EXHIBIT 4.1
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ASSET BACKED FUNDING CORPORATION,
DEPOSITOR
HOMEQ SERVICING CORPORATION,
SERVICER
AND
JPMORGAN CHASE BANK, N.A.,
TRUSTEE
POOLING AND SERVICING AGREEMENT
DATED AS OF APRIL 1, 2005
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES, SERIES 2005-FF5
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 5
Section 1.01 Defined Terms................................................5
Section 1.02 Accounting..................................................58
Section 1.03 Rights of the NIMS Insurer..................................58
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES 59
Section 2.01 Conveyance of Mortgage Loans................................59
Section 2.02 Acceptance by Trustee.......................................61
Section 2.03 Repurchase or Substitution of Mortgage Loans by the
Originator or the Seller....................................62
Section 2.04 Execution of Yield Maintenance Agreements...................66
Section 2.05 Representations, Warranties and Covenants of the Servicer...66
Section 2.06 Representations and Warranties of the Depositor.............68
Section 2.07 Issuance of Certificates and the Uncertificated Regular
Interests...................................................70
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND 71
Section 3.01 Servicer to Act as Servicer.................................71
Section 3.02 Collection of Mortgage Loan Payments........................73
Section 3.03 Realization Upon Defaulted Mortgage Loans...................73
Section 3.04 Collection Accounts, Distribution Account and Reserve
Accounts....................................................74
Section 3.05 Permitted Withdrawals From the Collection Accounts..........79
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts....................................................80
Section 3.07 Permitted Withdrawals From Escrow Account...................80
Section 3.08 Payment of Taxes, Insurance and Other Charges; Collections
Thereunder..................................................81
Section 3.09 Transfer of Accounts........................................82
Section 3.10 Maintenance of Hazard Insurance.............................82
Section 3.11 Maintenance of Mortgage Impairment Insurance Policy.........83
Section 3.12 Fidelity Bond, Errors and Omissions Insurance...............83
Section 3.13 Title, Management and Disposition of REO Property...........84
Section 3.14 Due-on-Sale Clauses; Assumption and Substitution Agreements.86
Section 3.15 Notification of Adjustments.................................87
Section 3.16 Optional Purchases of Mortgage Loans by Servicer............87
Section 3.17 Trustee to Cooperate; Release of Files......................87
Section 3.18 Servicing Compensation......................................89
Section 3.19 Annual Statement as to Compliance...........................89
Section 3.20 Annual Independent Certified Public Accountants' Reports....89
Section 3.21 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................90
Section 3.22 Duties of Credit Risk Manager...............................90
Section 3.23 Obligations of the Servicer in Respect of Compensating
Interest....................................................91
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Section 3.24 Obligations of the Servicer in Respect of Mortgage Interest
Rates and Monthly Payments..................................91
Section 3.25 Investment of Funds in the Collection Accounts..............91
Section 3.26 Liability of Servicer; Indemnification......................92
Section 3.27 Reports of Foreclosure and Abandonment of Mortgaged
Properties..................................................93
Section 3.28 Protection of Assets........................................93
Section 3.29 Limitation of Liability of the Credit Risk Manager..........94
Section 3.30 No Personal Solicitation....................................94
Section 3.31 Periodic Filings............................................94
Section 3.32 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act....................97
ARTICLE IV FLOW OF FUNDS 97
Section 4.01 Interest Distributions......................................97
Section 4.02 Distributions of Principal and Monthly Excess Cashflow
Amounts.....................................................99
Section 4.03 Allocation of Losses.......................................106
Section 4.04 Method of Distribution.....................................106
Section 4.05 Distributions on Book-Entry Certificates...................107
Section 4.06 Statements.................................................107
Section 4.07 Remittance Reports; Advances...............................110
Section 4.08 REMIC Distributions and Allocation of Losses...............111
ARTICLE V THE CERTIFICATES 116
Section 5.01 The Certificates...........................................116
Section 5.02 Registration of Transfer and Exchange of Certificates......116
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates..........121
Section 5.04 Persons Deemed Owners......................................121
Section 5.05 Appointment of Paying Agent................................122
ARTICLE VI THE SERVICER AND THE DEPOSITOR 122
Section 6.01 Liability of the Servicer and the Depositor................122
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer or the Depositor..............122
Section 6.03 Limitation on Liability of the Servicer and Others.........123
Section 6.04 Servicer Not to Resign.....................................123
Section 6.05 Delegation of Duties.......................................124
ARTICLE VII DEFAULT 126
Section 7.01 Servicer Events of Termination.............................126
Section 7.02 Trustee to Act; Appointment of Successor...................128
Section 7.03 Waiver of Defaults.........................................129
Section 7.04 Notification to Certificateholders.........................129
Section 7.05 Survivability of Servicer Liabilities......................130
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ARTICLE VIII THE TRUSTEE 130
Section 8.01 Duties of Trustee..........................................130
Section 8.02 Certain Matters Affecting the Trustee......................132
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans......133
Section 8.04 Trustee May Own Certificates...............................134
Section 8.05 Trustee Fees and Expenses..................................134
Section 8.06 Eligibility Requirements for Trustee.......................134
Section 8.07 Resignation or Removal of Trustee..........................135
Section 8.08 Successor Trustee..........................................136
Section 8.09 Merger or Consolidation of Trustee.........................136
Section 8.10 Appointment of Co-Trustee or Separate Trustee..............136
Section 8.11 Limitation of Liability....................................138
Section 8.12 Trustee May Enforce Claims Without Possession of
Certificates...............................................138
Section 8.13 Suits for Enforcement......................................138
Section 8.14 Waiver of Bond Requirement.................................138
Section 8.15 Waiver of Inventory, Accounting and Appraisal Requirement..139
ARTICLE IX REMIC AND GRANTOR TRUST ADMINISTRATION 139
Section 9.01 REMIC Administration.......................................139
Section 9.02 Prohibited Transactions and Activities.....................141
Section 9.03 Indemnification with Respect to Certain Taxes and Loss of
REMIC Status...............................................141
Section 9.04 REO Property...............................................142
Section 9.05 Grantor Trust Administration...............................143
ARTICLE X TERMINATION 143
Section 10.01 Termination...............................................143
Section 10.02 Additional Termination Requirements.......................145
ARTICLE XI MISCELLANEOUS PROVISIONS 146
Section 11.01 Amendment.................................................146
Section 11.02 Recordation of Agreement; Counterparts....................147
Section 11.03 Limitation on Rights of Certificateholders................147
Section 11.04 Governing Law; Jurisdiction...............................148
Section 11.05 Notices...................................................148
Section 11.06 Severability of Provisions................................149
Section 11.07 Article and Section References............................149
Section 11.08 Notice to the Rating Agencies and the NIMS Insurer........149
Section 11.09 Further Assurances........................................150
Section 11.10 Third Party Beneficiary...................................150
Section 11.11 Acts of Certificateholders................................150
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EXHIBITS:
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2A Certificate
Exhibit A-3 Form of Class A-2B Certificate
Exhibit A-4 Form of Class A-2C Certificate
Exhibit B-1 Form of Class M-1 Certificate
Exhibit B-2 Form of Class M-2 Certificate
Exhibit B-3 Form of Class M-3 Certificate
Exhibit B-4 Form of Class M-4 Certificate
Exhibit B-5 Form of Class M-5 Certificate
Exhibit B-6 Form of Class M-6 Certificate
Exhibit B-7 Form of Class M-7 Certificate
Exhibit B-8 Form of Class M-8 Certificate
Exhibit B-9 Form of Class M-9 Certificate
Exhibit B-10 Form of Class M-10 Certificate
Exhibit B-11 Form of Class B Certificate
Exhibit C-1 Form of Class CE Certificate
Exhibit C-2 Form of Class P Certificate
Exhibit C-3 Form of Class R Certificate
Exhibit D-1 Group 1 Mortgage Loan Schedule
Exhibit D-2 Group 2 Mortgage Loan Schedule
Exhibit E Form of Request for Release of Documents
Exhibit F-1 Form of Trustee's Initial Certification
Exhibit F-2 Form of Trustee's Final Certification
Exhibit F-3 Form of Receipt of Mortgage Note
Exhibit G Mortgage Loan Purchase Agreement
Exhibit H Form of Lost Note Affidavit
Exhibit I Form of ERISA Representation
Exhibit J Form of Investment Letter
Exhibit K Form of Class R Certificate Transfer Affidavit
Exhibit L Form of Transferor Certificate
Exhibit M Monthly Information Delivered by Servicer
Exhibit N-1 Form of Yield Maintenance Agreement relating to the Class
A-1 Certificates
Exhibit N-2 Form of Yield Maintenance Agreement relating to the Class
A-2A, Class A-2B and Class A-2C Certificates
Exhibit N-3 Form of Yield Maintenance Agreement relating to the Class M
and Class B Certificates
Exhibit O Form of Certification
Exhibit P-1 Form of Certification to be Provided by the Trustee to the
Depositor
Exhibit P-2 Form of Certification to be Provided by the Servicer to the
Depositor
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ASSET BACKED FUNDING CORPORATION, as depositor (the "Depositor"), HOMEQ
SERVICING CORPORATION, as servicer (the "Servicer"), and JPMORGAN CHASE BANK,
N.A., as trustee (the "Trustee"), are entering into this Pooling and Servicing
Agreement, dated as of April 1, 2005 (the "Agreement").
PRELIMINARY STATEMENT
The Depositor intends to sell pass-through certificates (collectively,
the "Certificates"), to be issued hereunder in multiple Classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of eighteen Classes of
Certificates, designated as (i) the Class A-1, Class A-2A, Class A-2B and Class
A-2C Certificates, (ii) the Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Certificates,
(iii) the Class B Certificates, (iv) the Class CE Certificates, (v) the Class P
Certificates and (vi) the Class R Certificate.
REMIC 1
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement (but exclusive of the Yield Maintenance
Agreements, the Reserve Accounts, the Cap Carryover Amounts, the Originator
Prepayment Charge Payment Amounts and the Servicer Prepayment Charge Payment
Amounts) as a real estate investment conduit (a "REMIC") for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC 1."
The Class R-1 Interest will represent the sole class of "residual interests" in
REMIC 1 for purposes of the REMIC Provisions. The following table irrevocably
sets forth the designation, the Uncertificated REMIC 1 Pass-Through Rate, the
initial Uncertificated Principal Balance, and solely for purposes of satisfying
Treasury Regulations Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each of the REMIC 1 Regular Interests. None of the REMIC 1 Regular
Interests will be certificated.
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Uncertificated Initial
REMIC Pass-Through Uncertificated Latest Possible
Designation Rate Balance Maturity Date (1)
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LT1AA Variable(2) 377,854,812.87 May 25, 2035
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LT1A1 Variable(2) 1,470,560.00 May 25, 2035
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LT1A2A Variable(2) 559,225.00 May 25, 2035
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LT1A2B Variable(2) 952,380.00 May 25, 2035
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LT1A2C Variable(2) 127,425.00 May 25, 2035
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LT1M1 Variable(2) 192,780.00 May 25, 2035
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LT1M2 Variable(2) 144,590.00 May 25, 2035
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LT1M3 Variable(2) 50,125.00 May 25, 2035
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LT1M4 Variable(2) 82,895.00 May 25, 2035
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LT1M5 Variable(2) 52,050.00 May 25, 2035
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LT1M6 Variable(2) 34,700.00 May 25, 2035
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LT1M7 Variable(2) 55,910.00 May 25, 2035
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LT1M8 Variable(2) 19,275.00 May 25, 2035
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LT1M9 Variable(2) 34,705.00 May 25, 2035
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LT1M10 Variable(2) 25,060.00 May 25, 2035
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LT1B Variable(2) 32,775.00 May 25, 2035
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LT1ZZ Variable(2) 3,876,867.71 May 25, 2035
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LT1SUB Variable(2) 7,056.50 May 25, 2035
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LT1GRP Variable(2) 36,467.70 May 25, 2035
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LT2SUB Variable(2) 7,864.94 May 25, 2035
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LT2GRP Variable(2) 40,645.54 May 25, 2035
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LT1XX Variable(2) 385,474,100.91 May 25, 2035
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LT1P Variable(2) 100.00 May 25, 2035
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(1) Solely for purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the Distribution Date in the month 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.
The foregoing REMIC structure is intended to cause all the cash from
the Mortgage Loans to flow through REMIC 2 as cash flow on a Regular
Certificate, without creating any shortfall, actual or potential (other than for
losses), to any REMIC Regular Certificate. To the extent that the structure is
believed to diverge from such intention, the party identifying such ambiguity or
drafting error shall notify the other parties hereto, and the parties hereto
shall attempt to resolve such ambiguity or drafting error in accordance with
Section 11.01 herein.
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REMIC 2
As provided herein, the Trustee shall make an election 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 will be
designated as "REMIC 2." The Class R-2 Interest represents the sole class of
"residual interests" in REMIC 2 for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate and Original Class Certificate Principal Balance for
each Class of Certificates comprising the interests in the Trust Fund created
hereunder:
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Original Class
Certificate Certificate Assumed Final
Class Principal Balance Interest Rate Maturity Dates (18)
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A-1 $294,112,000 (1) March 25, 2035
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A-2A $111,845,000 (2) March 25, 2023
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A-2B $190,476,000 (3) February 25, 2034
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A-2C $25,485,000 (4) March 25, 2035
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M-1 $38,556,000 (5) February 25, 2035
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M-2 $28,918,000 (6) January 25, 2035
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M-3 $10,025,000 (7) January 25, 2035
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M-4 $16,579,000 (8) December 25, 2034
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M-5 $10,410,000 (9) November 25, 2034
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M-6 $ 6,940,000 (10) October 25, 2034
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M-7 $11,182,000 (11) September 25, 2034
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M-8 $ 3,855,000 (12) June 25, 2034
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M-9 $ 6,941,000 (13) May 25, 2034
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M-10 $ 5,012,000 (14) November 25, 2033
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B $ 6,555,000 (15) March 25, 2033
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CE (16) (16) N/A
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P(17) $100.00 ▇/▇ ▇/▇
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▇ ▇/▇ ▇/▇ ▇/▇
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(1) Interest will accrue on the Class A-1 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class A-1
Pass-Through Rate and (ii) the Group 1 Cap for such Distribution Date.
(2) Interest will accrue on the Class A-2A Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class A-2A
Pass-Through Rate and (ii) the Group 2 Cap for such Distribution Date.
(3) Interest will accrue on the Class A-2B Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class A-2B
Pass-Through Rate and (ii) the Group 2 Cap for such Distribution Date.
(4) Interest will accrue on the Class A-2C Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class A-2C
Pass-Through Rate and (ii) the Group 2 Cap for such Distribution Date.
(5) Interest will accrue on the Class M-1 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-1
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(6) Interest will accrue on the Class M-2 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-2
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(7) Interest will accrue on the Class M-3 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-3
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(8) Interest will accrue on the Class M-4 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-4
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
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(9) Interest will accrue on the Class M-5 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-5
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(10) Interest will accrue on the Class M-6 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-6
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(11) Interest will accrue on the Class M-7 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-7
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(12) Interest will accrue on the Class M-8 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-8
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(13) Interest will accrue on the Class M-9 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-9
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(14) Interest will accrue on the Class M-10 Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class M-10
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(15) Interest will accrue on the Class B Certificates during each Interest
Accrual Period at a rate equal to the lesser of: (i) the Class B
Pass-Through Rate and (ii) the Pool Cap for such Distribution Date.
(16) Solely for REMIC purposes, the Class CE Certificates (i) will have an
Original Class Certificate Principal Balance equal to the Initial
Overcollateralization Amount and (ii) will bear interest at its
Pass-Through Rate on the Notional Amount of the Class CE Certificates.
(17) The Class P Certificate will not bear interest.
(18) Solely for purposes of Treasury Regulations Section 1.860G-1(a)(4)(iii),
May 25, 2035, which is the Distribution Date in the month 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.
As of the Cut-off Date, the Group 1 Mortgage Loans had an aggregate
scheduled Principal Balance equal to $364,677,019.09 and the Group 2 Mortgage
Loans had an aggregate scheduled Principal Balance equal to $406,455,352.07.
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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. Interest on all Classes of REMIC 1
Regular Interests will be calculated on the basis of a 360-day year consisting
of twelve 30-day months. Interest on all Regular Certificates will be calculated
on the basis of the actual number of days in the related Interest Accrual Period
and a 360-day year.
"1933 Act": The Securities Act of 1933, as amended.
"60+ Day Delinquent Loan": Each Mortgage Loan (including each
Mortgage Loan in foreclosure and each Mortgage Loan for which the Mortgagor has
filed for bankruptcy after the Closing Date) with respect to which any portion
of a Monthly Payment is, as of the last day of the prior Collection Period, two
months or more past due and each Mortgage Loan relating to an REO Property.
"Account": Any of the Collection Account, the Distribution Account,
the Class A-1 Reserve Account, the Class A-2A, Class A-2B and Class A-2C Reserve
Account, the Class M and Class B Reserve Account or the Escrow Account.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Class A, Class M and Class B Certificates, an amount
equal to the interest accrued at the Certificate Interest Rate described
opposite such Class in the table in the Preliminary Statement during the related
Interest Accrual Period on the Certificate Principal Balance of such Class of
Certificates, reduced by such Class' Interest Percentage of Prepayment Interest
Shortfalls (not covered by Compensating Interest) and Relief Act Interest
Shortfalls for such Distribution Date allocated to such class pursuant to
Section 4.01.
"Adjustable-Rate Mortgage Loan": A Mortgage Loan which has a rate at
which interest accrues that adjusts based on the Index plus a related Gross
Margin, as set forth and subject to the limitations in the related Mortgage
Note.
"Adjustment Date": With respect to each Adjustable-Rate Mortgage
Loan, each adjustment date on which the Mortgage Interest Rate of such
Adjustable-Rate 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 Schedules.
"Advance": As to any Mortgage Loan, any advance made by the Servicer
in respect of any Distribution Date pursuant to Section 4.07.
"Adverse REMIC Event": As defined in Section 9.01(f) hereof.
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"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.
"Aggregate Overcollateralization Release Amount": With respect to
any Distribution Date, the lesser of (i) the Principal Remittance Amount and
(ii) the Overcollateralization Release Amount.
"Agreement": This Pooling and Servicing Agreement and all amendments
and supplements hereto.
"Applicable Regulations": As to any Mortgage Loan, all federal,
state and local laws, statutes, rules and regulations applicable thereto.
"Applied Realized Loss Amount": With respect to each Distribution
Date, the excess, if any, of (a) the aggregate of the Certificate Principal
Balances of the Class A, Class M, Class B and Class P Certificates (after giving
effect to the distribution of the Principal Distribution Amount on such
Distribution Date and any increase in any Certificate Principal Balance as a
result of Subsequent Recoveries) over (b) the Pool Balance as of the end of the
related Collection Period.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws of
the jurisdiction wherein the related Mortgaged Property is located to reflect or
record the sale of the Mortgage.
"Assignment, Assumption and Recognition Agreement": The Assignment,
Assumption and Recognition Agreement, dated April 28, 2005, among the Depositor,
the Seller and the Originator.
"Assumed Final Maturity Date": As to each Class of Certificates, the
date set forth as such in the Preliminary Statement.
"Available Funds": As to any Distribution Date, an amount equal to
the excess of (i) the sum of (a) the aggregate of the Monthly Payments due
during the related Collection Period and received on or prior to the related
Determination Date by the Servicer, (b) Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds, Principal Prepayments, Substitution
Adjustments, the Purchase Price for any repurchased Mortgage Loan, the
Termination Price with respect to the termination of the Trust pursuant to
Section 10.01 hereof and other unscheduled recoveries of principal and interest
(excluding Prepayment Charges, Originator Prepayment Charge Payment Amounts,
Servicer Prepayment Charge Payment Amounts and Prepayment Interest Excess) in
respect of the Mortgage Loans during the related Prepayment Period, (c) the
aggregate of any amounts received in respect of an REO Property deposited in the
Collection Account for such Distribution Date, (d) any Compensating Interest for
such Distribution Date, (e) the aggregate of any Advances made by the Servicer
for such Distribution Date and (f) any Reimbursement Amount or Subsequent
Recovery deposited into the Collection Account during the related Prepayment
Period over (ii) the sum of (a) amounts reimbursable or payable to the
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Servicer pursuant to Sections 3.05 or 6.03, (b) amounts reimbursable or payable
to the Trustee pursuant to Section 8.05 or Section 9.01(c), (c) Stayed Funds,
(d) the Servicing Fee and (e) amounts deposited in the Collection Account or the
Distribution Account, as the case may be, in error.
"Balloon Mortgage Loan": Each of the Mortgage Loans having an
original term to maturity that is shorter than the related amortization term.
"Bankruptcy Code": Title 11 of the United States Code, as amended.
"Book-Entry Certificates": Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of which
is reflected on the books of the Depository or on the books of a Person
maintaining an account with the Depository (directly, as a "Depository
Participant," or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.02 hereof). On the Closing
Date, the Class ▇-▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, Class A-2C, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class M-10 and Class B Certificates shall be Book-Entry Certificates.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of New York, the State of California,
the State of New Jersey, the city in which the offices of the Servicer are
located or 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": Any of the Group 1 Cap, the Group 2 Cap or the Pool Cap.
"Cap Carryover Amount": If on any Distribution Date, the Accrued
Certificate Interest for any Class of Class A, Class M or Class B Certificates
is based upon a Cap, the excess of (i) the amount of interest such Class of
Certificates would have been entitled to receive on such Distribution Date based
on the related Pass-Through Rate, over (ii) the amount of interest such Class of
Certificates received on such Distribution Date based on the related Cap,
together with the unpaid portion of any such excess from prior Distribution
Dates (and interest accrued thereon at the then applicable Pass-Through Rate on
such Class of Certificates).
"Certificate": Any Regular Certificate or Class R Certificate.
"Certificate Custodian": Initially, JPMorgan Chase Bank, N.A.;
thereafter any other Certificate Custodian acceptable to the Depository and
selected by the Trustee.
"Certificate Interest Rate": With respect to each Distribution Date
during the Interest Accrual Period and (a) each Class of Class A, Class M and
Class B Certificates, a per annum rate equal to the lesser of (i) the related
Pass-Through Rate and (ii) the applicable Cap for such Distribution Date and (b)
the Class CE Certificates, the related Pass-Through Rate.
"Certificate Owner": With respect to each Book-Entry Certificate,
any beneficial owner thereof.
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"Certificate Principal Balance": With respect to any Class of
Certificates (other than the Class CE and Class R Certificates) and any
Distribution Date, the Original Class Certificate Principal Balance (a) reduced
by the sum of (i) all amounts actually distributed in respect of principal of
such Class on all prior Distribution Dates and (ii) Applied Realized Loss
Amounts allocated thereto for previous Distribution Dates and (b) increased by
any Subsequent Recoveries allocated to such Class for previous Distribution
Dates. The Class R Certificates do not have a Certificate Principal Balance.
With respect to the Class CE Certificate and any Distribution Date, the excess,
if any, of the then aggregate Uncertificated Principal Balances of the REMIC 1
Regular Interests over the aggregate Certificate Principal Balance of the Class
A Certificates, the Class M Certificates, the Class B Certificates and the Class
P Certificates then outstanding. With respect to any Certificate (other than a
Class R Certificate) of a Class and any Distribution Date, the portion of the
Certificate Principal Balance of such Class represented by such Certificate
equal to the product of the Percentage Interest evidenced by such Certificate
and the Certificate Principal Balance of such Class.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02 hereof.
"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 the Class
R Certificate for any purpose hereof.
"Certification": As defined in Section 3.31(b) hereof.
"Class": Collectively, Certificates or REMIC 1 Regular Interests
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 Certificate": Any one of the Certificates with an "A"
designated on the face thereof substantially in the form annexed hereto as
Exhibits ▇-▇, ▇-▇, ▇-▇ and A-4, executed by the Trustee on behalf of the Trust
and authenticated and delivered by the Certificate Registrar, representing the
right to distributions as set forth herein and therein and representing a
regular interest in REMIC 2 for purposes of the REMIC Provisions.
"Class A Certificateholders": Collectively, the Holders of the Class
A Certificates.
"Class A-1 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.220% per annum, and (ii) following the
Optional Termination Date, 0.440% per annum.
"Class A-1 Pass-Through Rate": For each Distribution Date, a rate
per annum equal to the lesser of (a) One-Month LIBOR as of the related LIBOR
Determination Date, plus the Class A-1 Certificate Margin and (b) the Group 1
Maximum Rate Cap.
"Class A-1 Reserve Account": The trust account created and
maintained by the Trustee pursuant to Section 3.04(g) which shall be entitled
"Class A-1 Reserve Account, JPMorgan Chase Bank, N.A., as Trustee, in trust for
registered Holders of the Class A-1
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Certificates of the First Franklin Mortgage Loan Trust 2005-FF5 Trust,
Asset-Backed Certificates, Series 2005-FF5" and which must be an Eligible
Account. Amounts on deposit in the Class A-1 Reserve Account shall not be
invested. The Class A-1 Reserve Account shall not be an asset of any REMIC
formed under this Agreement.
"Class A-1 Yield Maintenance Agreement": The interest rate cap
agreement between the Trustee, on behalf of the Trust, and the Yield Maintenance
Agreement Provider substantially in the form attached hereto as Exhibit N-1. The
Class A-1 Yield Maintenance Agreement shall not be an asset of any REMIC formed
under this Agreement.
"Class A-1 Yield Maintenance Agreement Payment": On each
Distribution Date through the Distribution Date in September 2008, the amount
equal to the product of (a) the excess of the lesser of (i) One-Month LIBOR and
(ii) the applicable ceiling rate over the applicable strike rate for such
Distribution Date, in each case as set forth on the schedule attached to the
confirmation to the Class A-1 Yield Maintenance Agreement for such Distribution
Date, (b) the lesser of (y) the cap notional amount as set forth on the schedule
attached to the confirmation to the Class A-1 Yield Maintenance Agreement for
such Distribution Date and (z) the aggregate principal balance of the Class A-1
Certificates immediately prior to such Distribution Date and (c) a fraction, the
numerator of which is the actual number of days elapsed since the previous
Distribution Date (or the Closing Date, in the case of the first Distribution
Date) to but excluding the current Distribution Date and the denominator of
which is 360.
"Class A-2A Certificate Margin": For each Distribution Date (i) on
or prior to the Optional Termination Date, 0.080% per annum, and (ii) following
the Optional Termination Date, 0.160% per annum.
"Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇▇": With respect to
each Distribution Date and each Class of Class A-2A, Class A-2B and Class A-2C
Certificates with unpaid Cap Carryover Amounts, the product of (i) the Class
▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement Payment for such
Distribution Date and (ii) a fraction, the numerator of which is the Certificate
Principal Balance of such Class immediately prior to such Distribution Date and
the denominator of which is the aggregate Certificate Principal Balance of the
Class A-2A, Class A-2B and Class A-2C Certificates immediately prior to such
Distribution Date.
"Class A-2A, Class A-2B and Class A-2C Reserve Account": The trust
account created and maintained by the Trustee pursuant to Section 3.04(g) which
shall be entitled "Class A-2A, Class A-2B and Class A-2C Reserve Account,
JPMorgan Chase Bank, N.A., as Trustee, in trust for registered Holders of the
Class A-2A, Class A-2B and Class A-2C Certificates of the First Franklin
Mortgage Loan Trust 2005-FF5 Trust, Asset-Backed Certificates, Series 2005-FF5"
and which must be an Eligible Account. Amounts on deposit in the Class A-2A,
Class A-2B and Class A-2C Reserve Account shall not be invested. The Class A-2A,
Class A-2B and Class A-2C Reserve Account shall not be an asset of any REMIC
formed under this Agreement.
"Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement":
The interest rate cap agreement between the Trustee, on behalf of the Trust, and
the Yield
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Maintenance Agreement Provider substantially in the form attached hereto as
Exhibit N-2. The Class A-2A, Class A-2B and Class A-2C Yield Maintenance
Agreement shall not be an asset of any REMIC formed under this Agreement.
"Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement
Payment": On each Distribution Date through the Distribution Date in September
2008, the amount equal to the product of (a) the excess of the lesser of (i)
One-Month LIBOR and (ii) the applicable ceiling rate over the applicable strike
rate for such Distribution Date, in each case as set forth on the schedule
attached to the confirmation to the Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Agreement for such Distribution Date, (b) the lesser of (y) the cap
notional amount as set forth on the schedule attached to the confirmation to the
Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement for such
Distribution Date and (z) the aggregate principal balance of the related
Certificates immediately prior to such Distribution Date and (c) a fraction, the
numerator of which is the actual number of days elapsed since the previous
Distribution Date (or the Closing Date, in the case of the first Distribution
Date) to but excluding the current Distribution Date and the denominator of
which is 360.
"Class A-2A Pass-Through Rate": For each Distribution Date, a rate
per annum equal to the lesser of (a) One-Month LIBOR as of the related LIBOR
Determination Date, plus the Class A-2A Certificate Margin and (b) the Group 2
Maximum Rate Cap.
"Class A-2B Certificate Margin": For each Distribution Date (i) on
or prior to the Optional Termination Date, 0.230% per annum, and (ii) following
the Optional Termination Date, 0.460% per annum.
"Class A-2B Pass-Through Rate": For each Distribution Date, a rate
per annum equal to the lesser of (a) One-Month LIBOR as of the related LIBOR
Determination Date, plus the Class A-2B Certificate Margin and (b) the Group 2
Maximum Rate Cap.
"Class A-2C Certificate Margin": For each Distribution Date (i) on
or prior to the Optional Termination Date, 0.350% per annum, and (ii) following
the Optional Termination Date, 0.700% per annum.
"Class A-2C Pass-Through Rate": For each Distribution Date, a rate
per annum equal to the lesser of (a) One-Month LIBOR as of the related LIBOR
Determination Date, plus the Class A-2C Certificate Margin and (b) the Group 2
Maximum Rate Cap.
"Class B Certificate": Any of the Certificates with a "B" designated
on the face thereof substantially in the form annexed hereto as Exhibit B-11
executed by the Trustee on behalf of the Trust and authenticated and delivered
by the Certificate Registrar, representing the right to distributions as set
forth herein and therein.
"Class B Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 3.500% per annum, and (ii) following the
Optional Termination Date, 5.250% per annum.
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"Class B Pass-Through Rate": For each Distribution Date, the lesser
of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus the
Class B Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class B Principal Distribution Amount": As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment 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
payment 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 payment 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 payment 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
payment 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 payment 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 payment 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 payment 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 payment 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 payment 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 payment of the Class M-10 Principal Distribution Amount on such
Distribution Date) and (xii) the Certificate Principal Balance of the Class B
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) 98.90% and (ii) the Pool Balance as of the last day of
the related Collection Period and (B) the Pool Balance as of the last day of the
related Collection Period minus the product of 0.50% and the Pool Balance as of
the Cut-off Date.
"Class B Realized Loss Amortization Amount": As to the Class B
Certificates and as of any Distribution Date, the lesser of (x) the aggregate
Unpaid Realized Loss Amount for the Class B Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the
sum of the amounts described in Section 4.02(b)(i) through (xxxiv) hereof, in
each case for such Distribution Date.
"Class CE Certificates": Any one of the Class CE Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit C-1, executed by the Trustee on behalf of the Trust and authenticated
and delivered by the Certificate Registrar, representing the right to
distributions as set forth herein and therein and representing a regular
interest in REMIC 2 for purposes of the REMIC Provisions.
"Class CE Distributable Amount": With respect to any Distribution
Date, the sum of (i) the interest accrued on such Class CE Certificate at its
Pass-Through Rate calculated
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on its Notional Amount less the amount (without duplication) of Cap Carryover
Amounts paid pursuant to Section 4.02(b)(xxxvi), (ii) any remaining Aggregate
Overcollateralization Release Amounts, (iii) the aggregate of amounts remaining
in the Class A-1 Reserve Account after the distributions in Section
3.04(g)(i)(A), as specified in Section 3.04(g)(i)(D), (iv) the aggregate of
amounts remaining in the Class A-2A, Class A-2B and Class A-2C Reserve Account
after the distributions in Section 3.04(g)(i)(B), as specified in Section
3.04(g)(i)(D) and (v) the aggregate of amounts remaining in the Class M and
Class B Reserve Account after the distributions in Section 3.04(g)(i)(C), as
specified in Section 3.04(g)(i)(D).
"Class M Certificate": Any one of the Certificates with an "M"
designated on the face thereof substantially in the form annexed hereto as
Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇,
Exhibit B-7, Exhibit B-8, Exhibit B-9 and Exhibit B-10, executed by the Trustee
on behalf of the Trust and authenticated and delivered by the Certificate
Registrar, representing the right to distributions as set forth herein and
therein and representing a regular interest in REMIC 2 for purposes of the REMIC
Provisions.
"Class M Certificateholders": Collectively, the Holders of the Class
M Certificates.
"Class M-1 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.450% per annum, and (ii) following the
Optional Termination Date, 0.675% per annum.
"Class M-1 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-1 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-1 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment of
the Senior Principal Distribution Amount on such Distribution Date) and (ii) the
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) 71.30% and
(ii) the Pool Balance as of the last day of the related Collection Period and
(B) the Pool Balance as of the last day of the related Collection Period minus
the product of 0.50% and the Pool Balance as of the Cut-off Date.
"Class M-1 Realized Loss Amortization Amount": As to the Class M-1
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-1 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (iv) hereof, in each case
for such Distribution Date.
"Class M-2 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.490% per annum, and (ii) following the
Optional Termination Date, 0.735% per annum.
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"Class M-2 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-2 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-2 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment 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 payment 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) 78.80% and (ii) the Pool Balance as of the last day of
the related Collection Period and (B) the Pool Balance as of the last day of the
related Collection Period minus the product of 0.50% and the Pool Balance as of
the Cut-off Date.
"Class M-2 Realized Loss Amortization Amount": As to the Class M-2
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-2 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (vii) hereof, in each
case for such Distribution Date.
"Class M-3 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.520% per annum, and (ii) following the
Optional Termination Date, 0.780% per annum.
"Class M-3 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-3 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-3 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment 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 payment 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 payment 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) 81.40% and (ii)
the Pool Balance as of the last day of the related Collection Period and (B) the
Pool Balance as of the last day of the related Collection Period minus the
product of 0.50% and the Pool Balance as of the Cut-off Date.
"Class M-3 Realized Loss Amortization Amount": As to the Class M-3
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-3 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (x) hereof, in each case
for such Distribution Date.
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"Class M-4 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.650% per annum, and (ii) following the
Optional Termination Date, 0.975% per annum.
"Class M-4 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-4 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-4 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment 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 payment 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 payment 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 payment 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)
85.70% and (ii) the Pool Balance as of the last day of the related Collection
Period and (B) the Pool Balance as of the last day of the related Collection
Period minus the product of 0.50% and the Pool Balance as of the Cut-off Date.
"Class M-4 Realized Loss Amortization Amount": As to the Class M-4
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-4 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (xiii) hereof, in each
case for such Distribution Date.
"Class M-5 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.800% per annum, and (ii) following the
Optional Termination Date, 1.200% per annum.
"Class M-5 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-5 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-5 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment 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 payment 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 payment 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 payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), (v) the
Certificate Principal
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Balance of the Class M-4 Certificates (after taking into account the payment 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)
88.40% and (ii) the Pool Balance as of the last day of the related Collection
Period and (B) the Pool Balance as of the last day of the related Collection
Period minus the product of 0.50% and the Pool Balance as of the Cut-off Date.
"Class M-5 Realized Loss Amortization Amount": As to the Class M-5
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-5 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (xvi) hereof, in each
case for such Distribution Date.
"Class M-6 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 1.250% per annum, and (ii) following the
Optional Termination Date, 1.875% per annum.
"Class M-6 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-6 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-6 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment 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 payment 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 payment 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 payment 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 payment 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 payment of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (vii) the Certificate
Principal Balance of the Class M-6 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 90.20% and (ii)
the Pool Balance as of the last day of the related Collection Period and (B) the
Pool Balance as of the last day of the related Collection Period minus the
product of 0.50% and the Pool Balance as of the Cut-off Date.
"Class M-6 Realized Loss Amortization Amount": As to the Class M-6
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-6 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (xix) hereof, in each
case for such Distribution Date.
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"Class M-7 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 1.750% per annum, and (ii) following the
Optional Termination Date, 2.625% per annum.
"Class M-7 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-7 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-7 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment 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 payment 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 payment 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 payment 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 payment 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 payment 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 payment 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) 93.10% and (ii) the Pool Balance as of the last day of the
related Collection Period and (B) the Pool Balance as of the last day of the
related Collection Period minus the product of 0.50% and the Pool Balance as of
the Cut-off Date.
"Class M-7 Realized Loss Amortization Amount": As to the Class M-7
Certificates and as of any Distribution Date, the lesser of (x) the aggregate
Unpaid Realized Loss Amount for the Class M-7 Certificates as of such
Distribution Date and (y) the excess of (i) the Monthly Excess Cashflow Amount
over (ii) the sum of the amounts described in Section 4.02(b)(i) through (xxii)
hereof, in each case for such Distribution Date.
"Class M-8 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 3.000% per annum, and (ii) following the
Optional Termination Date, 4.500% per annum.
"Class M-8 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-8 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-8 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment of
the Senior Principal Distribution Amount on such Distribution Date),
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(ii) the Certificate Principal Balance of the Class M-1 Certificates (after
taking into account the payment 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 payment 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
payment 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 payment 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 payment 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
payment 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 payment of the Class M-7 Principal Distribution
Amount on such Distribution Date) and (ix) the Certificate Principal Balance of
the Class M-8 Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) 94.10% and (ii) the Pool Balance as of the
last day of the related Collection Period and (B) the Pool Balance as of the
last day of the related Collection Period minus the product of 0.50% and the
Pool Balance as of the Cut-off Date.
"Class M-8 Realized Loss Amortization Amount": As to the Class M-8
Certificates and as of any Distribution Date, the lesser of (x) the aggregate
Unpaid Realized Loss Amount for the Class M-8 Certificates as of such
Distribution Date and (y) the excess of (i) the Monthly Excess Cashflow Amount
over (ii) the sum of the amounts described in Section 4.02(b)(i) through (xxv)
hereof, in each case for such Distribution Date.
"Class M-9 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 3.500% per annum, and (ii) following the
Optional Termination Date, 5.250% per annum.
"Class M-9 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-9 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-9 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment 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 payment 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 payment 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 payment 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 payment 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 payment of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the
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Class M-6 Certificates (after taking into account the payment 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
payment 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 payment 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) 95.90% and (ii) the Pool Balance as of the
last day of the related Collection Period and (B) the Pool Balance as of the
last day of the related Collection Period minus the product of 0.50% and the
Pool Balance as of the Cut-off Date.
"Class M-9 Realized Loss Amortization Amount": As to the Class M-9
Certificates and as of any Distribution Date, the lesser of (x) the aggregate
Unpaid Realized Loss Amount for the Class M-9 Certificates as of such
Distribution Date and (y) the excess of (i) the Monthly Excess Cashflow Amount
over (ii) the sum of the amounts described in Section 4.02(b)(i) through
(xxviii) hereof, in each case for such Distribution Date.
"Class M-10 Certificate Margin": For each Distribution Date (i) on
or prior to the Optional Termination Date, 3.500% per annum, and (ii) following
the Optional Termination Date, 5.250% per annum.
"Class M-10 Pass-Through Rate": For each Distribution Date, the
lesser of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus
the Class M-10 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-10 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the sum of the Certificate Principal
Balances of the Class A Certificates (after taking into account the payment 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 payment 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 payment 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 payment 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 payment 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 payment 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 payment 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 payment 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 payment 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 payment of
the Class M-9 Principal Distribution Amount on such Distribution Date) and (xi)
the Certificate Principal Balance of the
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Class M-10 Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) 97.20% and (ii) the Pool Balance as of the last
day of the related Collection Period and (B) the Pool Balance as of the last day
of the related Collection Period minus the product of 0.50% and the Pool Balance
as of the Cut-off Date.
"Class M-10 Realized Loss Amortization Amount": As to the Class M-10
Certificates and as of any Distribution Date, the lesser of (x) the aggregate
Unpaid Realized Loss Amount for the Class M-10 Certificates as of such
Distribution Date and (y) the excess of (i) the Monthly Excess Cashflow Amount
over (ii) the sum of the amounts described in Section 4.02(b)(i) through (xxxi)
hereof, in each case for such Distribution Date.
"Class M and Class B Cap Amount": With respect to each Distribution
Date and each Class of Class M and the Class B Certificates, the product of (i)
the Class M and Class B Yield Maintenance Agreement Payment for such
Distribution Date and (ii) a fraction, the numerator of which is the Certificate
Principal Balance of such Class immediately prior to such Distribution Date and
the denominator of which is the aggregate Certificate Principal Balance of the
Class M and Class B Certificates immediately prior to such Distribution Date.
"Class M and Class B Reserve Account": The trust account created
and maintained by the Trustee pursuant to Section 3.04(g) which shall be
entitled "Class M and Class B Reserve Account, JPMorgan Chase Bank, N.A., as
Trustee, in trust for registered Holders of the Class M and Class B Certificates
of the First Franklin Mortgage Loan Trust 2005-FF5 Trust, Asset-Backed
Certificates, Series 2005-FF5" and which must be an Eligible Account. Amounts on
deposit in the Class M and Class B Reserve Account shall not be invested. The
Class M and Class B Reserve Account shall not be an asset of any REMIC formed
under this Agreement.
"Class M and Class B Yield Maintenance Agreement": The interest rate
cap agreement between the Trustee, on behalf of the Trust, and the Yield
Maintenance Agreement Provider substantially in the form attached hereto as
Exhibit N-3. The Class M and Class B Yield Maintenance Agreement shall not be an
asset of any REMIC formed under this Agreement.
"Class M and Class B Yield Maintenance Agreement Payment": On each
Distribution Date through the Distribution Date in September 2008, the amount
equal to the product of (a) the excess of the lesser of (i) One-Month LIBOR and
(ii) the applicable ceiling rate over the applicable strike rate for such
Distribution Date, in each case as set forth on the schedule attached to the
confirmation to the Class M and Class B Yield Maintenance Agreement for such
Distribution Date, (b) the lesser of (y) the cap notional amount as set forth on
the schedule attached to the confirmation to the Class M and Class B Yield
Maintenance Agreement for such Distribution Date and (z) the aggregate principal
balance of the related Certificates immediately prior to such Distribution Date
and (c) a fraction, the numerator of which is the actual number of days elapsed
since the previous Distribution Date (or the Closing Date, in the case of the
first Distribution Date) to but excluding the current Distribution Date and the
denominator of which is 360.
"Class P Certificate": Any one of the Certificates with a "P"
designated on the face thereof substantially in the form annexed hereto as
Exhibit C-2, executed by the Trustee on
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behalf of the Trust and authenticated and delivered by the Certificate
Registrar, representing the right to distributions as set forth herein and
therein and representing a regular interest in REMIC 2 for purposes of the REMIC
Provisions.
"Class R Certificate": The Class R Certificate executed by the
Trustee on behalf of the Trust, and authenticated and delivered by the
Certificate Registrar, substantially in the form annexed hereto as Exhibit C-3
and evidencing the ownership of the Residual Interest in each of REMIC 1 and
REMIC 2. The Class R Certificate represents the ownership of the Class R-1
Interest and the Class R-2 Interest.
"Class R-1 Interest": The uncertificated residual interest in REMIC
1 for purposes of the REMIC Provisions.
"Class R-2 Interest": The uncertificated residual interest in REMIC
2 for purposes of the REMIC Provisions.
"Closing Date": April 28, 2005.
"Code": The Internal Revenue Code of 1986, as it may be amended from
time to time.
"Collection Accounts": The account or accounts created and
maintained by the Servicer pursuant to Section 3.04, which shall be entitled
"Collection Account, HomEq Servicing Corporation, as Servicer for the Trust
under the Pooling and Servicing Agreement dated as of April 1, 2005, among Asset
Backed Funding Corporation, as Depositor, HomEq Servicing Corporation, as
Servicer, and JPMorgan Chase Bank, N.A., as Trustee, in trust for registered
Holders of First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, Series 2005-FF5."
"Collection Period": With respect to any Distribution Date, the
period from the second day of the calendar month preceding the month in which
such Distribution Date occurs through the first day of the month in which such
Distribution Date occurs.
"Compensating Interest": As defined in Section 3.23 hereof.
"Condemnation Proceeds": All awards or settlements in respect of a
taking of a Mortgaged Property by exercise of the power of eminent domain or
condemnation.
"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 (i) solely for purposes of
Certificate surrender, transfer or exchange, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Institutional Trust Services- First Franklin
Mortgage Loan Trust 2005-FF5, or (ii) for all other purposes, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Institutional Trust
Services/Global Debt--First Franklin Mortgage Loan Trust 2005-FF5 or at such
other address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor and the Servicer.
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"Corresponding Classes": With respect to REMIC 1 and REMIC 2, the
following Classes shall be Corresponding Classes:
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CORRESPONDING REMIC 1 CLASSES CORRESPONDING REMIC 2 CLASSES
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LT1A1 Class A-1 Certificates
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LT1A2A Class A-2A Certificates
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LT1A2B Class A-2B Certificates
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LT1A2C Class A-2C Certificates
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LT1M1 Class M-1 Certificates
--------------------------------------------------------------------------------
LT1M2 Class M-2 Certificates
--------------------------------------------------------------------------------
LT1M3 Class M-3 Certificates
--------------------------------------------------------------------------------
LT1M4 Class M-4 Certificates
--------------------------------------------------------------------------------
LT1M5 Class M-5 Certificates
--------------------------------------------------------------------------------
LT1M6 Class M-6 Certificates
--------------------------------------------------------------------------------
LT1M7 Class M-7 Certificates
--------------------------------------------------------------------------------
LT1M8 Class M-8 Certificates
--------------------------------------------------------------------------------
LT1M9 Class M-9 Certificates
--------------------------------------------------------------------------------
LT1M10 Class M-10 Certificates
--------------------------------------------------------------------------------
LT1B Class B Certificates
--------------------------------------------------------------------------------
LT1P Class P Certificate
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"Credit Risk Management Agreement": The Credit Risk Management
Agreement between the Servicer and the Credit Risk Manager dated as of April 28,
2005.
"Credit Risk Manager": The Murrayhill Company, a Colorado
corporation.
"Credit Risk Manager Fee": The fee payable to the Credit Risk
Manager on each Distribution Date for its services as Credit Risk Manager, in an
amount equal to the product of (i) one-twelfth of the Credit Risk Manager Fee
Rate and (ii) the Pool Balance as of the opening of business on the first day of
the related Collection Period.
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"Credit Risk Manager Fee Rate": With respect to any Distribution
Date, 0.015% per annum.
"Cut-off Date": April 1, 2005.
"Cut-off Date Aggregate Principal Balance": The aggregate of the
Cut-off Date Principal Balances of the Mortgage Loans.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the unpaid principal balance thereof as of the Cut-off Date after application of
funds received or advanced on or before such date (or as of the applicable date
of substitution with respect to an Eligible Substitute Mortgage Loan).
"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.
"Defective Mortgage Loan": A Mortgage Loan replaced or to be
replaced by one or more Eligible Substitute Mortgage Loans.
"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 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.
"Delinquent": Any Mortgage Loan with respect to which the Monthly
Payment due on a Due Date is not made by the close of business on the next
scheduled Due Date for such Mortgage Loan.
"Depositor": Asset Backed Funding Corporation, 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 Exchange Act. 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.
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"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 Trust other than through an
Independent Contractor; provided, however, that the Trustee (or the Servicer
under this Agreement) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Servicer under this Agreement)
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 possession of the United
States, 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) any other Person so designated by the Trustee
based upon an Opinion of Counsel provided by nationally recognized counsel to
the Trustee that the holding of an ownership interest in the Class R Certificate
by such Person may cause the Trust Fund or any Person having an ownership
interest in any Class of Certificates (other than such Person) to incur
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the transfer of an ownership interest in the Class R Certificate
to such Person. 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 organization" 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 3.04(b) which shall be entitled
"Distribution Account, JPMorgan Chase Bank, N.A., as Trustee, in trust for the
registered Holders of First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, Series 2005-FF5" and which must be an Eligible Account.
"Distribution Date": The 25th day of any calendar month, or if such
25th day is not a Business Day, the Business Day immediately following such 25th
day, commencing in May 2005.
"Distribution Date Statement": As defined in Section 4.06(a) hereof.
"Due Date": With respect to each Mortgage Loan and any Distribution
Date, the day of the calendar month in which such Distribution Date occurs on
which the Monthly Payment for such Mortgage Loan was due, exclusive of any grace
period.
-23-
"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 and "F-1+" by Fitch (or comparable ratings if S&P and Fitch
are not the Rating Agencies) by each of 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, (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.
"Eligible 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 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 agents 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 its
ultimate parent has a short-term uninsured debt rating in one of the two
highest available rating categories of S&P and the highest available
rating category of Fitch and provided that each such investment has an
original maturity of no more than 365 days 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
"A" or higher by S&P and "A+" or higher by Fitch, 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 or (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;
-24-
(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 each Rating Agency
in its highest long-term unsecured rating categories 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 each Rating Agency in its highest short-term
unsecured debt rating available at the time of such investment;
(vi) units of money market funds registered under the Investment
Company Act of 1940 (including funds managed or advised by the Trustee or
affiliates thereof) that, if rated by each Rating Agency, are rated in its
highest rating category (if so rated by such Rating Agency); and
(vii) if previously confirmed in writing to the Trustee and
consented to by the NIMS Insurer, 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 an eligible investment of
funds backing securities having ratings equivalent to its highest initial
rating of the Senior Certificates;
provided, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations.
"Eligible Substitute Mortgage Loan": A mortgage loan substituted for
a Defective Mortgage Loan pursuant to the terms of this Agreement which must, on
the date of such substitution, (i) have an outstanding 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 the outstanding principal
balance of the Defective Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) have a Mortgage Interest Rate, with
respect to a Fixed-Rate Mortgage Loan, not less than the Mortgage Interest Rate
of the Defective Mortgage Loan and not more than 2% in excess of the Mortgage
Interest Rate of such Defective Mortgage Loan, (iii) have the same Due Date as
the Defective Mortgage Loan, (iv) if an Adjustable-Rate Mortgage Loan, have a
Maximum Mortgage Interest Rate not less than the Maximum Mortgage Interest Rate
for the Defective Mortgage Loan, (v) if an Adjustable-Rate Mortgage Loan, have a
Minimum Mortgage Interest Rate not less than the Minimum Mortgage Interest Rate
of the Defective Mortgage Loan, (vi) if an Adjustable-Rate Mortgage Loan, have a
Gross Margin equal to or greater than the Gross Margin of the Defective Mortgage
Loan, (vii) if an Adjustable-Rate Mortgage Loan, have the same Index as the
Defective Mortgage Loan, (viii) if an Adjustable-Rate Mortgage Loan, have a next
Adjustment Date not more than two months later than the next Adjustment Date on
the Defective Mortgage Loan, (ix) have a remaining term to maturity not greater
than (and not more than one year less than) that of the
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Defective Mortgage Loan, (x) be current as of the date of substitution, (xi)
have a Loan-to-Value Ratio as of the date of substitution equal to or lower than
the Loan-to-Value Ratio of the Defective Mortgage Loan as of such date, (xii)
have a risk grading at least equal to the risk grading assigned on the Defective
Mortgage Loan, (xiii) have been underwritten or reunderwritten in accordance
with the same underwriting criteria and guidelines as the Defective Mortgage
Loan, (xiv) have the same lien priority as the Defective Mortgage Loan, (xv)
have a Prepayment Charge at least equal in amount and duration of that of the
Defective Mortgage Loan, (xvi) not be a Balloon Mortgage Loan if the related
Mortgage Loan was not a Balloon Mortgage Loan (and if such related Mortgage Loan
is a Balloon Mortgage Loan, such Eligible Substitute Mortgage Loan shall have an
original maturity of not less than the original maturity of such related
Mortgage Loan), and (xvii) conform to each representation and warranty set forth
in Section 3.02 of the Originator Mortgage Loan Purchase Agreement and Section
3.01 of the Mortgage Loan Purchase Agreement applicable to the Defective
Mortgage Loan. In the event that one or more mortgage loans are substituted for
one or more Defective Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the basis of aggregate principal balance, the risk
gradings described in clause (xii) hereof shall be satisfied as to each such
mortgage loan, the terms described in clause (ix) hereof shall be determined on
the basis of weighted average remaining term to maturity, the Loan-to-Value
Ratios described in clause (xi) 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 (xvii) hereof must be
satisfied as to each Eligible Substitute Mortgage Loan or in the aggregate, as
the case may be. Any Defective Mortgage Loan that is a Group 1 Mortgage Loan or
Group 2 Mortgage Loan must be replaced by an Eligible Substitute Mortgage Loan
that will be a Group 1 or Group 2 Mortgage Loan, as applicable.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA-Restricted Certificates": Any of the Class M, Class B, Class
CE, Class P and Class R Certificates, and any Class of Certificates that no
longer satisfies the applicable rating as required by Prohibited Transaction
Exemption 2002-41, 67 Fed. Reg. 54487 (August 22, 2002) for transactions with
mortgage loans with loan-to-value ratios in excess of 100%.
"Escrow Account": The account or accounts created and maintained
pursuant to Section 3.06.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
mortgagee pursuant to any Mortgage Loan.
"Estate in Real Property": A fee simple estate in a parcel of real
property.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Expense Fee Rate": The sum of (i) the Servicing Fee Rate, (ii) the
Credit Risk Manager Fee Rate and (iii) the Trustee Fee Rate.
"Extended Period": As defined in Section 9.04(b).
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"Extra Principal Distribution Amount": As of any Distribution Date,
the lesser of (x) the Monthly Excess Interest Amount for such Distribution Date
and (y) the Overcollateralization Deficiency for such Distribution Date.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Fidelity Bond": Shall have the meaning assigned thereto in Section
3.12.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
(i) purchased by the Originator or the Seller pursuant to or as contemplated by
Section 2.03, (ii) purchased by the Servicer pursuant to Section 3.16 or (iii)
purchased by the NIMS Insurer, the Majority Class CE Certificateholders or the
Servicer pursuant to Section 10.01), a determination made by the Servicer that
all Insurance Proceeds, Condemnation 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 and its successors, and if such company shall
for any reason no longer perform the functions of a securities rating agency,
"Fitch" shall be deemed to refer to any other "nationally recognized statistical
rating organization" as set forth on the most current list of such organizations
released by the Securities and Exchange Commission.
"Fixed-Rate Mortgage Loan": A Mortgage Loan which has a constant
annual rate at which interest accrues in accordance with the provisions of the
related Mortgage Note.
"Foreclosure Price": The amount reasonably expected to be received
from the sale of the related Mortgaged Property net of any expenses associated
with foreclosure proceedings.
"Form 10-K": As defined in Section 3.31(a) hereof.
"Grantor Trust": That portion of the Trust exclusive of REMIC 1 and
REMIC 2 consisting of (a) any Originator Prepayment Charge Payment Amounts and
any Servicer Prepayment Charge Payment Amounts and the right of the Class P
Certificateholders to receive such Originator Prepayment Charge Payment Amounts
and Servicer Prepayment Charge Payment Amounts, (b) the right of the Class A,
Class M and Class B Certificates to receive Cap Carryover Amounts, (c) each
Yield Maintenance Agreement, the Reserve Accounts and the beneficial interest of
the Class CE Certificates with respect thereto and (d) the obligation of the
Class CE Certificates to pay Cap Carryover Amounts.
"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 Interest Rate for such
Adjustable-Rate Mortgage Loan.
"Group 1 Cap": As of any Distribution Date and the Class A-1
Certificates, a per annum rate, adjusted by multiplying such rate by a fraction
equal to 30 over the actual number of
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days in the related Interest Accrual Period, equal to the Weighted Average Net
Mortgage Interest Rate for the Group 1 Mortgage Loans. For federal income tax
purposes, the economic equivalent of such rate shall be expressed as the
weighted average of the REMIC 1 Remittance Rate on REMIC 1 Regular Interest
LT1GRP, weighted on the basis of the Uncertificated Balance of such REMIC 1
Regular Interest.
"Group 1 Interest Remittance Amount": As of any Distribution Date,
the sum, without duplication, of (i) all interest due and collected or advanced
with respect to the related Collection Period on the Group 1 Mortgage Loans
received by the Servicer on or prior to the Determination Date for such
Distribution Date (less the Servicing Fee, amounts available for reimbursement
of Advances and Servicing Advances pursuant to Section 3.05 and expenses
reimbursable pursuant to Section 6.03), (ii) all Compensating Interest paid by
the Servicer on the related Distribution Date with respect to such Mortgage
Loans, (iii) the portion of any payment in connection with any Principal
Prepayment (other than any Prepayment Interest Excess), substitution, Purchase
Price, Termination Price, Insurance Proceeds or Net Liquidation Proceeds
relating to interest with respect to such Mortgage Loans received during the
related Prepayment Period and (iv) the portion of any Reimbursement Amount
relating to interest with respect to such Mortgage Loans received during the
related Prepayment Period.
"Group 1 Maximum Net Rate": The weighted average of the Net Maximum
Mortgage Interest Rates of the Mortgage Loans in Loan Group 1, weighted on the
basis of the Principal Balances of the Group 1 Mortgage Loans as of the first
day of the related Collection Period.
"Group 1 Maximum Rate Cap": With respect to any Distribution Date
and for the Class A-1 Certificates, a per annum rate equal to (i) on or prior to
the Distribution Date in September 2008, the greater of (a) the Group 1 Maximum
Net Rate (subject to adjustment based on the actual number of days elapsed in
the related Interest Accrual Period and (b) 10% and (ii) after the Distribution
Date in September 2008, the Group 1 Maximum Net Rate (subject to adjustment
based on the actual number of days elapsed in the related Interest Accrual
Period.
"Group 1 Mortgage Loan": Each Mortgage Loan listed on the Mortgage
Loan Schedule attached as Exhibit D-1 hereto. Each Group 1 Mortgage Loan had, as
of the Cut-off Date, a Principal Balance that conforms to ▇▇▇▇▇▇ ▇▇▇ guidelines.
"Group 1 Principal Percentage": With respect to any Distribution
Date and the Class A-1 Certificates, the percentage equivalent to a fraction,
the numerator of which is the Principal Remittance Amount allocable to the Group
1 Mortgage Loans for such Distribution Date and the denominator of which is the
Principal Remittance Amount allocable to the Mortgage Loans for such
Distribution Date.
"Group 1 Senior Principal Distribution Amount": With respect to any
Distribution Date (i) before the Stepdown Date or as to which a Trigger Event is
in effect, the Group 1 Principal Percentage of the Principal Distribution Amount
and (ii) on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (a) the Certificate Principal Balance of the Class A-1
Certificates immediately prior to such Distribution Date over (b) the lesser of
(1) the product of (y) approximately 61.30% and (z) the aggregate Principal
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Balance of the Group 1 Mortgage Loans as of the last day of the related
Collection Period and (2) the amount by which the aggregate Principal Balance of
the Group 1 Mortgage Loans as of the last day of the related Collection Period
exceeds the product of (y) 0.50% and (z) the aggregate Principal Balance of the
Group 1 Mortgage Loans on the Cut-off Date.
"Group 2 Cap": As of any Distribution Date and the Class A-2A, Class
A-2B and Class A-2C Certificates, a per annum rate, adjusted by multiplying such
rate by a fraction equal to 30 over the actual number of days in the related
Interest Accrual Period, equal to the Weighted Average Net Mortgage Interest
Rate for the Group 2 Mortgage Loans. For federal income tax purposes, the
economic equivalent of such rate shall be expressed as the weighted average of
the REMIC 1 Remittance Rate on REMIC 1 Regular Interest LT2GRP, weighted on the
basis of the Uncertificated Balance of such REMIC 1 Regular Interest.
"Group 2 Interest Remittance Amount": As of any Distribution Date,
the sum, without duplication, of (i) all interest due and collected or advanced
with respect to the related Collection Period on the Group 2 Mortgage Loans
received by the Servicer on or prior to the Determination Date for such
Distribution Date (less the Servicing Fee, amounts available for reimbursement
of Advances and Servicing Advances pursuant to Section 3.05 and expenses
reimbursable pursuant to Section 6.03), (ii) all Compensating Interest paid by
the Servicer on the related Distribution Date with respect to such Mortgage
Loans, (iii) the portion of any payment in connection with any Principal
Prepayment (other than any Prepayment Interest Excess), substitution, Purchase
Price, Termination Price, Insurance Proceeds or Net Liquidation Proceeds
relating to interest with respect to such Mortgage Loans received during the
related Prepayment Period and (iv) the portion of any Reimbursement Amount
relating to interest with respect to such Mortgage Loans received during the
related Prepayment Period.
"Group 2 Maximum Net Rate": The weighted average of the Net Maximum
Mortgage Interest Rates of the Mortgage Loans in Loan Group 2, weighted on the
basis of the Principal Balances of the Group 2 Mortgage Loans as of the first
day of the related Collection Period.
"Group 2 Maximum Rate Cap": With respect to any Distribution Date
and for the Class A-2A, Class A-2B and Class A-2C Certificates, a per annum rate
equal to (i) on or prior to the Distribution Date in September 2008, the greater
of (a) the Group 2 Maximum Net Rate (subject to adjustment based on the actual
number of days elapsed in the related Interest Accrual Period and (b) 10% and
(ii) after the Distribution Date in September 2008, the Group 2 Maximum Net Rate
(subject to adjustment based on the actual number of days elapsed in the related
Interest Accrual Period.
"Group 2 Mortgage Loan": Each Mortgage Loan listed on the Mortgage
Loan Schedule attached as Exhibit D-2 hereto. Each Group 2 Mortgage Loan had, as
of the Cut-off Date, a Principal Balance that may or may not conform to ▇▇▇▇▇▇
Mae guidelines.
"Group 2 Principal Percentage": With respect to any Distribution
Date and the Class A-2A, Class A-2B and Class A-2C Certificates, the percentage
equivalent to a fraction, the numerator of which is the Principal Remittance
Amount allocable to the Group 2 Mortgage
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Loans for such Distribution Date and the denominator of which is the Principal
Remittance Amount allocable to the Mortgage Loans for such Distribution Date.
"Group 2 Senior Principal Distribution Amount": With respect to any
Distribution Date (i) before the Stepdown Date or as to which a Trigger Event is
in effect, the Group 2 Principal Percentage of the Principal Distribution Amount
and (ii) on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (a) the aggregate Certificate Principal Balance of the
Class A-2A, Class A-2B and Class A-2C Certificates immediately prior to such
Distribution Date over (b) the lesser of (1) the product of (y) approximately
61.30% and (z) the aggregate Principal Balance of the Group 2 Mortgage Loans as
of the last day of the related Collection Period and (2) the amount by which the
aggregate Principal Balance of the Group 2 Mortgage Loans as of the last day of
the related Collection Period exceeds the product of (y) 0.50% and (z) the
aggregate Principal Balance of the Group 2 Mortgage Loans on the Cut-off Date.
"Group Subordinate Amount": For any Distribution Date and (i) the
Group 1 Mortgage Loans, an amount equal to the excess of the aggregate Principal
Balance of the Group 1 Mortgage Loans as of the first day of the related
Collection Period over the Certificate Principal Balance of the Class A-1
Certificates immediately prior to such Distribution Date and (ii) the Group 2
Mortgage Loans, an amount equal to the excess of the aggregate Principal Balance
of the Group 2 Mortgage Loans as of the first day of the related Collection
Period over the aggregate Certificate Principal Balance of the Class A-2A, Class
A-2B and Class A-2C Certificates immediately prior to such Distribution Date.
"Indenture": An indenture relating to the issuance of net interest
margin notes secured by the Class CE Certificates and the Class P Certificates,
which may or may not be guaranteed by the NIMS Insurer.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Servicer and
their respective Affiliates, (ii) 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 (iii) 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 the Trust
Fund within the meaning of Section 856(d)(3) of the Code if the Trust Fund 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 percent or more of any Class of Certificates), so long as the
Trust Fund does not receive or derive any income from such Person and provided
that the relationship between such Person and the Trust Fund is at arm's length,
all within the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii)
any other Person (including the Servicer) if the Trustee has received an Opinion
of Counsel, which Opinion of Counsel shall be an expense of the Trust
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Fund, 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
Certificate of a Class other than a Class CE or Class R Certificate, the amount
designated "Initial Certificate Principal Balance" on the face thereof.
"Initial Overcollateralization Amount": $4,241,271.16
"Insurance Proceeds": Proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds 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 Accrual Period": With respect to any Distribution Date and
each Class of Class A, Class M and Class B Certificates, the period from the
preceding Distribution Date (or, in the case of the first Distribution Date, the
period from the Closing Date) to the day prior to the current Distribution Date
..
"Interest Carry Forward Amount": For any Class of Class A, Class M
and Class B Certificates and any Distribution Date, the sum of (a) the excess,
if any, of the Accrued Certificate Interest and any Interest Carry Forward
Amount for the prior Distribution Date, over the amount in respect of interest
actually distributed on such Class on such prior Distribution Date and (b)
interest on such excess at the applicable Certificate Interest Rate for the
actual number of days elapsed on the basis of a 360-day year since the prior
Distribution Date.
"Interest Percentage": With respect to any Class of Class A, Class M
and Class B Certificates and any Distribution Date, the ratio (expressed as a
decimal carried to six places) of the Accrued Certificate Interest for such
Class to the sum of the Accrued Certificate Interest for all Classes of Class A,
Class M and Class B Certificates, in each case with respect to such Distribution
Date, without regard to Prepayment Interest Shortfalls (not covered by
Compensating Interest payments) and Relief Act Interest Shortfalls.
"Interest Remittance Amount": As of any Distribution Date, the sum
of the Group 1 Interest Remittance Amount and the Group 2 Interest Remittance
Amount.
"Late Collections": With respect to any Mortgage Loan, all amounts
received subsequent to the Determination Date immediately following any related
Collection Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of
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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 Collection Period and not previously recovered.
"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.
"LIBOR Determination Date": With respect to the Class A, Class M and
Class B Certificates, (i) for the first Distribution Date, the second LIBOR
Business Day preceding the Closing Date and (ii) for each subsequent
Distribution Date, the second LIBOR Business Day prior to the immediately
preceding Distribution Date.
"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, Condemnation Proceeds and
Insurance 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 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 or (ii) the
liquidation of a defaulted Mortgage Loan by means of a trustee's sale,
foreclosure sale or otherwise.
"Liquidation Report": The report with respect to a Liquidated
Mortgage Loan in such form as is agreed to by the Servicer and the Trustee
listing (i) the sale price of the related Mortgaged Property or amount of the
REO Disposition, (ii) the amount of any Realized Loss (or gain) with respect to
such Liquidated Mortgage Loan, (iii) the expenses relating to the liquidation of
such Liquidated Mortgage Loan and (iv) such other information as is agreed to by
the Servicer and the Trustee.
"Loan Group": Either of Loan Group 1 or Loan Group 2.
"Loan Group 1": The Group 1 Mortgage Loans.
"Loan Group 2": The Group 2 Mortgage Loans.
"Loan-to-Value Ratio": For any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the Principal Balance of
the Mortgage Loan at origination the denominator of which is the Value of the
related Mortgaged Property.
"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 or destroyed and has not
been replaced, an affidavit from the Seller certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with a copy of the
related Mortgage Note and indemnifying the Trust against
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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.
"Majority Class CE Certificateholders": The Holders of Class CE
Certificates evidencing at least a 51% Percentage Interest in the Class CE
Certificates.
"Marker Rate": With respect to the Class CE Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the Uncertificated REMIC 1 Pass-Through Rates for REMIC 1 Regular Interest
LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1
Regular Interest LT1A2C, REMIC 1 Regular Interest LT1M1, REMIC 1 Regular
Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4,
REMIC 1 Regular Interest LT1M5, REMIC 1 Regular Interest LT1M6, REMIC 1 Regular
Interest LT1M7, REMIC 1 Regular Interest LT1M8, REMIC 1 Regular Interest LT1M9,
REMIC 1 Regular Interest LT1M10, REMIC 1 Regular Interest LT1B and REMIC 1
Regular Interest LT1ZZ, (i) with the rate on each such REMIC 1 Regular Interest
(other than REMIC 1 Regular Interest LT1ZZ) subject to a cap equal to the
Pass-Through Rate of its Corresponding Class (taking into account in determining
any such Pass-through Rate the imposition of the Group 1 Cap, the Group 2 Cap or
the Pool Cap, as applicable, as described in footnotes (1) through (15) to the
table in the Preliminary Statement relating to the Certificates) for the
purposes of this calculation and (ii) with the rate on REMIC 1 Regular Interest
LT1ZZ subject to a cap of zero for the purpose of this calculation; provided,
however, that for this purpose, calculations of the Uncertificated REMIC 1
Pass-Through Rate and the related caps with respect to each such REMIC 1 Regular
Interest (other than REMIC 1 Regular Interest LT1ZZ) shall be multiplied by a
fraction, the numerator of which is the actual number of days in the Interest
Accrual Period and the denominator of which is 30.
"Maximum LT1ZZ Uncertificated Accrued Interest Deferral Amount":
With respect to any Distribution Date, the excess of (a) accrued interest at the
Uncertificated REMIC 1 Pass-Through Rate applicable to REMIC 1 Regular Interest
LT1ZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT1ZZ minus the REMIC 1
Overcollateralized Amount, in each case for such Distribution Date, over (b)
Uncertificated Accrued Interest on REMIC 1 Regular Interest LT1A1, REMIC 1
Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1 Regular
Interest LT1A2C, REMIC 1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2,
REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular
Interest LT1M5, REMIC 1 Regular Interest LT1M6, REMIC 1 Regular Interest LT1M7,
REMIC 1 Regular Interest LT1M8, REMIC 1 Regular Interest LT1M9, REMIC 1 Regular
Interest LT1M10 and REMIC 1 Regular Interest LT1B, each subject to a cap equal
to the Pass-Through Rate of the related Corresponding Class for the purpose of
this calculation (taking into account in determining any such Pass-Through Rate
the imposition of the Group 1 Cap, Group 2 Cap or the Pool Cap, as applicable,
as described in footnotes (1) through (15) to the table in the Preliminary
Statement relating to the Certificates); provided, however, that for this
purpose, calculations of the Uncertificated REMIC 1 Pass-Through Rate and the
related caps with respect to Uncertificated Accrued Interest on REMIC 1 Regular
Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular
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Interest LT1A2B, REMIC 1 Regular Interest LT1A2C, REMIC 1 Regular Interest
LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1
Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1 Regular Interest
LT1M6, REMIC 1 Regular Interest LT1M7, REMIC 1 Regular Interest LT1M8, REMIC 1
Regular Interest LT1M9, REMIC 1 Regular Interest LT1M10 and REMIC 1 Regular
Interest LT1B, shall be multiplied by a fraction, the numerator of which is the
actual number of days in the Interest Accrual Period and the denominator of
which is 30.
"Maximum Mortgage Interest Rate": With respect to each
Adjustable-Rate Mortgage Loan, the percentage set forth in the related Mortgage
Note as the maximum Mortgage Interest Rate thereunder.
"MERS": Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor to it.
"Minimum Mortgage Interest Rate": With respect to each
Adjustable-Rate Mortgage Loan, the percentage set forth in the related Mortgage
Note as the minimum Mortgage Interest Rate thereunder.
"Monthly Excess Cashflow Amount": The sum of the Monthly Excess
Interest Amount, the Overcollateralization Release Amount and (without
duplication) any portion of the Principal Distribution Amount remaining after
principal distributions on the Class A, Class M and Class B Certificates.
"Monthly Excess Interest Amount": With respect to each Distribution
Date, the amount, if any, by which the Interest Remittance Amount for such
Distribution Date exceeds the aggregate amount distributed on such Distribution
Date pursuant to paragraphs (i) through (xvi) under Section 4.01.
"Monthly Form 8-K": As defined in Section 3.31(a) hereof.
"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 and (ii) any reduction in
the amount of interest collectible from the related Mortgagor pursuant to the
Relief Act or similar state laws; (b) without giving effect to any extension
granted or agreed to by the Servicer pursuant to Section 3.01; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan are paid
when due.
"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.
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"Mortgage Interest Rate": With respect to each 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 (i) in
the case of each Fixed-Rate Mortgage Loan shall remain constant at the rate set
forth in the Mortgage Loan Schedules as the Mortgage Interest Rate in effect
immediately following the Cut-off Date and (ii) in the case of each
Adjustable-Rate Mortgage Loan (A) as of any date of determination until the
first Adjustment Date following the Cut-off Date shall be the rate set forth in
the Mortgage Loan Schedules as the Mortgage Interest Rate in effect immediately
following the Cut-off Date and (B) as of any date of determination thereafter
shall be the rate as adjusted on the most recent Adjustment Date, to equal the
sum, rounded 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.
"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 Schedules.
"Mortgage Loan Purchase Agreement": The agreement between the Seller
and the Depositor, dated as of April 28, 2005, regarding the transfer of the
Mortgage Loans by the Seller to or at the direction of the Depositor.
"Mortgage Loan Schedule": As of any date with respect to the
Mortgage Loans, the lists of such Mortgage Loans included in the Trust Fund on
such date, separately identifying the Group 1 Mortgage Loans and the Group 2
Mortgage Loans, attached hereto as Exhibits D-1 and D-2, respectively. The
Mortgage Loan Schedules shall set forth the following information with respect
to each Mortgage Loan:
(1) the Mortgage Loan identifying number;
(2) the state and zip code of the Mortgaged Property;
(3) the type of Residential Dwelling constituting the Mortgaged
Property;
(4) the occupancy status of the Mortgaged Property at origination;
(5) the original months to maturity;
(6) the date of origination;
(7) the first payment date;
(8) the stated maturity date;
(9) the stated remaining months to maturity;
(10) the original principal amount of the Mortgage Loan;
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(11) the Principal Balance of each Mortgage Loan as of the Cut-off
Date;
(12) the Mortgage Interest Rate of the Mortgage Loan as of the
Cut-off Date;
(13) the current principal and interest payment of the Mortgage
Loan as of the Cut-off Date;
(14) the contractual interest paid to date of the Mortgage Loan;
(15) the Loan-to-Value Ratio at origination and as of the Cut-off
Date;
(16) a code indicating the loan performance status of the Mortgage
Loan as of the Cut-off Date;
(17) a code indicating whether the Mortgage Loan is an
Adjustable-Rate Mortgage Loan or a Fixed-Rate Mortgage Loan;
(18) for each Adjustable-Rate Mortgage Loan, a code indicating the
Index that is associated with such Mortgage Loan;
(19) for each Adjustable-Rate Mortgage Loan, the Gross Margin;
(20) for each Adjustable-Rate Mortgage Loan, the Periodic Rate Cap;
(21) for each Adjustable-Rate Mortgage Loan, the Minimum Mortgage
Interest Rate;
(22) for each Adjustable-Rate Mortgage Loan, the Maximum Mortgage
Interest Rate;
(23) a code indicating whether the Mortgage Loan has a Prepayment
Charge and the type of Prepayment Charge and the term;
(24) for each Adjustable-Rate Mortgage Loan, the first Adjustment
Date immediately following the Cut-off Date;
(25) for each Adjustable-Rate Mortgage Loan, the rate adjustment
frequency;
(26) for each Adjustable-Rate Mortgage Loan, the payment adjustment
frequency;
(27) the purpose of the Mortgage Loan; and
(28) a code indicating whether the Mortgage Loan has an
interest-only period and the term of such interest-only
period.
The Mortgage Loan Schedules shall set forth the following
information, as of the Cut-off Date, with respect to the Mortgage Loans in the
aggregate: (1) the number of Mortgage Loans; (2) the aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted
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average Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted
average months to maturity of the Mortgage Loans. The Mortgage Loan Schedules
shall be amended from time to time in accordance with the provisions of this
Agreement and a copy of such amended Mortgage Loan Schedules shall be furnished
by the Servicer to the NIMS Insurer. With respect to any Eligible Substitute
Mortgage Loan, Cut-off Date shall refer to the applicable date of substitution.
"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 the
Mortgage Loan Schedules from time to time, and any REO Properties acquired in
respect thereof.
"Mortgaged Property": The underlying property securing a Mortgage
Loan, including any REO Property, consisting of an Estate in 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 net of unreimbursed Advances,
unreimbursed Servicing Advances, Servicing Fees and any other accrued and unpaid
servicing fees received and retained in connection with the liquidation of such
Mortgage Loan or Mortgaged Property.
"Net Maximum Mortgage Interest Rate": With respect to any
Adjustable-Rate Mortgage Loan, the applicable Maximum Mortgage Interest Rate
minus the Expense Fee Rate.
"Net Mortgage Interest Rate": With respect to any Mortgage Loan, the
Mortgage Interest Rate borne by such Mortgage Loan minus the Expense Fee Rate.
"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
CE, Class P and Class R Certificates.
"Nonrecoverable Advance": Any Advance or Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan that, in
the good faith business judgment of the Servicer, will not or, in the case of a
proposed Advance or Servicing Advance, would not be ultimately recoverable from
Late Collections on such Mortgage Loan as provided herein.
"Notional Amount": With respect to the Class CE Certificates, a
notional amount equal to the aggregate principal balance of the REMIC 1 Regular
Interests other than REMIC 1 Regular Interest LT1P.
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"Offered Certificates": The Class ▇-▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, Class
A-2C, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9 and Class M-10 Certificates.
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a vice president (however
denominated) or a principal, and by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of the Servicer, the Seller or the
Depositor, as applicable.
"One-Month LIBOR": With respect to each Interest Accrual Period, the
rate determined by the Trustee on the related LIBOR Determination Date on the
basis of the 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
LIBOR Determination Date. If no such quotations are available on an LIBOR
Determination Date, One-Month LIBOR for the related Interest Accrual Period will
be established by the Trustee as follows:
(i) If on such LIBOR Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related Interest
Accrual Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of 0.001%);
(ii) If on such LIBOR Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the arithmetic mean of the rates quoted
by one or more major banks in New York City, selected by the Trustee after
consultation with the Depositor and the NIMS Insurer, as of 11:00 A.M.,
New York City time, on such date for loans in U.S. Dollars to leading
European banks for a period of one month in amounts approximately equal to
the aggregate Certificate Principal Balance of the Class A, Class M and
Class B Certificates; and
(iii) If no such quotations can be obtained, One-Month LIBOR for the
related Interest Accrual Period shall be One-Month LIBOR for the prior
Distribution Date.
The establishment of One-Month LIBOR on each LIBOR Determination
Date by the Trustee and the Trustee's calculation of the rate of interest
applicable to the Class A, Class M and Class B Certificates for the related
Interest Accrual Period shall (in the absence of manifest error) be final and
binding.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be a salaried counsel for the Depositor or the Servicer 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 NIMS Insurer, if there is a NIMS Insurer, the Majority Class CE
Certificateholders or, if such Majority Class CE Certificateholder is the Seller
or is an affiliate of the Seller, the Servicer, may opt to terminate the
Mortgage Pool pursuant to Section 10.01.
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"Original Class Certificate Principal Balance": With respect to each
Class of Certificates, the Certificate Principal Balance thereof on the Closing
Date, as set forth opposite such Class in the Preliminary Statement, except with
respect to (i) the Class R Certificates, which have an Original Class
Certificate Principal Balance of zero and (ii) the Class CE Certificates, which,
solely for REMIC purposes, have an Original Class Certificate Principal Balance
equal to the Initial Overcollateralization Amount.
"Originator": First Franklin Financial Corporation and its
successors.
"Originator Mortgage Loan Purchase Agreement": The Flow Sale and
Interim Servicing Agreement, dated as of March 1, 2005, by and between the
Seller, as purchaser, and First Franklin Financial Corporation, as seller.
"Originator Prepayment Charge Payment Amount": The amount payable by
the Originator pursuant to Section 4.21 of the Originator Mortgage Loan Purchase
Agreement in respect of certain Prepayment Charges that are not collected from
the related Mortgagor, which amounts shall not be part of any REMIC formed
hereunder.
"Overcollateralization Amount": As of any Distribution Date, the
excess, if any, of (x) the Pool Balance as of the last day of the related
Collection Period over (y) the aggregate Certificate Principal Balance of the
Class A, Class M, Class B and Class P Certificates (after taking into account
all distributions of principal on such Distribution Date and the increase of any
Certificate Principal Balance as a result of Subsequent Recoveries).
"Overcollateralization Deficiency": As of any Distribution Date, the
excess, if any, of (x) the Targeted Overcollateralization Amount for such
Distribution Date over (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after taking into account the
reduction on such Distribution Date of the Certificate Principal Balances of all
Classes of Class A, Class M, Class B and Class P Certificates resulting from the
distribution of the Principal Distribution Amount (but not the Extra Principal
Distribution Amount) on such Distribution Date, but prior to taking into account
any Applied Realized Loss Amount on such Distribution Date.
"Overcollateralization Release Amount": With respect to any
Distribution Date after the Stepdown Date on which a Trigger Event is not in
effect, the lesser of (x) the Principal Remittance Amount for such Distribution
Date and (y) the excess, if any, of (i) the Overcollateralization Amount for
such Distribution Date, assuming that 100% of the Principal Remittance Amount is
applied as a principal payment on the Class A, Class M and Class B Certificates
on such Distribution Date, over (ii) the Targeted Overcollateralization Amount
for such Distribution Date. With respect to any Distribution Date on which a
Trigger Event is in effect, the Overcollateralization Release Amount will be
zero.
"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": Any of the Class A-1 Pass-Through Rate, the
Class A-2A Pass-Through Rate, the Class A-2B Pass-Through Rate, the Class A-2C
Pass-Through Rate, the
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Class M-1 Pass-Through Rate, the Class M-2 Pass-Through Rate, the Class M-3
Pass-Through Rate, the Class M-4 Pass-Through Rate, the Class M-5 Pass-Through
Rate, the Class M-6 Pass-Through Rate, the Class M-7 Pass-Through Rate, the
Class M-8 Pass-Through Rate, the Class M-9 Pass-Through Rate, the Class M-10
Pass-Through Rate and the Class B Pass-Through Rate; and in the case of any
REMIC 1 Regular Interest, the Uncertificated REMIC 1 Pass-Through Rate.
With respect to the Class CE Certificates and any Distribution Date,
a per annum rate equal to the percentage equivalent of a fraction, the numerator
of which is the sum of the amounts calculated pursuant to clauses (A) through
(R) below, and the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest
LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1
Regular Interest LT1A2C, REMIC 1 Regular Interest LT1M1, REMIC 1 Regular
Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4,
REMIC 1 Regular Interest LT1M5, REMIC 1 Regular Interest LT1M6, REMIC 1 Regular
Interest LT1M7, REMIC 1 Regular Interest LT1M8, REMIC 1 Regular Interest LT1M9,
REMIC 1 Regular Interest LT1M10, REMIC 1 Regular Interest LT1B and REMIC 1
Regular Interest LT1ZZ. For purposes of calculating the Pass-Through Rate for
the Class CE Certificates, the numerator is equal to the sum of the following
components:
(A) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1AA minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1AA;
(B) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1A1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1A1;
(C) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1A2A minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1A2A;
(D) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1A2B minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1A2B;
(E) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1A2C minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1A2C;
(F) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M1;
(G) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M2;
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(H) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M3;
(I) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M4;
(J) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M5 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M5;
(K) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M6 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M6;
(L) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M7 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M7;
(M) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M8 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M8;
(N) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M9 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M9;
(O) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M10 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M10;
(P) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1B minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1B;
(Q) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1ZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1ZZ; and
(R) 100% of the Interest on REMIC 1 Regular Interest LT1P.
"Paying Agent": Any paying agent appointed pursuant to Section 5.05.
"Percentage Interest": With respect to any Certificate (other than a
Class CE or Class R Certificate), a fraction, expressed as a percentage, the
numerator of which is the Initial Certificate Principal Balance, as the case may
be, represented by such Certificate and the denominator of which is the Original
Class Certificate Principal Balance of the related Class.
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With respect to a Class CE 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%. With respect to the Class R Certificate, 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
Interest Rate for such Mortgage Loan may increase or decrease (without regard to
the Maximum Mortgage Interest Rate or the Minimum Mortgage Interest Rate) on
such Adjustment Date from the Mortgage Interest Rate in effect immediately prior
to such Adjustment Date.
"Permitted Transferee": Any transferee of a Class R Certificate
other than a Disqualified Organization, a non-U.S. Person or a U.S. Person with
respect to whom income on the Class R Certificate is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other U.S. Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pool Balance": As of any date of determination, the aggregate
Principal Balance of the Mortgage Loans.
"Pool Cap": As of any Distribution Date and for the Class M and
Class B Certificates, a per annum rate, adjusted by multiplying such rate by a
fraction equal to 30 over the actual number of days in the related Interest
Accrual Period, equal to the weighted average of the Group 1 Cap and the Group 2
Cap, weighted on the basis of the related Group Subordinate Amount. For federal
income tax purposes, the economic equivalent of such rate shall be expressed as
the weighted average of the REMIC 1 Remittance Rate on (a) REMIC 1 Regular
Interest LT1SUB, subject to a cap and floor equal to the Weighted Average Net
Mortgage Interest Rates of the Group 1 Mortgage Loans and (b) REMIC 1 Regular
Interest LT2SUB, subject to a cap and floor equal to the Weighted Average Net
Mortgage Interest Rates of the Group 2 Mortgage Loans, weighted on the basis of
the Uncertificated Balance of each such REMIC 1 Regular Interest.
"Pool Maximum Net Rate": The weighted average of the Group 1 Maximum
Net Rate and the Group 2 Maximum Net Rate, weighted on the basis of the related
Group Subordinate Amount.
"Pool Maximum Rate Cap": With respect to any Distribution Date and
for the Class M and Class B Certificates, a per annum rate (not less than zero)
equal to (i) on or prior to the Distribution Date in September 2008, the greater
of (a) the Pool Maximum Net Rate (subject to adjustments based on the actual
number of days elapsed in the related Interest Accrual Period) and (b) 10% and
(ii) after the Distribution Date in September 2008, the Pool Maximum Net Rate
(subject to adjustments based on the actual number of days elapsed in the
related Interest Accrual Period).
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"Prepayment Charge": With respect to any Prepayment Period, any
prepayment premium, penalty or charge collected by the Servicer from a Mortgagor
in connection with any voluntary Principal Prepayment in full pursuant to the
terms of the related Mortgage Note as from time to time held as a part of the
Trust Fund, the Prepayment Charges so held being identified in the Mortgage Loan
Schedules (other than any Originator Prepayment Charge Payment Amount or
Servicer Prepayment Charge Payment Amount).
"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 beginning on the first day
of the calendar month in which such Distribution Date occurs through the
Determination Date of the calendar month in which such Distribution Date occurs,
an amount equal to interest (to the extent received) at the applicable Mortgage
Interest Rate (net of the Servicing Fee 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 in the prior
calendar month that was applied by the Servicer to reduce the outstanding
Principal Balance of such Mortgage Loan on a date preceding the related Due
Date, an amount equal to interest at the applicable Mortgage Interest Rate (net
of the Servicing Fee Rate) on the amount of such Principal Prepayment for the
number of days commencing on the date on which the Principal Prepayment is
applied and ending on the last day of the related calendar month in which such
Principal Prepayment was received.
"Prepayment Period": With respect to any Distribution Date and a
Mortgage Loan (other than with respect to voluntary Principal Prepayments in
part), the period commencing on the day after the Determination Date in the
calendar month preceding the calendar month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, on April 1, 2005) and
ending on the Determination Date in the calendar month in which such
Distribution Date occurs.
"Principal Balance": As to any Mortgage Loan and any day, other than
a Liquidated Mortgage Loan, the related Cut-off Date Principal Balance, minus
the sum of (i) all collections and other amounts credited against the principal
balance of any such Mortgage Loan, (ii) the principal portion of Advances, (iii)
any Deficient Valuation and (iv) any principal reduction resulting from a
Servicer Modification. 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 Distribution Amount": As to any Distribution Date, the
sum of the Group 1 Principal Distribution Amount and the Group 2 Principal
Distribution Amount.
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"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, to the extent of funds available therefor, the amount equal to the sum
(less amounts available for reimbursement of Advances and Servicing Advances
pursuant to Section 3.05 and expenses reimbursable pursuant to Section 6.03) of:
(i) each payment of principal on a Mortgage Loan due during the related
Collection Period and received by the Servicer on or prior to the related
Determination Date, and any Advances with respect thereto, (ii) all full and
partial Principal Prepayments of Mortgage Loans received by the Servicer during
the related Prepayment Period, (iii) Insurance Proceeds, Subsequent Recoveries
and Net Liquidation Proceeds allocable to principal actually collected by the
Servicer during the related Prepayment Period with respect to the Mortgage
Loans, (iv) the portion of the Purchase Price allocable to principal of all
repurchased Mortgage Loans with respect to such Prepayment Period, (v) any
Substitution Adjustment Amounts received during the related Prepayment Period
with respect to Mortgage Loans and (vi) on the Distribution Date on which the
Trust is to be terminated in accordance with Section 10.01 hereof, that portion
of the Termination Price in respect of principal.
"Private Certificates": Any of the Class B, Class CE, Class P and
Class R Certificates.
"Private Placement Memorandum": That certain Private Placement
Memorandum dated April 28, 2005 relating to the private offering of the Class B
Certificates.
"Prospectus Supplement": That certain Prospectus Supplement dated
April 26, 2005 relating to the public offering of the Offered Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO Property
to be purchased pursuant to or as contemplated by Section 2.03 or 10.01, an
amount equal to the sum of (i) 100% of the 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 Principal Balance at the
applicable Mortgage Interest 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, accrued
interest at the applicable Mortgage Interest Rate on its fair market value,
determined in good faith by the Servicer, (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
3.13, (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 or
the Trustee in respect of the breach or defect giving rise to the purchase
obligation, and (vi) any costs and damages incurred by the Trust in connection
with any violation by such Mortgage Loan of any predatory or abusive lending
law.
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"Rating Agency or Rating Agencies": Fitch and S&P, or their
respective successors. If such agencies or their successors are no longer in
existence, "Rating Agencies" shall be such nationally recognized statistical
rating organizations as set forth on the most current list of such organizations
released by the Securities and Exchange Commission and designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Servicer.
"Realized Loss": With respect to a Liquidated Mortgage Loan, the
amount by which the remaining unpaid principal balance of the Mortgage Loan
exceeds the amount of Net Liquidation Proceeds applied to the principal balance
of the related Mortgage Loan. With respect to any Mortgage Loan, a Deficient
Valuation or a reduction in the Principal Balance thereof resulting from a
Servicer Modification.
"Realized Loss Amortization Amount": Any of the Class M-1 Realized
Loss Amortization Amount, the Class M-2 Realized Loss Amortization Amount, the
Class M-3 Realized Loss Amortization Amount, the Class M-4 Realized Loss
Amortization Amount, the Class M-5 Realized Loss Amortization Amount, the Class
M-6 Realized Loss Amortization Amount, the Class M-7 Realized Loss Amortization
Amount, the Class M-8 Realized Loss Amortization Amount, the Class M-9 Realized
Loss Amortization Amount, the Class M-10 Realized Loss Amortization Amount and
the Class B Realized Loss Amortization Amount.
"Record Date": With respect to all of the Certificates (other than
the Class CE, Class P and Class R Certificates), the Business Day immediately
preceding such Distribution Date; provided, however, that if any such
Certificate becomes a Definitive Certificate, the Record Date for such
Certificate shall be the last Business Day of the month immediately preceding
the month in which the related Distribution Date occurs. With respect to the
Class CE, Class P and Class R Certificates, the last Business Day of the month
immediately 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 Depositor or the Trustee, (iii) whose quotations appear
on the Telerate Page 3750 on the relevant LIBOR Determination Date and (iv)
which have been designated as such by the Trustee; provided, however, that if
fewer than two of such banks provide a One-Month LIBOR rate, then any leading
banks selected by the Trustee which are engaged in transactions in United States
dollar deposits in the international Eurocurrency market.
"Regular Certificate": Any of the Class A Certificates, Class M
Certificates, Class B Certificates, Class CE Certificates and the Class P
Certificates.
"Reimbursement Amount": With respect to any Mortgage Loan, any costs
or damages incurred by the Trust in connection with a breach of (i) the
Originator's representation set forth in Section 3.02(i) of the Originator
Mortgage Loan Purchase Agreement and (ii) the Seller's representations set forth
in Sections 3.01(i), 3.01(ii) and 3.01(iii) of the Mortgage Loan Purchase
Agreement.
"Related Documents": With respect to any Mortgage Loan, the related
Mortgage Notes, Mortgages and other related documents.
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"Relief Act": The Servicemembers Civil Relief Act, as it may be
amended from time to time.
"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
Collection Period as a result of the application of the Relief Act or similar
state or local laws, the amount by which (i) interest collectible on such
Mortgage Loan during such Collection Period is less than (ii) one month's
interest on the Principal Balance of such Mortgage Loan at the Mortgage Interest
Rate for such Mortgage Loan before giving effect to the application of the
Relief Act or similar state or local laws.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC 1 Interest Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50% of the sum of
the aggregate Principal Balance of the Mortgage Loans and related REO Properties
then outstanding and (ii) the Uncertificated REMIC 1 Pass-Through Rate for REMIC
1 Regular Interest LT1AA minus the Marker Rate, divided by (b) 12.
"REMIC 1 Marker Allocation Percentage": 50% of any amount payable
from or loss attributable to the Mortgage Loans, which shall be allocated to
REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1A1, REMIC 1 Regular
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1 Regular Interest
LT1A2C, REMIC 1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1
Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest
LT1M5, REMIC 1 Regular Interest LT1M6, REMIC 1 Regular Interest LT1M7, REMIC 1
Regular Interest LT1M8, REMIC 1 Regular Interest LT1M9, REMIC 1 Regular Interest
LT1M10, REMIC 1 Regular Interest LT1B and REMIC 1 Regular Interest LT1ZZ.
"REMIC 1 Overcollateralization Target Amount": 0.50% of the
Targeted Overcollateralization Amount.
"REMIC 1 Overcollateralized Amount": With respect to any date of
determination, (i) 0.50% the aggregate Uncertificated Principal Balances of the
REMIC 1 Regular Interests minus (ii) the aggregate of the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1 Regular Interest LT1A2C, REMIC
1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular
Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5,
REMIC 1 Regular Interest LT1M6, REMIC 1 Regular Interest LT1M7, REMIC 1 Regular
Interest LT1M8, REMIC 1 Regular Interest LT1M9, REMIC 1 Regular Interest LT1M10,
REMIC 1 Regular Interest LT1B and REMIC 1 Regular Interest LT1P, in each case as
of such date of determination.
"REMIC 1 Principal Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50% of the
aggregate Principal Balance of the Mortgage Loans and related REO Properties
then outstanding and (ii) 1 minus a fraction, the
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numerator of which is two times the aggregate of the Uncertificated Principal
Balances of REMIC 1 Regular Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
REMIC 1 Regular Interest LT1A2B, REMIC 1 Regular Interest LT1A2C, REMIC 1
Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest
LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1
Regular Interest LT1M6, REMIC 1 Regular Interest LT1M7, REMIC 1 Regular Interest
LT1M8, REMIC 1 Regular Interest LT1M9, REMIC 1 Regular Interest LT1M10 and REMIC
1 Regular Interest LT1B and the denominator of which is the aggregate of the
Uncertificated Principal Balances of REMIC 1 Regular Interest LT1A1, REMIC 1
Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1 Regular
Interest LT1A2C, REMIC 1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2,
REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular
Interest LT1M5, REMIC 1 Regular Interest LT1M6, REMIC 1 Regular Interest LT1M7,
REMIC 1 Regular Interest LT1M8, REMIC 1 Regular Interest LT1M9, REMIC 1 Regular
Interest LT1M10, REMIC 1 Regular Interest LT1B and REMIC 1 Regular Interest
LT1ZZ.
"REMIC 1 Regular Interest LT1A1": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1A1 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1A2A": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1A2A shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1A2B": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1A2B shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1A2C": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1A2C 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.
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"REMIC 1 Regular Interest LT1AA": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1AA shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M1": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M1 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M2": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M2 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M3": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M3 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M4": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M4 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M5": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M5 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.
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"REMIC 1 Regular Interest LT1M6": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M6 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M7": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M7 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M8": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M8 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M9": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M9 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1M10": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1M10 shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1B": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1B 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.
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"REMIC 1 Regular Interest LT1SUB": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1SUB shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1GRP": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1GRP shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT2SUB": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT2SUB shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT2GRP": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT2GRP shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1P": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1P shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interest LT1XX": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1XX 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.
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"REMIC 1 Regular Interest LT1ZZ": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a regular interest in REMIC 1 for purposes of the REMIC
Provisions. REMIC 1 Regular Interest LT1ZZ shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
"REMIC 1 Regular Interests": REMIC 1 Regular Interest LT1AA, REMIC 1
Regular Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular
Interest LT1A2B, REMIC 1 Regular Interest LT1A2C, REMIC 1 Regular Interest
LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1
Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1 Regular Interest
LT1M6, REMIC 1 Regular Interest LT1M7, REMIC 1 Regular Interest LT1M8, REMIC 1
Regular Interest LT1M9, REMIC 1 Regular Interest LT1M10, REMIC 1 Regular
Interest LT1B, REMIC 1 Regular Interest LT1SUB, REMIC 1 Regular Interest LT1GRP,
REMIC 1 Regular Interest LT2SUB, REMIC 1 Regular Interest LT2GRP, REMIC 1
Regular Interest LT1XX, REMIC 1 Regular Interest LT1P and REMIC 1 Regular
Interest LT1ZZ.
"REMIC 1 Sub WAC Allocation Percentage": 50% of any amount payable
from or loss attributable to the Mortgage Loans, which shall be allocated to
REMIC 1 Regular Interest LT1SUB, REMIC 1 Regular Interest LT1GRP, REMIC 1
Regular Interest LT2SUB, REMIC 1 Regular Interest LT2GRP and REMIC 1 Regular
Interest LT1XX.
"REMIC 1 Subordinated Balance Ratio": The ratio among the
Uncertificated Principal Balances of each REMIC 1 Regular Interest ending with
the designation "SUB," equal to the ratio among, with respect to each such REMIC
1 Regular Interest, the excess of (x) the aggregate Principal Balance of the
Mortgage Loans in the related Loan Group over (y) the current Certificate
Principal Balance of the Class A Certificates in the related Loan Group.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time.
"Remittance Report": A report prepared by the Servicer and delivered
to the Trustee and the NIMS Insurer pursuant to Section 4.07, containing the
information attached hereto as Exhibit M.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Disposition": The sale or other disposition of an REO Property
on behalf of the Trust.
"REO Imputed Interest": As to any REO Property, for any Collection
Period, an amount equivalent to interest (at the Net Mortgage Interest Rate that
would have been applicable
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to the related Mortgage Loan had it been outstanding) for such Collection Period
on the unpaid Principal Balance of the Mortgage Loan as of the date of
acquisition.
"REO Principal Amortization": With respect to any REO Property, for
any calendar month, 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
3.13 in respect of the proper operation, management and maintenance of such REO
Property or (ii) payable or reimbursable to the Servicer pursuant to Section
3.13 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.
"REO Property": A Mortgaged Property acquired by the Servicer on
behalf of the Trust through foreclosure or deed-in-lieu of foreclosure, as
described in Section 3.13.
"Request for Release": A release signed by a Servicing Officer, in
the form of Exhibit E attached hereto.
"Reserve Account": Any of (i) the Class A-1 Reserve Account, (ii)
the Class A-2A, Class A-2B and Class A-2C Reserve Account or (iii) the Class M
and Class B Reserve Account.
"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 condominium project, (iv) a manufactured home, or
(v) a one-family dwelling in a planned unit development or a townhouse, none of
which is a co-operative or mobile home.
"Residual Interest": The sole Class of "residual interests" in each
REMIC within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Division (or any successor thereto),
including any Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and in each case having direct responsibility for the
administration of this Agreement.
"S&P": Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., and its successors, and if such company shall for any reason no longer
perform the functions of a securities rating agency, "S&P" shall be deemed to
refer to any other "nationally recognized statistical rating organization" as
set forth on the most current list of such organizations released by the
Securities and Exchange Commission.
"Seller": Bank of America, National Association, or its successor in
interest, in its capacity as seller under the Mortgage Loan Purchase Agreement.
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"Senior Certificates": The Class A-1, Class A-2A, Class A-2B and
Class A-2C Certificates.
"Senior Enhancement Percentage": For any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class M and Class B Certificates and (ii) the
Overcollateralization Amount, in each case before taking into account payments
of principal on the Mortgage Loans and the distribution of the Principal
Distribution Amount on such Distribution Date by (y) the Pool Balance as of the
last day of the related Collection Period.
"Senior Principal Distribution Amount": For any Distribution Date on
or after the Stepdown Date and as long as a Trigger Event is not in effect, the
sum of the Group 1 Senior Principal Distribution Amount and the Group 2 Senior
Principal Distribution Amount.
"Senior Specified Enhancement Percentage": On any date of
determination thereof, 38.70%.
"Servicer": HomEq Servicing Corporation, a New Jersey 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 Modification": A modification to the terms of a Mortgage
Loan, in accordance with the terms of Section 3.01, as to which the Mortgagor is
in default or as to which, in the judgment of the Servicer, default is
reasonably foreseeable.
"Servicer Prepayment Charge Payment Amount": The amount payable by
the Servicer in respect of any waived Prepayment Charges pursuant to Section
3.01, which amount shall be equal to the difference between the amount of
Prepayment Charge due by a Mortgagor before any waiver and the actual amount of
the Prepayment Charge that was paid by the Mortgagor, which amounts shall not be
a part of any REMIC formed hereunder.
"Servicer Remittance Date": With respect to any Distribution Date,
one Business Day prior to such Distribution Date.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Servicer (including reasonable
attorneys' fees and disbursements) in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration, inspection and protection of the Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the REO Property and (iv) compliance with the
obligations under Section 3.08.
"Servicing Fee": With respect to each Mortgage Loan (including each
REO Property) 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
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Mortgage Loan accrues for such calendar month. The Servicing Fee shall be
payable monthly and shall be prorated on a per diem basis for any portion of a
month during which such Mortgage Loan is serviced hereunder.
"Servicing Fee Rate": With respect to each Mortgage Loan, 0.50% per
annum.
"Servicing Officer": Any representative or officer of the Servicer
involved in, or responsible for, the administration and servicing of Mortgage
Loans, whose name and specimen signature appear on a list of servicing officers
furnished by the Servicer to the Trustee and the Depositor on the Closing Date,
as such list may from time to time be amended.
"Servicing Standard": The standards set forth in Section 3.01.
"Similar Law": As defined in Section 5.02(d) hereof.
"Startup Day": As defined in Section 9.01(b) hereof.
"Stayed Funds": Any payment required to be made under the terms of
the Certificates and this Agreement but which is not remitted by the Servicer
because the Servicer is the subject of a proceeding under the Bankruptcy Code
and the making of such remittance is prohibited by Section 362 of the Bankruptcy
Code.
"Stepdown Date": The earlier to occur of (i) the Distribution Date
on which the aggregate Certificate Principal Balance of the Class A Certificates
is reduced to zero and (ii) the later to occur of (x) the Distribution Date in
May 2008 and (y) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
"Subordinated Certificates": The Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10,
Class B, Class CE and Class R Certificates.
"Subordination Depletion Date": The Distribution Date on which the
aggregate Certificate Principal Balance of the Class M and Class B Certificates
is reduced to zero.
"Subsequent Recovery": Any amount (net of reimbursable expenses)
received on a Mortgage Loan subsequent to such Mortgage Loan being determined to
be a Liquidated Mortgage Loan that resulted in a Realized Loss in a prior month.
"Substitution Adjustment": As defined in Section 2.03(c) hereof.
"Targeted Overcollateralization Amount": As of any Distribution
Date, (x) prior to the Stepdown Date, 0.55% of the Pool Balance as of the
Cut-off Date and (y) on and after the Stepdown Date, (i) if a Trigger Event has
not occurred, the greater of (A) 1.10% of the Pool Balance as of the last day of
the related Collection Period and (B) 0.50% of the Pool Balance as of the
Cut-off Date and (ii) if a Trigger Event has occurred, the Targeted
Overcollateralization Amount for the immediately preceding Distribution Date.
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"Tax Matters Person": The tax matters person appointed pursuant to
Section 9.01(e) hereof.
"Tax Returns": The federal income tax returns 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 on behalf of the Trust for each of the two REMICs created
pursuant to this Agreement under the REMIC Provisions, 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.
"Telerate Page 3750": The display page currently so designated on
the Moneyline Telerate Service (or such other page as may replace the Telerate
Page 3750 page on that service for the purpose of displaying London interbank
offered rates of major banks).
"Termination Price": As defined in Section 10.01(a) hereof.
"Trigger Event": With respect to any Distribution Date, if (i) the
three-month rolling average of 60+ Day Delinquent Loans equals or exceeds 40.00%
of the Senior Enhancement Percentage or (ii) the aggregate amount of Realized
Losses incurred since the Cut-off Date through the last day of the related
Collection Period (reduced by the aggregate amount of Subsequent Recoveries
received since the Cut-off Date through the last day of the related Collection
Period) divided by the Cut-off Date Aggregate Principal Balance exceeds the
applicable percentages set forth below with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
May 2008 through April 2009 4.25% for the first month, plus
an additional 1/12th of 1.50%
for each month thereafter
May 2009 through April 2010 5.75% for the first month, plus
an additional 1/12th of 1.00%
for each month thereafter
May 2010 through April 2011 6.75% for the first month, plus
an additional 1/12th of 0.25%
for each month thereafter
May 2011 and thereafter 7.00%
"Trust": First Franklin Mortgage Loan Trust 2005-FF5, the trust
created hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to a portion of which two REMIC elections are to be made, such
entire Trust Fund 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 (other
than scheduled payments due on the Mortgage Loans prior to the Cut-off Date),
(ii) any REO
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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 Originator Mortgage Loan Purchase
Agreement, the Assignment, Assumption and Recognition Agreement and the Mortgage
Loan Purchase Agreement (including any security interest created thereby), (v)
the Trustee's rights under each Yield Maintenance Agreement and (vi) the
Collection Accounts, the Distribution Account and the Reserve Accounts 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.
"Trustee": JPMorgan Chase Bank, N.A., a banking association
organized under the laws of the United States, or any successor Trustee
appointed as herein provided.
"Trustee Fee": With respect to any Distribution Date, the product of
(x) one-twelfth of the Trustee Fee Rate and (y) the aggregate of the Principal
Balances of all Mortgage Loans as of the opening of business on the first day of
the related Collection Period.
"Trustee Fee Rate": With respect to any Distribution Date, 0.001%
per annum.
"Uncertificated Accrued Interest": With respect to each REMIC 1
Regular Interest on each Distribution Date, an amount equal to one month's
interest at the related Uncertificated REMIC 1 Pass-Through Rate on the
Uncertificated Principal Balance of such REMIC 1 Regular Interest. In each case,
Uncertificated Accrued Interest will be reduced by any Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls (allocated to such REMIC 1 Regular
Interests based on their respective entitlements to interest irrespective of any
Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution Date).
"Uncertificated Principal Balance": The amount of any REMIC 1
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC 1 Regular Interest
shall equal the amount set forth in the Preliminary Statement hereto as its
initial uncertificated balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC 1 Regular Interest shall be reduced by all
distributions of principal made on such REMIC 1 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(b) or increased by Subsequent Recoveries
through Available Funds. The Uncertificated Balance of REMIC 1 Regular Interest
LT1ZZ shall be increased by interest deferrals as provided in Section
4.08(a)(i). The Uncertificated Balance of each REMIC 1 Regular Interest shall
never be less than zero.
"Uncertificated REMIC 1 Pass-Through Rate": With respect to REMIC 1
Regular Interest LT1AA, REMIC 1 Regular Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1 Regular Interest LT1A2C, REMIC
1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular
Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5,
REMIC 1 Regular Interest LT1M6, REMIC 1 Regular Interest LT1M7, REMIC 1 Regular
Interest LT1M8, REMIC 1 Regular Interest LT1M9, REMIC 1 Regular Interest LT1M10,
REMIC 1 Regular Interest
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LT1B, REMIC 1 Regular Interest LT1SUB, REMIC 1 Regular Interest LT2SUB, REMIC 1
Regular Interest LTXX, REMIC 1 Regular Interest LT1P and REMIC 1 Regular
Interest LT1ZZ, the Weighted Average Net Mortgage Rate of the Mortgage Loans.
With respect to REMIC 1 Regular Interest LT1GRP, the Weighted Average Net
Mortgage Rate of the Group 1 Mortgage Loans. With respect REMIC 1 Regular
Interest LT2GRP, the Weighted Average Net Mortgage Rate of the Group 2 Mortgage
Loans.
"United States Person" or "U.S. Person": (i) A citizen or resident
of the United States, (ii) a corporation, partnership or other entity treated as
a corporation or partnership for United States federal income tax purposes
organized in or under the laws of the United States or any state thereof or the
District of Columbia (unless, in the case of a partnership, Treasury Regulations
provide otherwise), (iii) an estate the income of which is includible in gross
income for United States tax purposes, regardless of its source, or (iv) 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. Notwithstanding the
preceding sentence, to the extent provided in Treasury Regulations, certain
Trusts in existence on August 20, 1996, and treated as United States persons
prior to such date, that elect to continue to be treated as United States
persons will also be a U.S. Person; provided, that for purposes of the
definition of a "Permitted Transferee," a U.S. Person shall not include any
person whose income is attributable to a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person.
"Unpaid Realized Loss Amount": For any of the Class M and Class B
Certificates and as to any Distribution Date, the excess of (x) the aggregate
Applied Realized Loss Amounts allocated to such Class for all prior Distribution
Dates over (y) the sum of (a) the cumulative amount of any Subsequent Recoveries
allocated to such Class and (b) the aggregate Realized Loss Amortization Amounts
with respect to such Class for all prior Distribution Dates.
"Value": With respect to any Mortgaged Property, the lesser of (a)
an amount determined by an appraisal done at origination of the Mortgage Loan
and (b) the purchase price paid for the related Mortgaged Property by the
Mortgagor with the proceeds of the Mortgage Loan; provided, however, that in the
case of a refinanced Mortgage Loan, the value of the Mortgaged Property is based
solely upon clause (a) above.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. The Voting Rights allocated
among Holders of the Class A, Class M and Class B Certificates shall be 98%, and
shall be allocated among each such Class according to the fraction, expressed as
a percentage, the numerator of which is the aggregate Certificate Principal
Balance of all the Certificates of such Class then outstanding and the
denominator of which is the aggregate Certificate Principal Balance of all the
Class A, Class M and Class B Certificates then outstanding. The Voting Rights
allocated to each such Class of Certificates shall be allocated among all
holders of each such Class in proportion to the outstanding Certificate
Principal Balance of such Certificates; provided, however, that any Certificate
registered in the name of the Servicer, the Depositor or the Trustee or any of
their respective affiliates shall not be included in the calculation of Voting
Rights; provided that only such Certificates as are known by a Responsible
Officer of the Trustee to be so registered will be
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so excluded. One percent of all the Voting Rights will be allocated to the
Holders of each of the Class CE and Class P Certificates. The Class R
Certificates shall have no Voting Rights.
"Weighted Average Net Mortgage Rate": The weighted average (based on
Principal Balance as of the first day of the related Collection Period or, in
the case of the first Distribution Date, the Cut-off Date) of the Net Mortgage
Interest Rates of the Mortgage Loans, the Group 1 Mortgage Loans or the Group 2
Mortgage Loans or the Group Subordinate Amounts, as applicable, expressed for
each such Mortgage Loan as an annual rate and calculated on the basis of twelve
months consisting of 30 days each and a 360-day year.
"Written Order to Authenticate": A written order by which the
Depositor directs the Trustee to execute, authenticate and deliver the
Certificates.
"Yield Maintenance Agreement": Any of (i) the Class A-1Yield
Maintenance Agreement, (ii) the Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Agreement or (iii) the Class M and Class B Yield Maintenance
Agreement.
"Yield Maintenance Agreement Payment": Any of (i) the Class A-1
Yield Maintenance Agreement Payment, (ii) the Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇
▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement Payment or (iii) the Class M and Class B Yield
Maintenance Agreement Payment.
"Yield Maintenance Agreement Provider": Barclays Bank PLC and any
successors thereto.
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 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 the Indenture and (ii) any series of notes
issued pursuant to the Indenture remains 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) during the period of time, if any, that
(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.
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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 to the Trustee, on
behalf of the Trust, without recourse for the benefit of the Certificateholders
all of 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 Schedules, including the related Cut-off
Date Principal Balance, all interest accruing thereon 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) all other assets
included or to be included in the Trust Fund; (v) all proceeds of any of the
foregoing; and (vi) the rights of the Depositor under the Originator Mortgage
Loan Purchase Agreement, the Assignment, Assumption and Recognition Agreement
and the Mortgage Loan Purchase Agreement. Such assignment includes all interest
and principal due to the Depositor or the Servicer after the Cut-off Date with
respect to the Mortgage Loans.
In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with the Trustee, or its designated agent, the
following documents or instruments with respect to each Mortgage Loan (a
"Mortgage File") so transferred and assigned:
(a) the original Mortgage Note including any riders thereto, endorsed either
(A) in blank or (B) in the following form: "Pay to the order of JPMorgan
Chase Bank, N.A., as Trustee under the Pooling and Servicing Agreement,
dated as of April 1, 2005, among Asset Backed Funding Corporation, HomEq
Servicing Corporation and JPMorgan Chase Bank, N.A., First Franklin
Mortgage Loan Trust 2005-FF5, Asset-Backed Certificates, Series
2005-FF5, without recourse," or with respect to any lost Mortgage Note,
an original Lost Note Affidavit, together with a copy of the related
Mortgage Note;
(b) the original Mortgage with evidence of recording thereon including any
riders thereto, 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;
(c) except with respect to each MERS Mortgage Loan, an original Assignment,
in form and substance acceptable for recording. The Mortgage shall be
assigned either (A) in blank or (B) to "JPMorgan Chase Bank, N.A., as
Trustee under the Pooling and Servicing Agreement, dated as of April 1,
2005, among Asset Backed Funding Corporation,
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HomEq Servicing Corporation, First Franklin Mortgage Loan Trust
2005-FF5, Asset-Backed Certificates, Series 2005-FF5, without recourse";
(d) the originals of all intervening Assignments (if any) evidencing a
complete chain of assignment from the applicable originator to the last
endorsee with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or
has been lost or if such public recording office retains the original
recorded Assignments, the Servicer shall deliver or cause to be
delivered to the Trustee, a photocopy of such intervening assignment,
together with (A) in the case of a delay caused by the public recording
office, an Officers' Certificate of the Servicer (or certified by the
title company, escrow agent, or closing attorney) stating that such
intervening Assignment has been dispatched to the appropriate public
recording office for recordation and that such original recorded
intervening Assignment or a copy of such intervening Assignment
certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of
mortgage will be promptly delivered to the Trustee upon receipt thereof
by the Servicer; or (B) in the case of an intervening assignment where a
public recording office retains the original recorded intervening
assignment or in the case where an intervening assignment is lost after
recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and
complete copy of the original recorded intervening assignment;
(e) the original or a certified copy of lender's title insurance policy; and
(f) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any.
The Trustee agrees to execute and deliver to the Depositor on or
prior to the Closing Date an acknowledgment of receipt of the original Mortgage
Notes (with any exceptions noted), substantially in the form attached as Exhibit
F-3 hereto.
If any of the documents referred to in Section 2.01(b), (c) or (d)
above has as of the Closing Date been submitted for recording but either (x) has
not been returned from the applicable public recording office or (y) has been
lost or such public recording office has retained the original of such document,
the obligations of the Depositor to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee no later than the Closing Date, of a
copy of each such document certified by the Seller in the case of (x) above or
the applicable public recording office in the case of (y) above to be a true and
complete copy of the original that was submitted for recording and (2) if such
copy is certified by the Seller, delivery to the Trustee, 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 was not delivered
pursuant to Section 2.01(e) above, the Seller shall deliver or cause to be
delivered to the Trustee, a written commitment or interim binder or preliminary
report of title issued by the title insurance or escrow company, with the
original to be delivered to the Trustee, promptly upon receipt thereof. The
Depositor shall deliver or cause to be delivered to the Trustee promptly upon
receipt thereof any other documents constituting a part of a Mortgage File
received with respect to any
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Mortgage Loan, including, but not limited to, any original documents evidencing
an assumption or modification of any Mortgage Loan.
Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File, the Seller
shall have 120 days to cure such defect or 150 days following the Closing Date,
in the case of missing Mortgages or Assignments or deliver such missing document
to the Trustee. If the Seller does not cure such defect or deliver such missing
document within such time period, the Seller shall either repurchase or
substitute for such Mortgage Loan in accordance with Section 2.03.
The Depositor herewith delivers to the Trustee executed copies of
the Originator Mortgage Loan Purchase Agreement, the Assignment, Assumption and
Recognition Agreement and the Mortgage Loan Purchase Agreement.
It is agreed and understood by the parties hereto that it is not
intended that any mortgage loan be included in the Trust that is a "High-Cost
Home Loan" as defined in any of (i) the New Jersey Home Ownership Act effective
November 27, 2003, (ii) the New Mexico Home Loan Protection Act effective
January 1, 2004, (iii) the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) the Indiana Home Loan Practices Act,
effective January 1, 2005.
Section 2.02 Acceptance by Trustee.
The Trustee acknowledges the receipt of, 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
documents referred to in Section 2.01 above and all other assets included in the
definition of "Trust Fund" and declares that it holds and will hold such
documents and the other documents delivered to it constituting a Mortgage File,
and that it holds or will hold all such assets and such other assets included in
the definition of "Trust Fund" in trust for the exclusive use and benefit of all
present and future Certificateholders.
The Trustee reviewed, for the benefit of the Certificateholders,
each Mortgage File prior to the Closing Date (or, with respect to any document
delivered after the Startup Day, within 60 days of receipt and with respect to
any Qualified Substitute Mortgage, within 60 days after the assignment thereof)
and will certify in substantially the form attached hereto as Exhibit F-1 that,
as to each Mortgage Loan listed in the Mortgage Loan Schedules (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in the
exception report annexed thereto as not being covered by such certification),
(i) all documents required to be delivered to it pursuant to Section 2.01 of
this Agreement are in its possession, (ii) such documents have been reviewed by
it and have not been mutilated, damaged or torn and 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 Schedules that corresponds to items (1), (2),
(3), (10) and (23) of the Mortgage Loan Schedules accurately reflects
information set forth in the Mortgage File. It is herein acknowledged that, in
conducting such review, the Trustee 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, enforceable, or appropriate for the
represented
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purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
Prior to the first anniversary date of this Agreement the Trustee
shall deliver to the Depositor, the Servicer and the NIMS Insurer a final
certification in the form annexed hereto as Exhibit F-2 evidencing the
completeness of the Mortgage Files, 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
finds any document or documents constituting a part of a Mortgage File to be
missing or defective in any material respect, at the conclusion of its review
the Trustee shall so notify the Seller, the Depositor, the NIMS Insurer and the
Servicer. In addition, upon the discovery by the Originator, the Seller, the
Depositor, the NIMS Insurer, the Trustee or the Servicer (or upon receipt by the
Trustee of written notification of such breach) of a breach of any of the
representations and warranties made by the Originator in the Originator Mortgage
Loan Purchase Agreement or the Seller in the Mortgage Loan Purchase Agreement in
respect of any Mortgage Loan which materially adversely affects such Mortgage
Loan or the interests of the related Certificateholders in such Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties.
The Depositor and the Trustee intend that the assignment and
transfer herein contemplated constitute a sale of the Mortgage Loans and the
Related Documents, conveying good title thereto free and clear of any liens and
encumbrances, from the Depositor to the Trustee 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, on behalf
of the Trust, a first priority perfected security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans and the
Related Documents, and that this Agreement shall constitute a security agreement
under applicable law.
Section 2.03 Repurchase or Substitution of Mortgage Loans by the
Originator or the Seller.
(a) Upon discovery or receipt of written notice of any materially
defective document in, or that a document is missing from, a Mortgage File or
that any document in a Mortgage File is materially inconsistent with the
Mortgage Loan Schedules or of the breach by the Originator or the Seller of any
representation or warranty under the Originator Mortgage Loan Purchase Agreement
or the Mortgage Loan Purchase Agreement, as applicable, in respect of any
Mortgage Loan which materially adversely affects the value of such Mortgage
Loan, Prepayment Charge or the interest therein of the Certificateholders, the
Trustee shall promptly notify the Originator or the Seller, as the case may be,
the Servicer and the NIMS Insurer of such defect, missing document or breach and
request that, in the case of a defective or missing document, the Seller cure
such defect or deliver such missing document within 120 days from the date the
Seller was notified of such missing document or defect or, in the case of a
breach of a representation or warranty, request the Originator or the Seller, as
applicable, cure such breach within 90 days from the date the Originator or the
Seller, as the case may be, was notified of
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such breach. If the Seller does not deliver such missing document or cure such
defect or if the Originator or the Seller, as applicable, does not cure such
breach in all material respects during such period, the Trustee shall enforce
the Originator's or the Seller's obligation, as the case may be, under the
Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase
Agreement, as applicable, and cause the Originator or the Seller, as applicable,
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 period (subject
to Section 2.03(d)). The Purchase Price for the repurchased Mortgage Loan shall
be deposited in the Collection Account, and the Trustee, upon receipt of written
notice from the Servicer of such deposit, shall release to the Originator or the
Seller, as applicable, the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
the Originator or the Seller, as applicable, shall furnish to it and as shall be
necessary to vest in the Originator or the Seller, as the case may be, any
Mortgage Loan released pursuant hereto and the Trustee shall have no further
responsibility with regard to such Mortgage File. In lieu of repurchasing any
such Mortgage Loan as provided above, the Originator or the Seller, as the case
may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which
case it shall become a Defective Mortgage Loan) and substitute one or more
Eligible Substitute Mortgage Loans in the manner and subject to the limitations
set forth in Section 2.03(c); provided, however, the Originator or the Seller,
as applicable, may not substitute an Eligible Substitute Mortgage Loan for any
Deleted Mortgage Loan that violates any predatory or abusive lending law.
With respect to the representations and warranties set forth in the
Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase
Agreement that are made to the best of the Originator's or the Seller's
knowledge, as applicable, or as to which the Originator or the Seller, as the
case may be, has no knowledge, if it is discovered by the Depositor, the
Servicer, the NIMS Insurer or the Trustee that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, Prepayment Charge or
the interest therein of the Certificateholders then, notwithstanding the
Originator's or the Seller's lack of knowledge with respect to the substance of
such representation and warranty being inaccurate at the time the representation
or warranty was made, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
It is understood and agreed that the representations and warranties
set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage
Loan Purchase Agreement shall survive delivery of the Mortgage Files to the
Trustee and the Closing Date and shall inure to the benefit of the
Certificateholders notwithstanding any restrictive or qualified endorsement or
assignment. It is understood and agreed that the obligations of the Originator
and the Seller set forth in this Section 2.03(a) to cure, substitute for or
repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase
Agreement or the Mortgage Loan Purchase Agreement, as applicable, and to pay the
Reimbursement Amount constitute the sole remedies available to the
Certificateholders and to the Trustee on their behalf respecting a breach of the
representations and warranties contained in the Originator Mortgage Loan
Purchase Agreement and the Mortgage Loan Purchase Agreement.
The representations and warranties of the Originator with respect to
the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which
have been assigned to the
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Trustee hereunder, were made as of the dates specified in the Originator
Mortgage Loan Purchase Agreement. To the extent that any fact, condition or
event with respect to a Mortgage Loan constitutes a breach of both (i) a
representation or warranty of the Originator under the Originator Mortgage Loan
Purchase Agreement and (ii) a representation or warranty of the Seller under the
Mortgage Loan Purchase Agreement (other than Seller's representations with
respect to predatory and abusive lending laws in Sections 3.01(i), 3.01(ii) and
3.01(iii) of the Mortgage Loan Purchase Agreement), the only right or remedy of
the Trustee or of any Certificateholder shall be the Trustee's right to enforce
the obligations of the Originator under any applicable representation or
warranty made by it. The Trustee acknowledges that the Seller shall have no
obligation or liability with respect to any breach of a representation or
warranty made by it with respect to the Mortgage Loans (except as otherwise set
forth in this paragraph) if the fact, condition or event constituting such
breach also constitutes a breach of a representation or warranty made by the
Originator in the Originator Mortgage Loan Purchase Agreement, without regard to
whether the Originator fulfills its contractual obligations in respect of such
representation or warranty. In addition, to the extent that any fact, condition
or event with respect to a Mortgage Loan constitutes a breach of both (x) the
Originator's representation with respect to predatory and abusive lending laws
in Section 3.02(i), (tt) and (ggg) of the Originator Mortgage Loan Purchase
Agreement and (y) the Seller's representation with respect to predatory and
abusive lending laws in Section 3.01(i), 3.01(ii) or 3.01(iii) of the Mortgage
Loan Purchase Agreement, the Originator shall be obligated to pay the
Reimbursement Amount relating to such Mortgage Loan, and, to the extent the
Originator fails to do so, the Trustee shall be entitled to enforce the Seller's
obligation to pay such Reimbursement Amount. In any event, the Reimbursement
Amount shall be delivered to the Servicer for deposit into the Collection
Account within ten (10) days from the date the Seller was notified by the
Trustee of the Reimbursement Amount.
(b) 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.
(c) Any substitution of Eligible Substitute Mortgage Loans for
Defective 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 Defective Mortgage Loan for which the Originator or the Seller substitutes
an Eligible Substitute Mortgage Loan or Loans, such substitution shall be
effected by the Originator or the Seller, as applicable, delivering to the
Trustee for such Eligible Substitute Mortgage Loan or Loans, the Mortgage Note,
the Mortgage, the Assignment to the Trustee, and such other documents and
agreements, with all necessary endorsements thereon, as are required by Section
2.01, together with an Officers' Certificate providing that each such Eligible
Substitute Mortgage Loan satisfies the definition thereof and specifying the
Substitution Adjustment (as described below), if any, in connection with such
substitution. The Trustee shall acknowledge receipt for such Eligible Substitute
Mortgage Loan or Loans and, within ten (10) Business Days thereafter, shall
review such documents as specified in Section 2.02 and deliver to the Servicer
and the NIMS Insurer, with respect to such Eligible Substitute Mortgage Loan or
Loans, a certification substantially in the form attached hereto as Exhibit F-1,
with any applicable exceptions noted thereon. Within one year of the date of
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substitution, the Trustee shall deliver to the Servicer and the NIMS Insurer a
certification substantially in the form of Exhibit F-2 hereto with respect to
such Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions
noted thereon. Monthly Payments due with respect to Eligible Substitute Mortgage
Loans in the month of substitution are not part of the Trust Fund and will be
retained by the Originator or the Seller, as applicable. For the month of
substitution, distributions to Certificateholders will reflect the collections
and recoveries in respect of such Defective Mortgage Loan in the Collection
Period or Prepayment Period, as applicable, preceding the date of substitution
and the Depositor, the Originator or the Seller, as the case may be, shall
thereafter be entitled to retain all amounts subsequently received in respect of
such Defective Mortgage Loan. The Depositor shall give or cause to be given
written notice to the Certificateholders and the NIMS Insurer that such
substitution has taken place, shall amend the Mortgage Loan Schedules to reflect
the removal of such Defective Mortgage Loan from the terms of this Agreement and
the substitution of the Eligible Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedules to the Trustee, the
Servicer and the NIMS Insurer. Upon such substitution, such Eligible 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, in the case of a
substitution effected by the Originator or the Seller, the Originator Mortgage
Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may
be, including, in the case of a substitution effected by the Originator or the
Seller, all applicable representations and warranties thereof included in the
Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase
Agreement, as the case may be, as of the date of substitution.
For any month in which the Originator or the Seller substitutes one
or more Eligible Substitute Mortgage Loans for one or more Defective Mortgage
Loans, the Servicer will determine the amount (the "Substitution Adjustment"),
if any, by which the aggregate Purchase Price of all such Defective Mortgage
Loans exceeds the aggregate, as to each such Eligible Substitute Mortgage Loan,
of the principal balance thereof as of the date of substitution, together with
one month's interest on such principal balance at the applicable Net Mortgage
Interest Rate. On the date of such substitution, the Originator or the Seller,
as the case may be, 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, upon receipt of the related Eligible
Substitute Mortgage Loan or Loans and notice by the Servicer of such deposit,
shall release to the Originator or the Seller, as applicable, the related
Mortgage File or Files and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Originator or the
Seller, as the case may be, shall deliver to it and as shall be necessary to
vest therein any Defective Mortgage Loan released pursuant hereto. In addition,
in connection with the substitution of one or more Eligible Substitute Mortgage
Loans for one or more Defective Mortgage Loans, in the event the Trust incurs
costs or damages arising in connection with a breach of the Originator's
representations with respect to predatory or abusive lending laws set forth in
Section 3.02(i), (tt) and (ggg) of the Originator Mortgage Loan Purchase
Agreement, the Seller shall be required to reimburse the Trust for the
Reimbursement Amount pursuant to the Mortgage Loan Purchase Agreement to the
extent that the Originator fails to do so.
In addition, the Originator or the Seller, as applicable, 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 an
Adverse REMIC Event. If such Opinion of Counsel can not
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be delivered, then such substitution may only be effected at such time as the
required Opinion of Counsel can be given.
(d) Upon discovery by the Originator, the Seller, 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. In connection therewith, the Originator or the
Seller, as applicable, shall repurchase or, subject to the limitations set forth
in Section 2.03(c), substitute one or more Eligible 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. In addition,
upon discovery that a Mortgage Loan is defective in a manner that would cause it
to be a "defective obligation" within the meaning of Treasury Regulations
relating to REMICs, the Originator or the Seller, as the case may be, shall cure
the defect or make the required purchase or substitution no later than 90 days
after the discovery of the defect. Any such repurchase or substitution shall be
made in the same manner as set forth in Section 2.03(a). The Trustee shall
reconvey to the Originator or the Seller, as applicable, 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 Execution of Yield Maintenance Agreements.
The Depositor hereby directs the Trustee to enter into and execute
the Class A-1 Yield Maintenance Agreement, the Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇
▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement and the Class M and Class B Yield Maintenance
Agreement on the Closing Date on behalf of the Trust for the benefit of the
Holders of (i) the Class A-1 Certificates, (ii) the Class A-2A, Class A-2B and
Class A-2C Certificates and (iii) the Class M and Class B Certificates,
respectively. The Depositor, the Servicer and the Holders of the Class A-1
Certificates, the Class A-2A, Class A-2B and Class A-2C Certificates and the
Class M and Class B Certificates (by their acceptance of such Certificates)
acknowledge that JPMorgan Chase Bank, N.A. is entering into each respective
Yield Maintenance Agreement solely in its capacity as Trustee of the Trust Fund
and not in its individual capacity.
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 and the NIMS Insurer 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 the State of New Jersey and has all
licenses necessary to carry on its business as now being conducted, except
for such licenses, certificates and permits the absence of which,
individually or in the aggregate, would not have a material adverse effect
on the ability of the Servicer to conduct its business as it is presently
conducted, and is licensed, qualified and in good standing in each state
where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type
conducted by the Servicer or to ensure the enforceability or validity of
each Mortgage Loan; the Servicer has the power and authority to execute
and deliver
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this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Servicer and
the consummation of the transactions contemplated hereby have been duly
and validly authorized; and all requisite action has been taken by the
Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its terms;
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer and will
not result in the breach of any term or provision of the organizational
documents 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 Servicer is an approved seller/servicer of conventional
residential mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The
Servicer is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act and is in good standing to sell mortgage loans to and
service mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no event has
occurred, including but not limited to a change in insurance coverage,
which would make the Servicer unable to comply with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac eligibility requirements or which would require notification to either
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(iv) This Agreement, and all documents and instruments contemplated
hereby which are executed and delivered by the Servicer, constitute and
will constitute valid, legal and binding obligations of the Servicer,
enforceable in accordance with their respective terms, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally (whether considered in a proceeding at law
or in equity);
(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, may result in any material adverse
change in the business, operations, financial condition, properties or
assets of the Servicer, or in any material impairment of the right or
ability of the Servicer to carry on its business substantially as now
conducted, or in any material liability on the part of the Servicer, or
that 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 that would be likely
to impair materially the ability of the Servicer to perform under the
terms of this Agreement;
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(vii) No consent, approval or order of any court or governmental
agency or body is required for the execution, delivery and performance by
the Servicer of or compliance by the Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations and orders, if any, that have
been obtained;
(viii)No information in this Agreement provided by the Servicer 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 or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary in order to make the statements contained therein, in light
of the circumstances under which they were made, not misleading;
(ix) The Servicer has fully furnished, and shall continue to fully
furnish for so long as it is servicing the Mortgage Loans hereunder, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information on the Mortgagor credit
files to Equifax, Experian and Trans Union Credit Information Company on a
monthly basis;
(x) The Servicer is a member of MERS in good standing; and
(xi) The Servicer acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and that
the entire Servicing Fee shall be treated by the Servicer, for accounting
and tax purposes, as compensation for the servicing and administration of
the Mortgage Loans pursuant to this Agreement.
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 and shall inure to the benefit of the Trustee, the
Depositor, the NIMS Insurer and the Certificateholders. Upon discovery by any of
the Depositor, the Servicer, the NIMS Insurer 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 other parties hereto.
Section 2.06 Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Trust and the Trustee
on behalf of the Certificateholders and to the Servicer and the NIMS Insurer 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);
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(ii) Immediately prior to the sale and assignment by the Depositor
to the Trustee on behalf of the Trust of each Mortgage Loan, the Depositor
had good and marketable title to each Mortgage Loan (insofar as such title
was conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or
other encumbrance or other interest of any nature;
(iii) As of the Closing Date, the Depositor has transferred all
right, title 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 the State 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 certificate 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 certificate 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
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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; (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 and the Uncertificated Regular
Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it of the Mortgage Files, subject to the provisions of
Sections 2.01 and 2.02, and the Trustee acknowledges 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 Order to Authenticate executed by
an officer of the Depositor, has executed, and the Certificate Registrar has
authenticated and delivered to or upon the order of the Depositor, the
Certificates (other than the Class CE, Class P and Class R Certificates) in
minimum dollar denominations of $25,000 and integral dollar multiples of $1 in
excess thereof or in the case of the Class P Certificates, in minimum
denominations of $20 and integral multiples of $20 in excess thereof. The Class
CE Certificates are issuable only in minimum Percentage Interests of 10%. The
Class R Certificate is issuable only as a single certificate. The Trustee
acknowledges the issuance of the uncertificated REMIC 1 Regular Interests and
declares that it hold such regular interests as assets of REMIC 2. The Trustee
acknowledges the obligation of the Class CE Certificates to pay Cap Carryover
Amounts, and declares that it hold the same as assets of the Grantor Trust on
behalf of the Holders of the Class ▇-▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, Class A-2C,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9, Class M-10 and Class B Certificates, respectively, which
shall be treated as beneficially owning the right to receive the Cap Carryover
Amounts from the Grantor Trust. In addition to the assets described in the
preceding sentence, the assets of the Grantor Trust shall also include (i) any
Originator Prepayment Charge Payment Amounts, any Servicer Prepayment Charge
Payment Amounts and the beneficial interest of the Class P Certificates with
respect thereto and (ii) the Yield Maintenance Agreements, the Reserve Accounts
and the beneficial interest of the Class CE Certificates with respect thereto,
subject to the obligation to pay Cap Carryover Amounts. The interests evidenced
by the Certificates constitute the entire beneficial ownership interest in the
Trust Fund.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer.
From and after the Servicing Transfer Date, the Servicer, as
independent contract 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 in accordance with this Agreement and the normal and usual
standards of practice of prudent mortgage servicers servicing similar 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, and
shall have full power and authority, acting alone, to do or cause to be done any
and all things in connection with such servicing and administration which the
Servicer may deem necessary or desirable and consistent with the terms of this
Agreement (the "Servicing Standard").
Consistent with the terms of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Servicer's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Certificateholders; provided, however, that the Servicer shall not make future
advances and, except as set forth in the following sentence or Section 3.03, the
Servicer shall not permit any modification with respect to any Mortgage Loan
that would (i) change the Mortgage Interest Rate, defer or forgive the payment
thereof of any principal or interest payments, reduce the outstanding principal
amount (except for actual payments of principal) or extend the final maturity
date with respect to such Mortgage Loan or (ii) cause an Adverse REMIC Event.
Notwithstanding anything to the contrary contained in this Agreement, in the
event that any Mortgage Loan is in default or, if such default is reasonably
foreseeable, the Servicer, consistent with the standards set forth in this
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, extend the final maturity date of such
Mortgage Loan (including modifications that would change the Mortgage Rate,
forgive the payment of principal or interest, extend the final maturity date of
such Mortgage Loan or waive, in whole or in part, a Prepayment Charge)), accept
payment from the related Mortgagor of an amount less than the unpaid 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 final maturity
date of any Mortgage Loan may not be extended beyond the Assumed Final
Distribution Date. The Servicer's analysis supporting any forbearance and the
conclusion that any forbearance meets the standards of this Section 3.01 shall
be reflected in writing in the Servicing File. Notwithstanding the foregoing,
the Servicer shall not permit any modification with respect to any Mortgage Loan
that would both (x) effect an exchange or reissuance of such Mortgage Loan under
Section 1.860G-2(b) of the Treasury Regulations and (y) cause an Adverse REMIC
Event. 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. Without limiting the generality
of the
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foregoing, the Servicer shall continue, and is hereby authorized and
empowered to execute and deliver on behalf of itself, and the Trustee, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Property. The Servicer shall make all
required Servicing Advances and shall service and administer the Mortgage Loans
in accordance with Applicable Regulations, and shall provide to the Mortgagor
any reports required to be provided to them thereby. The Trustee shall execute
and deliver to the Servicer within at least fifteen (15) Business Days of
receipt, upon request, any powers of attorney furnished to it by the Servicer
empowering the Servicer to execute and deliver instruments of satisfaction or
cancellation, or of partial or full release or discharge, and to foreclose upon
or otherwise liquidate any Mortgaged Property, and to appeal, prosecute or
defend in any court action relating to the Mortgage Loans or the Mortgaged
Properties, in accordance with this Agreement, and the Trustee shall execute and
deliver such other documents as the Servicer may request, necessary or
appropriate to enable the Servicer to service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Servicing
Standard (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Servicer). Notwithstanding anything contained herein to the
contrary, the Servicer shall not without the Trustee's written consent: (i)
initiate any action, suit or proceeding solely under the Trustee's name without
indicating the Servicer's representative capacity or (ii) take any action with
the intent to cause, and which results in, the Trustee being registered to do
business in any state.
In servicing and administering the Mortgage Loans, the Servicer
shall employ procedures including collection procedures and exercise the same
care that it customarily employs and exercises in servicing and administering
mortgage loans for its own account giving due consideration to accepted mortgage
servicing practices of prudent lending institutions and the Certificateholders'
reliance on the Servicer.
The Servicer shall give prompt notice to the Trustee of any action,
of which the Servicer has actual knowledge, to (i) assert a claim against the
Trust Fund or (ii) assert jurisdiction over the Trust Fund.
Notwithstanding anything in this Agreement to the contrary, in the
event of a voluntary Principal Prepayment in full of a Mortgage Loan, the
Servicer may not waive any Prepayment Charge or portion thereof required by the
terms of the related Mortgage Note unless (i)(a) the Servicer determines that
such waiver is standard and customary in servicing similar mortgage loans, (b)
such waiver relates to a default or a reasonably foreseeable default and (c)
would, in the reasonable judgment of the Servicer, maximize recovery of
Liquidation Proceeds for such Mortgage Loan, taking into account the value of
such Prepayment Charge; (ii) the enforceability thereof is limited (1) by
bankruptcy, insolvency, moratorium, receivership, or other similar law relating
to creditors' rights generally or (2) due to acceleration in connection with a
foreclosure or other involuntary payment; (iii) such Prepayment Charge is not
permitted to be collected by Applicable Regulations; or (iv) the collection of
such Prepayment Charge would be considered "predatory" pursuant to written
guidance published or issued by any applicable federal, state or local
regulatory authority acting in its official capacity and having jurisdiction
over such matters. If the Servicer has waived or does not collect all or a
portion of a Prepayment Charge relating to a voluntary Principal Prepayment in
full due to any action or omission of the Servicer, other than as provided
above, the Servicer shall, on the date on which the Principal
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Prepayment in full is remitted to the Trustee, deliver to the Trustee the
Servicer Prepayment Charge Amount with respect to such Mortgage Loan for
distribution in accordance with the terms of this Agreement.
In the event that a Prepayment Charge due with respect to any
Mortgage Loan is not timely received by the Servicer, the Servicer shall use
commercially reasonable efforts to determine whether the Originator is obligated
to pay a related Originator Prepayment Charge Payment Amount, and if the
Servicer determines that a Originator Prepayment Charge Payment Amount is due,
the Servicer shall promptly notify the Originator, and the Servicer shall
enforce the Originator's obligations to pay in a timely manner any such
Originator Prepayment Charge Payment Amounts and, to the extent that such
amounts are received by the Servicer, shall cause such amounts to be deposited
into the Collection Account within one Business Day of receipt.
Section 3.02 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest
on all Mortgage Loans are paid in full or as long as the Mortgage Loan remains
subject to this Agreement, the Servicer will diligently collect all payments due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement and
Applicable Regulations, follow such collection procedures as it follows with
respect to mortgage loans comparable to the Mortgage Loans and held for its own
account. Further, the Servicer will take special care in ascertaining and
estimating on escrowed Mortgage Loans annual ground rents, taxes, assessments,
water rates, fire and hazard insurance premiums, mortgage insurance premiums,
and all other charges that, as provided in the Mortgage, will become due and
payable to that end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Section 3.03 Realization Upon Defaulted Mortgage Loans.
In the event that any payment due under any Mortgage Loan is not
paid when the same becomes due and payable, or in the event the Mortgagor fails
to perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Servicer shall take
such action as it shall deem to be in the best interest of the
Certificateholders. With respect to any defaulted Mortgage Loan, the Servicer
shall have the right to review the status of the related forbearance plan and,
subject to the second paragraph of Section 3.01, may modify such forbearance
plan; including extending the Mortgage Loan repayment date for a period of one
year or reducing the Mortgage Interest Rate up to 50 basis points.
In connection with a foreclosure or other conversion, the Servicer
shall exercise such rights and powers vested in it hereunder and use the same
degree of care and skill in its exercise as prudent mortgage servicers would
exercise or use under the circumstances in the conduct of their own affairs and
consistent with Applicable Regulations and the Servicing Standard, including,
without limitation, advancing funds for the payment of taxes and insurance
premiums.
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Notwithstanding the foregoing provisions of this Section 3.03, 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 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
Trust 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 received the prior written consent of the NIMS Insurer and has received a
prudent report prepared by a Person who regularly conducts environmental audits
using customary industry standards, that:
A. such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic interest of
the Certificateholders to take such actions as are necessary to bring the
Mortgaged Property into compliance therewith; and
B. there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous substances,
hazardous materials, hazardous wastes, or petroleum-based materials for which
investigation, testing, monitoring, containment, clean-up or remediation could
be required under any federal, state or local law or regulation, or that if any
such materials are present for which such action could be required, that it
would be in the best economic interest of the Certificateholders to take such
actions with respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by this
Section 3.03 shall be advanced by the Servicer, subject to the Servicer's right
to be reimbursed therefor from the Collection Account as provided in Section
3.05(a)(iv).
If the Servicer determines, as described above, that it is in the
best economic interest of the Certificateholders 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 Certificateholders. 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 3.05(a).
Section 3.04 Collection Accounts, Distribution Account and Reserve
Accounts.
(a) The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain certain Collection Accounts.
Each Collection Account shall be an Eligible Account.
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The Servicer shall deposit or cause to be deposited on a daily basis
and in no event more than two Business Days after receipt thereof in the
clearing account (which must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities, and shall thereafter deposit in the
Collection Account, in no event more than two Business Days after deposit of
such funds in the clearing account, and retain therein, the following payments
and collections received or made by it after the Cut-off Date with respect to
the Mortgage Loans (other than in respect of principal and interest due on or
before the Cut-off Date):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans,
adjusted to the Mortgage Interest Rate less the Servicing Fee Rate and any
Prepayment Interest Excess;
(iii) all Liquidation Proceeds and any Subsequent Recoveries;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 3.10, other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Servicer's
normal servicing procedures, the loan documents or applicable law;
(v) all Condemnation Proceeds affecting any Mortgaged Property which
are not released to the Mortgagor in accordance with the Servicer's normal
servicing procedures, the loan documents or applicable law;
(vi) any amounts required to be deposited by the Servicer in
connection with any REO Property pursuant to Section 3.13;
(vii) all Prepayment Charges collected by the Servicer in connection
with the voluntary Principal Prepayment in full of any Mortgage Loan, all
Originator Prepayment Charge Payment Amounts paid by the Originator and
all Servicer Prepayment Charge Payment Amounts required to be paid by the
Servicer pursuant to Section 3.01 in connection with any such Principal
Prepayment; and
(viii) all amounts required to be deposited by the Servicer pursuant
to Section 2.03.
Any interest paid on funds deposited in the Collection Accounts,
subject to Section 3.25, shall accrue to the benefit of the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Collection Accounts pursuant to Section 3.05(a)(v) and 3.05(b)(iii), as
applicable. The foregoing requirements for deposit into the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, bad
check fees, prepayment charges that are not Prepayment Charges, Originator
Prepayment Charge Payment Amounts or Servicer Prepayment Charge Payment Amounts,
assumption fees and other similar fees need not be
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deposited by the Servicer into the Collection Account. Amounts deposited in the
Collection Accounts in error may be withdrawn by the Servicer at any time.
(b) On behalf of the Trust Fund, the Trustee shall establish and
maintain one or more accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of 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 by 1:00 p.m. New York
time on the Servicer Remittance Date, (i) that portion of the Available Funds
(calculated without regard to the references in the definition thereof to
amounts that may be deposited to the Distribution Account from a different
source as provided herein) then on deposit in the Collection Accounts and (ii)
the amount of all Prepayment Charges collected by the Servicer, all Originator
Prepayment Charge Payment Amounts required to be paid by the Originator and all
Servicer Prepayment Charge Payment Amounts required to be paid by the Servicer
in connection with the voluntary Principal Prepayment in full of any of the
Mortgage Loans then on deposit in the Collection Account (other than any such
Prepayment Charges received and Servicer Prepayment Charge Payment Amounts and
Originator Prepayment Charge Payment Amounts paid after the related Prepayment
Period). Amounts in the Distribution Account shall be deemed to be held on
behalf of the related REMICs and the Grantor Trust in accordance with the REMIC
distributions set forth in Section 4.08. The Trustee shall be entitled to
withdraw from the Distribution Account any amounts owing to it pursuant to
Section 8.05 and Section 9.01(c) prior to the distribution of any amounts on
deposit to the Certificateholders; provided, however, in the case of amounts
owing to it other than the Trustee Fee, the Trustee shall provide the Depositor,
the NIMS Insurer and the Servicer with a written account of such amounts five
Business Days prior to withdrawing such funds and, provided further, that the
Trustee shall not be entitled to withdraw such amounts for funds on deposit in
the Distribution Account representing Prepayment Charges, Originator Prepayment
Charge Payment Amounts and Servicer Prepayment Charge Payment Amounts. In
connection with any failure by the Servicer to make any remittance required to
be made by the Servicer to the Trustee for deposit in the Distribution Account
on the day and by the time such remittance is required to be made under the
terms of this Section 3.04(b) (without giving effect to any grace or cure
period), the Servicer shall pay to the Trustee for the account of the Trustee
interest at the prime rate of United States money center commercial banks as
published in The Wall Street Journal on any amount not timely remitted from and
including the day such remittance was required to be made to, but not including,
the day on which such remittance was actually made.
(c) Funds on deposit in the Collection Accounts may be invested in
Eligible Investments in accordance with the provisions set forth in Section
3.25. The Servicer shall give notice to the Trustee and the NIMS Insurer of the
location of the Collection Accounts maintained by it when established and prior
to any change thereof. The Trustee shall give notice to the Servicer, the NIMS
Insurer and the Depositor of the location of the Distribution Account when
established and prior to any change thereof.
(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 the Servicer any such amount, any
provision herein to the contrary notwithstanding. In addition, the Servicer
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shall deliver to the Trustee from time to time for deposit, and the Trustee
shall so deposit, in the Distribution Account in respect of REMIC 1:
(i) any Advances, as required pursuant to Section 4.07;
(ii) any Stayed Funds, as soon as permitted by the federal
bankruptcy court having jurisdiction in such matters;
(iii) any amounts required to be delivered by the Servicer to the
Trustee for deposit in the Distribution Account pursuant to Sections 2.03,
3.04, 3.13, 3.15, 3.16, 3.23, 3.24, 4.07 or 10.01; and
(iv) any amounts required to be deposited by the Servicer pursuant
to Section 3.11 in connection with the deductible clause in any blanket
hazard insurance policy, such deposit being made from the Servicer's own
funds, without reimbursement therefor.
(e) Promptly upon receipt of any Stayed Funds, whether from the
Servicer, a trustee in bankruptcy, or federal bankruptcy court or other source,
the Trustee shall notify the Servicer of such receipt and deposit such funds in
the Distribution Account, subject to withdrawal thereof as permitted hereunder.
In addition, the Trustee shall deposit in the Distribution Account any amounts
required to be deposited pursuant to Section 3.25(b) in connection with losses
realized on Eligible Investments with respect to funds held in the Distribution
Account.
(f) Any Originator Prepayment Charge Payment Amounts and Servicer
Prepayment Charge Payment Amounts deposited pursuant to Section 3.04(a)(vii)
shall not be assets of any REMIC created hereunder, but shall be considered
assets of the Grantor Trust held by the Trustee for the benefit of the Class P
Certificateholders.
(g) (i) The Trustee shall establish and maintain the Class A-1
Reserve Account, held in trust for the benefit of the Holders of the Class A-1
Certificates. The Trustee shall deposit in the Class A-1 Reserve Account on the
date received by it, any Class A-1 Yield Maintenance Agreement Payment received
from the Yield Maintenance Agreement Provider for the related Distribution Date.
The Trustee shall establish and maintain the Class A-2A, Class A-2B and
Class A-2C Reserve Account, held in trust for the benefit of the Holders of the
Class A-2A, Class A-2B and Class A-2C Certificates. The Trustee shall deposit in
the Class A-2A, Class A-2B and Class A-2C Reserve Account on the date received
by it, any Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement
Payment received from the Yield Maintenance Agreement Provider for the related
Distribution Date.
The Trustee shall establish and maintain the Class M and Class B Reserve
Account, held in trust for the benefit of the Holders of the Class M and Class B
Certificates. The Trustee shall deposit in the Class M and Class B Reserve
Account on the date received by it, any Class M and Class B Yield Maintenance
Agreement Payment received from the Yield Maintenance Agreement Provider for the
related Distribution Date.
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On each Distribution Date, the Trustee shall withdraw from the Class A-1
Reserve Account any Class A-1 Yield Maintenance Agreement Payment, shall
withdraw from the Class A-2A, Class A-2B and Class A-2C Reserve Account any
Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement Payment and
shall withdraw from the Class M and Class B Reserve Account any Class M and
Class B Yield Maintenance Agreement Payment and apply them in the following
order of priority:
(A) to the Class A-1 Certificates from the Class A-1 Reserve
Account, any remaining unpaid Cap Carryover Amounts for such Distribution Date
(after distributions to the Class A-1 Certificates pursuant to Section
4.02(b)(xxxvi) hereof), distributed based on the unpaid Cap Carryover Amount for
such Class;
(B) to the Class A-2A, Class A-2B and Class A-2C Certificates from
the Class A-2A, Class A-2B and Class A-2C Reserve Account,
(1) in each case only up to the Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇
▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇▇, any remaining unpaid Cap Carryover Amounts
for such Classes for such Distribution Date (after distributions to
the Class A-2A, Class A-2B and Class A-2C Certificates pursuant to
Section 4.02(b)(xxxvi) hereof), distributed pro rata, to each of the
Class A-2A, Class A-2B and Class A-2C Certificates; and
(2) any remaining unpaid Cap Carryover Amounts for such
Classes for such Distribution Date (after distributions to the Class
A-2A, Class A-2B and Class A-2C Certificates pursuant to Section
4.02(b)(xxxvi) hereof and clause (B)(1) above) distributed pro rata,
to each of the Class A-2A, Class A-2B and Class A-2C Certificates
based on the unpaid Cap Carryover Amount for such class;
(C) to the Class M and Class B Certificates from the Class M and
Class B Reserve Account,
(1) in each case only up to the Class M and Class B Cap
Amount, any remaining unpaid Cap Carryover Amounts for such Classes
for such Distribution Date (after distributions to the Class M and
Class B Certificates pursuant to Section 4.02(b)(xxxvi) hereof),
distributed 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,
Class M-10 and Class B Certificates, in that order; and
(2) any remaining unpaid Cap Carryover Amounts for such
Classes for such Distribution Date (after distributions to the Class
M and Class B Certificates pursuant to Section 4.02(b)(xxxvi) hereof
and clause (C)(1) above) distributed 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, Class M-10 and Class B Certificates, in that
order; and
(D) to the Class CE Certificates, any remaining amount on deposit in
the Reserve Accounts.
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(ii) The Trustee shall account for each Reserve Account as an asset
of a grantor trust under subpart E, part I of subchapter J of the Code and
not an asset of any REMIC created pursuant to this Agreement. The
beneficial owner of each Reserve Account is the Class CE
Certificateholder. For all federal tax purposes, amounts transferred or
reimbursed by REMIC 2 to either Reserve Account shall be treated as
distributions by the Trustee to the Class CE Certificateholder.
(iii) Any Cap Carryover Amounts paid by the Trustee pursuant to this
Section 3.04(g) to the Class A, Class M and Class B Certificates, shall be
accounted for by the Trustee as amounts paid first to the Class CE
Certificates and then to the respective Class or Classes of the Class A,
Class M and Class B Certificates from the Grantor Trust. In addition, the
Trustee shall account for the related Class A, Class M and Class B
Certificates' rights to receive payments of Cap Carryover Amounts as
rights in limited recourse interest rate cap contracts written by the
Class CE Certificates in favor of the related Classes of Class A, Class M
and Class B Certificates.
(iv) For federal tax return and information reporting, the right of
the Holders of the Class A, Class M and Class B Certificates to receive
payments under the Class A-1 Yield Maintenance Agreement, the Class ▇-▇▇,
▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Agreement and the Class M and
Class B Yield Maintenance Agreement in respect of any related Yield
Maintenance Agreement Payments shall be assigned a value of zero.
Section 3.05 Permitted Withdrawals From the Collection Accounts.
The Servicer may, from time to time, withdraw from the Collection Account
for the following purposes:
(a) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be so remitted pursuant to Section 3.04(b) or permitted
to be so remitted pursuant to the first sentence of Section 3.04(d);
(b) to reimburse itself for (i) any unreimbursed Advances to the
extent of amounts received which represent Late Collections (net of the related
Servicing Fees) of Monthly Payments, Liquidation Proceeds and Insurance Proceeds
on Mortgage Loans with respect to which such Advances were made in accordance
with the provisions of Section 4.07, (ii) any unreimbursed Advances that are
Nonrecoverable Advances, or (iii) subject to Section 4.07(b), any unreimbursed
Advances to the extent of funds held in the Collection Account for future
distribution that were not included in Available Funds for the preceding
Distribution Date;
(c) to reimburse itself for (i) any unpaid Servicing Fees, (ii) any
unreimbursed Servicing Advances with respect to each Mortgage Loan, but only to
the extent of any Late Collections, Liquidation Proceeds, Insurance Proceeds and
condemnation proceeds received with respect to such Mortgage Loan, or (c) any
Servicing Advances that are Nonrecoverable Advances;
(d) to reimburse itself for any amounts paid or expenses incurred
pursuant to Section 3.03 (and not otherwise previously reimbursed);
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(e) to pay to itself as servicing compensation (a) any interest
earned on funds in the Collection Account (all such interest to be withdrawn
monthly not later than each Servicer Remittance Date), and (b) the Servicing Fee
from that portion of any payment or recovery as to interest to a particular
Mortgage Loan to the extent not retained pursuant to Section 3.04(a)(ii);
(f) to pay or reimburse itself for any amounts payable or paid
pursuant to Section 6.03 (and not otherwise previously reimbursed);
(g) to pay to itself any Prepayment Interest Excess on the related
Mortgage Loans to the extent not retained pursuant to Section 3.04(a)(ii); and
(h) to clear and terminate the Collection Account upon the
termination of this Agreement.
The foregoing requirements for withdrawal from each of the
Collection Accounts shall be exclusive. In the event the Servicer shall deposit
in either Collection Account any amount not required to be deposited therein, it
may at any time withdraw such amount from such Collection Account, any provision
herein to the contrary notwithstanding.
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
The Servicer shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts, in the form of time deposit
or demand accounts. A copy of such letter agreement shall be furnished to the
Trustee upon request. The Escrow Account shall be an Eligible Account.
The Servicer shall deposit or cause to be deposited on a daily basis
and in no event more than two Business Days after receipt thereof in the
clearing account (which must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities, and shall thereafter deposit in the Escrow
Account or Accounts, in no event more than two Business Days after deposit of
such funds in the clearing account, and retain therein, (i) all Escrow Payments
collected on account of the Mortgage Loans, for the purpose of effecting timely
payment of any such items as required under the terms of this Agreement, and
(ii) all Insurance Proceeds which are to be applied to the restoration or repair
of any Mortgaged Property. The Servicer shall make withdrawals therefrom only to
effect such payments as are required under this Agreement, and for such other
purposes as shall be set forth in, or in accordance with, Section 3.07. The
Servicer shall be entitled to retain any interest paid on funds deposited in the
Escrow Account by the depository institution other than interest on escrowed
funds required by law to be paid to the Mortgagor and, to the extent required by
the related Mortgage Loan or Applicable Regulations, the Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes.
Section 3.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account may be made by the Servicer (i)
to effect timely payments of ground rents, taxes, assessments, water rates,
fire, flood and hazard insurance
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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) to reimburse the Servicer for any Servicing Advance made by the
Servicer with respect to a related Mortgage Loan but only from amounts received
on the related Mortgage Loan which represent late payments or Late Collections
of Escrow Payments thereunder with respect to taxes and assessments and with
respect to hazard insurance, (iii) to refund to the Mortgagor any funds as may
be determined to be overages, (iv) for transfer to the Collection Account in
accordance with the terms of this Agreement, (v) for application to restoration
or repair of the Mortgaged Property, (vi) to pay to the Servicer, or to the
Mortgagor to the extent required by the related Mortgage Loan or Applicable
Regulations, any interest paid on the funds deposited in the Escrow Account,
(vii) to clear and terminate the Escrow Account on the termination of this
Agreement, or (viii) to transfer to the Collection Account any insurance
proceeds. As part of its servicing duties, the Servicer shall pay to the
Mortgagor interest on funds in the Escrow Account, to the extent required by the
related Mortgage Loan or Applicable Regulations, and to the extent that interest
earned on funds in the Escrow Account is insufficient, shall pay such interest
from its own funds, without any reimbursement therefor.
In the event the Servicer shall deposit in the Escrow Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Escrow Account, any provision herein to the contrary
notwithstanding.
Section 3.08 Payment of Taxes, Insurance and Other Charges;
Collections Thereunder.
With respect to each Mortgage Loan that provides for Escrow
Payments, the Servicer shall maintain accurate records reflecting the status of
ground rents, taxes, assessments, water rates and other charges which are or may
become a lien upon the Mortgaged Property and the status of fire, flood and
hazard insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall 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). To the extent that a Mortgage does not
provide for Escrow Payments, the Servicer (i) shall determine whether any such
payments are made by the Mortgagor in a manner and at a time that 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 and (ii) shall ensure that all insurance required to
be maintained on the Mortgaged Property pursuant to this Agreement is
maintained. If any such payment has not been made and the Servicer receives
notice of a tax lien with respect to the Mortgage Loan being imposed, the
Servicer will, promptly and to the extent required to avoid loss of the
Mortgaged Property, advance or cause to be advanced funds necessary to discharge
such lien on the Mortgaged Property. The Servicer assumes full responsibility
for the payment of all such bills and shall effect payments of all such bills
irrespective of the Mortgagor's faithful performance in the payment of same or
the making of the Escrow Payments and shall make Servicing Advances from its own
funds to effect such payments.
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Section 3.09 Transfer of Accounts.
The Servicer may transfer the Collection Accounts and the Escrow
Account to a different depository institution from time to time. Upon such
transfer, the Servicer shall deliver to the Trustee, the NIMS Insurer and the
Depositor, a certification or letter agreement, as the case may be, as required
pursuant to Sections 3.04 and 3.06.
Section 3.10 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan
fire and hazard insurance with extended coverage as is customary in the area
where the Mortgaged Property is located in an amount which is at least equal to
the lesser of (i) the amount necessary to fully compensate for any damage or
loss to the improvements which are a part of such property on a replacement cost
basis or (ii) the Principal Balance of the Mortgage Loan, in each case in an
amount not less than such amount as is necessary to prevent the Mortgagor and/or
the Mortgagee from becoming a co-insurer. If the Mortgaged Property is in an
area identified in the Federal Register by the Flood 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 meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (i) the Principal Balance of the Mortgage
Loan, (ii) the maximum insurable value of the improvements securing such
Mortgage Loan or (iii) the maximum amount of insurance which is available under
the National Flood Insurance Act of 1968, as amended. The Servicer shall also
maintain on the REO Properties for the benefit of the Certificateholders, (x)
fire and hazard insurance with extended coverage in an amount which is at least
equal to the lesser of (i) 100% of the maximum insurable value of the
improvements securing the Mortgage Loan and (ii) the outstanding Principal
Balance of the Mortgage Loan at the time it became an REO Property, (y) public
liability insurance and, (z) to the extent required and available under the
National Flood Insurance Act of 1968, as amended, flood insurance in an amount
as provided above. Any amounts collected by the Servicer under any such policies
other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or REO Property, or released to
the Mortgagor in accordance with the Servicer's normal servicing procedures,
shall be deposited in the Collection Account, subject to withdrawal pursuant to
Section 3.05(a). It is understood and agreed that no earthquake or other
additional insurance is required to be maintained by the Servicer or the
Mortgagor or maintained on property acquired in respect of the Mortgage Loan,
other than pursuant to such Applicable Regulations as shall at any time be in
force and as shall require such additional insurance. All such policies shall be
endorsed with standard mortgagee clauses with loss payable to the Servicer and
shall provide for at least thirty days prior written notice of any cancellation,
reduction in the amount of or material change in coverage to the Servicer. The
Servicer shall not interfere with the Mortgagor's freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Servicer
shall not accept any such insurance policies from insurance companies unless
such companies currently reflect a general policy rating of A:X or better in
Best's Key Rating Guide and are licensed to do business in the state wherein the
property subject to the policy is located.
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Section 3.11 Maintenance of Mortgage Impairment Insurance Policy.
In the event that the Servicer shall obtain and maintain a blanket
policy issued by an insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and that
has a general policy rating of A:X or better in Best's Key Rating Guide insuring
against hazard losses on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the amount required pursuant to
Section 3.10 and otherwise complies with all other requirements of Section 3.10,
it shall conclusively be deemed to have satisfied its obligations as set forth
in Section 3.10, it being understood and agreed that such policy may contain a
deductible clause, 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 Section 3.10, and there shall have been a loss which
would have been covered by such policy, deliver to the Trustee for deposit in
the Distribution Account the amount not otherwise payable under the blanket
policy because of such deductible clause, which amount shall not be reimbursable
to the Servicer from the Trust Fund. In connection with its activities as
servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on
behalf of the Trustee, claims under any such blanket policy in a timely fashion
in accordance with the terms of such policy. Upon request of the Trustee, the
Servicer shall cause to be delivered to the Trustee a certified true copy of
such policy and a statement from the insurer thereunder that such policy shall
in no event be terminated or materially modified without thirty days prior
written notice to the Trustee.
Section 3.12 Fidelity Bond, Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket fidelity
bond (the "Fidelity Bond") and an errors and omissions insurance policy, with
broad coverage with financially responsible companies on all officers, employees
or other persons acting in any capacity with regard to the Mortgage Loans to
handle funds, money, documents and papers relating to the Mortgage Loans. The
Fidelity Bond and errors and omissions insurance shall be in the form of the
Mortgage Banker's Blanket Bond and shall protect and insure the Servicer against
losses, including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons. Such Fidelity Bond shall also protect and insure
the Servicer against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.12 requiring the
Fidelity Bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ MBS
Selling and Servicing Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Servicer's
Guide, unless the Servicer has obtained a waiver of such requirements from
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Upon request of the Trustee or the NIMS Insurer, the
Servicer shall cause to be delivered to the requesting party a certified true
copy of the Fidelity Bond and errors and omissions insurance policy and a
statement from the surety and the insurer that such Fidelity Bond and errors and
omissions insurance policy shall in no event be terminated or materially
modified without thirty days' prior written notice to the Trustee.
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Section 3.13 Title, Management and Disposition of REO Property.
(a) In the event that title to a Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken (pursuant to a limited power of attorney to be provided by the
Trustee to the Servicer) in the name of the Trustee or its nominee, on behalf of
the Certificateholders, or in the event the Trustee is not authorized or
permitted to hold title to real property in the state where the REO Property is
located, or would be adversely affected under the "doing business" or tax laws
of such state by so holding title, the deed or certificate of sale shall be
taken in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Servicer from an attorney duly licensed to
practice law in the state where the REO Property is located. Any Person or
Persons holding such title other than the Trustee shall acknowledge in writing
that such title is being held as nominee for the benefit of the Trustee.
(b) In the event that the Trust Fund acquires any REO Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Servicer shall dispose of such REO Property before the end of
the third taxable year beginning after the year of its acquisition by the Trust
Fund for purposes of Section 860G(a)(8) of the Code unless the Servicer has
received a grant of extension from the Internal Revenue Service of the
above-mentioned grace period such that the holding by the Trust Fund of such REO
Property subsequent to such period will not: (i) result in the imposition of any
tax on "prohibited transactions" as defined in Section 860F of the Code; (ii)
cause any REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code; or (iii) cause any REMIC constituting
any part of the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding, in which case the Trust Fund may continue to hold
such REO Property.
Subject to compliance with applicable laws and regulations as shall
at any time be in force, and notwithstanding any other provisions of this
Agreement, no REO Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would: (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code; or (ii) subject any REMIC constituting part of
the Trust Fund to the imposition of any federal or state income taxes on the
income earned from such REO Property, including any taxes imposed by reason of
Sections 860F or 860G(c) of the Code, unless the Servicer has agreed to
indemnify and hold harmless the Trust Fund with respect to the imposition of any
such taxes.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Certificateholders and the Trust Fund 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 the related REMIC 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. The Servicer shall cause each
REO Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least annually thereafter. The
Servicer shall make or cause to be made a written or electronic report of
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each such inspection. Such reports shall be retained in the Mortgage File and
copies thereof shall be forwarded by the Servicer to the Trustee upon request.
The Servicer shall attempt to sell the same (and may temporarily rent the same)
on such terms and conditions as the Servicer deems to be in the best interest of
the Certificateholders and the Trust Fund.
With respect to each REO Property, the Servicer shall account
separately for each REO Property with respect to all funds collected and
received in connection with the operation of such REO Property.
The income earned from the management of any REO Properties, net of
reimbursement to the Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of unreimbursed
Servicing Fees, Advances and Servicing Advances related thereto, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Collection Account. To the extent
the net income received during any calendar month is in excess of the amount on
a daily basis, within two Business Days of receipt attributable to amortizing
principal and accrued interest at the related Mortgage Rate on the related
Mortgage Loan for such calendar month, such excess shall be considered to be a
partial prepayment of principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Servicer for any related unreimbursed Servicing Advances
and Servicing Fees; second, to reimburse the Servicer for any related
unreimbursed Advances; third, to reimburse the Certificate Account for any
Nonrecoverable Advances (or portions thereof) that were previously withdrawn by
the Servicer pursuant to Section 3.05(a)(ii)(b) and 3.05(a)(iii)(c) that related
to such Mortgage Loan; fourth, to accrued and unpaid interest (to the extent no
Advance has been made for such amount or any such Advance has been reimbursed)
on the Mortgage Loan or related REO Property, at the Mortgage Rate (net of the
Servicing Fee) to the Due Date occurring in the month in which such amounts are
required to be distributed; and fifth, as a recovery of principal of the
Mortgage Loan.
The Servicer shall furnish to the Trustee, on each Servicer
Remittance Date, an operating statement for each REO Property covering the
operation of each REO Property for the previous month. Such operating statement
shall be accompanied by such other information as the Trustee shall reasonably
request.
The Servicer shall use its best efforts to dispose of the REO
Property as promptly as is practically consistent with protecting the
Certificateholders' interests.
Each REO Disposition shall be carried out by the Servicer at such
price and upon such terms and conditions as the Servicer deems to be in the best
interest of the Certificateholders. If as of the date title to any REO Property
was acquired by the Servicer there were outstanding unreimbursed Servicing
Advances, Servicing Fees and Advances with respect to the REO Property, the
Servicer, upon an REO Disposition of such REO Property, shall be
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entitled to reimbursement for any related unreimbursed Servicing Advances,
Servicing Fees and Advances from proceeds received in connection with such REO
Disposition. The proceeds from the REO Disposition, net of any payment to the
Servicer as provided above, shall be deposited in the Collection Account for
transfer to the Distribution Account on the succeeding Servicer Remittance Date
in accordance with Section 3.04(a)(vi).
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 and an Opinion of Counsel is obtained by the Servicer to the
effect that such sale shall not cause any REMIC constituting part of the Trust
Fund to fail to qualify as a REMIC).
Section 3.14 Due-on-Sale Clauses; Assumption and Substitution
Agreements.
When a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, the Servicer shall, to the extent it has knowledge of such conveyance
or prospective conveyance, exercise its rights to accelerate the maturity of the
related Mortgage Loan under any "due-on-sale" clause contained in the related
Mortgage or Mortgage Note; provided, however, that the Servicer shall not
exercise any such right if the "due-on-sale" clause, in the reasonable belief of
the Servicer, is not enforceable under applicable law. An Opinion of Counsel of
the Servicer (the costs of which shall constitute a reimbursable Servicing
Advance) delivered to the Trustee, the Depositor and the NIMS Insurer shall
conclusively establish the reasonableness of the Servicer's belief that any
"due-on-sale" clause is not enforceable under applicable law. In such event, the
Servicer shall make reasonable efforts to enter into an assumption and
modification agreement with the Person to whom such property has been or is
about to be conveyed, pursuant to which such Person becomes liable under the
Mortgage Note and, unless prohibited by applicable law or the Mortgage, the
Mortgagor remains liable thereon. If the foregoing is not permitted under
applicable law, the Servicer is authorized 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 Mortgagor and
becomes liable under the Note; provided that no such substitution will be
permitted unless such person satisfies the underwriting criteria of the Servicer
and has a credit score at least equal to that of the original Mortgagor. The
Mortgage Loan, as assumed, shall conform in all respects to the requirements,
representations and warranties of this Agreement. The Servicer shall not take or
enter into any assumption and modification agreement, however, unless (to the
extent practicable under the circumstances) it shall have received confirmation,
in writing, of the continued effectiveness of any applicable hazard insurance
policy. The Servicer shall notify the Trustee that any such assumption or
substitution agreement has been completed by forwarding to the Trustee the
original copy of such assumption or substitution agreement (indicating the
Mortgage File to which it relates) which copy shall be added by the Trustee to
the related Mortgage File and which 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. The Servicer shall be responsible for
recording any such assumption or substitution agreements. In connection with any
such assumption or substitution agreement, the Monthly Payment on the related
Mortgage Loan shall not be changed but shall remain as in effect immediately
prior to the assumption or substitution, the stated maturity or outstanding
principal amount of such Mortgage Loan shall not be changed nor shall any
required monthly payments of principal or interest be deferred or forgiven. Any
fee collected by the Servicer for consenting to any such conveyance or entering
into an
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assumption or substitution agreement shall be retained by or paid to the
Servicer as additional servicing compensation.
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 any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever. For purposes of
this Section 3.14, the term "assumption" is deemed to include a sale of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section 3.15 Notification of Adjustments.
On each Adjustment Date, the Servicer shall make Mortgage Interest
Rate adjustments for each Adjustable-Rate Mortgage Loan in compliance with the
requirements of the related Mortgage and Mortgage Note and Applicable
Regulations. The Servicer shall execute and deliver the notices required by each
Mortgage and Mortgage Note and Applicable Regulations regarding Mortgage
Interest Rate adjustments. Upon the discovery by the Servicer or the Trustee
that the Servicer has failed to adjust or has incorrectly adjusted a Mortgage
Interest Rate or a Monthly Payment pursuant to the terms of the related Mortgage
Note and Mortgage, the Servicer shall deliver to the Trustee for deposit in the
Distribution Account from its own funds the amount of any interest loss caused
thereby without reimbursement therefor; provided, however, the Servicer shall be
held harmless with respect to any Mortgage Interest Rate adjustments made by any
servicer prior to the Servicer.
Section 3.16 Optional Purchases of Mortgage Loans by Servicer.
The Servicer may, at its option, or, shall, at the direction of the
NIMS Insurer (which shall be at the expense of the NIMS Insurer), purchase a
Mortgage Loan or REO Property which becomes 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, the Servicer shall be required to continue to
make Advances pursuant to Section 4.07. The Servicer shall not use any procedure
in selecting Mortgage Loans to be purchased which is materially adverse to the
interests of the Certificateholders. The Servicer shall purchase such Delinquent
Mortgage Loan or REO Property at a price equal to the Purchase Price. The
Servicer will not be entitled to any Servicing Fee with respect to any such
purchased Mortgage Loan. Any such purchase of a Mortgage Loan or REO Property
pursuant to this Section 3.16 shall be accomplished by delivery to the Trustee
for deposit in the Distribution Account of the amount of the Purchase Price. The
Trustee shall immediately effectuate the conveyance of such delinquent Mortgage
Loan or REO Property to the Servicer to the extent necessary, including the
prompt delivery of all documentation to the Servicer.
Section 3.17 Trustee to Cooperate; Release of Files.
(a) Upon the payment in full of any Mortgage Loan (including any
liquidation of such Mortgage Loan through foreclosure or otherwise, or the
receipt by the Servicer of a notification that payment in full will be escrowed
in a manner customary for such purposes), the
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Servicer shall deliver to the Trustee, in written form (with two executed
copies) or electronic form, of a completed "Request for Release" in the form of
Exhibit E. Upon receipt of such Request for Release of Documents, the Trustee
shall promptly release the related Mortgage File within three (3) Business Days
via overnight mail delivery (at the expense of the Servicer), in trust, to (i)
the Servicer, or (ii) such other party identified in the related Request for
Release. Upon any such payment in full, or the receipt of such notification that
such funds have been placed in escrow, the Trustee hereby authorizes and
empowers the Servicer to execute an instrument of satisfaction (or Assignment
without recourse) regarding the Mortgaged Property relating to such Mortgage,
which instrument of satisfaction or Assignment shall be delivered to the Person
or Persons entitled thereto against receipt therefor of payment in full, it
being understood and agreed that no expense incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Accounts. In lieu of executing any such
satisfaction or assignment, as the case may be, the Servicer may prepare and
submit to the Trustee a satisfaction (or assignment without recourse, if
requested by the Person or Persons entitled thereto) in form for execution by
the Trustee with all requisite information completed by the Servicer; in such
event, the Trustee shall execute and acknowledge such satisfaction or
assignment, as the case may be, and deliver the same with the related Mortgage
File, as aforesaid.
(b) From time to time and as appropriate in the servicing of any
Mortgage Loan, including, without limitation, foreclosure or other comparable
conversion of a Mortgage Loan or collection under any insurance policy relating
to a Mortgage Loan, the Trustee shall (except in the case of the payment or
liquidation pursuant to which the related Mortgage File is released to an escrow
agent or an employee, agent or attorney of the Trustee), upon written request of
the Servicer and delivery to the Trustee, in written form (with two executed
copies) or electronic form, of a "Request for Release" in the form of Exhibit E
signed by a Servicing Officer, release the related Mortgage File to the Servicer
within three (3) Business Days and shall execute such documents as shall be
necessary to the prosecution of any such proceedings, including, without
limitation, an assignment without recourse of the related Mortgage to the
Servicer. Such receipt shall obligate the Servicer to return the Mortgage File
to the Trustee when the need therefor by the Servicer no longer exists unless
the Mortgage Loan shall be liquidated, in which case, upon receipt of a Request
for Release evidencing such liquidation, the receipt shall be released by the
Trustee to the Servicer.
(c) Subject to Section 3.01, the Servicer shall have the right to
accept applications of Mortgagors for consent to (i) partial releases of
Mortgages, (ii) alterations, (iii) removal, demolition or division of properties
subject to Mortgages, (iv) modifications, and (v) second mortgage subordination
agreements. No application for approval shall be considered by the Servicer
unless: (w) it has received an Opinion of Counsel, addressed to the Trustee
(which opinion shall not be an expense of the Trustee or the Trust Fund) that
such sale, disposition, substitution, acquisition or contribution will not
affect adversely the status of any REMIC constituting part of the Trust Fund as
a REMIC or cause any REMIC constituting part of the Trust Fund to be subject to
a tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions; (x) the provisions of the related Note and Mortgage have been
complied with; (y) the Loan-to-Value Ratio and debt-to-income ratio after any
release does not exceed the maximum Loan-to-Value Ratio and debt-to-income ratio
established in accordance with the underwriting standards of the Mortgage Loans;
and (z) the lien priority of the related Mortgage is
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not affected. Upon receipt by the Trustee of a Servicing Officer's certificate
setting forth the action proposed to be taken in respect of a particular
Mortgage Loan and certifying that the criteria set forth in the immediately
preceding sentence have been satisfied, the Trustee shall execute and deliver to
the Servicer the consent or partial release so requested by the Servicer. A
proposed form of consent or partial release, as the case may be, shall accompany
any Servicing Officer's certificate delivered by the Servicer pursuant to this
paragraph.
Section 3.18 Servicing Compensation.
As compensation for its activities hereunder, the Servicer shall be
entitled to retain the amount of the Servicing Fee with respect to each Mortgage
Loan (including REO Properties). The Servicer shall be entitled to retain
additional servicing compensation in the form of release fees, bad check
charges, assumption fees, modification or extension fees, late payment charges,
prepayment charges that are not Prepayment Charges, Originator Prepayment Charge
Payment Amounts or Servicer Prepayment Charge Payment Amounts, or any other
service-related fees and similar items, to the extent collected from Mortgagors.
In addition, the Servicer shall be entitled to retain or withdraw from the
Collection Account, pursuant to Section 3.05(g), any Prepayment Interest Excess
with respect to the Mortgage Loans as additional servicing compensation.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.11 and the fees and expenses of independent accountants and any agents
appointed by the Servicer), and shall not be entitled to reimbursement therefor
from the Trust Fund except as specifically provided in Section 3.05(a).
Section 3.19 Annual Statement as to Compliance.
(a) Beginning in 2006, the Servicer, at its own expense, will
deliver to the Trustee, the NIMS Insurer and the Depositor, not later than March
15th of each calendar year, a Servicing Officer's certificate stating, as to
each signer thereof, that (i) a review of the activities of the Servicer during
such preceding fiscal year and of performance under this Agreement has been made
under such officers' supervision, and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled all its obligations
under this Agreement for such year, or, if there has been a default in the
fulfillment of all such obligations, specifying each such default known to such
officers and the nature and status thereof including the steps being taken by
the Servicer to remedy such default.
(b) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and their receipt of such shall not
constitute constructive notice of any information contained therein or
determinable, from information contained therein, including the Servicer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 3.20 Annual Independent Certified Public Accountants'
Reports.
(a) Beginning in 2006, not later than March 15th of each calendar
year, the Servicer, at its expense, shall cause a nationally recognized firm of
independent certified public
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accountants to furnish to the Trustee, the Depositor, the NIMS Insurer and each
Rating Agency, a report stating that (i) it has obtained a letter of
representation regarding certain matters from the management of the Servicer
which includes an assertion that the Servicer has complied with certain minimum
residential mortgage loan servicing standards, identified in either the Uniform
Single Attestation Program for Mortgage Bankers established by the Mortgage
Bankers Association of America or the Audit Program for Mortgages serviced by
▇▇▇▇▇▇▇ Mac, with respect to the servicing of residential mortgage loans during
the most recently completed fiscal year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the American
Institute of Certified Public Accountants, such representation is fairly stated
in all material respects, subject to such exceptions and other qualifications
that may be appropriate. Copies of such statement shall be provided by the
Trustee to any Certificateholder upon request, at the Servicer's expense,
provided that such statement is delivered by the Servicer to the Trustee.
(b) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and their receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Servicer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 3.21 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
(a) The Servicer shall provide to the Depositor, the Trustee,
Certificateholders that are federally insured savings and loan associations, the
Office of Thrift Supervision, the Office of the Comptroller of the Currency, the
FDIC and the supervisory agents and examiners of each of the foregoing (which,
in the case of supervisory agents and examiners, may be required by applicable
state and federal regulations) access to the available documentation regarding
the Mortgage Loans, such access being afforded without charge but only upon
reasonable advance request and during normal business hours at the offices of
the Servicer designated by it.
(b) The Servicer shall afford the NIMS Insurer, upon reasonable
advance 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 NIMS Insurer its most recent publicly available
financial statements and such other information relating to its capacity to
perform its obligations under this Agreement.
Section 3.22 Duties of Credit Risk Manager.
For and on behalf of the Depositor, the Credit Risk Manager shall
provide reports and recommendations as to loss mitigation activities concerning
Mortgage Loans that are past due, are in default, as to which there has been
commencement of foreclosure, as to which there has been forbearance in exercise
of remedies, as to which any obligor is the subject of bankruptcy, receivership,
or an arrangement of creditors, or which have become REO Properties. Such
reports and recommendations will be based upon information provided pursuant to
the
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Credit Risk Management Agreement. The Credit Risk Manager shall look solely to
the Servicer for all information and data (including loss and delinquency
information and data) and loan-level information and data relating to the
servicing of the Mortgage Loans. The Trustee, on behalf of the Trust, hereby
authorizes the Servicer to provide such loan-level information and data to the
Credit Risk Manager.
The Credit Risk Manager may be removed at any time by a vote of
Certificateholders holding Certificates evidencing at least 66 2/3% of the
aggregate Voting Rights of the Certificates. After any such termination, the
Credit Risk Manager shall have no further obligations hereunder, and shall no
longer be entitled to the Credit Risk Manager Fee.
Section 3.23 Obligations of the Servicer in Respect of Compensating
Interest.
Not later than the close of business on each Servicer Remittance
Date, the Servicer shall deliver to the Trustee for deposit in the Distribution
Account an amount ("Compensating Interest") equal to the lesser of (A) the
aggregate of the Prepayment Interest Shortfalls on the Mortgage Loans for the
related Distribution Date resulting from Principal Prepayments on the Mortgage
Loans during the portion of the related Prepayment Period occurring in the prior
calendar month and (B) its aggregate Servicing Fee received in the related
Collection Period. The Servicer shall apply Compensating Interest to offset any
Prepayment Interest Shortfalls on the Mortgage Loans. 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 3.24 Obligations of the Servicer in Respect of Mortgage
Interest Rates and Monthly Payments.
In the event that a shortfall in any collection on or liability with
respect to any Mortgage Loan results from or is attributable to adjustments to
Mortgage Interest Rates, Monthly Payments or Principal Balances that were made
by the Servicer in a manner not consistent with the terms of the related
Mortgage Note, Applicable Regulations and this Agreement, the Servicer, upon
discovery or receipt of notice thereof, immediately shall deliver to the Trustee
for deposit in the Distribution Account from its own funds the amount of any
such shortfall and shall indemnify and hold harmless the Trust Fund, the
Trustee, the 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 3.24 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 3.25 Investment of Funds in the Collection Accounts.
(a) The Servicer may direct any depository institution maintaining
one or more Collection Accounts, to invest the funds in such Collection Account
in one or more Eligible 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
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are required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the Trustee is the obligor thereon, 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 an Affiliate of the Trustee. All such
Eligible Investments shall be held to maturity, unless payable on demand. Any
investment of funds in a Collection Account shall be made in the name of the
Trustee or the Servicer, as applicable (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
Accounts) over each such investment and the income thereon, 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 a Collection Account are at any time invested in an
Eligible Investment payable on demand, the Trustee shall at the direction of the
Servicer:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the
last day such Eligible 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 Eligible Investment would not
constitute an Eligible Investment in respect of funds
thereafter on deposit in such Collection Account.
(b) All income and gain realized from the investment of funds in the
Collection Accounts shall be for the benefit of the Servicer. The Servicer shall
deposit in the applicable Collection Account or (to the extent funds in the
Escrow Account are invested if permitted by applicable law) the Escrow Account,
as applicable, from its own funds the amount of any loss incurred in respect of
any such Eligible Investment made with funds in such account immediately upon
realization of such loss. Funds in the Distribution Account shall remain
uninvested.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Trustee may and, subject to Section 8.01 and Section 8.02(e),
upon the request of the NIMS Insurer or Holders of Certificates representing
more than 50% of the Voting Rights allocated to any Class of Certificates, shall
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
Section 3.26 Liability of Servicer; Indemnification.
Subject to Section 6.03, the Servicer (except the Trustee if it is
required to succeed the Servicer hereunder) indemnifies and holds the Trustee,
the Depositor, the NIMS Insurer and the Trust Fund harmless against any and all
claims, losses, penalties, fines,
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forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, fees and expenses that the Trustee, the Depositor, the NIMS Insurer and
the Trust Fund may sustain in any way related to the failure of the Servicer to
perform its duties and service the Mortgage Loans in compliance with the
Servicing Standard. The Servicer shall immediately notify the Trustee, the NIMS
Insurer and the Depositor if a claim is made that may result in such claims,
losses, penalties, fines, forfeitures, legal fees or related costs, judgments,
or any other costs, fees and expenses, and the Servicer shall assume (with the
consent of the Trustee) the defense of any such claim and pay all expenses in
connection therewith, including reasonable counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against the
Servicer, the Trustee, the Depositor, the NIMS Insurer and/or the Trust Fund in
respect of such claim. The provisions of this Section 3.26 shall survive the
termination of this Agreement and the payment of the outstanding Certificates.
Section 3.27 Reports of Foreclosure and Abandonment of Mortgaged
Properties.
Beginning in 2006, the Servicer shall file the reports of
foreclosure and abandonment of any Mortgaged Property required by Section 6050J
of the Code with the Internal Revenue Service on or before the due date for any
such report. Not later than 90 days following the end of each calendar year,
beginning in 2006, the Servicer will deliver an Officer's Certificate to the
Trustee and the NIMS Insurer certifying its compliance with this Section 3.27.
The reports from the Servicer shall be in form and substance sufficient to meet
the reporting requirements imposed by such Section 6050J.
Section 3.28 Protection of Assets.
(a) Except for transactions and activities entered into in
connection with the securitization that is the subject of this Agreement, the
Trust is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell assets;
or
(3) engage in any business or activities.
(b) Notwithstanding any prior termination of this Agreement, each
party hereto agrees that, until after one year and one day following the payment
in full of the last of the Certificates issued hereunder, it shall not
acquiesce, petition or otherwise invoke or cause the Depositor or the Trust to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Depositor or the Trust under any
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Depositor or the Trust or any substantial part of the
property of either, or ordering the winding up or liquidation of the affairs of
the Depositor or the Trust.
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Section 3.29 Limitation of Liability of the Credit Risk Manager.
Neither the Credit Risk Manager, nor any of the directors, officers,
employees or agents of the Credit Risk Manager, shall be under any liability to
the Depositor, the Servicer, the Trustee or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, in reliance upon information provided by the
Servicer under the Credit Risk Management Agreement or for errors in judgment;
provided, however, that this provision shall not protect the Credit Risk Manager
or any such person against liability that would otherwise be imposed by reason
of willful malfeasance, bad faith or negligence in its performance of its duties
or by reason of reckless disregard for its obligations and duties under this
Agreement or the applicable Credit Risk Management Agreement. The Credit Risk
Manager and any director, officer, employee or agent of the Credit Risk Manager
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder, and may
rely in good faith upon the accuracy of information furnished by the Servicer
pursuant to the applicable Credit Risk Management Agreement in the performance
of its duties thereunder and hereunder.
Section 3.30 No Personal Solicitation.
From and after the Closing Date, the Servicer agrees that it will
not take any action or permit or cause any action to be taken by any of its
agents and Affiliates, or by any independent contractors or independent mortgage
brokerage companies on the Servicer's behalf, to personally, by telephone, mail
or electronic mail, solicit the Mortgagor under any Mortgage Loan for the
purpose of refinancing such Mortgage Loan or make the list of names and
addresses of the Mortgagors available to any third party for any solicitation
purpose; provided, that the Servicer may solicit any Mortgagor for whom the
Servicer has received a request for verification of mortgage, a request for
demand for payoff, a mortgagor initiated written or verbal communication
indicating a desire to prepay the related Mortgage Loan, or the mortgagor
initiates a title search; provided further, it is understood and agreed that
promotions undertaken by the Servicer or any of its Affiliates which (i) concern
optional insurance products or other additional products or (ii) are directed to
the general public at large, including, without limitation, mass mailings based
on commercially acquired mailing lists, newspaper, radio and television
advertisements shall not constitute solicitation under this Section, nor is the
Servicer prohibited from responding to unsolicited requests or inquiries made by
a Mortgagor or an agent of a Mortgagor. Furthermore, the Servicer shall be
permitted to include messages to all borrowers under all mortgage loans serviced
by it in its monthly statements.
Section 3.31 Periodic Filings.
(a) The Trustee and the Servicer shall reasonably cooperate with the
Depositor in connection with the Trust's satisfying its reporting requirements
under the Exchange Act. Without limiting the generality of the foregoing, the
Trustee shall prepare, or cause to be prepared, on behalf of the Trust any
monthly Current Reports on Form 8-K (each, a "Monthly Form 8-K") and Annual
Reports on Form 10-K (each, a "Form 10-K") customary for similar securities as
required by the Exchange Act and the rules and regulations of the Securities and
Exchange Commission thereunder, and the Trustee shall sign (other than any Form
10-K) and file (via the Securities and Exchange Commission's Electronic Data
Gathering and Retrieval
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System) such Forms on behalf of the Trust. The Depositor hereby grants to the
Trustee a limited power of attorney to execute and file each such document on
behalf of the Depositor. Such power of attorney shall continue until either the
earlier of (i) receipt by the Trustee from the Depositor of written termination
of such power of attorney and (ii) the termination of the Trust. Notwithstanding
the foregoing, the Depositor shall sign any Form 10-K with respect to which the
Depositor signs a Certification.
(b) Each Monthly Form 8-K shall be filed by the Trustee within 15
days after each Distribution Date, including a copy of the Distribution Date
Statement for such Distribution Date as an exhibit thereto. Prior to March 30th
of each year (or such earlier date as may be required by the Exchange Act and
the rules and regulations of the Securities and Exchange Commission), the
Trustee shall file a Form 10-K, in substance as required by applicable law or
applicable Securities and Exchange Commission staff interpretations. Such Form
10-K shall include as exhibits the Servicer's annual statement of compliance
described under Section 3.19 and the accountant's report described under Section
3.20, in each case, to the extent they have been timely delivered to the
Trustee. If they are not so timely delivered, the Trustee shall file an amended
Form 10-K (to the extent permissible) including such documents as exhibits
reasonably promptly after they are delivered to the Trustee. The Trustee shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence, willful
misconduct or bad faith. The Form 10-K shall also include a certification in the
form attached hereto as Exhibit O (the "Certification"), which shall be signed
by a senior officer of the Depositor in charge of securitization. The Depositor
shall deliver the Certification to the Trustee prior to March 15th of each year
in which a Form 10-K is required to be filed with respect to the Trust. The
Trustee, the Depositor and the Servicer shall reasonably cooperate to enable the
Securities and Exchange Commission requirements with respect to the Trust to be
met in the event that the Securities and Exchange Commission issues additional
interpretive guidelines or promulgates rules or regulations, or in the event of
any other change of law that would require reporting arrangements or the
allocation of responsibilities with respect thereto, as described in this
Section 3.31, to be conducted or allocated in a different manner.
(c) Not later than 15 calendar days prior to the latest date on
which the Form 10-K may be timely filed each year, (i) the Trustee shall sign
and deliver to the Depositor a certification (in the form attached hereto as
Exhibit P-1) for the benefit of the Depositor and its officers, directors and
Affiliates (provided, however, that the Trustee shall not undertake an analysis
of the accountant's report attached as an exhibit to the Form 10-K) and (ii) the
Servicer shall sign and deliver to the Depositor a certification (in the form
attached hereto as Exhibit P-2) for the benefit of the Depositor and its
officers, directors and Affiliates. In addition, (i) the Trustee shall also
indemnify and hold harmless the Depositor, each Person, if any, who "controls"
the Depositor within the meaning of the 1933 Act, and its officers, directors
and Affiliates from and against
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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 any inaccuracy in the certification provided by the Trustee
pursuant to this Section 3.31(c), any breach of the Trustee's obligations under
this Section 3.31(c) or the Trustee's negligence, bad faith or willful
misconduct in connection therewith and (ii) the Servicer shall indemnify and
hold harmless the Depositor, each Person, if any, who "controls" the Depositor
within the meaning of the 1933 Act, 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 any inaccuracy in the certification
provided by the Servicer pursuant to this Section 3.31(c), any breach of the
Servicer's obligations under this Section 3.31(c) or the Servicer's negligence,
bad faith or willful misconduct in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
Depositor, each Person, if any, who "controls" the Depositor within the meaning
of the 1933 Act, and its officers, directors and Affiliates, then (i) the
Trustee agrees that it shall contribute to the amount paid or payable by the
Depositor, its officers, directors or Affiliates as a result of the losses,
claims, damages or liabilities of the Depositor, its officers, directors or
Affiliates in such proportion as is appropriate to reflect the relative fault of
the Depositor and its officers, directors and Affiliates on the one hand and the
Trustee on the other in connection with a breach of the Trustee's obligations
under this Section 3.31(c) or the Trustee's negligence, bad faith or willful
misconduct in connection therewith and (ii) the Servicer agrees that it shall
contribute to the amount paid or payable by the Depositor, its officers,
directors or Affiliates as a result of the losses, claims, damages or
liabilities of the Depositor, its officers, directors or Affiliates in such
proportion as is appropriate to reflect the relative fault of the Depositor and
its officers, directors and Affiliates on the one hand and the Servicer on the
other in connection with a breach of the Servicer's obligations under this
Section 3.31(c) or the Servicer's negligence, bad faith or willful misconduct in
connection therewith. The Servicer hereby acknowledges and agrees that the
Depositor and the Trustee are relying on the Servicer's performance of its
obligations under Sections 3.19 and 3.20 in order to perform their respective
obligations under this Section 3.31.
(d) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(e) The obligations set forth in paragraphs (a) through (d) of this
Section shall only apply with respect to periods for which the Trustee is
obligated to file reports on Form 8-K or 10-K pursuant to paragraph (b) of this
Section. Prior to January 30th of the first year in which the Trustee is able to
do so, the Trustee shall prepare, execute and file with the Securities and
Exchange Commission a Form 15 Suspension Notification with respect to the Trust,
and thereafter there shall be no further obligations under paragraphs (a)
through (d) of this Section commencing with the calendar year in which the Form
15 is filed (other than the obligations to be performed in such calendar year
that relate back to the prior calendar year).
(f) If the Securities and Exchange Commission issues additional
interpretative guidance or promulgates additional rules or regulations, or if
other changes in applicable law occur, which would require the reporting
arrangements, or the allocation of responsibilities with respect thereto,
described in this Section 3.31, to be conducted differently than as described,
the Depositor, the Servicer and the Trustee will reasonably cooperate to amend
the provisions of this Section 3.31 in order to comply with such amended
reporting requirements and such amendment of this Section 3.31. Any such
amendment shall be made in accordance with Section 11.01 without the consent of
the Certificateholders, and may result in a change in the reports filed by the
Trustee on behalf of the Trust under the Exchange Act. Notwithstanding the
foregoing, none of the Depositor, the Servicer or the Trustee shall be obligated
to enter into any amendment
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pursuant to this Section 3.31 that adversely affects its obligations and
immunities under this Agreement.
Section 3.32 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act.
(a) With respect to each Mortgage Loan, the Servicer agrees to fully
furnish, in accordance with ▇▇▇▇▇▇ Mae Guide Announcement 95-19 and the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files to
Equifax, Experian and TransUnion Credit Information Company (three of the credit
repositories) on a monthly basis and agrees it shall report one of the following
statuses each month as follows: new origination, current, delinquent (30-, 60-,
90-days, etc.), foreclosed, or charged-off.
(b) The Servicer shall comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act of 1999 and all applicable regulations promulgated thereunder, relating to
the Mortgage Loans and the related borrowers and shall provide all required
notices thereunder.
ARTICLE IV
FLOW OF FUNDS
Section 4.01 Interest Distributions.
On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Interest Remittance Amount and apply it in the
following order of priority (based upon the Mortgage Loan information provided
to it in the Remittance Report, upon which the Trustee may conclusively rely),
and the calculations required to be made by the Trustee, to the extent
available:
(i) concurrently, to the Trustee, the Trustee Fee for such
Distribution Date to the extent it has not been previously paid for such
Distribution Date, and to the Credit Risk Manager, the Credit Risk Manager
Fee for such Distribution Date, pro rata;
(ii) concurrently, as follows:
(a) from the Group 1 Interest Remittance Amount to the Class
A-1 Certificates, the applicable Accrued Certificate Interest
thereon for such Distribution Date; and
(b) concurrently, from the Group 2 Interest Remittance Amount
to the Class A-2A, Class A-2B and Class A-2C Certificates, pro rata,
the applicable Accrued Certificate Interest thereon for such
Distribution Date;
(iii) concurrently, as follows:
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(a) from the Group 1 Interest Remittance Amount to the Class
A-1 Certificates, the applicable Interest Carry Forward Amount
thereon for such Distribution Date; and
(b) concurrently, from the Group 2 Interest Remittance Amount
to the Class A-2A, Class A-2B and Class A-2C Certificates, pro rata,
the applicable Interest Carry Forward Amount thereon for such
Distribution Date;
(iv) concurrently, as follows:
(a) if the Group 1 Interest Remittance Amount is insufficient
to pay the Class A-1 Certificates' applicable Accrued Certificate
Interest for such Distribution Date pursuant to Section 4.01(ii)(a)
above, from any remaining Group 2 Interest Remittance Amount, to the
Class A-1 Certificates, to cover such shortfall for such
Distribution Date; and
(b) if the Group 2 Interest Remittance Amount is insufficient
to pay the Class A-2A, Class A-2B and Class A-2C Certificates'
applicable Accrued Certificate Interest for such Distribution Date
pursuant to Section 4.01(ii)(b) above, concurrently, from any
remaining Group 1 Interest Remittance Amount, to the Class A-2A,
Class A-2B and Class A-2C Certificates, pro rata, to cover such
shortfall for such Distribution Date;
(v) concurrently, as follows:
(a) if the Group 1 Interest Remittance Amount is insufficient
to pay the Class A-1 Certificates' applicable Interest Carry Forward
Amount for such Distribution Date pursuant to Section 4.01(iii)(a)
above, from any remaining Group 2 Interest Remittance Amount, to the
Class A-1 Certificates, to cover such shortfall for such
Distribution Date; and
(b) if the Group 2 Interest Remittance Amount is insufficient
to pay the Class A-2A, Class A-2B and Class A-2C Certificates'
applicable Interest Carry Forward Amount for such Distribution Date
pursuant to Section 4.01(iii)(b) above, concurrently, from any
remaining Group 1 Interest Remittance Amount, to the Class A-2A,
Class A-2B and Class A-2C Certificates, pro rata, to cover such
shortfall for such Distribution Date;
(vi) to the Class M-1 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(vii) to the Class M-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
(viii) to the Class M-3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
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(ix) to the Class M-4 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(x) to the Class M-5 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xi) to the Class M-6 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xii) to the Class M-7 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
(xiii) to the Class M-8 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
(xiv) to the Class M-9 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
(xv) to the Class M-10 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
(xvi) to the Class B Certificates, the Accrued Certificate Interest
thereon for such Distribution Date; and
(xvii) the amount, if any, of the Interest Remittance Amount
remaining after application with respect to the priorities set forth above
will be applied as described under Section 4.02(b) hereof.
On any Distribution Date, any shortfalls resulting from Prepayment
Interest Shortfalls not covered by Compensating Interest payments made by the
Servicer or from the application of the Relief Act or similar state laws will be
allocated as a reduction to the Accrued Certificate Interest for the Class A,
Class M and Class B Certificates on a pro rata basis based on the respective
amounts of interest accrued on those Certificates for that Distribution Date.
The holders of the Class A, Class M and Class B Certificates will not be
entitled to reimbursement on future Distribution Dates of any such Prepayment
Interest Shortfalls or Relief Act shortfalls following their allocation to such
Certificates.
Section 4.02 Distributions of Principal and Monthly Excess Cashflow
Amounts.
(a) On each Distribution Date, the Trustee shall make the following
distributions in the following order of priority (based upon the Mortgage Loan
information provided to it in the Remittance Report, upon which the Trustee may
conclusively rely absent manifest error, and the calculations required to be
made by the Trustee), to the extent of the Principal Distribution Amount:
(i) before the Stepdown Date or with respect to which a Trigger
Event is in effect, sequentially, as follows:
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first, concurrently, as follows:
(a) the Group 1 Senior Principal Distribution Amount to
the Class A-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; and
(b) (i) with respect to any Distribution Date prior to
the Subordination Depletion Date, sequentially, the Group 2
Senior Principal Distribution Amount to the Class A-2A, Class
A-2B and Class A-2C Certificates, in that order, until the
Certificate Principal Balances thereof have been reduced to
zero or (ii) with respect to any Distribution Date on or after
the Subordination Depletion Date, concurrently the Group 2
Senior Principal Distribution Amount to the Class A-2A, Class
A-2B and Class A-2C Certificates, pro rata, until the
Certificate Principal Balances thereof have been reduced to
zero;
second, concurrently, as follows:
(c) (i) with respect to any Distribution Date prior to
the Subordination Depletion Date, sequentially, any Group 1
Senior Principal Distribution Amount remaining after priority
first of this Section 4.02(a)(i), to the Class A-2A, Class
A-2B and Class A-2C Certificates, in that order, until the
Certificate Principal Balances thereof have been reduced to
zero or (b) with respect to any Distribution Date on or after
the Subordination Depletion Date, concurrently, any Group 1
Senior Principal Distribution Amount remaining after priority
first of this Section 4.02(a)(i), to the Class A-2A, Class
A-2B and Class A-2C Certificates, pro rata, until the
Certificate Principal Balances thereof has been reduced to
zero; and
(d) any Group 2 Senior Principal Distribution Amount
remaining after priority first of this Section 4.02(a)(i), to
the Class A-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
third, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fourth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fifth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
sixth, to the Class M-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
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seventh, to the Class M-5 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
eighth, to the Class M-6 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-8 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
eleventh, to the Class M-9 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
twelfth, to the Class M-10 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
thirteenth, to the Class B Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
fourteenth, any remaining Principal Distribution Amount will
be distributed as part of the Monthly Excess Cashflow Amount as set
forth in Section 4.02(b).
(ii) on or after the Stepdown Date and as long as a Trigger Event is
not in effect:
first, concurrently, as follows:
(a) the Group 1 Senior Principal Distribution Amount to
the Class A-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; and
(b) (i) with respect to any Distribution Date prior to
the Subordination Depletion Date, sequentially, the Group 2
Senior Principal Distribution Amount to the Class A-2A, Class
A-2B and Class A-2C Certificates, in that order, until the
Certificate Principal Balances thereof have been reduced to
zero or (b) with respect to any Distribution Date on or after
the Subordination Depletion Date, concurrently, the Group 2
Senior Principal Distribution Amount to the Class A-2A, Class
A-2B and Class A-2C Certificates, pro rata, until the
Certificate Principal Balances thereof have been reduced to
zero;
second, concurrently, as follows:
(c) (i) with respect to any Distribution Date prior to
the Subordination Depletion Date, (a) sequentially, any Group
1 Senior
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Principal Distribution Amount remaining after priority first
of this Section 4.02(a)(ii), to the Class A-2A, Class A-2B and
Class A-2C Certificates, in that order, until the Certificate
Principal Balances thereof have been reduced to zero or (b)
with respect to any Distribution Date on or after the
Subordination Depletion Date, concurrently, any Group 1 Senior
Principal Distribution Amount remaining after priority first
of this Section 4.02(a)(ii)to the Class A-2A, Class A-2B and
Class A-2C Certificates, pro rata, until the Certificate
Principal Balances thereof have been reduced to zero; and
(d) any Group 2 Senior Principal Distribution Amount
remaining after priority first of this Section 4.02(a)(ii), to
the Class A-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
third, to the Class M-1 Certificates, up to the Class M-1
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
fourth, to the Class M-2 Certificates, up to the Class M-2
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
fifth, to the Class M-3 Certificates, up to the Class M-3
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
sixth, to the Class M-4 Certificates, up to the Class M-4
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
seventh, to the Class M-5 Certificates, up to the Class M-5
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
eighth, to the Class M-6 Certificates, up to the Class M-6
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
ninth, to the Class M-7 Certificates, up to the Class M-7
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
tenth, to the Class M-8 Certificates, up to the Class M-8
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
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eleventh, to the Class M-9 Certificates, up to the Class M-9
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
twelfth, to the Class M-10 Certificates, up to the Class M-10
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
thirteenth, to the Class B Certificates, up to the Class B
Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero; and
fourteenth, any remaining Principal Distribution Amount will
be distributed as part of the Monthly Excess Cashflow Amount as set
forth in Section 4.02(b).
(b) On each Distribution Date, any Monthly Excess Cashflow Amount
shall be distributed, to the extent available, in the following order of
priority on such Distribution Date:
(i) to pay any remaining Accrued Certificate Interest for such
Distribution Date, pro rata, on the Class A Certificates;
(ii) to pay any Interest Carry Forward Amount for such Distribution
Date, pro rata, for the Class A Certificates;
(iii) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-1 Certificates;
(iv) to pay the remaining Interest Carry Forward Amount, if any, for
the Class M-1 Certificates for such Distribution Date;
(v) to pay the Class M-1 Realized Loss Amortization Amount for such
Distribution Date;
(vi) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-2 Certificates;
(vii) to pay the remaining Interest Carry Forward Amount, if any,
for the Class M-2 Certificates for such Distribution Date;
(viii) to pay the Class M-2 Realized Loss Amortization Amount for
such Distribution Date;
(ix) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-3 Certificates;
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(x) to pay the remaining Interest Carry Forward Amount, if any, for
the Class M-3 Certificates for such Distribution Date;
(xi) to pay the Class M-3 Realized Loss Amortization Amount for such
Distribution Date;
(xii) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-4 Certificates;
(xiii) to pay the remaining Interest Carry Forward Amount, if any,
for the Class M-4 Certificates for such Distribution Date;
(xiv) to pay the Class M-4 Realized Loss Amortization Amount for
such Distribution Date;
(xv) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-5 Certificates;
(xvi) to pay the remaining Interest Carry Forward Amount, if any,
for the Class M-5 Certificates for such Distribution Date;
(xvii) to pay the Class M-5 Realized Loss Amortization Amount for
such Distribution Date;
(xviii) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-6 Certificates;
(xix) to pay the remaining Interest Carry Forward Amount, if any,
for the Class M-6 Certificates for such Distribution Date;
(xx) to pay the Class M-6 Realized Loss Amortization Amount for such
Distribution Date;
(xxi) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-7 Certificates;
(xxii) to pay the remaining Interest Carry Forward Amount, if any,
for the Class M-7 Certificates for such Distribution Date;
(xxiii) to pay the Class M-7 Realized Loss Amortization Amount for
such Distribution Date;
(xxiv) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-8 Certificates;
(xxv) to pay the remaining Interest Carry Forward Amount, if any,
for the Class M-8 Certificates for such Distribution Date;
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(xxvi) to pay the Class M-8 Realized Loss Amortization Amount for
such Distribution Date;
(xxvii) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-9 Certificates;
(xxviii) to pay the remaining Interest Carry Forward Amount, if any,
for the Class M-9 Certificates for such Distribution Date;
(xxix) to pay the Class M-9 Realized Loss Amortization Amount for
such Distribution Date;
(xxx) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date on the Class M-10 Certificates;
(xxxi) to pay the remaining Interest Carry Forward Amount, if any,
for the Class M-10 Certificates for such Distribution Date;
(xxxii) to pay the Class M-10 Realized Loss Amortization Amount for
such Distribution Date;
(xxxiii) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date on the Class B Certificates;
(xxxiv) to pay the remaining Interest Carry Forward Amount, if any,
for the Class B Certificates for such Distribution Date;
(xxxv) to pay the Class B Realized Loss Amortization Amount for such
Distribution Date;
(xxxvi) first, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ and Class
A-2C Certificates, pro rata, and then 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, Class M-10 and Class B Certificates, in that order, any
Cap Carryover Amount for each such Class; and
(xxxvii) to the Class CE Certificates, up to the Class CE
Distributable Amount for such Distribution Date.
On each Distribution Date, there shall be distributed to the Holder
of the Class R Certificate in respect of the Class R-2 Interest, any remaining
amount in the Distribution Account on such date after the application pursuant
to Sections 4.01, 4.02(a) and 4.02(b)(i)-(xxxvii).
(c) On each Distribution Date, the Trustee shall withdraw any
amounts then on deposit in the Distribution Account that represent Prepayment
Charges collected by the Servicer in connection with the Principal Prepayment in
full of any of the Mortgage Loans, any Originator Prepayment Charge Payment
Amount or Servicer Prepayment Charge Payment Amount and shall distribute such
amounts to the Holders of the Class P Certificates. Any such
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amounts in respect of Originator Prepayment Charge Payment Amounts or Servicer
Prepayment Charge Payment Amounts shall be treated as having been distributed to
the Holders of the Class P Certificates from the Grantor Trust. Such
distributions shall not be applied to reduce the Certificate Principal Balance
of the Class P Certificates. On the first Distribution Date following the
expiration of the latest prepayment term with respect to the related Mortgage
Loans and if funds are available on such date, the Class P Certificates shall be
entitled to its outstanding Certificate Principal Balance prior to any
distributions of Monthly Excess Cashflow Amounts pursuant to Section 4.02(b) on
such Distribution Date.
(d) Any amounts distributed to the Class A, Class M and Class B
Certificates in respect of interest pursuant to Sections 4.02(b)(xxxvi) which
constitute Cap Carryover Amounts shall first be deemed distributed by REMIC 2 as
a distribution to the Class CE Certificates, and then distributed to the Class
A, Class M and Class B Certificates from the Grantor Trust as payments on
notional principal contracts in the nature of cap contracts. Any remaining
amount with respect to the Class CE Certificates or any remaining Yield
Maintenance Agreement Payments shall be treated as having been distributed to
the Holders of the Class CE Certificates from the Grantor Trust.
(e) On each Distribution Date, Unpaid Realized Loss Amounts on the
Class M and Class B Certificates will be reduced by the amount of any Subsequent
Recoveries received during the related Prepayment Period in the same order as
Realized Loss Amortization Amounts are paid to the Class M and Class B
Certificates pursuant to Section 4.02(b) above.
Section 4.03 Allocation of Losses.
An Applied Realized Loss Amount for a Distribution Date will be
allocated first against the Class CE Certificates, until the Notional Balance
thereof is reduced to zero and then against the Class B, Class M-10, Class M-9,
Class M-8, Class M-7, Class M-6, Class M-5, Class M-4, Class M-3, Class M-2 and
Class M-1 Certificates, in that order and until the respective Certificate
Principal Balances thereof are reduced to zero.
Section 4.04 Method of Distribution.
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 Certificates, by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trustee in writing at least five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered owner of such Certificates, or by check mailed by first class mail to
the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register, provided that the Trustee may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Distributions among Certificateholders shall be made in proportion to the
Percentage Interests evidenced by the Certificates held by such
Certificateholders.
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Section 4.05 Distributions on Book-Entry Certificates.
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.
Section 4.06 Statements.
(a) On each Distribution Date, based on the Mortgage Loan
information contained in the Remittance Report, the Trustee shall prepare and
post on its website at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇, a statement (the "Distribution Date
Statement") as to the distributions made on such Distribution Date:
(i) the amount of the distribution made on such Distribution Date to
the Holders of each Class of Certificates allocable to principal,
separately identified and the amount of the distribution made on such
Distribution Date to the Holders of the Class P Certificates allocable to
Prepayment Charges, Originator Prepayment Charge Payment Amounts and
Servicer Prepayment Charge Payment Amounts;
(ii) the amount of the distribution made on such Distribution Date
to the Holders of each Class of Certificates allocable to interest or
Class CE Distributable Amount, separately identified;
(iii) the Overcollateralization Amount, the Overcollateralization
Release Amount, the Overcollateralization Deficiency and the Targeted
Overcollateralization Amount as of such Distribution Date and the Monthly
Excess Interest Amount and Monthly Excess Cashflow Amount for such
Distribution Date;
(iv) the aggregate amount of servicing compensation received by the
Servicer during the related Collection Period;
(v) the aggregate amount of Advances for the related Collection
Period, cumulative unreimbursed Advances and Servicing Advances and
cumulative Nonrecoverable Advances;
(vi) the Pool Balance, at the close of business at the end of the
related Collection Period;
(vii) the number, weighted average remaining term to maturity and
weighted average Mortgage Interest Rate of the Mortgage Loans as of the
related Due Date;
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(viii) the number and aggregate unpaid principal balance of Mortgage
Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days
past due on a contractual basis, (c) 90 or more days past due on a
contractual basis, (d) as to which foreclosure proceedings have been
commenced and (e) in bankruptcy as of the close of business on the last
day of the calendar month preceding such Distribution Date;
(ix) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number of such Mortgage
Loan, the unpaid Principal Balance of the REO Property as of the close of
business on the last Business Day of such calendar month and the Principal
Balance of such Mortgage Loan as of the date it became an REO Property;
(x) the book value of any REO Property as of the close of business
on the last Business Day of the calendar month preceding the Distribution
Date, and, cumulatively, the total number and cumulative principal balance
of all REO Properties as of the close of business of the last day of the
preceding Collection Period;
(xi) separately stated for each Loan Group, the aggregate amount of
Principal Prepayments made during the related Prepayment Period;
(xii) separately stated for each Loan Group, the aggregate amount of
Realized Losses incurred during the related Collection Period and the
cumulative amount of Realized Losses;
(xiii) the Certificate Principal Balance of each Class of
Certificates, after giving effect to the distributions, and allocations of
Realized Losses or Applied Realized Loss Amount, as applicable, made on
such Distribution Date, separately identifying any reduction thereof due
to allocations of Realized Losses or Applied Realized Loss Amount;
(xiv) the Accrued Certificate Interest in respect of each Class of
Certificates for such Distribution Date and any related Cap Carryover
Amounts, and the respective portions thereof, if any, remaining unpaid
following the distributions made in respect of such Certificates on such
Distribution Date;
(xv) the aggregate amount of any Prepayment Interest Shortfalls for
such Distribution Date, to the extent not covered by payments by the
Servicer pursuant to Section 3.23;
(xvi) the amount of the Trustee Fee paid;
(xvii) the Cap Carryover Amounts distributed on such Distribution
Date, the amounts remaining after giving effect to distributions thereof
on such Distribution Date and the amount of all Cap Carryover Amounts
covered by withdrawals from the Class A-1 Reserve Account, the Class A-2A,
Class A-2B and Class A-2C Reserve Account and the Class M and Class B
Reserve Account on such Distribution Date;
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(xviii) any Overcollateralization Deficiency after giving effect to
the distribution of principal on such Distribution Date;
(xix) whether a Trigger Event has occurred and is continuing, and
the cumulative Realized Losses, as a percentage of the original Pool
Balance;
(xx) the Available Funds;
(xxi) the rate at which interest accrues for each Class of
Certificates for such Distribution Date;
(xxii) the information contained in the Liquidation Report for such
Distribution Date;
(xxiii) the aggregate Principal Balance of Mortgage Loans purchased
by the Servicer, the Originator or the Seller during the related
Prepayment Period and indicating the section of this Agreement requiring
or allowing the purchase of each such Mortgage Loan;
(xxiv) the aggregate Principal Balance of the Mortgage Loans
repurchased by the Servicer during the related Prepayment Period in
connection with Section 3.16;
(xxv) the amount of the Credit Risk Manager Fee paid;
(xxvi) the Mortgage Loan identifying number of each Mortgage Loan
with a Prepayment Charge that was the subject of a Principal Prepayment in
full during the related Collection Period, the Prepayment Charge listed on
each related Mortgage Note and the Prepayment Charge collected, the
Servicer Prepayment Charge Payment Amount paid by the Servicer or the
Originator Prepayment Charge Payment Amount paid by the Originator with
respect to each such Mortgage Loan;
(xxvii) the amount of Subsequent Recoveries received during the
related Prepayment Period; and
(xxviii) the amount of Prepayment Interest Excess retained by the
Servicer for the related Prepayment Period.
The Trustee may fully rely upon and shall have no liability with
respect to information with respect to the Mortgage Loans provided by the
Servicer.
In the case of information furnished pursuant to subclauses (i),
(ii) and (xiii) 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 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
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information set forth in subclauses (i), (ii), (xiv) and (xviii) 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 Class R Certificateholder a copy of the reports made available to the
Regular Certificateholders in respect of such Distribution Date with such other
information as the Trustee deems necessary or appropriate. 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 Class R
Certificateholder by the Trustee pursuant to any requirements of the Code as
from time to time in force.
Section 4.07 Remittance Reports; Advances.
(a) On the second Business Day following each Determination Date but
in no event later than the 20th day of each month (or if such 20th day is not a
Business Day, the preceding Business Day), the Servicer shall deliver to the
Trustee and the NIMS Insurer by telecopy (or by such other means as the
Servicer, the NIMS Insurer and the Trustee may agree from time to time) a
Remittance Report with respect to the related Distribution Date. On the same
date, the Servicer shall electronically forward to the Trustee in such medium as
may be agreed between the Servicer and the Trustee the information set forth in
such Remittance Report with respect to the related Distribution Date and such
information reasonably available to the Servicer necessary in order for the
Trustee to perform the calculations necessary to make the distributions
contemplated by Section 4.01, 4.02 and 4.03 and to prepare the Distribution Date
Statement. 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 4.07(d), the sum of (i) the
aggregate amount of Monthly Payments (net of the related Servicing Fee), due
during the related Collection 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
Collection Period and as to which REO Property an REO Disposition did not occur
during the related Collection Period, an amount equal to the excess, if any, of
the REO Imputed Interest on such REO Property for such Collection Period, over
the net income from such REO Property transferred to the Distribution Account
pursuant to Section 3.13 for distribution on such Distribution Date.
On or before 1:00 p.m. New York time on the Servicer Remittance
Date, the Servicer shall remit in immediately available funds to the Trustee for
deposit in the Distribution Account an amount equal to the aggregate amount of
Advances, if any, to be made in respect of the Mortgage Loans 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 the
Collection Account that amounts held for future distribution have been, as
permitted by this Section 4.07, used by the Servicer in
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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. Any amounts held for future distribution and
so used 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 and
4.02 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
Servicer and NIMS Insurer 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
earlier of such time as such Mortgage Loan is paid in full by the Mortgagor or
disposed of by the Trust, or until the recovery of all Liquidation Proceeds
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 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 Depositor, the NIMS Insurer and the Trustee. The Trustee shall
be entitled to conclusively rely upon any such determination by the Servicer.
Section 4.08 REMIC Distributions and Allocation of Losses.
(a) On each Distribution Date, the Trustee shall cause in the
following order of priority, the following amounts to be distributed by REMIC 1
to REMIC 2 on account of the REMIC 1 Regular Interests or withdrawn from the
Distribution Account and distributed to the Holders of the Class R Certificates
(in respect of the Class R-1 Interest), as the case may be:
(i) to Holders of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular Interest
LT1A2B, REMIC 1 Regular Interest LT1A2C, REMIC 1 Regular Interest LT1M1,
REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1
Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1 Regular
Interest LT1M6, REMIC 1 Regular Interest LT1M7, REMIC 1 Regular Interest
LT1M8, REMIC 1 Regular Interest LT1M9, REMIC 1 Regular Interest LT1M10,
REMIC 1 Regular Interest LT1B, REMIC 1 Regular Interest LT1P and REMIC 1
Regular Interest LT1ZZ, pro rata, 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 1 Regular Interest LT1ZZ shall be reduced and deferred when the
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REMIC 1 Overcollateralized Amount is less than the REMIC 1
Overcollateralization Target Amount, by the lesser of (x) the amount of
such difference and (y) the Maximum LT1ZZ Uncertificated Accrued Interest
Deferral Amount and such amount will be payable to the Holders of REMIC 1
Regular Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, REMIC 1 Regular
Interest LT1A2B, REMIC 1 Regular Interest LT1A2C, REMIC 1 Regular Interest
LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3,
REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1
Regular Interest LT1M6, REMIC 1 Regular Interest LT1M7, REMIC 1 Regular
Interest LT1M8, REMIC 1 Regular Interest LT1M9, REMIC 1 Regular Interest
LT1M10 and REMIC 1 Regular Interest LT1B, in the same proportion as the
Overcollateralization Deficiency is allocated to the Corresponding
Certificates and the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT1ZZ shall be increased by such amount;
(ii) to Holders of REMIC 1 Regular Interest LT1SUB, REMIC 1 Regular
Interest LT1GRP, REMIC 1 Regular Interest LT2SUB, REMIC 1 Regular Interest
LT2GRP and REMIC 1 Regular Interest LT1XX, pro rata, 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;
(iii) to the Holders of REMIC 1 Regular Interests, in an amount
equal to the remainder of the REMIC 1 Marker Allocation Percentage of
Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above, allocated as follows:
(1) to REMIC 1 Regular Interest LT1AA, 98.00% of such remainder,
until the Uncertificated Principal Balance of such
Uncertificated REMIC 1 Regular Interest is reduced to zero
provided, however, that REMIC 1 Regular Interest LT1P shall
not be reduced until the Distribution Date immediately
following the expiration of the latest Prepayment Charge or
any Distribution Date thereafter, at which point such amount
shall be distributed to REMIC 1 Regular Interest LT1P, until
$100 has been distributed pursuant to this clause;
(2) to REMIC 1 Regular Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1 Regular
Interest LT1A2C, REMIC 1 Regular Interest LT1M1, REMIC 1
Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC
1 Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5,
REMIC 1 Regular Interest LT1M6, REMIC 1 Regular Interest
LT1M7, REMIC 1 Regular Interest LT1M8, REMIC 1 Regular
Interest LT1M9, REMIC 1 Regular Interest LT1M10 and REMIC 1
Regular Interest LT1B,, 1.00% of such remainder, in the same
proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Principal
Balances of such REMIC 1 Regular Interests are reduced to
zero; then
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(3) to REMIC 1 Regular Interest LT1ZZ, 1.00% of such remainder,
until the Uncertificated Principal Balance of such REMIC 1
Regular Interest is reduced to zero;
(4) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-1 Interest);
provided, however, that (i) 98.00% and (ii) 2.00% of any principal
payments that are attributable to an Aggregate Overcollateralization
Release Amount shall be allocated to (i) REMIC 1 Regular Interest LT1AA
and REMIC 1 Regular Interest LT1P and (ii) REMIC 1 Regular Interest LT1ZZ,
respectively; and
(iv) to the Holders of REMIC 1 Regular Interests, in an amount equal
to the REMIC 1 Sub WAC Allocation Percentage of Available Funds for such
Distribution Date after the distributions made pursuant to clause (i)
above, such that distributions of principal shall be deemed to be made to
the REMIC 1 Regular Interests first, so as to keep the Uncertificated
Principal Balance of each REMIC 1 Regular Interest ending with the
designation "GRP" equal to 0.01% of the aggregate Principal Balance of the
Mortgage Loans in the related group of Mortgage Loans; second, to each
REMIC 1 Regular Interest ending with the designation "SUB," so that the
Uncertificated Principal Balance of each such REMIC 1 Regular Interest is
equal to 0.01% of the excess of (x) the aggregate Principal Balance of the
Mortgage Loans in the related group of Mortgage Loans over (y) the
aggregate current Certificate Principal Balance of the Class A
Certificates in the related group of Mortgage Loans (except that if any
such excess is a larger number than in the preceding distribution period,
the least amount of principal shall be distributed to such REMIC 1 Regular
Interests such that the REMIC 1 Subordinated Balance Ratio is maintained);
and third, any remaining principal to REMIC 1 Regular Interest LT1XX.
(b) The Trustee shall cause the following allocation of losses:
(i) The REMIC 1 Marker Allocation Percentage of the aggregate amount
of any Prepayment Interest Shortfalls and the REMIC 1 Marker Allocation
Percentage of the aggregate amount of any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall
be allocated first, to Uncertificated Accrued Interest payable to (i)
REMIC 1 Regular Interest LT1AA and REMIC 1 Regular Interest LT1P and (ii)
REMIC 1 Regular Interest LT1ZZ up to an aggregate amount equal to the
REMIC 1 Interest Loss Allocation Amount, 98% and 2%, respectively, and
thereafter among REMIC 1 Regular Interest LT1A1, REMIC 1 Regular ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, REMIC 1 Regular Interest LT1A2B, REMIC 1 Regular Interest LT1A2C,
REMIC 1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1
Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular
Interest LT1M5, REMIC 1 Regular Interest LT1M6, REMIC 1 Regular Interest
LT1M7, REMIC 1 Regular Interest LT1M8, REMIC 1 Regular Interest LT1M9,
REMIC 1 Regular Interest LT1M10, REMIC 1 Regular Interest LT1B and REMIC 1
Regular Interest LT1ZZ pro rata based on, and to the extent of, one
month's interest at the then applicable
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respective Uncertificated REMIC 1 Pass-Through Rate on the respective
Uncertificated Principal Balance of each such REMIC 1 Regular Interest;
(ii) The REMIC 1 Sub WAC Allocation Percentage of the aggregate
amount of any Prepayment Interest Shortfalls and the REMIC 1 Sub WAC
Allocation Percentage of the aggregate amount of any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution
Date shall be allocated first, to Uncertificated Accrued Interest payable
to REMIC 1 Regular Interest LT1SUB, REMIC 1 Regular Interest LT1GRP, REMIC
1 Regular Interest LT2SUB, REMIC 1 Regular Interest LT2GRP and REMIC 1
Regular Interest LT1XX, pro rata, based on, and 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 REMIC 1 Regular Interest;
(iii) The REMIC 1 Marker Allocation Percentage of all Realized
Losses on the Mortgage Loans shall be allocated by the Trustee on each
Distribution Date to the following REMIC 1 Regular Interests in the
specified percentages, as follows: first, to Uncertificated Accrued
Interest payable to (i) REMIC 1 Regular Interest LT1AA and REMIC 1 Regular
Interest LT1P and (ii) REMIC 1 Regular Interest LT1ZZ up to an aggregate
amount equal to the REMIC 1 Interest Loss Allocation Amount, 98% and 2%,
respectively; second, to the Uncertificated Principal Balances of REMIC 1
Regular Interest LT1AA and REMIC 1 Regular Interest LT1ZZ up to an
aggregate amount equal to the REMIC 1 Principal Loss Allocation Amount,
98% and 2%, respectively; third, to the Uncertificated Principal Balances
of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1B and REMIC
1 Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1B has been
reduced to zero; fourth, to the Uncertificated Principal Balances of REMIC
1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M10 and REMIC 1
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M10 has
been reduced to zero; fifth, to the Uncertificated Principal Balances of
REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M9 and REMIC 1
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M9 has
been reduced to zero; sixth, to the Uncertificated Principal Balances of
REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M8 and REMIC 1
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M8 has
been reduced to zero; seventh, to the Uncertificated Principal Balances of
REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M7 and REMIC 1
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M7 has
been reduced to zero; eighth, to the Uncertificated Principal Balances of
REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M6 and REMIC 1
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M6 has
been reduced to zero; ninth, to the Uncertificated Principal Balances of
REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M5 and REMIC 1
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest
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LT1M5 has been reduced to zero; tenth, to the Uncertificated Principal
Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M4
and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M4 has
been reduced to zero; eleventh to the Uncertificated Principal Balances of
REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M3 and REMIC 1
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M3 has
been reduced to zero; twelfth, to the Uncertificated Principal Balances of
REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M2 and REMIC 1
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT1M2 has
been reduced to zero; and thirteenth, to the Uncertificated Principal
Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest LT1M1
and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balances of REMIC 1 Regular Interest LT1M1
has been reduced to zero; and
(iv) The REMIC 1 Sub WAC Allocation Percentage of all Realized
Losses shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal
Balance of each REMIC 1 Regular Interest ending with the designation "GRP"
equal to 0.01% of the aggregate Stated Principal Balance of the Mortgage
Loans in the related Loan Group; second, to each REMIC 1 Regular Interest
ending with the designation "SUB," so that the Uncertificated Principal
Balance of each such REMIC 1 Regular Interest is equal to 0.01% of the
excess of (x) the aggregate Principal Balance of the Mortgage Loans in the
related Loan Group over (y) the aggregate current Certificate Principal
Balances of the Class A Certificates in the related group of Mortgage
Loans (except that if any such excess is a larger number than in the
preceding distribution period, the least amount of Realized Losses shall
be applied to such REMIC 1 Regular Interests such that the REMIC 1
Subordinated Balance Ratio is maintained); and third, any remaining
Realized Losses shall be allocated to REMIC 1 Regular Interest LT1XX.
(c) On each Distribution Date, all amounts representing Prepayment
Charges will be distributed from REMIC 1 to the holder of the Class P
Certificate. Such amount shall not reduce the Certificate Balance of the
Class P Certificates.
(d) Notwithstanding anything to the contrary contained herein, the
above distributions in this Section 4.08 (other than on the Certificates
are deemed distributions, and distributions of funds from the Distribution
Account shall be made only in accordance with Sections 4.01 and 4.02
hereof.
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ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
Each of the Class ▇-▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, Class A-2C, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class
M-8, Class M-9, Class M-10, Class B, Class CE, Class P and Class R Certificates
shall be substantially in the forms annexed hereto as exhibits, and shall, on
original issue, be executed by the Trustee and authenticated and delivered by
the Certificate Registrar to or upon the receipt of a Written Order to
Authenticate from the Depositor concurrently with the sale and assignment to the
Trustee of the Trust Fund. Each Class of the Class A, Class M and Class B
Certificates shall be initially evidenced by one or more Certificates
representing a Percentage Interest with a minimum dollar denomination of $25,000
and integral multiples of $1 in excess thereof. The Class P Certificates shall
be initially evidenced by one or more Certificates representing a Percentage
Interest with a minimum dollar denomination of $20 and integral multiples of $20
in excess thereof. The Class CE Certificates are issuable only in minimum
Percentage Interests of 10%. The Class R Certificate is issuable only as a
single certificate.
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 Certificate Registrar substantially in the form
provided for herein, and such authentication upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. Subject to Section 5.02(c), the Class A, Class M and
Class B Certificates shall be Book-Entry Certificates. The Class CE, Class P and
Class R Certificates shall not be Book-Entry Certificates but shall be issued in
fully registered certificate form.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall cause to be kept at the
Corporate Trust Office of the Trustee 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. The Trustee as
Certificate Registrar shall be subject to the same standards of care,
limitations on liability and rights to indemnity as the Trustee, and the
provisions of Sections 8.01, 8.02, 8.03, 8.04, 8.05, 8.14 and 8.15 shall apply
to the Certificate Registrar to the same extent as they apply to the Trustee.
Any Certificate Registrar appointed in accordance with this Section 5.02(a) may
at any time resign by giving at least 30 days' advance
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written notice of resignation to the Trustee, the Servicer and the Depositor,
such resignation to become effective upon appointment of a successor Certificate
Registrar.
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 and, in the case of the Class R Certificate,
upon satisfaction of the conditions set forth below, the Trustee on behalf of
the Trust shall execute and the Certificate Registrar shall 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
the Certificate Registrar shall 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.
(b) Upon original issuance, the Book-Entry Certificates shall be
issued in the form of one or more typewritten certificates, to be delivered to
the Depository, the initial Depository, by, or on behalf of, the Depositor; or
to, and deposited with the Certificate Custodian, on behalf of the Depository,
if directed to do so pursuant to instructions from the Depository. 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
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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 the Depository advises the Trustee in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities as Depository and the Trustee or the Depositor is unable to
locate a qualified successor. 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, at the
Trust's expense, execute on behalf of the Trust and the Certificate Registrar
shall authenticate definitive, fully registered certificates (the "Definitive
Certificates"). None of the Depositor or 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) Except with respect to a transfer of the Private Certificates
between or among the Depositor, the Seller, their affiliates or both, no
transfer, sale, pledge or other disposition of any Private Certificate shall be
made unless such disposition is exempt from the registration requirements of 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, (i) unless such
transfer is made in reliance upon Rule 144A (as evidenced by the investment
letter delivered to the Certificate Registrar, in substantially the form
attached hereto as Exhibit J) under the 1933 Act, the Certificate Registrar 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
Certificate Registrar 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 Certificate Registrar or the Depositor or
(ii) the Certificate Registrar 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 Certificate Registrar certifying to the
Depositor and the Certificate Registrar the facts surrounding such transfer,
which investment letter shall not be an expense of the Certificate Registrar or
the Depositor. The Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Certificate Registrar
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 an ERISA-Restricted Certificate shall be made unless
the Certificate Registrar shall have received either (i) a representation from
the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor (such requirement is
satisfied only by the Certificate Registrar's receipt of a representation letter
from the transferee substantially in the form of Exhibit I hereto, as
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appropriate), to the effect that such transferee is not an employee benefit plan
or arrangement subject to Section 406 of ERISA, a plan subject to Section 4975
of the Code or a plan subject to any federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets of
any such plan or arrangement to effect such transfer or (ii) (except in the case
of a Class R, Class P or Class CE Certificate) if the purchaser is an insurance
company, a representation that the purchaser is an insurance company which is
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60") and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (iii) (except in the case of the Class R Certificate) in the case of any such
ERISA Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Certificate Registrar, to the effect that
the purchase or holding of such ERISA Restricted Certificate will not constitute
or result in a non-exempt prohibited transaction within the meaning of ERISA,
Section 4975 of the Code or Similar Law and will not subject the Depositor, the
Servicer, the Trustee, the NIMS Insurer or the Certificate Registrar to any
obligation in addition to those expressly undertaken in this Agreement or to any
liability. For purposes of clause (i) of the preceding sentence, such
representation shall be deemed to have been made to the Certificate Registrar by
the acceptance by a Certificate Owner of the beneficial interest in any such
Class of ERISA-Restricted Certificates, unless the Certificate Registrar shall
have received from the transferee an alternative representation acceptable in
form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA-Restricted Certificate to or
on behalf of an employee benefit plan subject to ERISA, Section 4975 of the Code
or Similar Law without the delivery to the Certificate Registrar of an Opinion
of Counsel satisfactory to the Certificate Registrar as described above shall be
void and of no effect. Any representations required to be made in subsection (i)
and (ii) above in the case of an ERISA-Restricted Certificate which is also a
Book-Entry Certificate shall be deemed to have been made by the acquisition of
such Certificate.
Each Person who has or who acquires any Ownership Interest in the
Class R 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 the Class R Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in the
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Certificate Registrar of any change or impending change in its
status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in the Class R
Certificate unless such Ownership Interest is a pro rata undivided
interest.
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(iii) In connection with any proposed transfer of any Ownership
Interest in the Class R Certificate, the Certificate Registrar 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, among other things, such transferee is a
Permitted Transferee and that it is not acquiring its Ownership Interest in the
Class R 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 Class R Certificate.
(iv) Any attempted or purported transfer of any Ownership Interest
in the Class R 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 the Holder of the Class R
Certificate, then the prior Holder of such Class R Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Class R 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 Class R Certificate. The
Certificate Registrar shall be under no liability to any Person for any
registration of transfer of the Class R Certificate that is in fact not
permitted by this Section or for making any distributions due on such
Class R 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 Certificate Registrar received the documents specified in clause
(iii). The Trustee shall be entitled to recover from any Holder of the
Class R Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Class R
Certificate. Any such distributions so recovered by the Trustee shall be
distributed and delivered by the Trustee to the prior Holder of such Class
R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Class R Certificate in violation of the
restrictions in this Section, then the Certificate Registrar shall have
the right but not the obligation, without notice to the Holder of the
Class R Certificate or any other Person having an Ownership Interest
therein, to notify the Depositor to arrange for the sale of the Class R
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 the Class R Certificate
that is a Permitted Transferee, except that in the event that the Trustee
determines that the Holder of the Class R 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
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shall not be liable to any Person having an Ownership Interest in the
Class R Certificate as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Class R Certificate in violation of the
restrictions in this Section, then the Trustee 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 Trustee shall be entitled to
reasonable compensation for providing such information from the person to
whom it is provided.
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
Certificate Registrar, in form and substance satisfactory to the Certificate
Registrar, (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 cancelled 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, and the Certificate Registrar shall 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 NIMS Insurer, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of the Servicer, the
Depositor, the NIMS Insurer, the
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Certificate Registrar, any Paying Agent or the Trustee 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 4.02 and for all other purposes whatsoever, and none of the
Servicer, the Trust, the NIMS Insurer, the Trustee nor any agent of any of them
shall be affected by notice to the contrary.
Section 5.05 Appointment of Paying Agent.
The Paying Agent shall make distributions to Certificateholders from
the Distribution Account pursuant to Section 4.01 and 4.02 and shall report the
amounts of such distributions to the Trustee. The duties of the Paying Agent may
include the obligation to distribute statements and provide information to
Certificateholders as required hereunder. The Paying Agent hereunder shall at
all times be an entity duly incorporated 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, the NIMS Insurer and the
Rating Agencies. The Trustee as Paying Agent shall be subject to the same
standards of care, limitations on liability and rights to indemnity as the
Trustee, and the provisions of Sections 8.01, 8.02, 8.03, 8.04, 8.05, 8.14 and
8.15 shall apply to the Paying Agent to the same extent as they apply to the
Trustee. Any Paying Agent appointed in accordance with this Section 5.05 may at
any time resign by giving at least 30 days' advance written notice of
resignation to the Trustee, the Servicer, the NIMS Insurer and the Depositor,
such resignation to become effective upon appointment of a successor Paying
Agent.
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 the
Servicer herein. The Depositor shall be liable in accordance herewith only to
the extent of the obligations specifically imposed upon and undertaken by the
Depositor.
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer or the Depositor.
Any entity into which the Servicer or the Depositor may be merged or
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Servicer or the Depositor shall be a party, or any
corporation succeeding to the business of the Servicer or the Depositor, shall
be the successor of the Servicer or the Depositor, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor servicer shall satisfy
all the requirements of Section 7.02 with respect to the qualifications of a
successor servicer.
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Section 6.03 Limitation on Liability of the Servicer and Others.
None of the Depositor, the Servicer, or any directors, officers,
employees or agents of the Depositor or the Servicer shall be under any
liability to the Trust or the Certificateholders for any action taken or for
refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or the Servicer or any such Person against any
liability which would otherwise be imposed by reason of any breach of
representations or warranties made by such party herein or against any specific
liability imposed on the Servicer for a breach of the Servicing Standard and/or
this Agreement, or against any liability that would otherwise be imposed by
reason of its respective willful misfeasance, bad faith, fraud or negligence in
the performance of its duties or by reason of its negligent disregard of its
respective obligations and duties hereunder; provided, further, that this
provision shall not be construed to entitle the Servicer to indemnity in the
event that amounts advanced by the Servicer to retire any senior lien exceed
Liquidation Proceeds (in excess of related liquidation expenses) realized with
respect to the related Mortgage Loan. The Depositor, the Servicer and any
director, officer, employee or agent of the Depositor or the Servicer, may rely
in good faith on any document of any kind which, prima facie, is properly
executed and submitted by any appropriate Person with respect to any matters
arising hereunder. The Depositor, the Servicer and any director, officer,
employee or agent of the Depositor or the Servicer shall be indemnified and held
harmless by the Trust against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the Certificates,
other than any loss, liability or expense incurred in connection with any legal
action incurred by reason of its respective misfeasance, bad faith, fraud or
negligence, a breach of a representation or warranty made by such party
hereunder or (in the case of the Servicer) a breach of the Servicing Standard in
the performance of its respective duties or by reason of negligent disregard of
its respective obligations or duties hereunder. Neither the Depositor nor the
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action unless such action is related to its respective duties under this
Agreement and in its opinion does not expose it to any expense or liability;
provided, however, that the Depositor or the Servicer may in their discretion
undertake any action related to their obligations hereunder which they may deem
necessary or desirable with respect to this Agreement and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder. In
such event, the reasonable legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust and the Servicer shall be entitled to pay such expenses from the proceeds
of the Trust or to be reimbursed therefor pursuant to Section 3.05(a) upon
presentation to the Trustee of documentation of such expenses, costs and
liabilities. 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).
Section 6.04 Servicer Not to Resign.
Subject to the provisions of Section 7.01 and Section 6.02, the
Servicer shall not resign from the obligations and duties hereby imposed on it
except (i) upon determination that the performance of its obligations or 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
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it or its subsidiaries or Affiliates, the other activities of the Servicer so
causing such a conflict being of a type and nature carried on by the Servicer or
its subsidiaries or Affiliates at the date of this Agreement or (ii) upon
satisfaction of the following conditions: (a) the Servicer has proposed a
successor servicer to the Trustee and the NIMS Insurer in writing and such
proposed successor servicer is reasonably acceptable to the Trustee and the NIMS
Insurer; and (b) each Rating Agency shall have delivered a letter to the Trustee
and the NIMS Insurer prior to the appointment of the successor servicer stating
that the proposed appointment of such successor servicer as Servicer hereunder
will not result in the reduction or withdrawal of the then current rating of the
Regular Certificates or the ratings that are in effect; 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 a successor servicer in accordance with Section 7.02. Any such
resignation shall not relieve the Servicer of responsibility for any of the
obligations specified in Sections 7.01 and 7.02 as obligations that survive the
resignation or termination of the Servicer. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee and the NIMS Insurer.
Section 6.05 Delegation of Duties.
(a) 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. The
Servicer shall provide the Trustee, the NIMS Insurer and the Rating Agencies
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.
(b) The Servicer is hereby authorized, with the consent of the NIMS
Insurer, such consent not to be unreasonably withheld, to enter into a financing
or other facility (any such arrangement, an "Advance Facility") under which (1)
the Servicer 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. The Servicer
shall notify 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 and/or Servicing Advances, as applicable,
pursuant to this Agreement, then the Servicer shall not be permitted to
reimburse itself for Advances and/or Servicing Advances, but instead the
Servicer shall be required to remit amounts collected that would otherwise be
retained by the Servicer to reimburse it for the amount of previously
unreimbursed Advances ("Advance Reimbursements") and/or previously unreimbursed
Servicing Advances ("Servicing Advance
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Reimbursements" and together with Advance Reimbursements, "Reimbursements") (in
each case to the extent such type of Reimbursements are included in the Advance
Facility) 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 anything
to the contrary herein, in no event shall Advance Reimbursements or Servicing
Advance Reimbursements 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 Servicer would not materially and adversely affect
the interests of any Certificateholder, then the NIMS Insurer shall not withhold
its consent to the Servicer's entering such facility.
To the extent that an Advancing Person is entitled to any
Reimbursements, the Servicer shall provide to the Trustee an Officers'
Certificate which shall specify the amount of such Reimbursement, the applicable
Remittance Date, the Section of this Agreement that permits the applicable
Reimbursement to be paid and the section of the Advance Facility documentation
that entitles the Advancing Person to request reimbursement from the Trustee,
rather than the Servicer. Reimbursements 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 had made the related
Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, 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 or payment of any Reimbursements, nor shall the Depositor or the
Trustee have any responsibility to track or monitor the administration of the
Advance Facility or the payment of Reimbursements 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, 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.
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 of Advances and/or Servicing
Advances shall not be required to meet the criteria for qualification of a
subservicer set forth in this Agreement.
The documentation establishing any Advance Facility shall require
that Reimbursements distributed with respect to each Mortgage Loan be allocated
to outstanding unreimbursed Advances or Servicing Advances (as the case may be)
made with respect to that Mortgage Loan on a "first in, first out" (FIFO) basis.
Such documentation shall also require the Servicer to provide to the related
Advancing Person or Advance Facility Trustee loan by loan information with
respect to each Reimbursement distributed to such Advancing Person or Advance
Facility Trustee on each Distribution Date, to enable the Advancing Person or
Advance Facility Trustee to make the FIFO allocation of each Reimbursement with
respect to each Mortgage Loan. The Servicer shall remain entitled to be
reimbursed by the Advancing Person or Advance Facility Trustee for all Advances
and Servicing Advances funded by the Servicer to the
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extent the related rights to be reimbursed therefor have not been 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 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 on the part of the Depositor, the Trustee or any successor
servicer.
Any amendment to this Section 6.05(b) 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 6.05(b), including
amendments to add provisions relating to a successor servicer, may be entered
into by the Trustee, the Depositor and the Servicer without the consent of any
Certificateholder but with the consent of the NIMS Insurer, provided such
amendment complies with Section 11.01 hereof. All reasonable costs and expenses
(including attorneys' fees) of each party hereto of any such amendment shall be
borne solely by the Servicer. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that: (a) the
Advances and/or Servicing Advances financed by and/or pledged to the lender are
obligations owed to the Servicer on a non-recourse basis payable only from the
cash flows and proceeds received under this Agreement for reimbursement of
Advances and/or Servicing Advances only to the extent provided herein, and the
Trustee and the Trust are not otherwise obligated or liable to repay any
Advances and/or Servicing Advances financed by the lender; (b) the Servicer will
be responsible for remitting to the lender the applicable amounts collected by
it as reimbursement for Advances and/or Servicing Advances funded by the lender,
subject to the restrictions and priorities created in this Agreement; and (c)
the Trustee shall not have any responsibility to track or monitor the
administration of the financing arrangement between the Servicer and the lender.
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) The failure by the Servicer to make any Advance or to pay
Compensating Interest which failure continues unremedied for a period of
one Business Day after the first date on which written notice of such
failure is given to the Servicer; or
(ii) Any other failure by the Servicer to deposit in the Collection
Accounts or remit to the Trustee for deposit in the Distribution Account
any payment required to be made under the terms of this Agreement, which
failure continues unremedied for a period of one Business Day after the
first date on which (x) the Servicer has knowledge of such failure or (y)
written notice of such failure is given to the Servicer; or
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(iii) The failure by the Servicer to make any required Servicing
Advance which failure continues unremedied for a period of 30 days, or the
failure by the Servicer duly to observe or perform, in any material
respect, any other covenants, obligations or agreements of the Servicer as
set forth in this Agreement, which failure continues unremedied for a
period of 30 days, after the date (A) on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or the NIMS Insurer or by any Holder of a Regular
Certificate evidencing at least 25% of the Voting Rights or (B) actual
knowledge of such failure by a Servicing Officer of the Servicer; or
(iv) 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
(v) 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) above, if such Advance is not made
by 2:00 P.M., New York time, on the Business Day immediately following the
Servicer Remittance Date, the Trustee may terminate all of the rights and
obligations of the Servicer under this Agreement 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 clause (ii), (iii), (iv) and (v) above, the Trustee
shall, at the direction of the NIMS Insurer or Holders of each Class of Regular
Certificates evidencing Percentage Interests aggregating not less than 51%, by
notice then given in writing to the Servicer (and to the Trustee if given by
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 NIMS Insurer and the Depositor. 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
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Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section or successor servicer appointed in connection with Section
7.02; and, without limitation, the Trustee or successor servicer 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
(or the applicable successor servicer) of all documents and records requested by
it to enable it to assume the Servicer's functions under this Agreement within
ten Business Days subsequent to such notice, the transfer within one Business
Day subsequent to such notice to the Trustee (or the applicable successor
servicer) for the administration by it of all cash amounts that shall at the
time be held by the Servicer and to be deposited by it in the Collection
Accounts, the Distribution Account or any Escrow 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 out-of-pocket costs and expenses (including attorneys'
fees) incurred in connection with transferring the servicing 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 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 shall be entitled to reimbursement therefor from the assets of
the Trust).
Notwithstanding any termination of the activities of a Servicer
hereunder, the Servicer shall be entitled to receive payment of all accrued and
unpaid Servicing Fees and reimbursement for all outstanding Advances and
Servicing Advances properly made prior to the date of termination in the manner
and at the times set forth herein.
Section 7.02 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time the Servicer (and the Trustee, if
notice is sent by the Holders) receives a notice of termination pursuant to
Section 7.01 or 6.04, the 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.
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 will not result in the qualification,
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reduction or withdrawal of the ratings assigned to the Certificates or the
ratings that are in effect by the Rating Agencies as evidenced by a letter to
such effect from the Rating Agencies and that, in the case of a successor
servicer appointed by the Trustee, such successor servicer is reasonably
acceptable to the NIMS Insurer. 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 successor servicer shall be
entitled to withdraw from the Collection Account all costs and expenses
associated with the transfer of the servicing to the successor servicer,
including costs and expenses of the Trustee. 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 3.12 or to indemnify
the parties indicated in Section 3.26 pursuant to the terms thereof, 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.
(b) Any successor, including the Trustee, to the Servicer as
servicer 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 3.12.
Section 7.03 Waiver of Defaults.
The Holders of Certificates entitled to at least 66 2/3% of the
Voting Rights allocated to the Classes of Certificates affected by a Servicer
Event of Termination 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 such Holders
may not waive a default in making a required distribution on a Certificate
without the consent of the Holder of such Certificate and 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.
Section 7.04 Notification to Certificateholders.
(a) On 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
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Certificateholders at their respective addresses appearing in the Certificate
Register, the NIMS Insurer and each Rating Agency.
(b) No later than 60 days after the occurrence of any event which
constitutes or which, with notice or a lapse of time or both, would constitute a
Servicer Event of Termination for five Business Days after a Responsible Officer
of the Trustee becomes aware of the occurrence of such an event, the Trustee
shall transmit by mail to the NIMS Insurer and all Certificateholders notice of
such occurrence unless such default or Servicer Event of Termination shall have
been waived or cured. Such notice shall be given to the Rating Agencies promptly
after any such occurrence.
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 of which a Responsible Officer of the Trustee shall have actual
knowledge 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 actual
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 person would exercise or use under the circumstances in the conduct
of such person's 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 that the
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Servicer, the Seller, the NIMS Insurer or the Depositor
hereunder. If any such instrument is found not to conform in any material
respect to the requirements of this Agreement, the Trustee shall notify the
Certificateholders of such instrument in the event that the Trustee, after so
requesting, does not receive a satisfactorily corrected instrument.
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:
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(i) prior to the occurrence of a Servicer Event of Termination of
which a Responsible Officer of the Trustee shall have actual knowledge,
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
or investigating the facts related thereto;
(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 any Servicer Event of
Termination unless a Responsible Officer of the Trustee at the Corporate
Trust Office obtains actual knowledge of such failure or the Trustee
receives written notice of such failure from the Servicer, the NIMS
Insurer or the Majority Certificateholders. In the absence of such receipt
of such notice, the Trustee may conclusively assume that there is no
Servicer Event of Termination.
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.
The Trustee shall not have any duty (A) to see any recording,
filing, or depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any thereof, (B)
to see to any insurance or (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or
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levied against, any part of the Trust Fund other than from funds available in
the Distribution Account.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by any third party as a
consequence of the assignment of any Mortgage Loan hereunder; provided, however,
that the Trustee shall promptly remit to the Servicer upon receipt of any such
complaint, claim, demand, notice or other document (i) which is delivered to the
Trustee at its Corporate Trust Office; (ii) of which a Responsible Officer has
actual knowledge and (iii) which contains information sufficient to permit the
Trustee to make a determination that the real property to which such document
relates to is a Mortgaged Property.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) 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;
(b) the Trustee may consult with counsel and any advice or 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 advice or Opinion of Counsel;
(c) the Trustee shall not be under any obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation hereunder or in relation hereto, at the request, order or
direction of the Certificateholders or the NIMS Insurer pursuant to the
provisions of this Agreement, unless such Certificateholders or the NIMS Insurer
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;
(d) 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;
(e) 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 Majority
Certificateholders or the NIMS Insurer; 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,
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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, if paid by the Trustee, shall be reimbursed by the Servicer
upon demand. Nothing in this clause (e) shall derogate from the obligation of
the Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors;
(f) the Trustee shall not be accountable, have any liability or make
any 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;
(g) 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 or a custodian and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or custodian
appointed by it with due care; and
(h) 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.
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. 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 Accounts by the Servicer. The Trustee shall not at
any 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 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
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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), 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), taken in the name
of the Trustee; the failure of the 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. The Trustee shall not have any 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.
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
Servicer, the Depositor or their respective Affiliates.
Section 8.05 Trustee Fees and Expenses.
The Trustee shall be entitled to the Trustee Fee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by the Trustee in the exercise and
performance of any of the powers and duties hereunder. The Trustee shall
withdraw from the Distribution Account on each Distribution Date and pay to
itself the Trustee Fee. The Trust shall reimburse the Trustee for all reasonable
expenses and disbursements incurred or made by the Trustee, and for any advances
made as successor servicer, in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith or which is the responsibility of Certificateholders or
the Trustee hereunder. In addition, the Trustee and its officers, directors,
employees and agents shall be indemnified by the Trust from, and held harmless
against, any and all losses, liabilities, damages, claims or expenses incurred
in connection with any legal action relating to this Agreement or the
Certificates, other than (i) 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 and (ii) to the extent such
indemnification is provided by the Servicer pursuant to Section 3.26. This
Section shall survive termination of this Agreement or the resignation or
removal of any Trustee hereunder. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee be liable for special, indirect
or consequential loss or damage of any kind whatsoever (including, but not
limited to, lost profits) even if the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.
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
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such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and a minimum long-term debt rating of "BBB" by
Fitch and S&P 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 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 Depositor, the Servicer,
the NIMS Insurer and each Rating Agency. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee reasonably
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 their property shall be appointed,
or any public officer shall take charge or control of the Trustee or of their
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor or the NIMS Insurer may remove the Trustee. If
the Depositor or the NIMS Insurer removes the Trustee under the authority of the
immediately preceding sentence, the Depositor or the NIMS Insurer, as the case
may be, shall promptly appoint a successor Trustee (reasonably acceptable to the
NIMS Insurer if appointed by the Depositor) 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 may at any time
remove the Trustee by written instrument or instruments delivered to the
Servicer, the Depositor, the NIMS Insurer and the Trustee; the Depositor shall
thereupon use its best efforts to appoint a successor Trustee reasonably
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.
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Section 8.08 Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the NIMS Insurer, the Rating
Agencies, 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
hereunder, provided such entity shall be eligible under the provisions of
Section 8.06 and 8.08, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or any Mortgaged Property may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and the NIMS Insurer to act as co-trustee or co-trustees, jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Servicer and the Trustee may consider
necessary or desirable. Any such co-trustee or separate trustee shall be subject
to the written approval of the Servicer and the NIMS Insurer. If the Servicer
and the NIMS Insurer shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, or in the case a
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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.
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 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, the Rating Agencies 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.
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Section 8.11 Limitation of Liability.
The Certificates are executed by the Trustee, not in its individual
capacity but solely as Trustee of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the undertakings
and agreements made on the part of the Trustee in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust.
Section 8.12 Trustee May Enforce Claims Without Possession of
Certificates.
(a) All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee for the benefit of all
Holders of such Certificates, subject to the provisions of this Agreement. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursement and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
(b) The Trustee shall afford the Depositor, the Servicer, the NIMS
Insurer and each Certificateholder upon reasonable 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. The Trustee shall cooperate fully with the Servicer, the NIMS Insurer,
the Depositor and such Certificateholder and shall make available to the
Servicer, the NIMS Insurer, the Depositor and such Certificateholder for review
and copying at the expense of the party requesting such copies, such books,
documents or records as may be requested with respect to the Trustee's duties
hereunder. The Depositor, the Servicer, the NIMS Insurer and the
Certificateholders shall not have any responsibility or liability for any action
or failure to act by the Trustee and are not obligated to supervise the
performance of the Trustee under this Agreement or otherwise.
Section 8.13 Suits for Enforcement.
In case a Servicer Event of Termination or other default by the
Servicer hereunder shall occur and be continuing, the Trustee may proceed to
protect and enforce its rights and the rights of the Certificateholders 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 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.
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Section 8.15 Waiver of Inventory, Accounting and Appraisal
Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE IX
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 9.01 REMIC Administration.
(a) The Trustee shall make or cause to be made REMIC elections for
each of REMIC 1 and REMIC 2 as set forth in the Preliminary Statement on Forms
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. In addition, the Trustee shall request a taxpayer identification number
on IRS Form SS-4 for each REMIC and file IRS Form 8811 for each such REMIC
within 30 days of the Closing Date. 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 tax related expenses (not
including taxes) of each REMIC, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial proceedings
with respect to such REMIC that involve the Internal Revenue Service or state
tax authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Trustee in fulfilling its duties hereunder. The Trustee shall
be entitled to reimbursement of expenses to the extent provided in clause (i)
above from the Trust.
(d) The Trustee shall prepare or cause to be prepared, sign and file
or cause to be filed, each REMIC's federal and state tax and information returns
as such REMIC's direct representative. The expenses of preparing and filing such
returns shall be borne by the Trustee.
(e) The Holder of the Class R Certificate shall be the "tax matters
person" as defined in the REMIC Provisions (the "Tax Matters Person") with
respect to each REMIC, and the Trustee is irrevocably designated as and shall
act as attorney-in-fact and agent for such Tax Matters Person for each REMIC.
The Trustee, as agent for the Tax Matters Person, shall perform, on behalf of
each REMIC, all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Trustee, as agent for the Tax Matters
Person, shall provide (i) to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to
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the transfer of the Class R 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.
(f) The Trustee, the Servicer, and the Holders of Certificates shall
take any action or cause any REMIC formed under this Agreement to take any
action necessary to create or maintain the status of such REMIC as a REMIC under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status. None of the Trustee, the Servicer or the Holder of the
Class R Certificate shall take any action or cause any REMIC formed under this
Agreement 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 or cause the loss of the status of such REMIC as a REMIC
or (ii) result in the imposition of any 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
formed under this Agreement 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 the Class R 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 such REMIC, and no such Person shall take any such action or cause
such 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) The Holder of the Class R Certificate shall pay when due any and
all taxes imposed on any REMIC formed under this Agreement by federal or state
governmental authorities, but only from amounts, if any, distributable thereon.
To the extent that such REMIC taxes are not paid by the Class R
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of future
amounts otherwise distributable to the Holder of the Class R Certificate 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 the
Certificates, as the case may be.
(h) The Trustee, shall, for federal income tax purposes, maintain or
cause to be maintained books and records with respect to each REMIC formed under
this Agreement on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any
REMIC, 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 will receive a fee or other compensation for
services.
(k) The Trustee shall treat (i) the rights of the Class A, Class M
and Class B Certificates to receive Cap Carryover Amounts as a right in interest
rate cap contracts written by the Class CE Certificateholders in favor of the
Holders of the Class A, Class M and Class B Certificates and (ii) the rights of
the Class CE Certificates under the Class A-1 Yield
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Maintenance Agreement, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Agreement and Class M and Class B Yield Maintenance Agreement in accordance with
the respective terms thereof and shall assign such rights for federal tax return
and information reporting a value of zero. The Trustee shall account for such as
property held separate and apart from the regular interests it holds in each of
the REMICs created hereunder. The provisions of this paragraph are intended to
satisfy the requirements of Treasury Regulations Section 1.860G-2(i) for the
treatment of property rights coupled with regular interests to be separately
respected and shall be interpreted consistent with such regulation. On each
Distribution Date, to the extent the Class A, Class M and Class B Certificates
receive interest in excess of their Certificate Interest Rate, such interest
will be treated as distributed to the Class CE Certificates, together with any
amounts deposited in the Class A-1 Reserve Account in respect of the Class A-1
Yield Maintenance Agreement, the Class A-2A, Class A-2B and Class A-2C Reserve
Account in respect of the Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Agreement and the Class M and Class B Reserve Account in respect of
the Class M and Class B Yield Maintenance Agreement, and then paid to the
respective Class A, Class M and Class B Certificates pursuant to the related
interest rate cap agreement.
Section 9.02 Prohibited Transactions and Activities.
None of the Depositor, the Servicer or the Trustee shall sell,
dispose of, or substitute for any of the Mortgage Loans, except in a disposition
pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the
Trust Fund, (iii) the termination of any REMIC pursuant to Article X of this
Agreement, (iv) a substitution pursuant to Article II of this Agreement, (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement or (vi) an
optional purchase by the Servicer pursuant to Section 3.16 of this Agreement,
nor acquire any assets for any REMIC constituting part of the Trust Fund, nor
sell or dispose of any investments in the Distribution Account for gain, nor
accept any contributions to any REMIC constituting part of the Trust Fund after
the Closing Date, unless such party and the NIMS Insurer has received an Opinion
of Counsel (at the expense of the party causing such sale, disposition, or
substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of such REMIC as a REMIC or of the
interests therein other than the Class R Certificate 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 such REMIC 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.
In the event that any REMIC formed hereunder 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 (i) the Servicer of its duties
and obligations set forth herein or is subject to any state or local taxes based
on the location of the Servicer, the Servicer shall indemnify the Holder of the
Class R Certificate 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
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such Losses attributable to the action or inaction of the Trustee, the Depositor
or the Holder of the Class R Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of the Class R Certificate
on which the Servicer has relied or (ii) the Trustee of its duties and
obligations set forth herein, the Trustee shall indemnify the Holder of the
Class R Certificate 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 the Class R Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of the Class R 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 the Class R Certificate now or
hereafter existing at law or in equity. Notwithstanding the foregoing, however,
in no event shall the Servicer or 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 Servicer or 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).
Section 9.04 REO Property.
(a) Subject to compliance with applicable laws and regulations as
shall at any time be in force, and notwithstanding any other provision of this
Agreement, the Servicer, acting on behalf of the Trust hereunder, shall not
rent, lease, or otherwise earn income on behalf of any REMIC with respect to any
REO Property which might 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 REMIC of any "income from non-permitted assets"
within the meaning of section 860F(a)(2) of the Code or any "net income from
foreclosure property" which is subject to tax under the REMIC Provisions unless
the Servicer has advised, or has caused the applicable Servicer to advise, the
Trustee in writing to the effect that, under the REMIC Provisions, such action
would not adversely affect the status of any REMIC as a REMIC and any income
generated for such REMIC by the REO Property would not result in the imposition
of a tax upon such REMIC.
(b) The Servicer shall make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Servicer shall
dispose of any REO Property before the close of the third calendar year
beginning after the year of its acquisition by the Trust Fund unless the
Servicer has received a grant of extension from the Internal Revenue Service to
the effect that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, any REMIC constituting part of the
Trust Fund may hold REO Property for a longer period without adversely affecting
its REMIC status or causing the imposition of a Federal or state tax upon any
REMIC constituting part of the Trust Fund. If the Servicer has received such an
extension, then the Servicer shall continue to attempt to sell the REO Property
for its fair market value as determined in good faith by the Servicer for such
longer period as such extension permits (the "Extended Period"). If the Servicer
has not received such an extension and the Servicer is unable to sell the REO
Property within 33 months after its acquisition by the Trust Fund or if the
Servicer has received such an extension, and the Servicer is unable to sell the
REO Property within the period ending three months before the close of the
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Extended Period, the Servicer shall, before the end of the applicable period,
(i) purchase such REO Property at a price equal to the REO Property's fair
market value as determined in good faith by the Servicer or (ii) auction the REO
Property to the highest bidder (which may be the Servicer) in an auction
reasonably designed to produce a fair price prior to the expiration of the
applicable period.
Section 9.05 Grantor Trust Administration.
The parties intend that the portions of the Trust Fund consisting of
the right of the Class P Certificates to receive Originator Prepayment Charge
Payment Amounts and Servicer Prepayment Charge Payment Amounts, the right of the
Class A, Class M and Class B Certificates to receive Cap Carryover Amounts, the
Reserve Accounts and the right of the Class CE Certificates to receive Yield
Maintenance Agreement Payments subject to the obligation of the Class CE
Certificates to pay Cap Carryover Amounts, shall be treated as a "grantor trust"
under the Code, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall furnish or
cause to be furnished (i) to the Holders of the Class A, Class M and Class B
Certificates, (ii) to the Holders of the Class P Certificates and (iii) to the
Holder of the Class CE Certificates and shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable, their allocable shares of income and expenses with respect to the
property held by the Grantor Trust, at the time or times and in the manner
required by the Code.
ARTICLE X
TERMINATION
Section 10.01 Termination.
(a) The respective obligations and responsibilities of the Servicer,
the Depositor, the Trustee and the Certificate Registrar 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 Balance of each Class of Certificates has been reduced
to zero, (ii) the final payment or other liquidation of the last Mortgage Loan
in the Trust, and (iii) the optional purchase by the NIMS Insurer, if there is a
NIMS Insurer, or if there is no NIMS Insurer, the Majority Class CE
Certificateholders (or if such holder is the Seller, or an affiliate of the
Seller, the Servicer of the Mortgage Loans) as described below. 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.
▇▇▇▇▇, living on the date hereof.
The NIMS Insurer, if there is a NIMS Insurer, or if there is no NIMS
Insurer, the Majority Class CE Certificateholders (and, if such holder is the
Seller or an affiliate of the Seller, the Servicer of the Mortgage Loans) may,
at its option, terminate the Trust Fund and retire the Certificates on the next
succeeding Distribution Date upon which the aggregate current Pool Balance is
less than 10% of the Cut-off Date Aggregate Principal Balance by purchasing all
of
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the outstanding (i) Mortgage Loans in the Trust Fund at a price equal to the sum
of the outstanding Principal Balance of the Mortgage Loans and except to the
extent previously advanced by the Servicer, accrued and unpaid interest thereon
at the weighted average of the Mortgage Interest Rates through the end of the
Collection Period preceding the final Distribution Date plus unreimbursed
Servicing Advances, Advances and any unpaid Servicing Fees allocable to such
Mortgage Loans and (ii) REO Properties in the Trust Fund at a price equal to
their fair market value as determined in good faith by the Servicer (the
"Termination Price"). If the NIMS Insurer or the Majority Class CE
Certificateholders (or, if the Majority Class CE Certificateholder is the Seller
or an affiliate of the Seller, the Servicer) is subject to regulation by the
Office of the Comptroller of the Currency, the FDIC, the Federal Reserve or the
Office of Thrift Supervision, however, the option may not be exercised unless
the aggregate fair market value of the Mortgage Loans and REO Properties is
greater than or equal to the Termination Price. Notwithstanding the foregoing,
no party may exercise this optional purchase right unless any Reimbursement
Amount owed to the Trust pursuant to Section 2.03 hereof has been paid.
In connection with any such purchase pursuant to the preceding
paragraph, the Servicer shall deliver to the Trustee for deposit in the
Distribution Account all amounts then on deposit in the Collection Account (less
amounts permitted to be withdrawn by the Servicer pursuant to Section 3.07),
which deposit shall be deemed to have occurred immediately following such
purchase.
Any such purchase shall be accomplished by delivery on the
Determination Date before such Distribution Date of the Termination Price to the
Trustee for deposit into the Distribution Account as part of Available Funds.
(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 NIMS
Insurer, the Majority Class CE Certificateholders or the Servicer, as
applicable, by letter to the Certificateholders mailed not earlier than the 15th
day of the month preceding the month of such final distribution and not later
than the 15th day of 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. Not
less than five (5) Business Days prior to such Determination Date relating to
such Distribution Date, the Trustee shall notify the Originator and the Seller
of the amount of any unpaid Reimbursement Amount owed to the Trust.
(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 Sections 4.01 and 4.02 for
such Distribution Date.
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(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 escrow account for the
benefit of such Certificateholders, and the Servicer 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 Class R Certificateholder shall be entitled to
all unclaimed funds and other assets which remain subject hereto (except with
respect to the Class CE and Class P Certificates) and the Trustee upon transfer
of such funds shall be discharged of any responsibility for such funds, and all
other Certificateholders shall look to the Class R Certificateholder for
payment.
Section 10.02 Additional Termination Requirements.
(a) In the event that the NIMS Insurer, the Majority Class CE
Certificateholders or the Servicer, as applicable, exercises the purchase option
as provided in Section 10.01, the Trust 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 cause an Adverse REMIC
Event to occur at any time that any Certificates are outstanding:
(i) The Trustee shall designate a date within 90 days prior to the
final Distribution Date as the date of adoption of plans of complete
liquidation of each of REMIC 1 and REMIC 2 and shall specify such date in
the final federal income tax return of each REMIC;
(ii) After the date of adoption of such plans of complete
liquidation and at or prior to the final Distribution Date, the Trustee
shall sell all of the assets of the Trust to the Majority Class CE
Certificateholders or the Servicer, as applicable, for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited in the following order of priority (A) (i) to the
Holders of each of the Class A-1, Class A-2A, Class A-2B and Class A-2C
Certificates, pro rata and (ii) 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, Class M-10 and Class B Certificates the related Certificate Principal
Balance, as applicable, plus one month's interest thereon at the
applicable Certificate Interest Rate, (B) to the Class CE Certificates,
the amount of any remaining Monthly Excess Cash Flow Amounts not
previously distributed thereon, (C) to the remaining Regular Certificates
and/or REMIC 1 Regular Interests the amounts allocable thereto pursuant to
Section 4.08 and (D) to the Class R Certificateholder, all cash on hand in
respect of the REMICs after such payment (other than cash retained to meet
claims) and the Trust shall terminate at such time.
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(b) By their acceptance of Certificates, the Holders thereof hereby
agree to appoint the Trustee as their attorney-in-fact to: (i) designate such
date of adoption of plans of complete liquidation and (ii) to take such other
action in connection therewith as may be reasonably required to carry out such
plans of complete liquidation all in accordance with the terms hereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
This Agreement may be amended from time to time by the Depositor,
the Servicer and the Trustee; with the consent of the NIMS Insurer and without
the consent of the Certificateholders, (i) to cure any ambiguity or mistake,
(ii) to correct, modify or supplement any provision herein which may be
inconsistent with any other provision herein or the Prospectus Supplement or
Private Placement Memorandum, (iii) to make any other provisions with respect to
matters or questions arising under this Agreement, which shall not be
inconsistent with the provisions of this Agreement, (iv) to comply with any
requirements imposed by the Code or (v) to provide for the rights of the NIMS
Insurer; provided, however, that any such action listed in clause (iii) above
shall not adversely affect in any respect the interests of any
Certificateholder, as evidenced by (i) notice in writing to the Depositor, the
Servicer and the Trustee from the Rating Agencies 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, or (ii) an Opinion of
Counsel delivered to the Servicer and the Trustee.
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 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 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 Holders of any Class of Certificates 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 662/3% 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. Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel (at the expense
of the Person seeking such amendment) stating that the execution of such
amendment is authorized or permitted by this Agreement. The Trustee may, but
shall not be obligated to, enter into any such amendment which affects the
Trustee's own rights, duties or immunities under this Agreement.
Notwithstanding any provision of this Agreement to the contrary,
neither the Trustee nor the NIMS Insurer shall consent to any amendment to this
Agreement unless it shall
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have first received an Opinion of Counsel, delivered by (and at the expense of)
the Person seeking such Amendment, to the effect that such amendment will not
result in an Adverse REMIC Event at any time that any Certificates are
outstanding and that the amendment is being made in accordance with the terms
hereof.
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
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.
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 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 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.
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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 herein 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 60 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, or by express delivery service, to (a) in
the case of the Trustee, JPMorgan Chase Bank, N.A., 4 New York Plaza, 6th Floor,
New York, New York 10004-2477, Attention: Institutional Trust Services/Global
Debt: ABFC FFMLT 2005-FF5, or such other address as may hereafter be furnished
to the Depositor, the NIMS Insurer and the Servicer in writing by the Trustee,
(b) in the case of the Depositor, Asset Backed Funding Corporation, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: First
Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed Certificates, Series
2005-FF5, or such other address as may be furnished to the Servicer, the NIMS
Insurer and the Trustee in writing by the Depositor, (c) in the case of the
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Servicer, HomEq Servicing Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Portfolio Management, with a copy to: HomEq
Servicing Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department, or such other address as may be
hereafter furnished to the Depositor, the NIMS Insurer and the Trustee by the
Servicer in writing 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. 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 the Servicer, as the case may be, has
actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Servicer Event of Termination 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.
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(vii) In addition, the Servicer shall promptly furnish to each
Rating Agency copies of the following:
(A) each annual statement as to compliance described in Section 3.19
hereof;
(B) each annual independent public accountants' servicing report
described in Section 3.20 hereof; and
(C) 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: Fitch
Ratings, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Managing
Director, Residential Mortgage-Backed Securities; Standard & Poor's, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Surveillance Group; and the NIMS Insurer, at the
address to be provided by the Depositor.
Section 11.09 Further Assurances.
Notwithstanding any other provision of this Agreement, neither the
Regular Certificateholders nor the Trustee shall have any obligation to consent
to any amendment or modification of this Agreement unless they have been
provided reasonable security or indemnity against their out-of-pocket expenses
(including reasonable attorneys' fees) to be incurred in connection therewith.
Section 11.10 Third Party Beneficiary.
Nothing in this Agreement or in the Certificates, expressed or
implied, shall give to any Person, other than the Certificateholders, the
parties hereto and the NIMS Insurer and their successors hereunder, any benefit
or any legal or equitable right, remedy or claim under this Agreement.
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 directly against the parties
to 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
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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.
[Signatures follow on next page]
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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.
ASSET BACKED FUNDING CORPORATION,
as Depositor
By: /s/ ▇▇▇▇▇ ▇. Good
---------------------------------
Name: ▇▇▇▇▇ ▇. Good
Title: Vice President
HOMEQ SERVICING CORPORATION, as Servicer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: President
JPMORGAN CHASE BANK, N.A., as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF NORTH CAROLINA)
) ss.:
COUNTY OF MECKLENBURG)
On the 28th day of April 2005 before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇ ▇. Good, known to me to be a Vice
President of Asset Backed Funding Corporation, 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: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
My Commission expires: 12/15/07
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SACRAMENTO)
On the 28th day of April 2005 before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇, known to me to be a President
of HomEq Servicing Corporation, a New Jersey 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: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
My Commission expires: 6/16/06
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On the 28th day of April 2005 before me, a notary public in and
for said State, personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, known to me to be a
Vice President of JPMorgan Chase Bank, N.A., a New York banking corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said association, and acknowledged to me that such
association 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: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
My Commission expires: 4/25/06
EXHIBIT A-1
[FORM OF THE CLASS A-1 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
A-1-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS A-1
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class A-1 Original Class Certificate Principal
Balance of the Class A-1 Certificates as of the Closing
Date:
Certificate Interest Rate: Floating $294,112,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RP 8
ISIN: US32027NRP86
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _______________ is the registered owner of
a Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class A-1 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-1 Certificates in the Trust Fund created pursuant
to a
Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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
A-1-2
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
A-1 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class A-1 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class A-1
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class A-1 Certificates
for each Distribution Date will be the least of (i) One-Month LIBOR as of the
related LIBOR Determination Date plus the Class A-1 Certificate Margin, (ii) the
Group 1 Maximum Rate Cap and (iii) the Group 1 Cap. Interest will accrue on the
Class A-1 Certificates during each Interest Accrual Period at the Certificate
Interest Rate.
This Certificate is one of a duly authorized issue of
Certificates designated as First Franklin Mortgage Loan Trust 2005-FF5,
Asset-Backed Certificates, of the Series specified on the face hereof (herein
called the "Certificates") and representing a Percentage Interest in the Class
A-1 Certificates.
The Class A-1 Certificates are limited in right of payment to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the
A-1-3
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates entitled to the Voting Rights identified 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 herefor 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 upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other 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 evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
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 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 of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Servicer, the Trustee, the Certificate Registrar nor any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement from the
Trust Fund of all Mortgage Loans and all property acquired in respect of such
Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the
A-1-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in
its individual capacity but
solely as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A., not in
its individual capacity but
solely as Certificate Registrar
By:
-------------------------------
Authorized Signatory
Date of authentication:
A-1-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as -------------------
tenants in common (State)
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
A-1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________________
________________________________________________________________________________
for the account of ______________________, account number _____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to ______________________________________
This information is provided by _______________________________________________,
the assignee named above, or ____________________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF THE CLASS A-2A CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
A-2-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS A-2A
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class A-2A Original Class Certificate Principal Balance
of the Class A-2A Certificates as of
the Closing Date:
Certificate Interest Rate: Floating $111,845,000
Date of
Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[___]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RQ 6
ISIN: US32027NRQ69
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _______________ is the registered owner of
a Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class A-2A Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-2A Certificates in the Trust Fund created pursuant
to a
Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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
A-2-2
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
A-2A Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class A-2A Certificate becomes a Definitive Certificate,
the Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class A-2A
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class A-2A Certificates
for each Distribution Date will be the least of (i) One-Month LIBOR as of the
related LIBOR Determination Date plus the Class A-2A Certificate Margin, (ii)
the Group 2 Maximum Rate Cap and (iii) the Group 2 Cap. Interest will accrue on
the Class A-2A Certificates during each Interest Accrual Period at the
Certificate Interest Rate.
This Certificate is one of a duly authorized issue of
Certificates designated as First Franklin Mortgage Loan Trust 2005-FF5,
Asset-Backed Certificates, of the Series specified on the face hereof (herein
called the "Certificates") and representing a Percentage Interest in the Class
A-2A Certificates.
The Class A-2A Certificates are limited in right of payment to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer and the
A-2-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified 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 herefor 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 upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other 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 evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
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 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 of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Servicer, the Trustee, the Certificate Registrar nor any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement from the
Trust Fund of all Mortgage Loans and all property acquired in respect of such
Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the
A-2-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:
------------------------------------
Authorized Signatory
Date of authentication:
A-2-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within asset-backed Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
_______________________________________
Signature Guaranteed
A-2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to for the account of _______________________________, account
number , ________________________________________ or, if mailed by check,
to .
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
_____________________________________This information is provided by ,
________________________________________________________________________________
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF THE CLASS A-2B CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
A-3-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS A-2B
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class A-2B Original Class Certificate
Principal Balance of the Class A-2B
Certificates as of the Closing Date:
Certificate Interest Rate: Floating $190,476,000
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance: $[__]
Cut-off Date: April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RR 4
ISIN: US32027NRR43
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _______________ is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class
A-2B Certificates) in that certain beneficial ownership interest evidenced by
all the Class A-2B Certificates in the Trust Fund created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. 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
A-3-2
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class A-2B Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class A-2B Certificate becomes a Definitive Certificate, the Record Date for
such Certificate will be the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class A-2B
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class A-2B Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class A-2B Certificate Margin, (ii) the Group
2 Maximum Rate Cap and (iii) the Group 2 Cap. Interest will accrue on the Class
A-2B Certificates during each Interest Accrual Period at the Certificate
Interest Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class A-2B
Certificates.
The Class A-2B Certificates are limited in right of payment to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the
A-3-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Pool Balance of the
A-3-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:______________________________________
Authorized Signatory
Date of authentication:
A-3-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-3-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
for the account of _______________________________, account number______________
_______________________, _______________________________________________________
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by _______________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF THE CLASS A-2C CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
A-4-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS A-2C
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class A-2C Original Class Certificate
Principal Balance of the Class A-2C
Certificates as of the Closing Date:
Certificate Interest Rate: Floating $25,485,000
Date of Pooling and Servicing Agreement and Cut-off Initial Certificate Principal Balance: $[__]
Date: April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RS 2
ISIN: US32027NRS26
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _______________ is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class
A-2C Certificates) in that certain beneficial ownership interest evidenced by
all the Class A-2C Certificates in the Trust Fund created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. 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
A-4-2
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class A-2C Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class A-2C Certificate becomes a Definitive Certificate, the Record Date for
such Certificate will be the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class A-2C
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class A-2C Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class A-2C Certificate Margin, (ii) the Group
2 Maximum Rate Cap and (iii) the Group 2 Cap. Interest will accrue on the Class
A-2C Certificates during each Interest Accrual Period at the Certificate
Interest Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class A-2C
Certificates.
The Class A-2C Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the
A-4-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Pool Balance of the
A-4-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Trustee
By:__________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:__________________________________
Authorized Signatory
Date of authentication:
A-4-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-4-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________________
for the account of _______________________________, account number______________
_____________________________, or, if mailed by check, to_______________________
_____________________________. Applicable statements should be mailed to
_______________________________________________________ This information is
provided by____________________________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-1 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-1-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-1
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-1 Original Class Certificate Principal Balance of the
Class M-1 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $38,556,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RT 0
ISIN: US32027NRT09
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-1 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-1 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-1-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-1 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-1 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-1 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-1 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-1 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-1
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-1
Certificates.
The Class M-1 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates as described in the Agreement referred to herein.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the
B-1-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Pool Balance of the
B-1-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:______________________________________
Authorized Signatory
Date of authentication:
B-1-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
B-1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number _____________
_______________________________________, or, if mailed by check, to
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ____________________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-2 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A AND CLASS
M-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-2-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-2
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-2 Original Class Certificate Principal Balance of the
Class M-2 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $28,918,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RU 7
ISIN: US32027NRU71
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-2 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-2 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-2-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-2 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-2 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-2 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-2 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-2 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-2
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-2
Certificates.
The Class M-2 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates and Class M-1 Certificates as described in the Agreement referred
to herein.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the
B-2-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Pool Balance of the
B-2-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:__________________________________________
Authorized Signatory
Date of authentication:
B-2-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
____________________________________________
Signature Guaranteed
B-2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-3 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1
AND CLASS M-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-3-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-3
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-3 Original Class Certificate Principal Balance of the
Class M-3 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $10,025,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RV 5
ISIN: US32027NRV54
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-3 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-3 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-3-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-3 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-3 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-3 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-3 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-3 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-3
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-3
Certificates.
The Class M-3 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates and Class M-2 Certificates as described in
the Agreement referred to herein.
B-3-3
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as
B-3-4
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the Mortgage Loans at the time of purchase being
10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-3-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:__________________________________________
Authorized Signatory
Date of authentication:
B-3-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
__________________________________________
Signature by or on behalf of assignor
__________________________________________
Signature Guaranteed
B-3-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-4 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS M-2 AND CLASS M-3 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-4-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-4
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-4 Original Class Certificate Principal Balance of the
Class M-4 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $16,579,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RW 3
ISIN: US32027NRW38
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-4 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-4 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-4-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-4 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-4 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-4 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-4 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-4 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-4
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-4
Certificates.
The Class M-4 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates and Class M-3
Certificates as described in the Agreement referred to herein.
B-4-3
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as
B-4-4
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the Mortgage Loans at the time of purchase being
10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:___________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:___________________________________________
Authorized Signatory
Date of authentication:
B-4-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of assignor
___________________________________________
Signature Guaranteed
B-4-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-5 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS M-2, CLASS M-3 AND CLASS M-4 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-5-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-5
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-5 Original Class Certificate Principal Balance of the
Class M-5 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $10,410,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RX 1
ISIN: US32027NRX11
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-5 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-5 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-5-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-5 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-5 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-5 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-5 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-5 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-5
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-5
Certificates.
The Class M-5 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates and Class M-4 Certificates as described in the Agreement referred
to herein.
B-5-3
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as
B-5-4
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the Mortgage Loans at the time of purchase being
10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-5-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:__________________________________________
Authorized Signatory
Date of authentication:
B-5-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
B-5-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-6 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS M-2, CLASS M-3, CLASS M-4 AND CLASS M-5 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-6-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-6
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-6 Original Class Certificate Principal Balance of the
Class M-6 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $6,940,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RY 9
ISIN: US32027NRY93
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-6 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-6 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-6-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-6 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-6 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-6 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-6 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-6 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-6
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-6
Certificates.
The Class M-6 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates and Class M-5 Certificates as described in
the Agreement referred to herein.
B-6-3
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as
B-6-4
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the Mortgage Loans at the time of purchase being
10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-6-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:________________________________________
Authorized Signatory
Date of authentication:
B-6-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within asset-backed Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
_______________________________________
Signature Guaranteed
B-6-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-7 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS M-2, CLASS M-3, CLASS M-4, CLASS M-5 AND CLASS M-6 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-7-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-7
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-7 Original Class Certificate Principal Balance of the
Class M-7 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $11,182,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N RZ 6
ISIN: US32027NRZ68
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-7 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-7 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-7-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-7 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-7 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-7 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-7 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-7 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-7
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-7
Certificates.
The Class M-7 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates and Class M-6
Certificates as described in the Agreement referred to herein.
B-7-3
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as
B-7-4
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the Mortgage Loans at the time of purchase being
10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-7-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:__________________________________________
Authorized Signatory
Date of authentication:
B-7-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within asset-backed Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
B-7-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-8 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS M-2, CLASS M-3, CLASS M-4, CLASS M-5, CLASS M-6 AND CLASS M-7 CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-8-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-8
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-8 Original Class Certificate Principal Balance of the
Class M-8 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $3,855,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N SA 0
ISIN: US32027NSA09
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-8 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-8 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-8-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-8 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-8 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-8 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-8 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-8 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-8
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-8
Certificates.
The Class M-8 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates and Class M-7 Certificates as described in the Agreement referred
to herein.
B-8-3
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as
B-8-4
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the Mortgage Loans at the time of purchase being
10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-8-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:__________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:__________________________________________
Authorized Signatory
Date of authentication:
B-8-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of assignor
_____________________________________________
Signature Guaranteed
B-8-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-9 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS M-2, CLASS M-3, CLASS M-4, CLASS M-5, CLASS M-6, CLASS M-7 AND CLASS M-8
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-9-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-9
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-9 Original Class Certificate Principal Balance of the
Class M-9 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $6,941,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N SB 8
ISIN: US32027NSB81
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-9 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-9 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-9-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-9 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-9 Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-9 Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-9 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-9 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-9
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-9
Certificates.
The Class M-9 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates and Class M-8 Certificates as described in
the Agreement referred to herein.
B-9-3
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as
B-9-4
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the Mortgage Loans at the time of purchase being
10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-9-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:_________________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A., not in its individual
capacity but solely as Certificate Registrar
By:_________________________________________________
Authorized Signatory
Date of authentication:
B-9-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
B-9-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇
[FORM OF CLASS M-10 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS M-2, CLASS M-3, CLASS M-4, CLASS M-5, CLASS M-6, CLASS M-7, CLASS M-8 AND
CLASS M-9 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-10-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS M-10
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class M-10 Original Class Certificate Principal Balance of the
Class M-10 Certificates as of the Closing Date:
Certificate Interest Rate: Floating $5,012,000
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance: $[__]
April 1, 2005
Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005
Trustee: JPMorgan Chase Bank, N.A.
No.
Closing Date: April 28, 2005
CUSIP: 32027N SC 6
ISIN: US32027NSC64
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class M-10 Certificates) in that certain beneficial ownership interest
evidenced by all the Class M-10 Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Asset Backed Funding Corporation (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Servicer and the Trustee, a summary of certain of the pertinent provisions of
which is set forth hereafter. 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.
B-10-2
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class M-10 Certificates on
such Distribution Date pursuant to the Agreement; provided, however, that if any
Class M-10 Certificate becomes a Definitive Certificate, the Record Date for
such Certificate will be the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class M-10
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-10 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-10 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-10
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-10
Certificates.
The Class M-10 Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates and Class M-9
Certificates as described in the Agreement referred to herein.
B-10-3
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as
B-10-4
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Pool Balance of the Mortgage Loans at the time of purchase being
10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-10-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:_________________________________________
Authorized Signatory
Date of authentication:
B-10-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
B-10-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
B-10-8
EXHIBIT B-11
[FORM OF CLASS B CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS M-2, CLASS M-3, CLASS M-4, CLASS M-5, CLASS M-6, CLASS M-7, CLASS M-8,
CLASS M-9 AND CLASS M-10 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
THIS CLASS B CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
EACH PURCHASER OF A CLASS M OR CLASS B NOTE WILL BE DEEMED TO REPRESENT AND
WARRANT BY VIRTUE OF ITS ACCEPTANCE OF SUCH NOTE OR INTEREST THEREIN EITHER THAT
IT (X) (I) IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR
ANY MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW"), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING ON BEHALF OF
ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (II) IS AN
INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN
AN
B-11-1
"INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS I AND III
OF PTCE 95-60.
B-11-2
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS B
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class B Original Class Certificate Principal Balance of the
Class B Certificates as of the Closing Date: $6,555,000
Certificate Interest Rate: Floating
Initial Certificate Principal Balance: $[__]
Date of Pooling and Servicing Agreement and
Cut-off Date: April 1, 2005 Servicer: HomEq Servicing Corporation
First Distribution Date: May 25, 2005 Trustee: JPMorgan Chase Bank, N.A.
No. Closing Date: April 28, 2005
CUSIP: 32027N SD 4
ISIN: US32027NSD48
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _________________ is the registered owner of a
Percentage Interest (obtained by dividing the Initial Certificate Principal
Balance of this Certificate by the Original Class Certificate Principal Balance
of the Class B Certificates) in that certain beneficial ownership interest
evidenced by all the Class B Certificates in the Trust Fund created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among Asset Backed Funding Corporation (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicer and
the Trustee, a summary of certain of the pertinent provisions of which is set
forth hereafter. 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.
B-11-3
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the Business Day immediately preceding such Distribution Date
(the "Record Date"), from funds in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of Class B Certificates on such
Distribution Date pursuant to the Agreement; provided, however, that if any
Class B Certificate becomes a Definitive Certificate, the Record Date for such
Certificate will be the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class B Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Certificate Interest Rate for the Class B Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class B Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class B
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class B
Certificates.
The Class B Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates and Class M-10 Certificates as described in the Agreement referred
to herein.
B-11-4
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 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 of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
No transfer of this Certificate shall be made unless that transfer is made
pursuant to an effective registration statement under the 1933 Act and effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that a transfer is to be made without registration or qualification,
the Trustee shall require, in order to assure compliance with such laws, either
(i) in the case of a transfer made in reliance on Rule 144A under the 1933 Act,
that the proposed transferee delivers to the Trustee a completed investment
letter in substantially the form attached to the Agreement as Exhibit J, or (ii)
in the case of any other transfer, that the Certificateholder desiring to effect
the transfer and such Certificateholder's prospective transferee each execute a
representation letter in substantially the forms of Exhibit L and Exhibit J
attached to the Agreement, respectively, certifying to the Depositor and the
Trustee the facts surrounding the transfer as described in Section 5.02 of the
Agreement, or as provided in the Agreement the Depositor and the Trustee shall
require an Opinion of Counsel satisfactory to them that such transfer may be
made without such registration or qualification, which Opinion of Counsel shall
not be an expense of the Depositor, the Trustee or the Certificate Registrar, in
their
B-11-5
respective capacities as such. None of the Depositor, the Certificate Registrar
nor the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any such
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Depositor, the Certificate Registrar and the
Servicer against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Pool Balance of the
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-11-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:___________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as
Certificate Registrar
By:___________________________________________
Authorized Signatory
Date of authentication:
B-11-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within asset-backed Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
B-11-8
DISTRIBUTION INSTRUCTIONS
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________________________________________________________
for the account of _______________________________, account number______________
__________________________________________________________________,
or, if mailed by check, to_____________________________________________________.
Applicable statements should be mailed to_______________________________________
This information is provided by________________________________________________,
the assignee named above, or ________________________________________, as its
agent.
B-11-9
EXHIBIT C-1
[FORM OF CLASS CE CERTIFICATES]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN 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") AND
CERTAIN OTHER PROPERTY.
THIS CLASS CE CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES OF THIS
SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CLASS CE CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS CE CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW WILL BE REGISTERED EXCEPT AS PROVIDED
IN THE POOLING AND SERVICING AGREEMENT.
C-1-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS CE
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class CE Servicer: HomEq Servicing Corporation
Date of Pooling and Servicing Agreement Trustee: JPMorgan Chase Bank, N.A.
and Cut-off Date: April 1, 2005
Closing Date: April 28, 2005
First Distribution Date: May 25, 2005
No.
Percentage Interest: 100%
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
ASSET BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that __________________________________ is the registered
owner of a Percentage Interest set forth above in that certain beneficial
ownership interest evidenced by all the Class CE Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Asset Backed Funding Corporation (hereinafter called
the "Depositor," which term includes any successor entity under the Agreement),
the Servicer and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. 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.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs (the "Record Date"), from
funds in the Distribution Account in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class CE Certificates on such Distribution Date
pursuant to the Agreement.
C-1-2
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class CE Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing the Percentage Interest specified on the face
hereof.
The Class CE Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests specified in the
Agreement. As
C-1-3
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 evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless that transfer is made
pursuant to an effective registration statement under the 1933 Act and effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that a transfer is to be made without registration or qualification,
the Certificate Registrar shall require, in order to assure compliance with such
laws, either (i) that the Certificateholder desiring to effect the transfer and
such Certificateholder's prospective transferee each execute a representation
letter in the form described by the Agreement certifying to the Certificate
Registrar the facts surrounding the transfer, or (ii) unless such transfer is
made in reliance upon Rule 144A under the 1933 Act, that the Depositor and the
Certificate Registrar receive an Opinion of Counsel satisfactory to them that
such transfer may be made without such registration or qualification, which
Opinion of Counsel shall not be an expense of the Depositor, the Trustee or the
Certificate Registrar, in their respective capacities as such. None of the
Depositor, the Certificate Registrar or the Trustee is obligated to register or
qualify the Class of Certificates specified on the face hereof under the 1933
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any such Certificateholder desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Certificate Registrar and any Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of a Certificate or any interest therein may be made to
employee benefit plans and certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA, Section 4975 of the Code or any materially similar
provisions of applicable federal, state or local law (collectively, "Plans") or
any person who is directly or indirectly purchasing the Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan except as provided in the Pooling and Servicing Agreement.
No service charge will be made for any such registration of transfer or
exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
C-1-4
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Pool Balance of the
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assume no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:___________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Certificate
Registrar
By:__________________________________________
Authorized Signatory
C-1-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
_________________________________________
Signature Guaranteed
C-1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
________________________________________________________________________________
for the account of ______________________, account number _____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to ______________________________________
This information is provided by _______________________________________________,
the assignee named above, or ____________________________________, as its agent.
C-1-8
EXHIBIT C-2
[FORM OF CLASS P CERTIFICATE]
THIS CLASS P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW WILL BE REGISTERED EXCEPT AS PROVIDED
IN THE POOLING AND SERVICING AGREEMENT.
C-2-1
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS P
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class P Original Class Certificate Principal Balance of
the Class P Certificates as of the Closing Date:
Date of Pooling and Servicing Agreement and $100
Cut-off Date: April 1, 2005
Initial Certificate Principal Balance: $100
First Distribution Date: May 25, 2005 Servicer: HomEq Servicing Corporation
No. Trustee: JPMorgan Chase Bank, N.A.
Closing Date: April 28, 2005
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
ASSET BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that __________________________________ is the registered
owner of a Percentage Interest set forth above in that certain beneficial
ownership interest evidenced by all the Class P Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Asset Backed Funding Corporation (hereinafter called
the "Depositor," which term includes any successor entity under the Agreement),
the Servicer and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. 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.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs (the "Record Date"), from
Prepayment Charges, Originator Prepayment Charge Payment Amounts and Servicer
Prepayment Charge Payment Amounts in the Distribution Account in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to
C-2-2
be distributed to the Holders of Class P Certificates on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Class P Certificates,
or by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Certificate Registrar may deduct a reasonable wire transfer
fee from any payment made by wire transfer. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing the Percentage Interest specified on the face
hereof.
The Class P Certificates are limited in right of payment to Prepayment
Charges received on the Mortgage Loans, Originator Prepayment Charge Payment
Amounts and Servicer Prepayment Charge Payment Amounts, all as more specifically
set forth herein and in the Agreement. As provided in the Agreement, withdrawals
from the Collection Accounts and the Distribution Account may be made from time
to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of advances made, or certain expenses incurred,
with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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
C-2-3
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless that transfer is made
pursuant to an effective registration statement under the 1933 Act and effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that a transfer is to be made without registration or qualification,
the Certificate Registrar shall require, in order to assure compliance with such
laws, either (i) that the Certificateholder desiring to effect the transfer and
such Certificateholder's prospective transferee each execute a representation
letter in the form described by the Agreement certifying to the Certificate
Registrar the facts surrounding the transfer, or (ii) unless such transfer is
made in reliance upon Rule 144A under the 1933 Act, that the Depositor and the
Certificate Registrar receive an Opinion of Counsel satisfactory to them that
such transfer may be made without such registration or qualification, which
Opinion of Counsel shall not be an expense of the Depositor, the Trustee or the
Certificate Registrar, in their respective capacities as such. None of the
Depositor, the Certificate Registrar or the Trustee is obligated to register or
qualify the Class of Certificates specified on the face hereof under the 1933
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any such Certificateholder desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Certificate Registrar and any Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of a Certificate or any interest therein may be made to
employee benefit plans and certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA, Section 4975 of the Code or any materially similar
provisions of applicable federal, state or local law (collectively, "Plans") or
any person who is directly or indirectly purchasing the Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan.
No service charge will be made for any such registration of transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the
C-2-4
Depositor, the Servicer, the Trustee, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Pool Balance of the
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:___________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Certificate
Registrar
By:__________________________________________
Authorized Signatory
C-2-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
_________________________________________
Signature Guaranteed
C-2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
________________________________________________________________________________
for the account of ______________________, account number _____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to ______________________________________
This information is provided by _______________________________________________,
the assignee named above, or ____________________________________, as its agent.
C-2-8
EXHIBIT C-3
[FORM OF CLASS R CERTIFICATE]
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE "RESIDUAL
INTEREST" IN TWO SEPARATE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS R CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES OF THIS
SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW WILL BE REGISTERED.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (1) AN AFFIDAVIT TO THE
CERTIFICATE REGISTRAR THAT SUCH TRANSFEREE IS NOT (A) 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, (B) 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, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
C-3-1
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (3) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THE CLASS R CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(D) OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION IS
PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS CLASS R CERTIFICATE.
C-3-2
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5
ASSET-BACKED CERTIFICATES
SERIES 2005-FF5, CLASS R
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2005-FF5, Class R Servicer: HomEq Servicing Corporation
Date of Pooling and Servicing Agreement and Trustee: JPMorgan Chase Bank, N.A.
Cut-off Date: April 1, 2005
Closing Date: April 28, 2005
First Distribution Date: May 25, 2005
No.
Percentage Interest: 100%
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET BACKED
FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS
CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that _______________________ is the registered owner of 100%
Percentage Interest in that certain beneficial ownership interest evidenced by
the Class R Certificate in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. 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.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered on the last Business Day of the month immediately preceding the
month in which the related Distribution Date occurs (the "Record Date"), from
funds in the Distribution Account in the amount required to be distributed to
the Holder of Class R Certificate on such Distribution Date pursuant to the
Agreement.
All distributions to the Holder of this Certificate under the Agreement
will be made or caused to be made by or on behalf of the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified
C-3-3
the Certificate Registrar in writing at least five Business Days prior to the
Record Date immediately prior to such Distribution Date and is the registered
owner of Class R Certificate, or by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as First Franklin Mortgage Loan Trust 2005-FF5, Asset-Backed
Certificates, of the Series specified on the face hereof (herein called the
"Certificates") and representing the Percentage Interest specified on the face
hereof.
The Class R Certificate is limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified 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 herefor 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 upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee as provided in the Agreement, duly
endorsed by, or accompanied by an assignment in the form below or other 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 evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests 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 evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
C-3-4
No transfer of this Certificate shall be made unless that transfer is made
pursuant to an effective registration statement under the 1933 Act and effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that a transfer is to be made without registration or qualification,
the Certificate Registrar shall require, in order to assure compliance with such
laws, either (i) that the Certificateholder desiring to effect the transfer and
such Certificateholder's prospective transferee each execute a representation
letter in the form described by the Agreement certifying to the Certificate
Registrar the facts surrounding the transfer, or (ii) unless such transfer is
made in reliance upon Rule 144A under the 1933 Act, that the Depositor and the
Certificate Registrar receive an Opinion of Counsel satisfactory to them that
such transfer may be made without such registration or qualification, which
Opinion of Counsel shall not be an expense of the Depositor, the Trustee or the
Certificate Registrar, in their respective capacities as such. None of the
Depositor, the Certificate Registrar or the Trustee is obligated to register or
qualify the Class of Certificates specified on the face hereof under the 1933
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any such Certificateholder desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Certificate Registrar and any Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of this Certificate or any interest therein may be made to
employee benefit plans and certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA, Section 4975 of the Code or any materially similar
provisions of applicable federal, state or local law (collectively, "Plans") or
any person who is directly or indirectly purchasing the Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
for all purposes to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
to cease to qualify as two separate REMICs or cause the imposition of a tax upon
the Trust.
No service charge will be made for any such registration of transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
C-3-5
The obligations created by the Agreement and the Trust Fund created thereby
shall terminate upon payment to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund, and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from the Trust Fund of all
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Pool Balance of the
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the Depositor
and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:___________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is the one of the Certificates referred to in the within-mentioned
Agreement.
Dated:
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Certificate
Registrar
By:__________________________________________
Authorized Signatory
C-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
_________________________________________
Signature Guaranteed
C-3-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
________________________________________________________________________________
for the account of ______________________, account number _____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to ______________________________________
This information is provided by _______________________________________________,
the assignee named above, or ____________________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
GROUP 1 MORTGAGE LOAN SCHEDULE
D-1-1
EXHIBIT D-2
GROUP 2 MORTGAGE LOAN SCHEDULE
D-2-1
EXHIBIT E
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: JPMorgan Chase Bank, N.A.
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Attn: Institutional Trust Services/Global Debt - ABFC/FFMLT, Series 2005-FF5
Re: Pooling and Servicing Agreement dated as of April 1, 2005 among Asset
Backed Funding Corporation, as depositor, HomEq Servicing Corporation,
as Servicer, and JPMorgan Chase Bank, N.A., as trustee
-----------------------------------------------------------------------
All capitalized terms used herein shall have the means ascribed to them in
the Pooling and Servicing Agreement (the "Agreement") referenced above.
In connection with the administration of the Mortgage Loans held by you as
Trustee pursuant to the Agreement, we request the release, and hereby
acknowledge receipt, of the Trustee's Mortgage File for the Mortgage Loan
described below, for the reason indicated.
Mortgage Loan Number:
---------------------
Mortgagor Name, Address & Zip Code:
-----------------------------------
Reason for Requesting Documents (check one):
--------------------------------------------
_____ 1. Mortgage Paid in Full
_____ 2. Foreclosure
_____ 3. Substitution
_____ 4. Other Liquidation (Repurchases, etc.)
_____ 5. Nonliquidation Reason:_____________________________
By:_________________________________
(authorized signer)
Issuer:_____________________________
Address:____________________________
____________________________________
Date:_______________________________
E-1
Custodian
JPMorgan Chase Bank, N.A.
Please acknowledge the execution of the above request by your
signature and date below:
____________________________________________ ___________________________
Signature Date
Documents returned to Custodian:
____________________________________________ ___________________________
Custodian Date
E-2
EXHIBIT F-1
FORM OF TRUSTEE'S INITIAL CERTIFICATION
__________, 20__
Asset Backed Funding Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HomEq Servicing Corporation
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▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FF5,
--------------------------------------------
Asset-Backed Certificates, Series 2005-FF5
------------------------------------------
Ladies and Gentlemen:
The undersigned, as Trustee, hereby certifies that, as except as noted on
the schedule of exceptions attached hereto as Schedule A, as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan listed on the attachment hereto) it has reviewed the
Mortgage Files and has determined that (i) all documents required to be
delivered to it pursuant to Section 2.01(a), (b), (c), (d) and (e) of the
Pooling and Servicing Agreement, dated as of April 1, 2005, among Asset Backed
Funding Corporation, as depositor, HomEq Servicing Corporation, as servicer and
the undersigned, as trustee (the "Agreement") are in its possession, and if
indicated as applicable in a separate writing delivered to the Trustee, that all
documents delivered to it pursuant to Section 2.01(f) of the Agreement are in
its possession; (ii) such documents have been reviewed by it and appear regular
on their face and related to such Mortgage Loan, (iii) each Mortgage Note has
been endorsed as provided in Section 2.01(a) of the Agreement and each Mortgage
has been assigned in accordance with Section 2.01(c) and (d) of the Agreement
and (iv) based on its examination of the documents in the Mortgage File and only
as to such documents, the Mortgage Loan information attached hereto as Schedule
B set forth for each Mortgage Loan on the related Mortgage Loan Schedule with
respect to such Mortgage Loan accurately reflects information set forth in the
related Mortgage File. The Trustee makes no representations as to (i) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any of the documents contained in each Mortgage File or of any of
the Mortgage Loans or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan.
This Initial Certification is not divisible or negotiable.
The Trustee will accept and act on instructions with respect to the
Mortgage Loans subject hereto upon surrender of this Initial Certification at
its office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
Manager - ABFC/FFMLT 2005-FF5.
F-1-1
Capitalized terms used herein shall have the meaning ascribed to them in
the Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
E-2
SCHEDULE A - TO INITIAL CERTIFICATION
EXCEPTIONS
E-3
SCHEDULE B - TO INITIAL CERTIFICATION
MORTGAGE LOAN INFORMATION
1. Loan Identification Number
2. Mortgagor's Name
3. State and Zip Code of Mortgaged Property
4. Initial Mortgage Interest Rate
5. Original Principal Balance
6. Scheduled Maturity Date
7. Initial Monthly Payment
8. Initial Payment Date
9. Gross Margin (for Adjustable Rate Mortgage Loans)
10. Initial Adjustment Date (for Adjustable Rate Mortgage Loans)
11. Maximum Mortgage Interest Rate (for Adjustable Rate Mortgage Loans)
12. Minimum Mortgage Interest Rate (for Adjustable Rate Mortgage Loans)
13. Periodic Interest Rate (for Adjustable Rate Mortgage Loans)
14. Prepayment Charge Term (if applicable)
15. Prepayment Charge Amount (if applicable)
E-4
EXHIBIT F-2
FORM OF TRUSTEE'S FINAL CERTIFICATION
▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇ Backed Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HomEq Servicing Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FF5,
--------------------------------------------
Asset-Backed Certificates, Series 2005-FF5
------------------------------------------
Ladies and Gentlemen:
The undersigned, as Trustee, hereby certifies that, as except as noted on
the schedule of exceptions attached hereto as Schedule A, as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan listed on the attachment hereto) it has reviewed the
Mortgage Files and has determined that (a) all documents required to be
delivered to it pursuant to Section 2.01(a), (b), (c), (d) and (e) of the
Pooling and Servicing Agreement, dated as of April 1, 2005, among Asset Backed
Funding Corporation, as depositor, HomEq Servicing Corporation, as servicer and
the undersigned, as trustee (the "Agreement") are in its possession, and if
indicated as applicable in a separate writing delivered to the Trustee, that all
documents delivered to it pursuant to Section 2.01(f) of the Agreement are in
its possession; (b) such documents have been reviewed by it and appear regular
on their face and related to such Mortgage Loan, (c) each Mortgage Note has been
endorsed as provided in Section 2.01(a) of the Agreement and each Mortgage has
been assigned in accordance with Sections 2.01(c) and (d) of the Agreement and
(d) based on its examination of the documents in the Mortgage File and only as
to such documents, the Mortgage Loan information attached hereto as Schedule B
set forth for each Mortgage Loan on the related Mortgage Loan Schedule with
respect to such Mortgage Loan accurately reflects information set forth in the
related Mortgage File. The Trustee makes no representations as to (x) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any of the documents contained in each Mortgage File or of any of
the Mortgage Loans or (y) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan.
This Final Certification is not divisible or negotiable.
The Trustee will accept and act on instructions with respect to the
Mortgage Loans subject hereto upon surrender of this Final Certification at its
office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
Manager- ABFC/FFMLT 2005-FF5.
F-2-1
Capitalized terms used herein shall have the meaning ascribed to them
in the Agreement.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
F-2-2
SCHEDULE A - TO FINAL CERTIFICATION
-----------------------------------
EXCEPTIONS
F-2-3
SCHEDULE B - TO FINAL CERTIFICATION
-----------------------------------
MORTGAGE LOAN INFORMATION
1. Loan Identification Number
2. Mortgagor's Name
3. State and Zip Code of Mortgaged Property
4. Initial Mortgage Interest Rate
5. Original Principal Balance
6. Scheduled Maturity Date
7. Initial Monthly Payment
8. Initial Payment Date
9. Gross Margin (for Adjustable Rate Mortgage Loans)
10. Initial Adjustment Date (for Adjustable Rate Mortgage Loans)
11. Maximum Mortgage Interest Rate (for Adjustable Rate Mortgage Loans)
12. Minimum Mortgage Interest Rate (for Adjustable Rate Mortgage Loans)
13. Periodic Interest Rate (for Adjustable Rate Mortgage Loans)
14. Prepayment Charge Term (if applicable)
15. Prepayment Charge Amount (if applicable)
F-2-4
EXHIBIT F-3
FORM OF RECEIPT OF MORTGAGE NOTE
Asset Backed Funding Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FF5,
--------------------------------------------
Asset-Backed Certificates, Series 2005-FF5
------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing Agreement, dated as
of April 1, 2005, among Asset Backed Funding Corporation, as depositor, HomEq
Servicing Corporation, as Servicer, and JPMorgan Chase Bank, N.A., as trustee,
we hereby acknowledge the receipt of the original Mortgage Note, or, with
respect to any lost Mortgage Note, an original Lost Note Affidavit, together
with a copy of the related Mortgage Note (a copy of which is attached hereto as
Exhibit 1) with any exceptions thereto listed on Exhibit 2.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:_______________________________________
Name:
Title:
F-3-1
EXHIBIT G
MORTGAGE LOAN PURCHASE AGREEMENT
(ON FILE WITH TRUSTEE)
G-1
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 JPMorgan Chase
Bank, N.A., as trustee on behalf of First Franklin Mortgage Loan Trust 2005-FF5,
Asset-Backed Certificates, Series 2005-FF5, to accept the transfer of the above
described loan from Seller.
Seller agrees to indemnify and hold harmless JPMorgan Chase Bank, N.A. and
Asset Backed Funding Corporation 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 ______________________.
H-1
EXHIBIT I
FORM OF ERISA REPRESENTATION
JPMorgan Chase Bank, N.A.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Institutional Trust Services/Global Debt - ABFC/FFMLT, Series 2005-FF5
Asset Backed Funding Corporation
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▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FF5,
--------------------------------------------
Asset-Backed Certificates, Series 2005-FF5
------------------------------------------
Ladies and Gentlemen:
1. [The undersigned is the ______________________ of ________________ (the
"Transferee") a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.] [The undersigned,
___________________, is the transferee (the "Transferee").]
2. The Transferee hereby acknowledges that under the terms of the Pooling
and Servicing Agreement (the "Agreement") dated as of April 1, 2005, among Asset
Backed Funding Corporation, as depositor (the "Depositor"), HomEq Servicing
Corporation as Servicer, and JPMorgan Chase Bank, N.A., as trustee (the
"Trustee"), no transfer of the ERISA-Restricted Certificates shall be permitted
to be made to any person unless the Depositor and the Certificate Registrar (as
defined in the Agreement) have received a certificate from such transferee in
the form hereof.
3. The Transferee either (x) (i) is not an employee benefit plan subject to
Section 406 or Section 407 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code") or any materially similar provisions of applicable
federal, state or local law ("Similar Law"), the Trustee of any such plan or a
person acting on behalf of any such plan nor a person using the assets of any
such plan or (ii) (except in the case of the Class R, Class CE and Class P
Certificates) is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60") and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60 or (y) (except in the case of the Class R
Certificate) shall deliver to the Certificate Registrar and the Depositor an
opinion of counsel (a "Benefit Plan Opinion") satisfactory to the Certificate
Registrar, and upon which the Certificate Registrar and the Depositor shall be
entitled to rely, to the effect that the purchase or holding of such Certificate
by the Transferee will not constitute or result in a non-exempt prohibited
transaction within the meaning of ERISA or Section 4975 of the Code (or similar
provisions of Similar Law) and will not subject the Trustee or the Depositor to
any
I-1
obligation in addition to those undertaken by such entities in the Pooling
and Servicing Agreement, which opinion of counsel shall not be an expense of the
Trustee or the Depositor.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Agreement.
IN WITNESS WHEREOF, the Transferee has executed this certificate.
___________________________________
[Transferee]
By:________________________________
Name:
Title:
I-2
EXHIBIT J
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Asset Backed Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Institutional Trust Services/Global Debt - ABFC/FFMLT, Series 2005-FF5
Ladies and Gentlemen:
In connection with our acquisition of the First Franklin Mortgage Loan
Trust 2005-FF5, Asset-Backed Certificates, Series 2005-FF5 (the "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 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), (e) we agree that the
Certificates must be held indefinitely by us and we acknowledge that we are able
to bear the economic risk of investment in the Certificates, (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, (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 and (h)
we acknowledge that the Certificates will bear a legend setting forth the
applicable restrictions on transfer.
J-1
Very truly yours,
[NAME OF TRANSFEREE]
By:______________________________________
Authorized Officer
J-2
FORM OF RULE 144A INVESTMENT LETTER
[DATE]
Asset Backed Funding Corporation
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▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Institutional Trust Services/Global Debt - ABFC/FFMLT, Series 2005-FF5
Re: First Franklin Mortgage Loan Trust 2005-FF5,
--------------------------------------------
Asset-Backed Certificates, Series 2005-FF5
------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the First Franklin Mortgage Loan
Trust 2005-FF5, Asset-Backed Certificates, Series 2005-FF5 (the "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 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, (d) 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, and who executes a
certification in the form of this letter and a certification in the form of
either Annex 1 or Annex 2 attached hereto, or (ii) pursuant to another exemption
from registration under the Securities Act.
J-3
Very truly yours,
[NAME OF TRANSFEREE]
By:______________________________________
Authorized Officer
J-4
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:
i. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
ii. 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.
----------
1 Buyer must own and/or invest on a discretionary basis at least
$__________ in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $__________ in
securities.
J-5
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency
of a State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
iii. 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.
iv. 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.
v. 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
J-6
continue to rely on the statements made herein because one or more sales to the
Buyer may be in reliance on Rule 144A.
vi. 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:______________________________
J-7
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 Buyer's 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.
J-8
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:______________________________
J-9
EXHIBIT K
FORM OF CLASS R CERTIFICATE TRANSFER AFFIDAVIT
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5,
ASSET-BACKED CERTIFICATES, SERIES 2005-FF5
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is [an officer of]_____, the proposed Transferee of an
Ownership Interest in the Class R Certificates (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement, (the "Agreement"), relating to
the above-referenced Certificates, among Asset Backed Funding Corporation, as
depositor, HomEq Servicing Corporation, as Servicer, and JPMorgan Chase Bank,
N.A., as trustee (the "Trustee"). Capitalized terms used, but not defined herein
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee.
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 Certificates either (i) for its own account or (ii) as nominee,
trustee or agent for another Person and has attached hereto an affidavit from
such Person in substantially the same form as this affidavit. 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 a Disqualified
Organization; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman) for
a Person that is a Disqualified Organization, 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 not a Disqualified Organization and, at the time of Transfer, such
Person does not have actual knowledge that the affidavit is false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is a Disqualified
Organization 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 not a Disqualified Organization 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
K-1
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 in this 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 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 taxpayer identification number of the Transferee's nominee 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 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 has filed all required federal and state income tax
returns and has paid all federal and state income tax due and intends to file
and pay all such returns and taxes in the future.
12. The Transferee historically has paid its debts as they come due and
fully intends to be financially able to pay its debts, including any and all tax
liabilities, as they become due.
13. The Transferee understands that, as the holder of an Ownership Interest
in a Certificate, it may incur tax liabilities in excess of any cash flows
generated by such Ownership Interest and intends to pay all taxes associated
with holding such Ownership Interest as such taxes become due.
K-2
14. That the Transferee will not cause income from the Class R 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
person.
15. That, if the Transferee is purchasing the Class R Certificate in a
transfer intended to meet the safe harbor provisions of Treasury Regulations
Sections 1.860E-1(c), the Transferee has executed and attached Attachment A
hereto.
16. The Transferee is not an employee benefit plan that is subject to ERISA
or a plan that is subject to Section 4975 of the Code or a plan or arrangement
subject to any materially similar provisions of applicable federal, state or
local law, nor are we acting on behalf of such a plan.
K-3
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, 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__.
K-4
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Check the appropriate box:
[ ] The consideration paid to the Transferee to acquire the Class R Certificate
equals or exceeds the excess of (a) the present value of the anticipated tax
liabilities over (b) the present value of the anticipated savings associated
with holding such Certificate, in each case calculated in accordance with U.S.
Treasury Regulations Sections 1.860E-1(c)(7) and (8), computing present values
using a discount rate equal to the short-term Federal rate prescribed by Section
1274(d) of the Code and the compounding period used by the Transferee.
OR
[ ] The transfer of the Class R 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
Class R 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 Class R 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;
(iv) the Transferee has determined the consideration paid to it to
acquire the Class R 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; and
(v) in the event of any transfer of the Class R Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of the
transferee's purchase of the Class R Certificate.
K-5
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[DATE]
JPMorgan Chase Bank, N.A.
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Institutional Trust Services/Global Debt - ABFC/FFMLT, Series 2005-FF5
Asset Backed Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First Franklin Mortgage Loan Trust 2005-FF5,
--------------------------------------------
Asset-Backed Certificates, Series 2005-FF5
------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the First Franklin
Mortgage Loan Trust 2005-FF5, Asset-Backed Certificates, Series 2005-FF5 (the
"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 the
Class R Certificate, we have no knowledge the Transferee is not a Permitted
Transferee and (d) no purpose of the proposed disposition of the Class R
Certificate is to impede the assessment or collection of tax.
Very truly yours,
[______________________]
By: ______________________________
L-1
EXHIBIT M
MONTHLY INFORMATION DELIVERED BY SERVICER
1. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the number and Principal Balances of all Mortgage Loans
which were the subject of Principal Prepayments during the related
Prepayment Period.
2. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the amount of all curtailments which were received during
the related Prepayment Period.
3. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the aggregate amount of the principal portion of all
Monthly Payments received during the related Collection Period.
4. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the amount of interest received on the Mortgage Loans
during the related Collection Period.
5. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the aggregate amount of the Advances made and recovered
with respect to such Distribution Date.
6. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the aggregate amount of the Servicing Advances made and
recovered with respect to such Distribution Date.
7. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the delinquency and foreclosure information and the
amount of Mortgage Loan Losses during the related Collection Period.
8. The information contained in the Liquidation Report for the related
Collection Period.
9. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the weighted average maturity, the weighted average
Mortgage Interest Rate and the weighted average Net Mortgage Interest Rate
as of the last day of the Collection Period preceding the related Interest
Accrual Period.
10. The Servicing Fees paid and Servicing Fees accrued during the related
Collection Period.
11. The Trustee Fees paid and Trustee Fees accrued during the related
Collection Period.
12. The Credit Risk Manager Fees paid and Credit Risk Manager Fees accrued
during the related Collection Period.
13. The PMI Insurer Fees paid and PMI Insurer Fees accrued during the related
Collection Period.
M-1
14. The amount of all payments or reimbursements to the Servicer paid or to be
paid since the prior Distribution Date (or in the case of the first
Distribution Date, since the Closing Date).
15. The Pool Balance and the aggregate Principal Balance of the Group 1
Mortgage Loans and the aggregate Principal Balance of the Group 2 Mortgage
Loans.
16. With respect to the Mortgage Pool, the number of Mortgage Loans outstanding
at the beginning and at the end of the related Collection Period.
17. The aggregate interest accrued on the Mortgage Loans, the Group 1 Mortgage
Loans and the Group 2 Mortgage Loans, at their respective Mortgage Interest
Rates for the related Collection Period.
18. The amount deposited in the Collection Account which may not be withdrawn
therefrom pursuant to an Order of a United States Bankruptcy Court of
competent jurisdiction imposing a stay pursuant to Section 362 of U.S.
Bankruptcy Code.
19. The aggregate Realized Losses in the Mortgage Pool, in the Group 1 Mortgage
Loans and in the Group 2 Mortgage Loans, since the Cut-off Date as of the
end of the related Collection Period.
20. The amount of Prepayment Charges received, the amount of Originator
Prepayment Charge Payment Amounts paid, the amount of Servicer Prepayment
Charge Payment Amounts paid, and the reason for any Prepayment Charges
waived without a corresponding Servicer Prepayment Charge Payment Amount,
all for the related Collection Period.
21. The amount of Yield Maintenance Agreement Payments received on each Yield
Maintenance Agreement with respect to such Distribution Date.
22. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the Group
2 Mortgage Loans, the Prepayment Interest Excess retained by the Servicer
for the related Prepayment Period.
M-2
EXHIBIT N-1
FORM OF YIELD MAINTENANCE AGREEMENT RELATING TO THE CLASS A-1 CERTIFICATES
(ON FILE WITH TRUSTEE)
N-1-1
EXHIBIT N-2
FORM OF YIELD MAINTENANCE AGREEMENT RELATING TO THE CLASS A-2A,
CLASS A-2B AND CLASS A-2C CERTIFICATES
(ON FILE WITH TRUSTEE)
N-2-1
EXHIBIT N-3
FORM OF YIELD MAINTENANCE AGREEMENT RELATING TO THE CLASS M-1,
CLASS M-2, CLASS M-3, CLASS M-4, CLASS M-5, CLASS M-6, CLASS M-7,
CLASS M-8, CLASS M-9, CLASS M-10 AND CLASS B CERTIFICATES
(ON FILE WITH TRUSTEE)
N-3-1
EXHIBIT O
FORM OF CERTIFICATION
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5,
ASSET-BACKED CERTIFICATES, SERIES 2005-FF5
I, [identify the certifying individual] certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form 8-K's
containing Distribution Date Statements filed in respect of periods
included in the year covered by this annual report, of the First Franklin
Mortgage Loan Trust 2005-FF5;
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 Agreement, dated as of April 1, 2005 (the "Agreement"), among
Asset Backed Funding Corporation, as depositor, HomEq Servicing
Corporation, as Servicer (the "Servicer"), and JPMorgan Chase Bank, N.A.,
as trustee (the "Trustee") for inclusion in these reports is included in
these reports;
4. Based on my knowledge and upon the annual compliance statement included in
the annual report on Form 10-K and required to be delivered to the Trustee
in accordance with the terms of the Agreement, and except as disclosed in
the reports, the Servicer has fulfilled its obligations under the
Agreement;
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 Agreement, that
is included in these reports; and
6. In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: HomEq Servicing
Corporation and JPMorgan Chase Bank, N.A..
By:__________________________________
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATION TO BE PROVIDED BY THE TRUSTEE TO THE DEPOSITOR
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5,
ASSET-BACKED CERTIFICATES, SERIES 2005-FF5
The Trustee hereby certifies to Asset Backed Funding Corporation and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. The trustee has 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,
relating to the above-referenced Trust;
2. Subject to paragraph (4), the distribution information in the distribution
reports contained in all monthly Form 8-K's included in the year covered by
the annual report on Form 10-K for the calendar year [____], taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact required by the Pooling and Servicing Agreement to be
included therein and necessary to make the statements made, in light of the
circumstances under which statements were made, not misleading as of the
last day of the period covered by that annual report;
3. The distribution information required to be provided by the Trustee under
the Pooling and Servicing Agreement is included in these reports; and
4. In compiling the distribution information and making the foregoing
certifications, it has relied upon information furnished to it by the
Servicer under the Pooling and Servicing Agreement. The Trustee shall have
no responsibility or liability for any inaccuracy in such reports resulting
from information so provided by the Servicer.
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Trustee
By:_________________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATION TO BE PROVIDED BY THE SERVICER TO THE DEPOSITOR
FIRST FRANKLIN MORTGAGE LOAN TRUST 2005-FF5,
ASSET-BACKED CERTIFICATES, SERIES 2005-FF5
I, [identify the certifying individual], certify to Asset
Backed Funding Corporation 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 calendar year [___],
and all Monthly Form 8-K's containing Distribution Date Statements filed in
respect of periods included in the year covered by that annual report, of
the First Franklin Mortgage Loan Trust 2005-FF5;
2. Based on my knowledge, the servicing information in the Distribution Date
Statements contained in all Monthly Form 8-K's included in the year covered
by the annual report on Form 10-K for the calendar year [___], 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;
3. Based on my knowledge, the servicing information required to be provided to
the Trustee by the Servicer under the Pooling and Servicing Agreement,
dated as of April 1, 2005 (the "Agreement"), among Asset Backed Funding
Corporation, as depositor, HomEq Servicing Corporation, as Servicer (the
"Servicer"), and JPMorgan Chase Bank, N.A., as trustee (the "Trustee"), for
inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement and based upon my knowledge and the annual compliance
review required under the Agreement, and except as disclosed in the
reports, the Servicer has fulfilled its obligations under the 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 Agreement, that
is included in these reports.
HOMEQ SERVICING CORPORATION
By:_________________________________________
Name:
Title:
P-2-2