, so the Trustee will only be
responsible in (xxiv) above for reporting any pool asset changes, such
as additions or removals of Mortgage Loans from the Trust Fund.
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
"▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇". Assistance in using the website can be obtained
by calling the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. 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) through (iii) 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.
(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 and to prepare the statements to
Certificateholders contemplated by Section 4.03. 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 3.24 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 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 Pre-Funding Accounts.
(a) No later than the Closing Date, the Trustee shall
establish and maintain two segregated trust accounts that are each Eligible
Accounts, which shall be titled "[________]" (the "Group I Pre-Funding Account")
and "[________]" (the "Group II Pre-Funding Account"). The Trustee shall,
promptly upon receipt, deposit in the applicable Pre-Funding Account and retain
therein the Original Group I Pre-Funded Amount and the Original Group II
Pre-Funded Amount, as applicable, remitted on the Closing Date to the Trustee by
the Depositor. Funds deposited in the Pre-Funding Accounts shall be held in
trust by the Trustee for the Certificateholders for the uses and purposes set
forth herein.
(b) The Trustee will invest funds deposited in the Pre-Funding
Accounts as directed by the Depositor in Permitted Investments with a maturity
date (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 or an Affiliate manages or advises
such investment, (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 or an
Affiliate manages or advises such investment or (iii) within one Business Day of
the Trustee's receipt thereof. For federal income tax purposes, the Depositor
shall be the owner of the Pre-Funding Accounts and shall report all items of
income, deduction, gain or loss arising therefrom. All income and gain realized
from investment of funds deposited in the Pre-Funding Accounts shall be
transferred to the Depositor. The Depositor shall deposit in the Pre-Funding
Accounts the amount of any net loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss without any right of
reimbursement therefor. At no time will the Pre-Funding Accounts be assets of
any REMIC created hereunder.
(c) Amounts on deposit in the Pre-Funding Accounts shall be
withdrawn by the Trustee as follows:
(i) On any Subsequent Transfer Date, the Trustee shall
withdraw from the Group I Pre-Funding Account or the Group II
Pre-Funding Account, as applicable, an amount equal to 100% of the
Stated Principal Balances of the Subsequent Group I Mortgage Loans or
the Subsequent Group II Mortgage Loans, as applicable, transferred and
assigned to the Trustee for deposit in the Mortgage Pool on such
Subsequent Transfer Date and pay such amount to or upon the order of
the Depositor upon satisfaction of the conditions set forth in Section
2.08 with respect to such transfer and assignment;
(ii) If the amount on deposit in the Pre-Funding Accounts
(exclusive of any investment income therein) has not been reduced to
zero during the Funding Period, on the day immediately following the
termination of the Funding Period, the Trustee shall deposit into the
Distribution Account any amounts remaining in the Pre-Funding Accounts
(exclusive of any investment income therein) for distribution in
accordance with the terms hereof;
(iii) Pay to the Depositor any income and gain realized from
the investment of funds in the Pre-Funding Accounts;
(iv) To withdraw any amount not required to be deposited in
the Pre-Funding Accounts or deposited therein in error; and
(v) To clear and terminate the Pre-Funding Accounts upon the
earlier to occur of (A) the Distribution Date immediately following the
end of the Funding Period and (B) the termination of this Agreement,
with any amounts remaining on deposit therein being paid to the Holders
of the Certificates then entitled to distributions in respect of
principal.
Withdrawals pursuant to clauses (i), (ii) and (iii) shall be
treated as contributions of cash to REMIC 1 on the date of withdrawal.
SECTION 4.06 Interest Coverage Accounts.
(a) If amounts are required to be deposited in the Interest
Coverage Accounts, no later than the Closing Date, the Trustee shall establish
and maintain a segregated non-interest bearing trust account that is an Eligible
Account, which shall be titled (i) "[________]" (the "Group I Interest Coverage
Account") and (ii) "[________]" (the "Group II Interest Coverage Account"). The
Trustee shall, promptly upon receipt, deposit in each Interest Coverage Account
and retain therein the related Interest Coverage Amount, remitted on the Closing
Date to the Trustee by the Depositor. Funds deposited in the Interest Coverage
Accounts shall be held in trust by the Trustee for the Certificateholders for
the uses and purposes set forth herein.
(b) The Trustee shall invest funds deposited in the Interest
Coverage Accounts in Permitted Investments of the kind described in clauses (i),
(v) or (vi) of the definition of Permitted Investments, as specified in a
written direction from the Depositor, with a maturity date no later than the
second Business Day preceding each Distribution Date. For federal income tax
purposes, the holder of the largest Percentage Interest of the Residual
Certificates shall be the owner of the Interest Coverage Accounts and shall
report all items of income, deduction, gain or loss arising therefrom. At no
time shall either Interest Coverage Account be an asset of any Trust REMIC. All
income and gain realized from investment of funds deposited in the Interest
Coverage Accounts shall be for the sole and exclusive benefit of the Depositor
and shall be remitted by the Trustee to the Depositor on the first Business Day
following each Distribution Date. The Depositor shall deposit in the Interest
Coverage Accounts the amount of any net loss incurred in respect of any such
Permitted Investment immediately upon realization of such loss.
(c) On each Distribution Date during the Funding Period and on
the last day of the Funding Period, the Trustee shall withdraw from the related
Interest Coverage Account and deposit in the Distribution Account an amount
equal to 30 days' interest on the excess, if any, of the related Original
Pre-Funded Amount, over the aggregate Stated Principal Balance of related
Subsequent Mortgage Loans that both (i) had a Due Date during the Due Period
relating to such Distribution Date and (ii) had a Subsequent Cut-off Date prior
to the first day of the month in which such Distribution Date occurs, at a per
annum rate equal to the weighted average Pass-Through Rate of the related
Offered Certificates for such Distribution Date, with the Pass-Through Rate on
the related Offered Certificates, solely for the purposes of the foregoing
calculation, multiplied by a fraction, the numerator of which is the actual
number of days in the Accrual Period for such Class for such Distribution Date,
and the denominator of which is 30. Such withdrawal and deposit shall be treated
as a contribution of cash by the Servicer to REMIC I. Immediately following any
such withdrawal and deposit, and immediately following the conveyance of any
Subsequent Mortgage Loans to the Trust on any Subsequent Transfer Date, the
Trustee shall withdraw from the Interest Coverage Accounts and remit to the
Depositor or its designee an amount equal to the excess, if any, of the amount
remaining in such Interest Coverage Account over the amount that would be
required to be withdrawn therefrom (assuming sufficient funds therein) pursuant
to the second preceding sentence on each subsequent Distribution Date, if any,
that shall occur during the Funding Period or that shall be the last day of the
Funding Period, if no Subsequent Mortgage Loans were acquired by the Trust Fund
after the end of the Prepayment Period relating to the current Distribution Date
(assuming that LIBOR remains constant at the level of LIBOR applicable to the
calculation of the Pass-Through Rate for the Class A Certificates and Mezzanine
Certificates for the current Distribution Date).
(d) Upon the earlier of (i) the Distribution Date immediately
following the end of the Funding Period, (ii) the reduction of the aggregate
Certificate Principal Balance of the Class A Certificates and the Mezzanine
Certificates to zero or (iii) the termination of this Agreement in accordance
with Section 10.01, any amount remaining on deposit in the Interest Coverage
Accounts after distributions pursuant to paragraph (c) above shall be withdrawn
by the Trustee and paid to the Depositor or its designee.
SECTION 4.07 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,
"[________]." All amounts deposited in the Net WAC Rate Carryover Reserve
Account shall be distributed to the Holders of the Adjustable-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 Adjustable-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
Cap Contract 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 Adjustable-Rate
Certificates, and will distribute such amounts to the Holders of the
Adjustable-Rate Certificates in the amounts and priorities set forth in Section
4.01(d).
On each Distribution Date, any amounts remaining in the Net
WAC Rate Reserve Account (representing payments received by the Trustee under
the Cap Contract) after the payment of any Net WAC Rate Carryover Amounts on the
Adjustable-Rate Certificates for such Distribution Date, shall be payable to the
Trustee. For so long as any Adjustable-Rate Certificates are beneficially owned
by the Depositor or any of its Affiliates, the Depositor shall refund or cause
such Affiliate to refund any amounts paid to it under the Cap Contract to the
Trustee who shall, pursuant to the terms of the Cap Contract, return such amount
to the counterparty thereunder.
It is the intention of the parties hereto that, for federal
and state income and state and local franchise tax purposes, the Net WAC Rate
Carryover Reserve Account be disregarded as an entity separate from the Holder
of the Class C Certificates unless and until the date when either (a) there is
more than one Class C Certificateholder or (b) any Class of Certificates in
addition to the Class C Certificates is recharacterized as an equity interest in
the Net WAC Rate Carryover Reserve Account for federal income tax purposes, in
which case it is the intention of the parties hereto that, for federal and state
income and state and local franchise tax purposes, the Net WAC Rate Carryover
Reserve Account be treated as a grantor trust. All amounts deposited into the
Net WAC Rate Carryover Reserve Account (other than amounts received under the
Cap Contract) shall be treated as amounts distributed by REMIC 4 to the Holder
of the Class C Interest and by REMIC 5 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 Adjustable-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 Holder of
the Class C Certificates or its designee. The Net WAC Rate Carryover Reserve
Account will be part of the Trust but not part of any REMIC and any payments to
the Holders of the Adjustable-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 Adjustable-Rate Certificates to receive payments from the Net
WAC Rate Carryover Reserve Account in respect of any Net WAC Cap Carry Forward
Amounts may have more than a DE MINIMIS value.
SECTION 4.08 Distributions on the REMIC Regular Interests.
(a) 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:
With respect to the Group I Mortgage Loans:
(1)(i) to the Holders of REMIC 1 Regular Interest LT1, REMIC 1
Regular Interest LT1PF and REMIC 1 Regular Interest LTP in an amount
equal to (A) the Uncertificated Accrued Interest for each REMIC 1
Regular Interest for such Distribution Date, plus (B) any amounts in
respect thereof remaining unpaid from previous Distribution Dates; and
(ii) to the Holders of REMIC 1 Regular Interest LTP, 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;
(2) to the Holders of REMIC 1 Regular Interest LT1 and REMIC 1
Regular Interest LT1PF, in an amount equal to the remainder of the
Available Funds for such Distribution Date after the distributions made
pursuant to clause (1) above, allocated as follows:
(a) first, to the Holders of REMIC 1 Regular Interest
LT1, until the Uncertificated Principal Balance of REMIC 1
Regular Interest LT1 is reduced to zero; then, to the Holders
of REMIC 1 Regular Interest LT1PF, until the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT1PF is reduced
to zero; provided however, with respect to the first
Distribution Date, principal payments on the Initial Group I
Mortgage Loans shall be allocated to REMIC 1 Regular Interest
LT1 until the Uncertificated Principal Balance of each such
REMIC 1 Regular Interest has been reduced to zero, and all
principal payments on the Subsequent Group I Mortgage Loans
shall be allocated to REMIC 1 Regular Interest LT1PF until the
Uncertificated Principal Balance thereof has been reduced to
zero; and
(b) any remaining amount to the Holders of the Class
R Certificates (in respect of the Class R-1 Interest).
With respect to the Group II Mortgage Loans:
(1) to the Holders of REMIC 1 Regular Interest LT2 and REMIC 1
Regular Interest LT2PF in an amount equal to (A) the Uncertificated
Accrued Interest for each REMIC 1 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates;
(2) to the Holders of REMIC 1 Regular Interest LT2 and REMIC 1
Regular Interest LT2PF, in an amount equal to the remainder of the
Available Funds for such Distribution Date after the distributions made
pursuant to clause (1) above, allocated as follows:
(a) first, to the Holders of REMIC 1 Regular Interest
LT2, until the Uncertificated Principal Balance of REMIC 1
Regular Interest LT2 is reduced to zero; then, to the Holders
of REMIC 1 Regular Interest LT2PF, until the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT2PF is reduced
to zero; provided however, with respect to the first
Distribution Date, principal payments on the Initial Group II
Mortgage Loans shall be allocated to REMIC 1 Regular Interest
LT2 until the Uncertificated Principal Balance of each such
REMIC 1 Regular Interest has been reduced to zero, and all
principal payments on the Subsequent Group II Mortgage Loans
shall be allocated to REMIC 1 Regular Interest LT2PF until the
Uncertificated Principal Balance thereof has been reduced to
zero; and
(b) any remaining amount to the Holders of the Class
R Certificates (in respect of the Class R-1 Interest).
On each Distribution Date, all amounts representing Prepayment
Charges in respect of the Mortgage Loans received during the related Prepayment
Period will be distributed by REMIC 1 to the Holders of REMIC 1 Regular Interest
LTP. The payment of the foregoing amounts to the Holders of REMIC 1 Regular
Interest LTP shall not reduce the Uncertificated Principal Balance thereof.
(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:
(1) to Holders of each of REMIC 2 Regular Interest I and REMIC
2 Regular Interest I-1-A through I-40-B, pro rata, in an amount equal
to (A) Uncertificated Accrued Interest for such REMIC 2 Regular
Interests for such Distribution Date, plus (B) any amounts payable in
respect thereof remaining unpaid from previous Distribution Dates;
(2) 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 2 Regular interests I-1-A through
I-40-B starting with the lowest numerical denomination until the
Uncertificated Principal Balance of each such REMIC 2 Regular Interest
is reduced to zero, provided that, for REMIC 2 Regular Interests with
the same numerical denomination, such payments of principal shall be
allocated pro rata between such REMIC 2 Regular Interests, and second,
to the extent of the Overcollateralization Release Amounts, to REMIC 2
Regular Interest I-40B until the Uncertificated Principal Balance of
such REMIC 2 Regular Interest is reduced to zero; and
(3) to the Holders of REMIC 2 Regular Interest P, (A) on each
Distribution Date, 100% of the amount paid in respect of Prepayment
Charges and (B) on the Distribution Date immediately following the
expiration of the latest Prepayment Charge as identified on the
Prepayment Charge Schedule or any Distribution Date thereafter until
$100 has been distributed pursuant to this clause.
(c) 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 3 to REMIC 4 on account of the REMIC 3 Regular Interests or
withdrawn from the Distribution Account and distributed to the holders of the
Class R Certificates (in respect of the Class R-3 Interest), as the case may be:
(i) first, to the Holders of REMIC 3 Regular Interest LTIO, in
an amount equal to (A) Uncertificated Accrued Interest for such REMIC 3
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 3 Regular Interest LTAA, REMIC 3 Regular Interest LTIA1, REMIC 3
Regular Interest LTIIA1, REMIC 3 Regular Interest LTIIA2, REMIC 3
Regular Interest LTIIA3, REMIC 3 Regular Interest LTIIA4, REMIC 3
Regular Interest LTM1, REMIC 3 Regular Interest LTM2, REMIC 3 Regular
Interest LTM3, REMIC 3 Regular Interest LTM4, REMIC 3 Regular Interest
LTM5, REMIC 3 Regular Interest LTM6, REMIC 3 Regular Interest LTM7,
REMIC 3 Regular Interest LTM8, REMIC 3 Regular Interest LTM9, REMIC 3
Regular Interest LTM10, REMIC 3 Regular Interest LTB1, REMIC 3 Regular
Interest LTB2, REMIC 3 Regular Interest LTB3, REMIC 3 Regular Interest
LTZZ and REMIC 3 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 3 Regular Interest
LTZZ shall be reduced and deferred when the REMIC 3
Overcollateralization Amount is less than the REMIC 3
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
3 Regular Interest LTIA1, REMIC 3 Regular Interest LTIIA1, REMIC 3
Regular Interest LTIIA2, REMIC 3 Regular Interest LTIIA3, REMIC 3
Regular Interest LTIIA4, REMIC 3 Regular Interest LTM1, REMIC 3 Regular
Interest LTM2, REMIC 3 Regular Interest LTM3, REMIC 3 Regular Interest
LTM4, REMIC 3 Regular Interest LTM5, REMIC 3 Regular Interest LTM6,
REMIC 3 Regular Interest LTM7, REMIC 3 Regular Interest LTM8, REMIC 3
Regular Interest LTM9, REMIC 3 Regular Interest LTM10, REMIC 3 Regular
Interest LTB1, REMIC 3 Regular Interest LTB2 and REMIC 3 Regular
Interest LTB3 in the same proportion as the Overcollateralization
Deficiency Amount is allocated to the Corresponding Certificates and
the Uncertificated Principal Balance of the REMIC 3 Regular Interest
LTZZ shall be increased by such amount; and
(iii) third, to the Holders of REMIC 3 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
3 Regular Interest LTAA and REMIC 3 Regular Interest LTP,
until the Uncertificated Principal Balance of such
Uncertificated REMIC 3 Regular Interest is reduced to zero;
provided, however, that REMIC 3 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 3 Regular Interest LTP, until $100 has been distributed
pursuant to this clause;
(b) 2.00% of such remainder first, to the Holders of
REMIC 3 Regular Interest LTIA1, REMIC 3 Regular Interest
LTIIA1, REMIC 3 Regular Interest LTIIA2, REMIC 3 Regular
Interest LTIIA3, REMIC 3 Regular Interest LTIIA4, REMIC 3
Regular Interest LTM1, REMIC 3 Regular Interest LTM2, REMIC 3
Regular Interest LTM3, REMIC 3 Regular Interest LTM4, REMIC 3
Regular Interest LTM5, REMIC 3 Regular Interest LTM6, REMIC 3
Regular Interest LTM7, REMIC 3 Regular Interest LTM8, REMIC 3
Regular Interest LTM9, REMIC 3 Regular Interest LTM10, REMIC 3
Regular Interest LTB1, REMIC 3 Regular Interest LTB2 and REMIC
3 Regular Interest LTB3, of and in the same proportion as
principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Principal Balances of
such REMIC 3 Regular Interests are reduced to zero, and
second, to the Holders of REMIC 3 Regular Interest LTZZ, until
the Uncertificated Principal Balance of such REMIC 3 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-3 Interest).
SECTION 4.09 Allocation of Realized Losses.
(a) All Realized Losses on the Mortgage Loans allocated to any
Regular Certificate shall be allocated by the Trustee on each Distribution Date
as follows: first, to Net Monthly Excess Cashflow; second, to the Class C
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; third, to the Class B-3 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; fourth, to the Class B-2 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero; fifth,
to the Class B-1 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; sixth, to the Class M-10 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; seventh, to the
Class M-9 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; eighth, to the Class M-8 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; ninth, to the Class M-7
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; tenth, to the Class M-6 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; eleventh, to the Class M-5
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; twelfth, to the Class M-4 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; thirteenth, to the Class M-3
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; fourteenth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero and fifteenth, to the Class
M-1 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero. All Realized Losses to be allocated to the Certificate
Principal Balances of all Classes on any Distribution Date shall be so allocated
after the actual distributions to be made on such date as provided above. All
references above to the Certificate Principal Balance of any Class of
Certificates shall be to the Certificate Principal Balance of such Class
immediately prior to the relevant Distribution Date, before reduction thereof by
any Realized Losses, in each case to be allocated to such Class of Certificates,
on such Distribution Date.
Any allocation of Realized Losses to a Mezzanine Certificate
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) All Realized Losses on the Group I Mortgage Loans shall be
allocated by the Trustee on each Distribution Date to the REMIC 1 Regular
Interest LT1 and REMIC 1 Regular Interest LT1PF until the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest has been reduced to
zero; provided however, with respect to the first Distribution Date, all
Realized Losses on the Initial Group I Mortgage Loans shall be allocated to
REMIC 1 Regular Interest LT1 until the Uncertificated Principal Balance of each
such REMIC 1 Regular Interest has been reduced to zero, and all Realized Losses
on the Subsequent Group I Mortgage Loans shall be allocated to REMIC 1 Regular
Interest LT1PF until the Uncertificated Principal Balance thereof has been
reduced to zero. All Realized Losses on the Group II Mortgage Loans shall be
allocated by the Trustee on each Distribution Date to the REMIC 1 Regular
Interest LT2 and REMIC 1 Regular Interest LT2PF until the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest has been reduced to
zero; provided however, with respect to the first Distribution Date, all
Realized Losses on the Initial Group II Mortgage Loans shall be allocated to
REMIC 1 Regular Interest LT2 until the Uncertificated Principal Balance of each
such REMIC 1 Regular Interest has been reduced to zero, and all Realized Losses
on the Subsequent Group II Mortgage Loans shall be allocated to REMIC 1 Regular
Interest LT2PF until the Uncertificated Principal Balance thereof has been
reduced to zero.
(c) With respect to the REMIC 2 Regular Interests, all
Realized Losses on the Mortgage Loans shall be allocated shall be allocated by
the Trustee on each Distribution Date, first to REMIC 2 Regular Interest I until
the Uncertificated Principal Balance has been reduced to zero, and second, to
REMIC 2 Regular Interest I-1-A through REMIC 2 Regular Interest I-40-B, starting
with the lowest numerical denomination until such REMIC 2 Regular Interest has
been reduced to zero, provided that, for REMIC 2 Regular Interests with the same
numerical denomination, such Realized Losses shall be allocated pro rata between
such REMIC 2 Regular Interests.
(d) 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 3 Regular Interest LTAA and
REMIC 3 Regular Interest LTZZ up to an aggregate amount equal to the REMIC 3
Interest Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Principal Balances of REMIC 3 Regular Interest LTAA and REMIC 3
Regular Interest LTZZ up to an aggregate amount equal to the REMIC 3 Principal
Loss Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC 3 Regular Interest LTAA, REMIC 3 Regular Interest
LTB3 and REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 3 Regular Interest LTB3 has been
reduced to zero; fourth, to the Uncertificated Principal Balances of REMIC 3
Regular Interest LTAA, REMIC 3 Regular Interest LTB2 and REMIC 3 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 3 Regular Interest LTB2 has been reduced to zero; fifth, to the
Uncertificated Principal Balances of REMIC 3 Regular Interest LTAA, REMIC 3
Regular Interest LTB1 and REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 3 Regular
Interest LTB1 has been reduced to zero; sixth, to the Uncertificated Principal
Balances of REMIC 3 Regular Interest LTAA, REMIC 3 Regular Interest LTM10 and
REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 3 Regular Interest LTM10 has been
reduced to zero; seventh, to the Uncertificated Principal Balances of REMIC 3
Regular Interest LTAA, REMIC 3 Regular Interest LTM9 and REMIC 3 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 3 Regular Interest LTM9 has been reduced to zero; eighth, to
the Uncertificated Principal Balances of REMIC 3 Regular Interest LTAA, REMIC 3
Regular Interest LTM8 and REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 3 Regular
Interest LTM8 has been reduced to zero; ninth, to the Uncertificated Principal
Balances of REMIC 3 Regular Interest LTAA, REMIC 3 Regular Interest LTM7 and
REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 3 Regular Interest LTM7 has been
reduced to zero; tenth, to the Uncertificated Principal Balances of REMIC 3
Regular Interest LTAA, REMIC 3 Regular Interest LTM6 and REMIC 3 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 3 Regular Interest LTM6 has been reduced to zero; eleventh, to
the Uncertificated Principal Balances of REMIC 3 Regular Interest LTAA, REMIC 3
Regular Interest LTM5 and REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 3 Regular
Interest LTM5 has been reduced to zero; twelfth, to the Uncertificated Principal
Balances of REMIC 3 Regular Interest LTAA, REMIC 3 Regular Interest LTM4 and
REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 3 Regular Interest LTM4 has been
reduced to zero; thirteenth, to the Uncertificated Principal Balances of REMIC 3
Regular Interest LTAA, REMIC 3 Regular Interest LTM3 and REMIC 3 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 3 Regular Interest LTM3 has been reduced to zero; fourteenth,
to the Uncertificated Principal Balances of REMIC 3 Regular Interest LTAA, REMIC
3 Regular Interest LTM2 and REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 3 Regular
Interest LTM2 has been reduced to zero; and fifteenth, to the Uncertificated
Principal Balances of REMIC 3 Regular Interest LTAA, REMIC 3 Regular Interest
LTM1 and REMIC 3 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 3 Regular Interest LTM1 has been
reduced to zero.
SECTION 4.10 Swap Account.
(a) On the Closing Date, there is hereby established a
separate trust (the "Supplemental Interest Trust"), into which the Depositor
shall deposit the Interest Rate Swap Agreement. The Supplemental Interest Trust
shall be maintained by the Supplemental Interest Trust Trustee, who initially,
shall be the Trustee. No later than the Closing Date, the Supplemental Interest
Trust Trustee shall establish and maintain a separate, segregated trust account
to be held in the Supplemental Interest Trust, titled, "Swap Account, Deutsche
Bank National Trust Company, as Supplemental Interest Trust Trustee, in trust
for the registered Certificateholders of First Franklin Mortgage Loan Trust
2005-FFH4, Asset-Backed Certificates, Series 2005-FFH4." 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 7 Regular Interest SWAP IO
to the extent of the amount distributable on REMIC 7 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 grantor trust.
(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 and Class R 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 and Class R 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 and Class R Certificates) in accordance with the terms of this
Agreement. Any payments to the Certificates from amounts deemed received in
respect of this notional principal contract shall not be payments with respect
to a Regular Interest in a REMIC within the meaning of Code Section 860G(a)(1).
However, any payment from the Certificates (other than the Class C, Class P and
Class R Certificates) of a Class IO Distribution Amount shall be treated for tax
purposes as having been received by the Holders of such Certificates in respect
of their interests in REMIC 3 and as having been paid by such Holders pursuant
to the notional principal contract. Thus, each Certificate (other than the Class
P and Class R Certificates) shall be treated as representing not only ownership
of Regular Interests in REMIC 3, but also ownership of an interest in, and
obligations with respect to, a notional principal contract.
SECTION 4.11 Tax Treatment of Swap Payments and Swap
Termination Payments.
For federal income tax purposes, each holder of a Floating
Rate Certificate is deemed to own an undivided beneficial ownership interest in
a REMIC regular interest and the right to receive payments from either the Net
WAC Rate Carryover Reserve Account or the Swap Account in respect of the Net WAC
Rate Carryover Amount or the obligation to make payments to the Swap Account.
For federal income tax purposes, the Trustee will account for payments to each
Floating Rate Certificates as follows: each Floating Rate Certificate will be
treated as receiving their entire payment from REMIC 3 (regardless of any Swap
Termination Payment or obligation under the Interest Rate Swap Agreement) and
subsequently paying their portion of any Swap Termination Payment in respect of
each such Class' obligation under the Interest Rate Swap Agreement. In the event
that any such Class is resecuritized in a REMIC, the obligation under the
Interest Rate Swap Agreement to pay any such Swap Termination Payment (or any
shortfall in Swap Provider Fee), will be made by one or more of the REMIC
Regular Interests issued by the resecuritization REMIC subsequent to such REMIC
Regular Interest receiving its full payment from any such Floating Rate
Certificate. Resecuritization of any Floating Rate Certificate in a REMIC will
be permissible only if the Trust Administrator hereunder is the trustee in such
resecuritization.
The REMIC regular interest corresponding to a Floating Rate
Certificate will be entitled to receive interest and principal payments at the
times and in the amounts equal to those made on the certificate to which it
corresponds, except that (i) the maximum interest rate of that REMIC regular
interest will equal the Net WAC Rate computed for this purpose by limiting the
Base Calculation Amount of the Interest Rate Swap Agreement to the aggregate
Stated Principal Balance of the Mortgage Loans and (ii) any Swap Termination
Payment will be treated as being payable solely from Net Monthly Excess
Cashflow. As a result of the foregoing, the amount of distributions and taxable
income on the REMIC regular interest corresponding to a Floating Rate
Certificate may exceed the actual amount of distributions on the Floating Rate
Certificate
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
Each of the Adjustable-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 Adjustable-Rate Certificates shall be initially evidenced
by one or more Certificates representing a Percentage Interest with a minimum
dollar denomination of $25,000 and integral dollar multiples of $1.00 in excess
thereof, provided, that the Adjustable-Rate Certificates must be purchased in
minimum total investments of $100,000 per Class and that one Certificate of each
such Class of Certificates may be in a different denomination so that the sum of
the denominations of all outstanding Certificates of such Class shall equal the
Certificate Principal Balance of such Class on the Closing Date. The Class 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 Adjustable-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
of the Trustee's agent located at [________] 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 four
separate certificates, each representing such holder's respective Percentage
Interest in the Class R-1 Interest, the Class R-2 Interest, the Class R-3
Interest and the Class R-4 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-5 Interest, the Class R-6 Interest
and the Class R-7 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 B Certificate, Class C Certificate, Class P Certificate or Residual
Certificate (the "Private Certificates") shall be made unless such disposition
is exempt from the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and any applicable state securities laws or is made in
accordance with the 1933 Act and laws. In the event of any such transfer (other
than in connection with (i) the initial transfer of any such Certificate by the
Depositor to an Affiliate of the Depositor or, in the case of the Class R-X
Certificates, the first transfer by an Affiliate of the Depositor, (ii) the
transfer of any such Class C, Class P or Residual Certificate to the issuer
under the Indenture or the indenture trustee under the Indenture or (iii) a
transfer of any such Class C, Class P or Residual Certificate from the issuer
under the Indenture or the indenture trustee under the Indenture to the
Depositor or an Affiliate of the Depositor), (i) unless such transfer is made in
reliance upon Rule 144A (as evidenced by the investment letter delivered to the
Trustee, in substantially the form attached hereto as Exhibit J) under the 1933
Act, the Trustee and the Depositor shall require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee or the Depositor
or (ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached hereto as Exhibit L) and the
transferee to execute an investment letter (in substantially the form attached
hereto as Exhibit J) acceptable to and in form and substance reasonably
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which investment letter shall
not be an expense of the Trustee or the Depositor. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Notwithstanding the foregoing, in the event of any such
transfer of any Ownership Interest in any Private Certificate that is a
Book-Entry Certificate, except with respect to the initial transfer of any such
Ownership Interest by the Depositor, such transfer shall be required to be made
in reliance upon Rule 144A under the 1933 Act, and the transferor will be deemed
to have made each of the transferor representations and warranties set forth
Exhibit L hereto in respect of such interest as if it was evidenced by a
Definitive Certificate and the transferee will be deemed to have made each of
the transferee representations and warranties set forth Exhibit J hereto in
respect of such interest as if it was evidenced by a Definitive Certificate. The
Certificate Owner of any such Ownership Interest in any such Book-Entry
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Notwithstanding the foregoing, no certification or Opinion of
Counsel described above in this Section 5.02(d) will be required in connection
with the transfer, on the Closing Date, of any Residual Certificate by the
Depositor to an "accredited investor" within the meaning of Rule 501 of the 1933
Act.
No transfer of a Class C Certificate, Class P Certificate or
Residual Certificate or any interest therein shall be made to any Plan subject
to ERISA or Section 4975 of the Code, any Person acting, directly or indirectly,
on behalf of any such Plan or any Person acquiring such Certificates with "Plan
Assets" of a Plan within the meaning of the Department of Labor regulation
promulgated at 29 C.F.R. ss. 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
Depositor of the status of such transferee as an affiliate of the Depositor.
Each beneficial owner of an Offered Certificate or any
interest therein acquired when the Supplemental Interest Trust is in existence,
shall be deemed to have represented, by virtue of its acquisition or holding of
the Offered Certificate, or interest therein, that either (i) it is not a Plan
or (ii) (A) it is an accredited investor within the meaning of the Exemption and
(B) the acquisition and holding of such Certificate and the separate right to
receive payment from the Supplemental Interest Trust are eligible for the
exemptive relief available under one of PTCE 95-60 in the case of a Class B
Certificate and in the case of the Class A and Mezzanine Certificates PTCE
84-14, 91-38, 90-1, 95-60 and 96-23.
Subsequent to the termination of the Supplemental Interest
Trust, each Transferee of a Mezzanine Certificate or Class B Certificate will be
deemed to have represented by virtue of its purchase or holding of such
Certificate (or interest therein) (or in the case a Class B Certificate, must
represent) 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 U.S. Department of Labor Prohibited Transaction
Class Exemption ("PTCE") 95-60, and (iii) the conditions set forth in Sections I
and III of PTCE 95-60 have been satisfied.
If any Mezzanine Certificate or Private Certificate or any
interest therein is acquired or held in violation of the provisions of the two
preceding paragraphs, the next preceding permitted beneficial owner will be
treated as the beneficial owner of that Certificate retroactive to the date of
transfer to the purported beneficial owner. Any purported beneficial owner whose
acquisition or holding of any such Certificate or interest therein was effected
in violation of the provisions of the two preceding paragraphs shall indemnify
and hold harmless the Depositor, the Servicer, the NIMS Insurer, the Trustee and
the Trust from and against any and all liabilities, claims, costs or expenses
incurred by those parties as a result of that acquisition or holding.
Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably appointed the Depositor or its designee as its attorney-in-fact
to negotiate the terms of any mandatory sale under clause (v) below and to
execute all instruments of transfer and to do all other things necessary in
connection with any such sale, and the rights of each Person acquiring any
Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a
Residual Certificate unless such Ownership Interest is a PRO RATA
undivided interest.
(iii) In connection with any proposed transfer of any
Ownership Interest in a Residual Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it, in
form and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit K hereto from the
proposed transferee to the effect that such transferee is a Permitted Transferee
and that it is not acquiring its Ownership Interest in the Residual Certificate
that is the subject of the proposed transfer as a nominee, trustee or agent for
any Person who is not a Permitted Transferee; and
(B) a covenant of the proposed transferee to the effect that
the proposed transferee agrees to be bound by and to abide by the transfer
restrictions applicable to the Residual Certificates.
(iv) Any attempted or purported transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section shall be absolutely null and void and shall vest no rights
in the purported transferee. If any purported transferee shall, in
violation of the provisions of this Section, become a Holder of a
Residual Certificate, then the prior Holder of such Residual
Certificate that is a Permitted Transferee shall, upon discovery that
the registration of transfer of such Residual Certificate was not in
fact permitted by this Section, be restored to all rights as Holder
thereof retroactive to the date of registration of transfer of such
Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of transfer of a Residual Certificate that
is in fact not permitted by this Section or for making any
distributions due on such Residual Certificate to the Holder thereof or
taking any other action with respect to such Holder under the
provisions of this Agreement so long as the Trustee received the
documents specified in clause (iii). The Trustee shall be entitled to
recover from any Holder of a Residual Certificate that was in fact not
a Permitted Transferee at the time such distributions were made all
distributions made on such Residual Certificate. Any such distributions
so recovered by the Trustee shall be distributed and delivered by the
Trustee to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right but
not the obligation, without notice to the Holder of such Residual
Certificate or any other Person having an Ownership Interest therein,
to notify the Depositor to arrange for the sale of such Residual
Certificate. The proceeds of such sale, net of commissions (which may
include commissions payable to the Depositor or its affiliates in
connection with such sale), expenses and taxes due, if any, will be
remitted by the Trustee to the previous Holder of such Residual
Certificate that is a Permitted Transferee, except that in the event
that the Trustee determines that the Holder of such Residual
Certificate may be liable for any amount due under this Section or any
other provisions of this Agreement, the Trustee may withhold a
corresponding amount from such remittance as security for such claim.
The terms and conditions of any sale under this clause (v) shall be
determined in the sole discretion of the Trustee and it shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section, then the Trustee upon receipt of
reasonable compensation will provide to the Internal Revenue Service,
and to the persons specified in Sections 860E(e)(3) and (6) of the
Code, information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The foregoing provisions of this Section shall cease to apply
to transfers occurring on or after the date on which there shall have been
delivered to the Trustee and the NIMS Insurer, in form and substance
satisfactory to the Trustee and the NIMS Insurer, (i) written notification from
each Rating Agency that the removal of the restrictions on transfer set forth in
this Section will not cause such Rating Agency to downgrade its rating of the
Certificates and (ii) an Opinion of Counsel to the effect that such removal will
not cause any REMIC created hereunder to fail to qualify as a REMIC.
(e) No service charge shall be made for any registration of
transfer or exchange of Certificates of any Class, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or
exchange shall be canceled by the Certificate Registrar and disposed of pursuant
to its standard procedures.
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (ii) there
is delivered to the Trustee, the Depositor, the NIMS Insurer and the Certificate
Registrar such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute on behalf of the Trust, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage Interest. Upon the
issuance of any new Certificate under this Section, the Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) in connection therewith. Any duplicate Certificate issued
pursuant to this Section, shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 5.04 Persons Deemed Owners.
The Servicer, the Depositor, the Trustee, the NIMS Insurer,
the Certificate Registrar, any Paying Agent and any agent of the Servicer, the
Depositor, the Trustee, the NIMS Insurer, the Certificate Registrar or any
Paying Agent may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Servicer, the Trust, the Trustee nor any agent of
any of them shall be affected by notice to the contrary.
SECTION 5.05 Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to
Certificateholders from the Distribution Account pursuant to Section 4.01 and
shall report the amounts of such distributions to the Trustee. The duties of the
Paying Agent may include the obligation (i) to withdraw funds from the
Collection Account pursuant to Section 3.11(a) and for the purpose of making the
distributions referred to above and (ii) to distribute statements and provide
information to Certificateholders as required hereunder. The Paying Agent
hereunder shall at all times be an entity duly organized and validly existing
under the laws of the United States of America or any state thereof, authorized
under such laws to exercise corporate trust powers and subject to supervision or
examination by federal or state authorities. The Paying Agent shall initially be
the Trustee. The Trustee may appoint a successor to act as Paying Agent, which
appointment shall be reasonably satisfactory to the Depositor and the NIMS
Insurer.
(b) The Trustee shall cause the Paying Agent (if other than
the Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent shall hold all
sums, if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders and shall agree that it shall comply with all
requirements of the Code regarding the withholding of payments in respect of
Federal income taxes due from Certificate Owners and otherwise comply with the
provisions of this Agreement applicable to it.
ARTICLE VI
THE SERVICER AND THE DEPOSITOR
SECTION 6.01 Liability of the Servicer and the Depositor.
The Servicer shall be liable in accordance herewith only to
the extent of the obligations specifically imposed upon and undertaken by
Servicer herein. The Depositor shall be liable in accordance herewith only to
the extent of the obligations specifically imposed upon and undertaken by the
Depositor.
SECTION 6.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer or the Depositor.
Any entity into which the Servicer or Depositor may be merged
or consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Servicer or the Depositor shall be a party, or any
corporation succeeding to the business of the Servicer or the Depositor, shall
be the successor of the Servicer or the Depositor, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor Servicer shall satisfy
all the requirements of Section 7.02 with respect to the qualifications of a
successor Servicer.
SECTION 6.03 Limitation on Liability of the Servicer and
Others.
Neither the Servicer nor the Depositor nor any of the
directors or officers or employees or agents of the Servicer or the Depositor
shall be under any liability to the Trust or the Certificateholders for any
action taken or for refraining from the taking of any action by the Servicer or
the Depositor in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Servicer,
the Depositor or any such Person against any liability which would otherwise be
imposed by reason of its willful misfeasance, bad faith or negligence in the
performance of duties of the Servicer or the Depositor, as the case may be, or
by reason of its reckless disregard of its obligations and duties as Servicer or
Depositor, as the case may be, hereunder. The Servicer and any director or
officer or employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer and the Depositor, and
any director or officer or employee or agent of the Servicer or the Depositor,
shall be indemnified by the Trust and held harmless against any loss, liability
or expense incurred in connection with (i) any legal action relating to this
Agreement or the Certificates, other than any loss, liability or expense
incurred by reason of its willful misfeasance, bad faith or negligence or by
reason of its reckless disregard of its obligations and duties hereunder or by
reason of its failure to perform its obligations or duties hereunder and (ii)
any breach of a representation or warranty regarding the Mortgage Loans. The
Servicer or the Depositor may undertake any such action which it may deem
necessary or desirable in respect of this Agreement, and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder. In
such event, unless the Depositor or the Servicer acts without the consent of the
Holders of Certificates entitled to at least 51% of the Voting Rights, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust and the Servicer
shall be entitled to be reimbursed therefor from the Collection Account as and
to the extent provided in Section 3.11, any such right of reimbursement being
prior to the rights of the Certificateholders to receive any amount in the
Collection Account. The Servicer's right to indemnity or reimbursement pursuant
to this Section shall survive any resignation or termination of the Servicer
pursuant to Section 6.04 or 7.01 with respect to any losses, expenses, costs or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination). This paragraph
shall apply to the Servicer solely in its capacity as Servicer hereunder and in
no other capacities.
The Credit Risk Manager and any director, officer, employee or
agent of the Credit Risk Manager shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense (not including expenses,
disbursements and advances incurred or made by the Credit Risk Manager,
including the compensation and the expenses and disbursements of its agents and
counsel, in the ordinary course of its appointment as Credit Risk Manager or its
performance of its duties as such) incurred in connection with any claim or
legal action or any pending or threatened claim or legal action relating to this
Agreement, the Credit Risk Management Agreement or the Certificates, other than
any loss, liability or expense (i) resulting from a breach of the Servicer's
obligations and duties under the Pooling Agreement or Credit Risk Manager
Agreement for which the Credit Risk Manager is indemnified by the Servicer under
the Credit Risk Manager Agreement or (ii) incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties under the
Credit Risk Manager Agreement or by reason of reckless disregard of obligations
and duties thereunder. Any payment to the Credit Risk Manager pursuant to this
Section 6.03 shall be prior to any distributions to the Certificateholders.
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, the Depositor and the NIMS Insurer and the
requirements of Section 7.02 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 in this Agreement, 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 Credit Risk Manager.
For and on behalf of the Depositor, the Credit Risk Manager
will provide reports and recommendations concerning certain delinquent and
defaulted Mortgage Loans, and as to the collection of any Prepayment Charges
with respect to the Mortgage Loans. Such reports and recommendations will be
based upon information provided to the Credit Risk Manager pursuant to the
Credit Risk Management Agreement, and the Credit Risk Manager shall look solely
to the Servicer for all information and data (including loss and delinquency
information and data) relating to the servicing of the Mortgage Loans. Upon any
termination of the Credit Risk Manager or the appointment of a successor Credit
Risk Manager, the Trustee, if it has been notified in writing of such
termination or appointment, shall give written notice thereof to the Servicer
and the Depositor.
If Holders of the Certificates entitled to 66 2/3% or more of
the Voting Rights request in writing to the Trustee to terminate the Credit Risk
Manager under this Agreement, the Credit Risk Manager shall be removed pursuant
to this Section 6.06. 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.
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. Upon request, the Servicer shall furnish to the Trustee its
most recent publicly available financial statements and such other information
relating to its capacity to perform its obligations under this Agreement.
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 11:00 A.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 and assume, pursuant to Section 7.02, the duties of a successor Servicer
and (y) in the case of (i)(B), (ii), (iii) and (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
by 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, unless the Trustee is prohibited by law from so acting, 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 or to reimburse the Trustee
pursuant to Section 3.06 or to indemnify the Trustee or the NIMS Insurer
pursuant to Section 8.05(b)), 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 reasonable Servicing Transfer Costs shall be paid by the
predecessor Servicer upon presentation of reasonable documentation of such
costs, and if such predecessor Servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor Servicer or the Trustee (in
which case the successor Servicer or the Trustee, as applicable, shall be
entitled to reimbursement therefor from the assets of the Trust).
(b) Any successor to the Servicer, including the Trustee,
shall during the term of its service as servicer continue to service and
administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Servicer hereunder and a
fidelity bond in respect of its officers, employees and agents to the same
extent as the Servicer is so required pursuant to Section 3.14.
SECTION 7.03 Waiver of Defaults.
The Majority Certificateholders may, on behalf of all
Certificateholders and with the consent of the NIMS Insurer, waive any events
permitting removal of the Servicer as servicer pursuant to this Article VII,
provided, however, that the Majority Certificateholders may not waive a default
in making a required distribution on a Certificate without the consent of the
Holder of such Certificate and the consent of the NIMS Insurer. Upon any waiver
of a past default, such default shall cease to exist and any Servicer Event of
Termination arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereto except to the extent
expressly so waived. Notice of any such waiver shall be given by the Trustee to
the Rating Agencies and the NIMS Insurer.
SECTION 7.04 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to the
Servicer pursuant to this Article VII or Section 6.04, the Trustee shall give
prompt written notice thereof to the Certificateholders at their respective
addresses appearing in the Certificate Register, the NIMS Insurer and each
Rating Agency.
(b) No later than 60 days after the occurrence of any event
which constitutes or which, with notice or 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 Termination Event 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 not requested by the NIMS Insurer), shall be
reimbursed by the Trust. Nothing in this clause (v) shall derogate from
the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors;
(vi) the Trustee shall not be accountable, shall have no
liability and makes no representation as to any acts or omissions
hereunder of the Servicer until such time as the Trustee may be
required to act as Servicer pursuant to Section 7.02 and thereupon only
for the acts or omissions of the Trustee as successor Servicer;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, custodians or nominees;
(viii) the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and
the Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act;
(ix) the Trustee shall not be personally liable for any loss
resulting from the investment of funds held in the Collection Account
or the REO Account made at the direction of the Servicer pursuant to
Section 3.12; and
(x) The Trustee or its Affiliates are permitted to receive
compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator,
shareholder, servicing agent, custodian or sub-custodian with respect
to certain of the Permitted Investments, (ii) using Affiliates to
effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. Such
compensation shall not be considered an amount that is reimbursable or
payable pursuant to Section 3.11.
In order to comply with its duties under the U.S.A. Patriot
Act, the Trustee shall obtain and verify certain information and documentation
from the other parties hereto, including, but not limited to, such parties'
name, address and other identifying information.
SECTION 8.03 Trustee Not Liable for Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates (other
than the authentication of the Trustee on the Certificates) shall be taken as
the statements of the Depositor, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates (other than the
signature and authentication of the Trustee on the Certificates) or of any
Mortgage Loan or related document, other than with respect to the Trustee's
execution and authentication of the Certificates. The Trustee shall not be
accountable for the use or application by the Servicer, or for the use or
application of any funds paid to the Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from the Collection Account by the Servicer. The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any hazard insurance thereon (other than if the Trustee shall
assume the duties of the Servicer pursuant to Section 7.02); the validity of the
assignment of any Mortgage Loan to the Trustee or of any intervening assignment;
the completeness of any Mortgage Loan; the performance or enforcement of any
Mortgage Loan (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02); the compliance by the Depositor, the Originator, the
Sponsor or the Servicer with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation prior to the Trustee's receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Servicer or any loss resulting therefrom, it being
understood that the Trustee shall remain responsible for any Trust property that
it may hold in its individual capacity; the acts or omissions of any of the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), any Sub-Servicer or any Mortgagor; any action of the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), or any Sub- Servicer taken in the name of the
Trustee; the failure of the Servicer or any Sub-Servicer to act or perform any
duties required of it as agent of the Trustee hereunder; or any action by the
Trustee taken at the instruction of the Servicer (other than if the Trustee
shall assume the duties of the Servicer pursuant to Section 7.02); provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties under this Agreement, including, without limitation, the
Trustee's duty to review the Mortgage Files pursuant to Section 2.01. The
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Servicer).
SECTION 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Certificates with the same rights as it would have if it
were not Trustee and may transact any banking and trust business with the
Originator, the Servicer, the Depositor or their Affiliates.
SECTION 8.05 Trustee Compensation and Expenses.
(a) The Trustee shall withdraw from the Distribution Account
on each Distribution Date and pay to itself the Trustee Compensation prior to
making any distributions to Certificateholders consisting of income earned on
amounts on deposit in the Distribution Account. The Trustee shall pay the
Custodian (as compensation for the Custodian's services under the Custodial
Agreement) any amount payable to the Custodian in accordance with a fee schedule
attached as an exhibit to the Custodial Agreement from amounts on deposit in the
Distribution Account. In addition, on each Distribution Date the Trustee shall
pay the Custodian amounts, if any, from the Distribution Account required to
reimburse the Custodian for expenses, costs and liabilities incurred by or
reimbursable to the Custodian accordance with the Custodial Agreement, but not
otherwise covered by the indemnification to the Custodian contemplated in the
next paragraph, as such expenses are set forth in writing by the Custodian to
the Trustee by the related Determination Date.
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 such claim
for indemnification relates to a loss, liability or expense incurred by the
Custodian that either (A) is not an expense or disbursement incurred or made by
the Custodian, including the compensation and the expenses and disbursements of
its agents and counsel, in the ordinary course of the Custodian's performance in
accordance with the provisions of the Custodial Agreement or (B) relates to
Mortgage Loans which are in default or as to which default is reasonably
foreseeable (as determined by the Servicer and communicated to the Trustee); and
provided, further, 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.
(b) The Servicer agrees to indemnify the Trustee, the NIMS
Insurer or any director, officer, employee or agent of the Trustee or the NIMS
Insurer 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 or 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 NIMS Insurer or the Servicer may remove the
Trustee. If the Depositor, the NIMS Insurer or the Servicer removes the Trustee
under the authority of the immediately preceding sentence, the Depositor, with
the consent of the NIMS Insurer, shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
The Majority Certificateholders (or the NIMS Insurer upon the
failure of the Trustee to perform its obligations hereunder) may at any time
remove the Trustee by written instrument or instruments delivered to the
Servicer, the Depositor and the Trustee; the Depositor shall thereupon use its
best efforts to appoint a successor trustee acceptable to the NIMS Insurer in
accordance with this Section.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
SECTION 8.08 Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the NIMS Insurer, the Depositor, the
Servicer and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective, and such successor Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if
originally named as Trustee. The Depositor, the Servicer and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 8.06 and the appointment of
such successor Trustee shall not result in a downgrading of the Regular
Certificates by either Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.08, the successor Trustee shall mail notice of the
appointment of a successor Trustee hereunder to all Holders of Certificates at
their addresses as shown in the Certificate Register and to each Rating Agency.
SECTION 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such entity shall be eligible under the provisions of
Section 8.06 and 8.08, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust or any Mortgaged Property may at the time be
located, the Depositor and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee and the NIMS Insurer to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the Trust,
or any part thereof, and, subject to the other provisions of this Section 8.10,
such powers, duties, obligations, rights and trusts as the Servicer and the
Trustee may consider necessary or desirable. Any such co-trustee or separate
trustee shall be subject to the written approval of the Servicer and the NIMS
Insurer. If the Servicer and 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 NIMS Insurer and the Servicer.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
SECTION 8.11 Limitation of Liability.
The Certificates are executed by the Trustee, not in its
individual capacity but solely as Trustee of the Trust, in the exercise of the
powers and authority conferred and vested in it by the Trust Agreement. Each of
the undertakings and agreements made on the part of the Trustee in the
Certificates is made and intended not as a personal undertaking or agreement by
the Trustee but is made and intended for the purpose of binding only the Trust.
SECTION 8.12 Trustee May Enforce Claims Without Possession of
Certificates.
(a) All rights of action and claims under this Agreement or
the Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee for the benefit of all
Holders of such Certificates, subject to the provisions of this Agreement. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursement and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
(b) The Trustee shall afford the Sponsor, 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 Sponsor, the Servicer, the Depositor and such
Certificateholder and shall make available to the Sponsor, 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 Sponsor, 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 sources and in the manner set forth in 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, REMIC 3 and REMIC 4 and shall act as Tax Matters Person for
REMIC 1, REMIC 2, REMIC 3 and REMIC 4. 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 5, REMIC 6 and REMIC 7 and shall act as Tax
Matters Person for REMIC 5, REMIC 6 and REMIC 7. The Trustee, as agent for the
Tax Matters Person, shall perform on behalf of each REMIC all reporting and
other tax compliance duties that are the responsibility of such REMIC under the
Code, the REMIC Provisions, or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
if required by the Code, the REMIC Provisions, or other such guidance, the
Trustee, as agent for the Tax Matters Person, shall provide (i) to the Treasury
or other governmental authority such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to any
disqualified person or organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC Provisions. The
Trustee, as agent for the Tax Matters Person, shall represent each REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any REMIC, enter into settlement agreements with any
government taxing agency, extend any statute of limitations relating to any item
of any REMIC and otherwise act on behalf of any REMIC in relation to any tax
matter involving the Trust.
(f) The Trustee, the Servicer and the Holders of Certificates
shall take any action or cause the REMIC to take any action necessary to create
or maintain the status of each REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status. Neither
the Trustee, the Servicer nor the Holder of any Residual Certificate shall take
any action, cause any REMIC created hereunder to take any action or fail to take
(or fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of such
REMIC as a REMIC or (ii) result in the imposition of a tax upon such REMIC
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee, the NIMS Insurer and the Servicer have received an Opinion
of Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such status or result in
the imposition of such a tax. In addition, prior to taking any action with
respect to any REMIC created hereunder or the assets therein, or causing such
REMIC to take any action, which is not expressly permitted under the terms of
this Agreement, any Holder of a Residual Certificate will consult with the
Trustee, the NIMS Insurer and the Servicer, or their respective designees, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to any REMIC, and no such Person shall take any such
action or cause any REMIC to take any such action as to which the Trustee, the
NIMS Insurer or the Servicer has advised it in writing that an Adverse REMIC
Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due
any and all taxes imposed on each REMIC created hereunder by federal or state
governmental authorities. To the extent that such Trust taxes are not paid by a
Residual Certificateholder, the Trustee shall pay any remaining REMIC taxes out
of current or future amounts otherwise distributable to the Holder of the
Residual Certificate in the REMICs or, if no such amounts are available, out of
other amounts held in the Distribution Account, and shall reduce amounts
otherwise payable to Holders of regular interests in the related REMIC. Subject
to the foregoing, in the event that a REMIC incurs a state or local tax,
including franchise taxes, as a result of a determination that such REMIC is
domiciled in the State of California for state tax purposes by virtue of the
location of the Servicer, the Servicer agrees to pay on behalf of such REMIC
when due, any and all state and local taxes imposed as a result of such a
determination, in the event that the Holder of the related Residual Certificate
fails to pay such taxes, if any, when imposed.
(h) The Trustee, as agent for the Tax Matters Person, shall,
for federal income tax purposes, maintain books and records with respect to each
REMIC created hereunder on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any
REMIC created hereunder, except as expressly provided in this Agreement with
respect to eligible substitute mortgage loans.
(j) Neither the Trustee nor the Servicer shall enter into any
arrangement by which any REMIC created hereunder will receive a fee or other
compensation for services.
(k) On or before April 15th of each calendar year beginning in
2006, the Servicer shall deliver to the NIMS Insurer, the Trustee and each
Rating Agency an Officers' Certificate stating the Servicer's compliance with
the provisions of this Section 9.01.
(l) The Trustee will apply for an Employee Identification
Number from the Internal Revenue Service via a Form SS-4 or other acceptable
method for all tax entities and shall complete Form 8811.
SECTION 9.02 Prohibited Transactions and Activities.
Neither the Depositor, the Servicer nor the Trustee shall
sell, dispose of, or substitute for any of the Mortgage Loans, except in a
disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of any REMIC created
hereunder pursuant to Article X of this Agreement, (iv) a substitution pursuant
to Article II of this Agreement or (v) a repurchase of Mortgage Loans pursuant
to Article II of this Agreement, nor acquire any assets for any REMIC, nor sell
or dispose of any investments in the Distribution Account for gain, nor accept
any contributions to either REMIC after the Closing Date, unless it and the NIMS
Insurer have received an Opinion of Counsel (at the expense of the party causing
such sale, disposition, or substitution) that such disposition, acquisition,
substitution, or acceptance will not (a) affect adversely the status of any
REMIC created hereunder as a REMIC or of the interests therein other than the
Residual Certificates as the regular interests therein, (b) affect the
distribution of interest or principal on the Certificates, (c) result in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement) or (d) cause any REMIC created
hereunder to be subject to a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
SECTION 9.03 Indemnification with Respect to Certain Taxes and
Loss of REMIC Status.
(a) In the event that any REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a result
of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Servicer of its duties and
obligations set forth herein, the Servicer shall indemnify the NIMS Insurer, the
Trustee and the Trust Fund against any and all losses, claims, damages,
liabilities or expenses ("Losses") resulting from such negligence; provided,
however, that the Servicer shall not be liable for any such Losses attributable
to the action or inaction of the Trustee, the Depositor or the Holder of such
Residual Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which the
Servicer has relied. The foregoing shall not be deemed to limit or restrict the
rights and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Servicer have any liability (1) for any action or omission that
is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement, (2) for any Losses
other than arising out of a negligent performance by the Servicer of its duties
and obligations set forth herein, and (3) for any special or consequential
damages to Certificateholders (in addition to payment of principal and interest
on the Certificates).
(b) In the event that any REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a result
of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Trustee of its duties and
obligations set forth herein, the Trustee shall indemnify the Trust Fund against
any and all Losses resulting from such negligence; provided, however, that the
Trustee shall not be liable for any such Losses attributable to the action or
inaction of the Servicer, the Depositor or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which the
Trustee has relied. The foregoing shall not be deemed to limit or restrict the
rights and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Trustee have any liability (1) for any action or omission that
is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement, (2) for any Losses
other than arising out of a negligent performance by the Trustee of its duties
and obligations set forth herein, and (3) for any special or consequential
damages to Certificateholders (in addition to payment of principal and interest
on the Certificates).
ARTICLE X
TERMINATION
SECTION 10.01 Termination.
(a) The respective obligations and responsibilities of the
Servicer, the Depositor and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments to Certificateholders after
the final Distribution Date and the obligation of the Servicer to send certain
notices as hereinafter set forth) shall terminate upon notice to the Trustee
upon the earliest of (i) the Distribution Date on which the Certificate
Principal Balances of the Regular Certificates have been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
(iii) the optional purchase by the Terminator of the Mortgage Loans as described
below and (iv) the Distribution Date in [________]. Notwithstanding the
foregoing, in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
The Servicer (in such context, the "Terminator"), may, at its
option, terminate this Agreement on any date on which the aggregate of the
Stated Principal Balances of the Mortgage Loans (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) on such date is equal to or less than 10% of the
sum of (i) the aggregate Stated Principal Balances of the Initial Mortgage Loans
on the Cut-off Date and (ii) the Original Pre-Funded Amounts, by purchasing, on
the next succeeding Distribution Date, all of the outstanding Mortgage Loans and
REO Properties at a price equal to the greater of (i) the Stated Principal
Balance of the Mortgage Loans (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties and (ii) fair market value
of the Mortgage Loans and REO Properties (as determined and as agreed upon as of
the close of business on the third Business Day next preceding the date upon
which notice of any such termination is furnished to the related
Certificateholders pursuant to Section 10.01(c) by (x) the Terminator, (y) the
Holders of a majority in Percentage Interest in the Class C Certificates and (z)
if the Adjustable 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, notwithstanding anything to the contrary above, such
determination shall be based solely upon an appraisal obtained as provided in
the last sentence of this paragraph), plus accrued and unpaid interest thereon
at the weighted average of the Mortgage Rates through the end of the Due Period
preceding the final Distribution Date plus unreimbursed Servicing Advances,
Advances, any unpaid Servicing Fees allocable to such Mortgage Loans and REO
Properties and any accrued and unpaid Net WAC Rate Carryover Amounts and any
Swap Termination payment payable to the Swap Provider (the "Termination Price");
provided, however, such option may only be exercised if the Termination Price is
sufficient to result in the payment of all interest accrued on, as well as
amounts necessary to retire the principal balance of, each class of notes issued
pursuant to the Indenture and any amounts owned 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,
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 conclusively
rely on, and shall be fully protected in relying on, such appraisal.
In connection with any such purchase pursuant to the preceding
paragraph, the Terminator shall deposit in the Distribution Account all amounts
then on deposit in the Collection Account, which deposit shall be deemed to have
occurred immediately preceding such purchase.
Any such purchase shall be accomplished by deposit into the
Distribution Account on the Determination Date before such Distribution Date of
the Termination Price.
(b) Notice of any termination, specifying the Distribution
Date (which shall be a date that would otherwise be a Distribution Date) upon
which the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee upon the Trustee receiving notice of such date from the Terminator,
by letter to the Certificateholders mailed not earlier than the 15th day and not
later than the 25th day of the month next preceding the month of such final
distribution specifying (1) the Distribution Date upon which final distribution
of the Certificates will be made upon presentation and surrender of such
Certificates at the office or agency of the Trustee therein designated, (2) the
amount of any such final distribution and (3) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office or agency
of the Trustee therein specified.
(c) Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed to
such Holders in accordance with the provisions of Section 4.01 for such
Distribution Date. By acceptance of the Residual Certificates, the Holders of
the Residual Certificates agree, in connection with any termination hereunder,
to assign and transfer any amounts in excess of the par value of the Mortgage
Loans, and to the extent received in respect of such termination, to pay any
such amounts to the Holders of the Class C Certificates.
(d) In the event that all Certificateholders shall not
surrender their Certificates for final payment and cancellation on or before
such final Distribution Date, the Trustee shall promptly following such date
cause all funds in the Distribution Account not distributed in final
distribution to Certificateholders to be withdrawn therefrom and credited to the
remaining Certificateholders by depositing such funds in a separate Servicing
Account for the benefit of such Certificateholders, and the Servicer (if the
Servicer has exercised its right to purchase the Mortgage Loans) or the Trustee
(in any other case) shall give a second written notice to the remaining
Certificateholders, to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within nine months after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Residual Certificateholders shall be entitled to all unclaimed
funds and other assets which remain subject hereto, and the Trustee upon
transfer of such funds shall be discharged of any responsibility for such funds,
and the Certificateholders shall look to the Residual Certificateholders for
payment.
SECTION 10.02 Additional Termination Requirements.
(a) In the event that the Terminator exercises its purchase
option as provided in Section 10.01, each REMIC shall be terminated in
accordance with the following additional requirements, unless the Trustee shall
have been furnished with an Opinion of Counsel to the effect that the failure of
the Trust to comply with the requirements of this Section will not (i) result in
the imposition of taxes on "prohibited transactions" of the Trust as defined in
Section 860F of the Code or (ii) cause any REMIC constituting part of the Trust
Fund to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) Within 90 days prior to the final Distribution Date, the
Terminator shall adopt and the Trustee shall sign a plan of complete
liquidation of each REMIC created hereunder meeting the requirements of
a "Qualified Liquidation" under Section 860F of the Code and any
regulations thereunder; and
(ii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date,
the Trustee shall sell all of the assets of the Trust Fund to the
Terminator for cash pursuant to the terms of the plan of complete
liquidation.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to appoint the Trustee as their attorney in fact to: (i) adopt such
a plan of complete liquidation (and the Certificateholders hereby appoint the
Trustee as their attorney in fact to sign such plan) as appropriate and (ii) to
take such other action in connection therewith as may be reasonably required to
carry out such plan of complete liquidation all in accordance with the terms
hereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
This Agreement may be amended from time to time by the
Depositor, the Servicer and the Trustee; and without the consent of the NIMS
Insurer and without the consent of the Certificateholders (i) to cure any
ambiguity, (ii) to correct or supplement any provisions herein which may be
defective or inconsistent with any other provisions herein (iii) to amend the
provisions of Section 3.23(b) or (iv) to make any other provisions with respect
to matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided that such action
shall not, as evidenced by either (a) an Opinion of Counsel delivered to the
Trustee or (b) written notice to the Depositor, the Servicer and the Trustee
from each Rating Agency that such action will not result in the reduction or
withdrawal of the rating of any outstanding Class of Certificates with respect
to which it is a Rating Agency, adversely affect in any material respect the
interests of any Certificateholder. No amendment shall be deemed to adversely
affect in any material respect the interests of any Certificateholder who shall
have consented thereto, and no Opinion of Counsel or Rating Agency confirmation
shall be required to address the effect of any such amendment on any such
consenting Certificateholder. Notwithstanding the foregoing, neither an Opinion
of Counsel nor written notice to the Depositor, the Servicer and the Trustee
from the Rating Agencies will be required in connection with an amendment to the
provisions of Section 3.23(b).
In addition, this Agreement may be amended from time to time
by the Depositor, the Servicer and the Trustee with the consent of the NIMS
Insurer and the Majority Certificateholders for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Swap Provider or
the Holders of Certificates; provided, however, that no such amendment or waiver
shall (x) reduce in any manner the amount of, or delay the timing of, payments
on the Certificates or distributions which are required to be made on any
Certificate without the consent of the Holder of such Certificate, (y) adversely
affect in any material respect the interests of the Swap Provider or the Holders
of any Class of Certificates (as evidenced by either (i) an Opinion of Counsel
delivered to the Trustee or (ii) written notice to the Depositor, the Servicer
and the Trustee from each Rating Agency that such action will not result in the
reduction or withdrawal of the rating of any outstanding Class of Certificates
with respect to which it is a Rating Agency) in a manner other than as described
in clause (x) above, without the consent of the Holders of Certificates of such
Class evidencing at least a 66% Percentage Interest in such Class, or (z) reduce
the percentage of Voting Rights required by clause (y) above without the consent
of the Holders of all Certificates of such Class then outstanding. Upon approval
of an amendment, a copy of such amendment shall be sent to the Rating Agencies.
Notwithstanding any provision of this Agreement to the
contrary, the Trustee shall not consent to any amendment to this Agreement
unless it shall have first received an Opinion of Counsel, delivered by (and at
the expense of) the Person seeking such Amendment, and satisfactory to the NIMS
Insurer, to the effect that such amendment will not result in the imposition of
a tax on any REMIC created hereunder constituting part of the Trust Fund
pursuant to the REMIC Provisions or cause any REMIC created hereunder
constituting part of the Trust to fail to qualify as a REMIC at any time that
any Certificates are outstanding and that the amendment is being made in
accordance with the terms hereof.
Notwithstanding any of the other provisions of this Section
11.01, none of the Depositor, the Servicer or the Trustee shall enter into any
amendment to Section 4.10 or Section 11.10 of this Agreement without the prior
written consent of the Swap Provider.
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, [________], 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, [________], Attention:
[________] (telecopy number: ([________]), 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,
[________], Attention: Legal, or such other address as may be furnished to the
Servicer, the NIMS Insurer and the Trustee in writing by the Depositor, and (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. Notwithstanding anything herein
to the contrary, the Trustee shall have no obligation to forward any
information, reports, demands, directions or notices or any other documents to
the NIMS Insurer unless it has been informed in writing by the Depositor that a
NIMS Insurer has been duly appointed. 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
Sections 4.03 and 3.19 hereof and the Servicer shall promptly furnish to each
Rating Agency copies of the following:
(i) each annual statement as to compliance described in
Section 3.20 hereof;
(ii) each notice delivered pursuant to Section 7.01(a) hereof
which relates to the fact that the Servicer has not made an Advance.
Any such notice pursuant to this Section 11.08 shall be in
writing and shall be deemed to have been duly given if personally delivered or
mailed by first class mail, postage prepaid, or by express delivery service to
(i) ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and (ii) Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Residential Mortgage
Surveillance Group.
SECTION 11.09 Further Assurances.
Notwithstanding any other provision of this Agreement, neither
the Regular Certificateholders nor the Trustee shall have any obligation to
consent to any amendment or modification of this Agreement unless they have been
provided reasonable security or indemnity against their out-of-pocket expenses
(including reasonable attorneys' fees) to be incurred in connection therewith.
SECTION 11.10 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, expressed or
implied, shall give to any Person, other than the Certificateholders, the NIMS
Insurer and the parties hereto and their successors hereunder, any benefit or
any legal or equitable right, remedy or claim under this Agreement.
SECTION 11.11 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 11.12 Third Party Rights.
The NIMS Insurer 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.
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:
-------------------------------
Name:
Title:
NATIONAL CITY HOME LOAN SERVICES, INC.,
as Servicer
By:
-------------------------------
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On the ____th day of [____], [____] before me, a notary public
in and for said State, personally appeared ___________________known to me to be
a ____________________ of [____________]., 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 ___th day of [_______], [___] before me, a notary
public in and for said State, personally appeared ___________________known to me
to be a ___________________ of [__________]., 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 )
) ss.:
COUNTY OF )
On the ___th day of [_______], [____] 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 [_________], 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 CERTIFICATES
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 TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY 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"), MUST BE MADE IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $370,777,000.00
of this Certificate ("Denomination")
Original Class Certificate : $370,777,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N WY 3
Class : I-A1
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class I-A1
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., 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, 2005 (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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[Reverse of Class I-A1 Certificate]
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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.
Prior to termination of the Supplemental Interest Trust, any 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 be made in accordance with Section
5.02(d) of the Agreement.
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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
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 CERTIFICATES
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 TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY 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"), MUST BE MADE IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $179,200,000.00
of this Certificate ("Denomination")
Original Class Certificate : $179,200,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N WZ 0
Class : II-A1
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class II-A1
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-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-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, 2005 (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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS II-A1 CERTIFICATE]
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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.
Prior to termination of the Supplemental Interest Trust, any 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 be made in accordance with Section
5.02(d) of the Agreement.
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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
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 CERTIFICATES
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 TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY 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"), MUST BE MADE IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $75,500,000.00
of this Certificate ("Denomination")
Original Class Certificate : $75,500,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XA 4
Class : II-A2
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class II-A2
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, 2005 (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.
A-3-7
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS II-A2 CERTIFICATE]
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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.
Prior to termination of the Supplemental Interest Trust, any 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 be made in accordance with Section
5.02(d) of the Agreement.
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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
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 CERTIFICATES
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 TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY 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"), MUST BE MADE IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $48,120,000.00
of this Certificate ("Denomination")
Original Class Certificate : $48,120,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XB 2
Class : II-A3
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class II-A3
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, 2005 (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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS II-A3 CERTIFICATE]
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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.
Prior to termination of the Supplemental Interest Trust, any 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 be made in accordance with Section
5.02(d) of the Agreement.
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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
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 CERTIFICATES
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 TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY 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"), MUST BE MADE IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $17,667,000.00
of this Certificate ("Denomination")
Original Class Certificate : $17,667,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XC 0
Class : II-A4
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class II-A4
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-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-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, 2005 (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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS II-A4 CERTIFICATE]
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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.
Prior to termination of the Supplemental Interest Trust, any 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 be made in accordance with Section
5.02(d) of the Agreement.
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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-6
FORM OF CLASS M-1 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A CERTIFICATES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $53,061,000.00
of this Certificate ("Denomination")
Original Class Certificate : $53,061,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XD 8
Class : M-1
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-1
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-1 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-6-7
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-1 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-7
FORM OF CLASS M-2 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A CERTIFICATES AND THE CLASS M-1
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $51,587,000.00
of this Certificate ("Denomination")
Original Class Certificate : $51,587,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XE 6
Class : M-2
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-2
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-2 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-2 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-8
FORM OF CLASS M-3 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A 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.
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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $20,143,000.00
of this Certificate ("Denomination")
Original Class Certificate : $20,143,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XF 3
Class : M-3
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-3
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-3 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-3 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-9
FORM OF CLASS M-4 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A 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.
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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $24,565,000.00
of this Certificate ("Denomination")
Original Class Certificate : $24,565,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XG 1
Class : M-4
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-4
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-4 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-4 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-10
FORM OF CLASS M-5 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A 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.
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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $22,600,000.00
of this Certificate ("Denomination")
Original Class Certificate : $22,600,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XH 9
Class : M-5
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-5
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-5 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-5 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-11
FORM OF CLASS M-6 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A 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.
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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $15,230,000.00
of this Certificate ("Denomination")
Original Class Certificate : $15,230,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XJ 5
Class : M-6
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-6
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-6 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-6 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-12
FORM OF CLASS M-7 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A 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.
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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $19,161,000.00
of this Certificate ("Denomination")
Original Class Certificate : $19,161,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XK 2
Class : M-7
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-7
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-7 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-7 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-13
FORM OF CLASS M-8 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A 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.
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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $15,230,000.00
of this Certificate ("Denomination")
Original Class Certificate : $15,230,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XL 0
Class : M-8
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-8
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-8 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-8 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-14
FORM OF CLASS M-9 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A 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.
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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $12,283,000.00
of this Certificate ("Denomination")
Original Class Certificate : $12,283,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XM 8
Class : M-9
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
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, 2005 (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.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-9
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-9 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-9 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-15
FORM OF CLASS M-10 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A 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 AND THE CLASS M-9
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO 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").
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $11,791,000.00
of this Certificate ("Denomination")
Original Class Certificate : $11,791,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XN 6
Class : M-10
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class M-10
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting of 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-10 Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class M-10
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, or the Trustee referred to below or
any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class M-10 Certificate (obtained by
dividing the Denomination of this Class M-10 Certificate by the Original Class
Certificate Principal Balance) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the "Depositor"). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of November 1, 2005 (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-10
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class M-10
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(d) of the Agreement.
Reference is hereby made to the further provisions of this Class M-10
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class M-10 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS M-10 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
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 16
FORM OF CLASS B-1 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO 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").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $6,387,000.00
of this Certificate ("Denomination")
Original Class Certificate : $6,387,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XP 1
Class : B-1
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class B-1
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting of 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
B-1 Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class B-1
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, or the Trustee referred to below or
any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B-1 Certificate (obtained by
dividing the Denomination of this Class B-1 Certificate by the Original Class
Certificate Principal Balance) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the "Depositor"). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of November 1, 2005 (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 B-1
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class B-1
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the Act
and any applicable 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 B-1
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class B-1 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS B-1 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10%of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-17
FORM OF CLASS B-2 CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 A CERTIFICATES, THE MEZZANINE
CERTIFICATES AND THE CLASS B-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO 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").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $9,826,000.00
of this Certificate ("Denomination")
Original Class Certificate : $9,826,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XQ 9
Class : B-2
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class B-2
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting of 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
B-2 Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class B-2
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, or the Trustee referred to below or
any of their respective affiliates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B-2 Certificate (obtained by
dividing the Denomination of this Class B-2 Certificate by the Original Class
Certificate Principal Balance) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the "Depositor"). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of November 1, 2005 (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 B-2
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class B-2
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the Act
and any applicable 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 B-2
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Class B-2 Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS B-2 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10%of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
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 B-3 CERTIFICATES
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 A CERTIFICATES, THE MEZZANINE
CERTIFICATES, THE CLASS B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO 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").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $8,843,000.00
of this Certificate ("Denomination")
Original Class Certificate : $8,843,000.00
Principal Balance of this Class
Percentage Interest : 100.00%
Pass-Through Rate : Variable
CUSIP : 32027N XR 7
Class : B-3
Assumed Maturity Date : December 2035
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class B-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
B-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 B-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 B-3 Certificate (obtained by
dividing the Denomination of this Class B-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, 2005 (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 B-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 B-3
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 B-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 B-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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS B-3 CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
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 19
FORM OF CLASS C CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE MEZZANINE
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE
CLASS B-3 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $20,634,501.24
of this Certificate ("Denomination")
Original Class Certificate : $20,634,501.24
Principal Balance of this Class
Percentage Interest : 100%
Pass-Through Rate : Variable
Class : C
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class C
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting of first lien adjustable rate and fixed rate mortgage
loans (the "Mortgage Loans")
FINANCIAL ASSET SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this Class C
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class C
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, or the Trustee referred to below or
any of their respective affiliates.
This certifies that Greenwich Capital Financial Products, Inc., is the
registered owner of the Percentage Interest evidenced by this Class C
Certificate (obtained by dividing the Denomination of this Class C Certificate
by the Original Class Certificate Principal Balance) in certain distributions
with respect to a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of November 1, 2005 (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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS C CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-20
FORM OF CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Principal Balance : $100.00
of this Certificate ("Denomination")
Original Class Certificate : $100.00
Principal Balance of this Class
Percentage Interest : 100.00%
Class : P
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class P
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting of first lien adjustable rate and fixed rate mortgage
loans (the "Mortgage Loans")
FINANCIAL ASSET SECURITIES CORP., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this Class P
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class P
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, or the Trustee referred to below or
any of their respective affiliates.
This certifies that Greenwich Capital Financial Products, Inc. is the
registered owner of the Percentage Interest evidenced by this Class P
Certificate (obtained by dividing the Denomination of this Class P Certificate
by the Original Class Certificate Principal Balance) in certain distributions
with respect to a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of November 1, 2005 (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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS P CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT A-21
FORM OF CLASS R 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 CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest : 100.00%
Class : R
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class R
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of a pool of first lien adjustable rate and
fixed rate mortgage loans (the "Mortgage Loans")
FINANCIAL ASSET SECURITIES CORP., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Greenwich Capital Markets, Inc. is the registered
owner of the Percentage Interest evidenced by this Certificate specified above
in the interest represented by all Certificates of the Class to which this
Certificate belongs in a Trust consisting primarily of the Mortgage Loans
deposited by Financial Asset Securities Corp. (the "Depositor"). The Trust was
created pursuant to a Pooling and Servicing Agreement dated as of November 1,
2005 (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 Corporate Trust Office or the office or agency maintained by
the Trustee in Minneapolis, Minnesota.
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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS R CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
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-22
FORM OF CLASS R-X CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THIS CLASS R-X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
Certificate No. : 1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest : 100.00%
Class : R-X
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
Class R-X
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of a pool of first lien adjustable rate and
fixed rate mortgage loans (the "Mortgage Loans")
FINANCIAL ASSET SECURITIES CORP., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that Greenwich Capital Markets, Inc. is the registered
owner of the Percentage Interest evidenced by this Certificate specified above
in the interest represented by all Certificates of the Class to which this
Certificate belongs in a Trust consisting primarily of the Mortgage Loans
deposited by Financial Asset Securities Corp. (the "Depositor"). The Trust was
created pursuant to a Pooling and Servicing Agreement dated as of November 1,
2005 (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 Corporate Trust Office or the office or agency maintained by
the Trustee in Minneapolis, Minnesota.
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: December ___, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST
2005-FFH4
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By_________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _________________________________
Authorized Signatory of
Deutsche Bank National Trust Company,
as Trustee
[REVERSE OF CLASS R-X CERTIFICATE]
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates,
Series 2005-FFH4
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4 (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
Corporate Trust Office of the Trustee 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 Corporate Trust Office of the Trustee
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 Stated Principal Balance of the Mortgage Loans is less than 10% of the
sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date and the Original Pre-Funded Amounts, the Terminator 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 Distribution Date in December 2035.
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: ________________ -------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
Account number _____________________________________ or, if mailed by check, to
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by _______________________________________
assignee named above, or _______________________________________________________
its agent.
EXHIBIT B
RESERVED
EXHIBIT C
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT D
MORTGAGE LOAN SCHEDULE
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
SEE CUSTODIAL AGREEMENT, EXHIBIT 3
EXHIBIT F-1
FORM OF TRUST RECEIPT AND INITIAL CERTIFICATION
SEE CUSTODIAL AGREEMENT, EXHIBIT 1
EXHIBIT F-2
FORM OF FINAL TRUST RECEIPT
SEE CUSTODIAL AGREEMENT, EXHIBIT 2
EXHIBIT G
FORM OF CUSTODIAL AGREEMENT
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 2005-FFH4, Asset-Backed Certificates Series 2005-FFH4, to accept the
transfer of the above described loan from Seller.
Seller agrees to indemnify Deutsche Bank National Trust Company,
Financial Asset Securities Corp. and National City Home Loan Services, Inc.
harmless for any losses incurred by such parties resulting from the above
described promissory note has been lost or misplaced.
By: _______________________
_______________________
STATE OF )
) ss:
COUNTY OF )
On this ______ day of ______________, 20_, before me, a Notary Public,
in and for said County and State, appeared , who acknowledged the extension of
the foregoing and who, having been duly sworn, states that any representations
therein contained are true.
Witness my hand and Notarial Seal this _________ day of 20__.
_____________________________
_____________________________
My commission expires __________________________.
EXHIBIT I
FORM OF LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that [NAME OF MORTGAGEE, ASSIGNEE OR LAST
ENDORSEE, AS APPLICABLE], [a ___________________ corporation][a national banking
organization], having its principal place of business at
__________________________, (the "Undersigned"), pursuant to that Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") among Financial
Asset Securities Corp. (the "Owner"), Deutsche Bank National Trust Company and
National City Home Loan Services, Inc. ("National City"), hereby constitutes and
appoints National City, by and through National City'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 National City
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 National City to the Owner under the Pooling and Servicing
Agreement, or (ii) be construed to grant National City 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.
The Owner 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 Saxon 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
_________________, 2005.
By:_____________________________________
Name: ________________________________
Title: ________________________________
Acknowledged and Agreed
National City Home Loan Services, Inc.
By:_____________________________________
Name:
Title:
EXHIBIT J
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Financial Asset Securities Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FFH4,
Asset-Backed Certificates Series 2005-FFH4
---------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates,
we certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Pooling and Servicing Agreement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
---------------------------------
Authorized Officer
FORM OF RULE 144A INVESTMENT LETTER
[DATE]
Financial Asset Securities Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FFH4,
Asset-Backed Certificates Series 2005-FFH4
---------------------------------------------
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.
------------
(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.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act
of 1940.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
--------------------------------------
Print Name of Buyer
By:
-----------------------------------
Name:
Title:
Date:
---------------------------------
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyers Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $_________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $___________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
---------------------------------
Print Name of Buyer or Adviser
By:
Name:
Title:
IF AN ADVISER:
Print Name of Buyer
Date:
EXHIBIT K
FORM OF TRANSFER AFFIDAVIT FOR RESIDUAL CERTIFICATES
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FFH4
ASSET-BACKED CERTIFICATES, SERIES ▇▇▇▇-▇▇▇▇
▇▇▇▇▇ 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, 2005 (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__
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Financial Asset Securities Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FFH4,
Asset-Backed Certificates Series 2005-FFH4
---------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being disposed by us in
a transaction that is exempt from the registration requirements of the Act, (b)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act, (c) to
the extent we are disposing of a Class [ ] Certificate, we have no knowledge the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of a Class [ ] Certificate is to impede the assessment or collection
of tax.
Very truly yours,
TRANSFEROR
By:
----------------------------------
Name:
Title:
EXHIBIT M
FORM OF ERISA REPRESENTATION LETTER
_____________, 20__
National City Home Loan Services, Inc. Deutsche Bank National Trust Company
[ADDRESS] ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
[▇▇▇▇], [STATE] [ZIP] ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: _____________________
Financial Asset Securities Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FFH4,
Asset-Backed Certificates Series 2005-FFH4
---------------------------------------------
Dear Sirs:
________________________ (the "Transferee") intends to acquire from the
_______________________ ( "Transferor") $_________ Initial Certificate Principal
Balance First Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed Certificates
Series 2005-FFH4, Class [C][P][R][Dividend Account Certificate] (the
"Certificates"), issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of November 1, 2005 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 herein and not
otherwise defined shall have the meanings assigned thereto in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants
to, and covenants with the Depositor, the Trustee and the Servicer the
following:
The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other retirement arrangement, including individual retirement accounts and
annuities, ▇▇▇▇▇ plans and bank collective investment funds and insurance
company general or separate accounts in which such plans, accounts or
arrangements are invested, that is subject to Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986 (the "Code") (any of the foregoing, a
"Plan"), (ii) are not being acquired with "plan assets" of a Plan within the
meaning of the Department of Labor ("DOL") regulation, 29 C.F.R.ss.2510.3-101,
and (iii) will not be transferred to any entity that is deemed to be investing
in plan assets within the meaning of the DOL regulation at 29 ▇.▇.▇.▇▇.
2510.3-101.
Very truly yours,
[Transferee]
By:_____________________________
Name:
Title:
EXHIBIT N-1
FORM OF CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
I, [_____], certify that:
l. I have reviewed this annual report on Form 10-K, and all reports on
Form 8-K containing distribution and servicing reports filed in respect of
periods included in the year covered by this annual report, of First Franklin
Mortgage Loan Trust 2005-FFH4, Asset-Backed Certificates, Series 2005-FFH4;
2. Based on my knowledge, the information in these reports, 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
last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information
required to be provided to the trustee by the servicer under the pooling and
servicing, or similar, agreement, for inclusion in these reports is included in
these reports;
4. Based on my knowledge and upon the annual compliance statement
included in the report and required to be delivered to the trustee in accordance
with the terms of the pooling and servicing, or similar, agreement, and except
as disclosed in the reports, the servicer has fulfilled its obligations under
the servicing agreement; and
5. The reports disclose all significant deficiencies relating to the
servicer's compliance with the minimum servicing standards based upon the report
provided by an independent public accountant, after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar procedure, as set forth in the pooling and servicing, or similar,
agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: National City
Home Loan Services, Inc. and Deutsche Bank National Trust Company
Date: [__], 2005
FINANCIAL ASSET SECURITIES CORP.
By: _________________________________
Name:
Title:
EXHIBIT N-2
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY THE TRUSTEE
Re: First Franklin Mortgage Loan Trust 2005-FFH4 (the "Trust")
Mortgage Pass-Through Certificates, Series 2005-FFH4
----------------------------------------------------------
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 8-K containing distribution reports filed in
respect of periods included in the year covered by that annual report, of the
Depositor relating to the above-referenced trust;
2. Based on my knowledge, the information in these distribution reports
prepared by the Trustee, 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 last day of the period covered by that annual
report; and
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, 2005
(the "Pooling and Servicing Agreement"), among the Depositor as depositor,
National City Home Loan Services, 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 OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY THE SERVICER
Re: First Franklin Mortgage Loan Trust 2005-FFH4 (the "Trust"),
Mortgage Pass-Through Certificates, Series 2005-FFH4
-----------------------------------------------------------
I, [identify the certifying individual], certify that:
l. I have reviewed the information required to be provided to the
Trustee by the Servicer pursuant to the Pooling and Servicing Agreement (the
"Servicing Information");
2. Based on my knowledge, the Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the Servicing Information required to be
provided to the Trustee by the Servicer has been provided as required under the
Pooling and Servicing Agreement;
4. I am responsible for reviewing the activities performed by the
Servicer under the Pooling and Servicing Agreement and based upon my knowledge
and the annual compliance review required under the Pooling and Servicing
Agreement, and except as disclosed by written notice to the Trustee or in the
annual compliance statement or certified public accountant's report required to
be delivered to the Trustee in accordance with the terms of the Pooling and
Servicing Agreement (which has been so delivered to the Trustee), the Servicer
has, for the period covered by the Form 10-K Annual Report, fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. The Servicer has disclosed to its certified public accountants and
the Depositor 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 procedure, as set forth in the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated November 1, 2005
(the "Pooling and Servicing Agreement"), among the Depositor as depositor,
National City Home Loan Services, Inc. as servicer and Deutsche Bank National
Trust Company as trustee.
NATIONAL CITY HOME LOAN SERVICES, INC.
By:____________________________
Name:
Title:
Date:
EXHIBIT O
FORM OF CAP CONTRACT
EXHIBIT P
FORM OF COMPLIANCE CERTIFICATE
First Franklin Mortgage Loan Trust 2005-FFH4
Asset-Backed Certificates, Series 2005-FFH4
I, _____________________, hereby certify that I am a duly appointed
__________________________ of National City Home Loan Services, Inc. (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 November 1, 2005, (the
"Agreement"), among Financial Asset Securities Corp., as depositor, National
City Home Loan Services, Inc., as servicer and Deutsche Bank National Trust
Company, 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 Agreement.
Dated: _____________
EXHIBIT Q
FORM OF ADDITION NOTICE
[Date]
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement dated as of November 1, 2005
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:
Pursuant to Section 2.08 of the referenced Pooling and Servicing
Agreement, Financial Asset Securities Corp. has designated Subsequent Mortgage
Loans to be sold to the Trust on __________, 2005, with an aggregate principal
balance of $ . Capitalized terms not otherwise defined herein have the meaning
set forth in the Pooling and Servicing Agreement.
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
FINANCIAL ASSET SECURITIES CORP.
By:
--------------------------------
Name:
Title:
Acknowledged and Agreed:
DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee
By:
--------------------------------------------
Name:
Title:
EXHIBIT R
FORM OF SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Subsequent Transfer Instrument, dated ________, 2005
(the "Instrument"), between Financial Asset Securities Corp. as seller (the
"Depositor"), and Deutsche Bank National Trust Company as trustee of the First
Franklin Mortgage Loan Trust 2005-FFH4, Asset-Backed Certificates, Series
2005-FFH4, as purchaser (the "Trustee"), and pursuant to the Pooling and
Servicing Agreement, dated as of November 1, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, National City Home Loan Services, Inc. as
servicer and the Trustee, the Depositor and the Trustee agree to the sale by the
Depositor and the purchase by the Trustee in trust, on behalf of the Trust, of
the Mortgage Loans listed on the attached Schedule of Mortgage Loans (the
"Subsequent Mortgage Loans").
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement.
Section 1. Conveyance of Subsequent Mortgage Loans.
(a) The Depositor does hereby sell, transfer, assign, set over and
convey to the Trustee in trust, on behalf of the Trust, without recourse, all of
its right, title and interest in and to the Subsequent Mortgage Loans, and
including all amounts due on the Subsequent Mortgage Loans after the related
Subsequent Cut-off Date, and all items with respect to the Subsequent Mortgage
Loans to be delivered pursuant to Section 2.01 of the Pooling and Servicing
Agreement; provided, however that the Depositor reserves and retains all right,
title and interest in and to amounts due on the Subsequent Mortgage Loans on or
prior to the related Subsequent Cut-off Date. The Depositor, contemporaneously
with the delivery of this Agreement, has delivered or caused to be delivered to
the Trustee each item set forth in Section 2.01 of the Pooling and Servicing
Agreement. The transfer to the Trustee by the Depositor of the Subsequent
Mortgage Loans identified on the Mortgage Loan Schedule shall be absolute and is
intended by the Depositor, the Servicer, the Trustee and the Certificateholders
to constitute and to be treated as a sale by the Depositor to the Trust Fund.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders all the right, title
and interest of the Depositor, in, to and under the Subsequent Mortgage Loan
Purchase Agreement, dated the date hereof, between the Depositor as purchaser
and the Servicer as seller, to the extent of the Subsequent Mortgage Loans.
(c) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Depositor hereby confirms that each of the conditions and the
representations and warranties set forth in Section 2.08 of the Pooling and
Servicing Agreement are satisfied as of the date hereof.
(b) All terms and conditions of the Pooling and Servicing Agreement are
hereby ratified and confirmed; provided, however, that in the event of any
conflict, the provisions of this Instrument shall control over the conflicting
provisions of the Pooling and Servicing Agreement.
Section 3. Recordation of Instrument.
To the extent permitted by applicable law, this Instrument, or a
memorandum thereof if permitted under applicable law, is subject to recordation
in all appropriate public offices for real property records in all of 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 Certificateholders' expense on direction of the related
Certificateholders, but only when accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders or is necessary for the administration or servicing of
the Mortgage Loans.
Section 4. Governing Law.
This Instrument 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, without giving
effect to principles of conflicts of law.
Section 5. Counterparts.
This Instrument may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same instrument.
Section 6. Successors and Assigns.
This Instrument shall inure to the benefit of and be binding upon the
Depositor and the Trustee and their respective successors and assigns.
FINANCIAL ASSET SECURITIES CORP.
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee for First Franklin Mortgage
Loan Trust 2005-FFH4, Asset-Backed
Certificates, Series 2005-FFH4
By:
--------------------------------
Name:
Title:
Attachments
-----------
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
EXHIBIT S
FORM OF INTEREST RATE SWAP AGREEMENT
EXHIBIT T
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
This certificate is being delivered pursuant to Section [__] of the
Pooling and Servicing Agreement, dated as of [_________], 2006 (the
"Agreement"), among [_________], as depositor (the "Depositor"), [_________] as
sponsor (in that capacity, the "Sponsor") and as master servicer (in that
capacity, the "Master Servicer") and [_________] as trustee (the "Trustee").
Capitalized terms used herein and not otherwise defined have the meanings set
forth in the Agreement.
I, [identify the certifying individual], on behalf of LaSalle Bank
National Association, as trustee (the "Trustee") certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___], and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual report,
of the trust (the "Trust") created pursuant to the Agreement; and
2. Based on my knowledge, the distribution information in these reports
and any other information provided by the Trustee for inclusion in these
reports, 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 the statements were made, not misleading
as of the last day of the period covered by that annual report.
Date:
-------------------------
[Signature]
Name:
Title:
Schedule I-1
EXHIBIT U
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS unless otherwise noted)
KEY:
X - obligation
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.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
SECUR-
TIES
MASTER ADMINIS- CUSTO- PAYING
REG AB REFERENCE SERVICING CRITERIA SERVICERS SERVICER TRATOR DIAN AGENT TRUSTEE NOTES
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
----------------- -------------------------------------------------- -------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
----------------- -------------------------------------------------- -------------------------------------------------------------
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
1122(d)(1)(i) Policies and procedures are X X X X-1 1 -
instituted to monitor any ATTEST
performance or other triggers TO KNOWL-
and events of default in EDGE BUT
accordance with the transaction NOT TO
agreements. PROCESS
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
1122(d)(1)(ii) If any material servicing X X
activities are outsourced to
third parties, policies and
procedures are instituted to
monitor the third party's
performance and compliance with
such servicing activities.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Any requirements in the NA
transaction agreements to
maintain a back-up servicer for
1122(d)(1)(iii) the Pool Assets are maintained.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
A fidelity bond and errors and X X
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
1122(d)(1)(iv) agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
CASH COLLECTION AND
ADMINISTRATION
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
1122(d)(2)(i) Payments on pool assets are X X X X
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.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Disbursements made via wire X X X X
transfer on behalf of an obligor
or to an investor are made only
1122(d)(2)(ii) by authorized personnel.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Advances of funds or guarantees X X X
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
1122(d)(2)(iii) agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
The related accounts for the X X X X
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
1122(d)(2)(iv) transaction agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Each custodial account is X X X X
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
1122(d)(2)(v) Exchange Act.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Unissued checks are safeguarded X
so as to prevent unauthorized
1122(d)(2)(vi) access.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Reconciliations are prepared on X X X X
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
1122(d)(2)(vii) in the transaction agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
INVESTOR REMITTANCES AND
REPORTING
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
1122(d)(3)(i) Reports to investors, including X X X
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.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Amounts due to investors are X X X X
allocated and remitted in
accordance with timeframes,
distribution priority and other
terms set forth in the
1122(d)(3)(ii) transaction agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Disbursements made to an X X X X
investor are posted within two
business days to the Servicer's
investor records, or such other
number of days specified in the
1122(d)(3)(iii) transaction agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Amounts remitted to investors X X X X
per the investor reports agree
with cancelled checks, or other
form of payment, or custodial
1122(d)(3)(iv) bank statements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
POOL ASSET ADMINISTRATION
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
1122(d)(4)(i) Collateral or security on pool X X
assets is maintained as required
by the transaction agreements or
related pool asset documents.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
1122(d)(4)(ii) Pool assets and related X X
documents are safeguarded as
required by the transaction
agreements
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
1122(d)(4)(iii) Any additions, removals or X X
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, X
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.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
The Servicer's records regarding X
the pool assets agree with the
Servicer's records with respect to
an obligor's unpaid principal
1122(d)(4)(v) balance.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Changes with respect to the X
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
1122(d)(4)(vi) asset documents.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Loss mitigation or recovery X
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
1122(d)(4)(vii) agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Records documenting collection X
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
1122(d)(4)(viii) unemployment).
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
1122(d)(4)(ix) Adjustments to interest rates or X
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 X
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.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Payments made on behalf of an X
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
1122(d)(4)(xi) transaction agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Any late payment penalties in X
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
1122(d)(4)(xii) obligor's error or omission.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Disbursements made on behalf of X
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
1122(d)(4)(xiii) agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Delinquencies, charge-offs and X X X
uncollectible accounts are
recognized and recorded in
accordance with the transaction
1122(d)(4)(xiv) agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
Any external enhancement or X X
other support, identified in
Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is
maintained as set forth in the
1122(d)(4)(xv) transaction agreements.
----------------- ---------------------------------- ------------ ----------- ----------- --------- --------- --------- ---------
EXHIBIT V
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 party
identified as responsible for preparing the Securities Exchange Act Reports
pursuant to Section 3.18(a)(iv). An asterisk indicates that the Responsible
Party is responsible for aggregating the information it receives from other
Responsible Parties.
Under Item 1 of Form 10-D: a) items marked "6.07 statement" are required to be
included in the periodic Distribution Date statement under Section 6.07,
provided by the Securities Administrator based on information received from the
Master Servicer; and b) items marked "Form 10-D report" are required to be in
the Form 10-D report but not the 6.07 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.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
MAASTER SECYRUTUES
FORM ITEM DESCRIPTION SERVICERS SERVICER ADMINISTRATOR CUSTODIAN TRUSTEE DEPOSITOR SPONSOR
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
10-D Must be filed within 15 days of the distribution date for the
asset-backed securities.
----- ------------------------------------------------------------------------- -------------- ----------- ---------------- --------
1 DISTRIBUTION AND
POOL PERFORMANCE
INFORMATION
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1121(A) -
DISTRIBUTION AND
POOL PERFORMANCE
INFORMATION
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(1) Any applicable X
record dates,
accrual dates, (6.07 STATEMENT)
determination dates
for calculating
distributions and
actual distribution
dates for the
distribution period.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(2) Cash flows X
received and the
sources thereof for (6.07
distributions, fees STATEMENT)
and expenses.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(3) Calculated X
amounts and
distribution of the (6.07 STATEMENT)
flow of funds for
the period itemized
by type and priority
of payment,
including:
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(i) Fees or X
expenses accrued and
paid, with an (6.07 STATEMENT)
identification of
the general purpose
of such fees and the
party receiving such
fees or expenses.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(ii) X
Payments accrued or
paid with respect to (6.07 STATEMENT)
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.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(iii) X
Principal, interest
and other (6.07 STATEMENT)
distributions
accrued and paid on
the asset-backed
securities by type
and by class or
series and any
principal or
interest shortfalls
or carryovers.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(iv) The X
amount of excess
cash flow or excess (6.07 STATEMENT)
spread and the
disposition of
excess cash flow.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(4) Beginning and X
ending principal
balances of the (6.07 STATEMENT)
asset-backed
securities.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(5) Interest rates X
applicable to the
pool assets and the (6.07 STATEMENT)
asset-backed
securities, as
applicable. Consider
providing interest
rate information for
pool assets in
appropriate
distributional
groups or
incremental ranges.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(6) Beginning and X
ending balances of
transaction (6.07 STATEMENT)
accounts, such as
reserve accounts,
and material account
activity during the
period.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(7) Any amounts X
drawn on any credit
enhancement or other (6.07 STATEMENT)
support identified
in Item 1114 of
Regulation AB, as
applicable, and the
amount of coverage
remaining under any
such enhancement, if
known and applicable.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(8) Number and X Updated pool
amount of pool composition
assets at the (6.07 STATEMENT) information
beginning and ending fields to be
of each period, and as specified
updated pool by Depositor
composition from time to
information, such as time
weighted average
coupon, weighted
average life,
weighted average
remaining term, pool
factors and
prepayment amounts.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(9) Delinquency and X
loss information for
the period. (6.07 STATEMENT)
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
In addition, X
describe any
material changes to
the information
specified in Item
1100(b)(5) of
Regulation AB
regarding the pool
assets. (methodology)
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(10) Information on X
the amount, terms
and general purpose (6.07 STATEMENT)
of any advances made
or reimbursed during
the period,
including the
general use of funds
advanced and the
general source of
funds for
reimbursements.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(11) Any material X
modifications,
extensions or (6.07 STATEMENT)
waivers to pool
asset terms, fees,
penalties or
payments during the
distribution period
or that have
cumulatively become
material over time.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(12) Material X X X* X
breaches of pool
asset (if agreed upon
representations or by the parties)
warranties or
transaction
covenants.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(13) Information on X
ratio, coverage or
other tests used for (6.07 STATEMENT)
determining any
early amortization,
liquidation or other
performance trigger
and whether the
trigger was met.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
(14) Information X
regarding any new
issuance of
asset-backed securities
backed by the same
asset pool,
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
[information X [X]
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 X
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.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1121(B) - X
PRE-FUNDING OR
REVOLVING PERIOD
INFORMATION
Updated pool
information as
required under Item
1121(b).
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
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:
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Sponsor (Seller) X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Depositor X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Trustee X
(6.07 STATEMENT)
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Issuing entity X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Master Servicer, X X
affiliated Servicer,
other Servicer
servicing 20% or
more of pool assets
at time of report,
other material
servicers
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Certificate X
Administrator
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Originator of 20% or X [X]
more of pool assets
as of the Cut-off
Date
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Custodian X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
3 SALES OF SECURITIES
AND USE OF PROCEEDS
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
INFORMATION FROM X
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.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
4 DEFAULTS UPON SENIOR
SECURITIES
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
INFORMATION FROM X X
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)
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
5 SUBMISSION OF
MATTERS TO A VOTE OF
SECURITY HOLDERS
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
INFORMATION FROM X X
ITEM 4 OF PART II OF
FORM 10-Q
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
6 SIGNIFICANT OBLIGORS
OF POOL ASSETS
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1112(B) - X
SIGNIFICANT OBLIGOR
FINANCIAL
INFORMATION*
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
*This information
need only be
reported on the Form
10-D for the
distribution period
in which updated
information is
required pursuant to
the Item.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
7 SIGNIFICANT
ENHANCEMENT PROVIDER
INFORMATION
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1114(B)(2) -
CREDIT ENHANCEMENT
PROVIDER FINANCIAL
INFORMATION*
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Determining X X
applicable
disclosure
threshold
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Requesting X
required
financial
information or
effecting
incorporation
by reference
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1115(B) -
DERIVATIVE
COUNTERPARTY
FINANCIAL
INFORMATION*
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Determining X
current
maximum
probable
exposure
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Determining X
current
significance
percentage
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Requesting X
required
financial
information or
effecting
incorporation
by reference
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
*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 The Responsible Party for the applicable Form 8-K item as indicated below.
INFORMATION REQUIRED
TO BE REPORTED ON FORM
8-K DURING THE PERIOD
COVERED BY THE FORM
10-D BUT NOT REPORTED
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
9 EXHIBITS
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Distribution report X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
EXHIBITS REQUIRED BY X
ITEM 601 OF
REGULATION S-K, SUCH
AS MATERIAL
AGREEMENTS
----- ------------------------------------------------------------------------- -------------- ----------- ---------------- --------
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 X X X (if Master X (if X (if Master X (if
required regarding Servicer is not Master Servicer is Master
entry into or a party) Servicer not a party) Servicer
amendment of any is not a is not a
definitive agreement party) party)
that is material to
the securitization,
even if depositor is
not a party.
Examples: servicing
agreement, custodial
agreement.
Note: disclosure not
required as to
definitive
agreements that are
fully disclosed in
the prospectus
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
1.02 TERMINATION OF A X X X (if Master X (if X (if Master X (if
MATERIAL DEFINITIVE Servicer is not Master Servicer is Master
AGREEMENT a party) Servicer not a party) Servicer
is not a is not a
party) party)
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Disclosure is required
regarding termination
of any definitive
agreement that is
material to the
securitization (other
than expiration in
accordance with its
terms), even if
depositor is not a
party.
Examples: servicing
agreement, custodial
agreement.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
1.03 BANKRUPTCY OR
RECEIVERSHIP
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Disclosure is X X X (if Master X X (if X (if Master X (if
required regarding Servicer is not Master Servicer is Master
the bankruptcy or a party) Servicer not a party) Servicer
receivership, if is not a is not a
known to the Master party) party)
Servicer, with
respect to any of
the following:
Sponsor (Seller),
Depositor, Master
Servicer, affiliated
Servicer, other
Servicer servicing
20% or more of pool
assets at time of
report, other
material servicers,
Certificate
Administrator,
Trustee, significant
obligor, credit
enhancer (10% or
more), derivatives
counterparty,
Custodian
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
2.04 TRIGGERING EVENTS
THAT ACCELERATE OR
INCREASE A DIRECT
FINANCIAL OBLIGATION
OR AN OBLIGATION
UNDER AN OFF-BALANCE
SHEET ARRANGEMENT
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Includes an early X
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
6.07 statement
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
3.03 MATERIAL
MODIFICATION TO
RIGHTS OF SECURITY
HOLDERS
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Disclosure is X X X
required of any
material
modification to
documents defining
the rights of
Certificateholders,
including the
Pooling and
Servicing Agreement
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
5.03 AMENDMENTS TO
ARTICLES OF
INCORPORATION OR
BYLAWS; CHANGE IN
FISCAL YEAR
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Disclosure is X
required of any
amendment "to the
governing documents
of the issuing
entity"
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
5.06 CHANGE IN SHELL
COMPANY STATUS
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
[Not applicable to X
ABS issuers]
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
6.01 ABS INFORMATIONAL
AND COMPUTATIONAL
MATERIAL
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
[Not included in X
reports to be filed
under Section 3.18]
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
6.02 CHANGE OF SERVICER
OR TRUSTEE
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Requires disclosure X X X X
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.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
6.03 CHANGE IN CREDIT
ENHANCEMENT OR OTHER
EXTERNAL SUPPORT
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Covers termination X X
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.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
6.04 FAILURE TO MAKE A X X
REQUIRED DISTRIBUTION
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
6.05 SECURITIES ACT
UPDATING DISCLOSURE
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
If any material pool X
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.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
If there are any new X
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.
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
7.01 REGULATION FD X
DISCLOSURE
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
8.01 OTHER EVENTS
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Any event, with X
respect to which
information is not
otherwise called for
in Form 8-K, that
the registrant deems
of importance to
security holders.
----- ----- ---------------------- -------------------------------------------------------------------------------------------------
9.01 FINANCIAL STATEMENTS The Responsible Party applicable to reportable event.
AND EXHIBITS
----- ------------------------------------------------------------------------- -------------- ----------- ---------------- --------
10-K Must be filed within 90 days of the fiscal year end for the registrant.
----- ------------------------------------------------------------------------- -------------- ----------- ---------------- --------
9B OTHER INFORMATION
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Disclose any The Responsible Party for the applicable Form 80K as indicated above.
information required
to be reported on
Form 8-K during the
fourth quarter
covered by the Form
10-K but not reported
----- ----- ---------------------- -------------------------------------------------------------------------------------------------
15 EXHIBITS AND
FINANCIAL STATEMENT
SCHEDULES
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1112(B) - X
SIGNIFICANT OBLIGOR
FINANCIAL INFORMATION
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1114(B)(2) -
CREDIT ENHANCEMENT
PROVIDER FINANCIAL
INFORMATION
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Determining X
applicable
disclosure
threshold
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Requesting X
required
financial
information or
effecting
incorporation
by reference
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1115(B) -
DERIVATIVE
COUNTERPARTY
FINANCIAL INFORMATION
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Determining X
current maximum
probable
exposure
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Determining X
current
significance
percentage
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Requesting X
required
financial
information or
effecting
incorporation
by reference
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
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:
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Sponsor (Seller) X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Depositor X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Trustee X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Issuing entity X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Master Servicer, X X
affiliated Servicer,
other Servicer
servicing 20% or
more of pool assets
at time of report,
other material
servicers
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Certificate X
Administrator
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Originator of 20% or X
more of pool assets
as of the Cut-off
Date
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Custodian X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Item 1119 -
Affiliations and
relationships
between the
following entities,
or their respective
affiliates, that are
material to
Certificateholders:
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Sponsor (Seller) X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Depositor X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Trustee X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Master Servicer, X X
affiliated Servicer,
other Servicer
servicing 20% or
more of pool assets
at time of report,
other material
servicers
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Certificate X
Administrator
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Originator X [X]
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Custodian X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Credit X X
Enhancer/Support
Provider
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
Significant Obligor X
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1122 - X X X X X
ASSESSMENT OF
COMPLIANCE WITH
SERVICING CRITERIA
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
ITEM 1123 - SERVICER X X
COMPLIANCE STATEMENT
----- ----- ---------------------- ------------- ----------- ------------------ -------------- ----------- ---------------- --------
SCHEDULE I
PREPAYMENT CHARGE SCHEDULE
(Available Upon Request)