================================================================================
FINANCIAL ASSET SECURITIES CORP.,
Depositor
NATIONAL CITY HOME LOAN SERVICES, INC.,
Servicer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2005
___________________________
First Franklin Mortgage Loan Trust 2005-FF4
Asset-Backed Certificates, Series 2005-FF4
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S>
<C>
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined
Terms.........................................................
SECTION 1.02
Accounting............................................................
SECTION 1.03 Allocation
of Certain Interest Shortfalls.............................
ARTICLE II CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance
of Mortgage Loans..........................................
SECTION 2.02 Acceptance
by Trustee.................................................
SECTION 2.03 Repurchase or
Substitution of Mortgage Loans by the Seller............
SECTION 2.04
Intentionally
Omitted.................................................
SECTION 2.05
Representations, Warranties and Covenants of the
Servicer.............
SECTION 2.06
Representations and Warranties of the
Depositor.......................
SECTION 2.07 Issuance
of Certificates..............................................
SECTION 2.08 Conveyance
of Subsequent Mortgage Loans...............................
SECTION 2.09 Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1,
REMIC 2, REMIC 3, REMIC 4 and REMIC 5 by the Trustee; Issuance
of
Certificates..........................................................
ARTICLE III ADMINISTRATION AND SERVICING OF
THE MORTGAGE LOANS
SECTION 3.01 Servicer
to Act as Servicer...........................................
SECTION 3.02
Sub-Servicing Agreements Between Servicer and
Sub-Servicers...........
SECTION 3.03 Successor
Sub-Servicers...............................................
SECTION 3.04 Liability
of the Servicer.............................................
SECTION 3.05 No Contractual
Relationship Between Sub-Servicers and the Trustee or
Certificateholders....................................................
SECTION 3.06 Assumption
or Termination of Sub-Servicing Agreements by Trustee......
SECTION 3.07 Collection
of Certain Mortgage Loan Payments..........................
SECTION 3.08
Sub-Servicing
Accounts................................................
SECTION 3.09 Collection
of Taxes, Assessments and Similar Items; Escrow Accounts...
SECTION 3.10 Collection
Account and Distribution Account...........................
SECTION 3.11
Withdrawals from the Collection Account and Distribution
Account......
SECTION 3.12 Investment
of Funds in the Collection Account, the Distribution
Account, the Pre-Funding Accounts and the Interest Coverage
Accounts..
SECTION 3.13
[Reserved]............................................................
SECTION 3.14
Maintenance of Hazard Insurance and Errors and Omissions and
Fidelity
Coverage..............................................................
SECTION 3.15
Enforcement of Due-On-Sale Clauses; Assumption
Agreements.............
SECTION 3.16 Realization Upon Defaulted
Mortgage Loans.............................
SECTION 3.17 Trustee to
Cooperate; Release of Mortgage Files.......................
SECTION 3.18 Servicing
Compensation................................................
SECTION 3.19 Reports to
the Trustee; Collection Account Statements.................
SECTION 3.20 Statement
as to Compliance............................................
SECTION 3.21
Independent Public Accountants' Servicing
Report......................
SECTION 3.22 Access to
Certain Documentation; Filing of Reports by Trustee.........
SECTION 3.23 Title,
Management and Disposition of REO Property.....................
SECTION 3.24
Obligations of the Servicer in Respect of Prepayment Interest
Shortfalls............................................................
SECTION 3.25
[Reserved]............................................................
SECTION 3.26
Obligations of the Servicer in Respect of Mortgage Rates and
Monthly
Payments..............................................................
SECTION 3.27
[Reserved]............................................................
SECTION 3.28
[Reserved]............................................................
SECTION 3.29 Advance
Facility......................................................
ARTICLE IV FLOW OF FUNDS
SECTION 4.01
Distributions.........................................................
SECTION 4.02
[Reserved]............................................................
SECTION 4.03
Statements............................................................
SECTION 4.04 Remittance
Reports; Advances..........................................
SECTION 4.05
Pre-Funding
Accounts..................................................
SECTION 4.06 Interest
Coverage Accounts............................................
SECTION 4.07 Net WAC
Rate Carryover Reserve Account................................
SECTION 4.08
Distributions on the REMIC Regular
Interests..........................
SECTION 4.09 Allocation
of Realized Losses.........................................
ARTICLE V THE CERTIFICATES
SECTION 5.01 The
Certificates......................................................
SECTION 5.02
Registration of Transfer and Exchange of
Certificates.................
SECTION 5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.....................
SECTION 5.04 Persons
Deemed Owners.................................................
SECTION 5.05
Appointment of Paying
Agent...........................................
ARTICLE VI THE SERVICER AND THE DEPOSITOR
SECTION 6.01 Liability
of the Servicer and the Depositor...........................
SECTION 6.02 Merger or
Consolidation of, or Assumption of the Obligations of, the
Servicer or the
Depositor.............................................
SECTION 6.03 Limitation
on Liability of the Servicer and Others....................
SECTION 6.04 Servicer
Not to Resign................................................
SECTION 6.05 Delegation
of Duties..................................................
SECTION 6.06
[Reserved]............................................................
SECTION 6.07
Inspection............................................................
ARTICLE VII DEFAULT
SECTION 7.01 Servicer
Events of Termination........................................
SECTION 7.02 Trustee to
Act; Appointment of Successor..............................
SECTION 7.03 Waiver of
Defaults....................................................
SECTION 7.04
Notification to
Certificateholders....................................
SECTION 7.05
Survivability of Servicer
Liabilities.................................
ARTICLE VIII THE TRUSTEE
SECTION 8.01 Duties of
Trustee.....................................................
SECTION 8.02 Certain
Matters Affecting the Trustee.................................
SECTION 8.03 Trustee
Not Liable for Certificates or Mortgage Loans.................
SECTION 8.04 Trustee
May Own Certificates..........................................
SECTION 8.05 Trustee
Compensation and Expenses.....................................
SECTION 8.06
Eligibility Requirements for
Trustee..................................
SECTION 8.07
Resignation or Removal of
Trustee.....................................
SECTION 8.08 Successor
Trustee.....................................................
SECTION 8.09 Merger or
Consolidation of Trustee....................................
SECTION 8.10
Appointment of Co-Trustee or Separate
Trustee.........................
SECTION 8.11 Limitation
of Liability...............................................
SECTION 8.12 Trustee
May Enforce Claims Without Possession of Certificates.........
SECTION 8.13 Suits for
Enforcement.................................................
SECTION 8.14 Waiver of
Bond Requirement............................................
SECTION 8.15 Waiver of
Inventory, Accounting and Appraisal Requirement.............
SECTION 8.16
Appointment of the
Custodian..........................................
ARTICLE IX REMIC ADMINISTRATION
SECTION 9.01 REMIC
Administration..................................................
SECTION 9.02 Prohibited
Transactions and Activities................................
SECTION 9.03
Indemnification with Respect to Certain Taxes and Loss of
REMIC
Status..........................................................
ARTICLE X TERMINATION
SECTION 10.01
Termination...........................................................
SECTION 10.02 Additional
Termination Requirements...................................
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.01
Amendment.............................................................
SECTION 11.02 Recordation of
Agreement; Counterparts................................
SECTION 11.03 Limitation on
Rights of Certificateholders............................
SECTION 11.04 Governing Law;
Jurisdiction...........................................
SECTION 11.05
Notices...............................................................
SECTION 11.06 Severability of
Provisions............................................
SECTION 11.07 Article and
Section References........................................
SECTION 11.08 Notice to the
Rating Agencies.........................................
SECTION 11.09 Further
Assurances....................................................
SECTION 11.10 Benefits of
Agreement.................................................
SECTION 11.11 Acts of
Certificateholders............................................
</TABLE>
<PAGE>
EXHIBITS:
---------
Exhibit A-1 Form of Class I-A1
Certificates
Exhibit A-2 Form of Class II-A1
Certificates
Exhibit A-3 Form of Class II-A2
Certificates
Exhibit A-4 Form of Class II-A3
Certificates
Exhibit A-5 Form of Class II-A4
Certificates
Exhibit A-6 Form of Class M-1
Certificates
Exhibit A-7 Form of Class M-2
Certificates
Exhibit A-8 Form of Class M-3
Certificates
Exhibit A-9 Form of Class M-4
Certificates
Exhibit A-10 Form of Class M-5 Certificates
Exhibit A-11 Form of Class M-6 Certificates
Exhibit A-12 Form of Class M-7 Certificates
Exhibit A-13 Form of Class M-8 Certificates
Exhibit A-14 Form of Class M-9 Certificates
Exhibit A-15 Form of Class B-1 Certificates
Exhibit A-16 Form of Class B-2 Certificates
Exhibit A-17 Form of Class C Certificates
Exhibit A-18 Form of Class P Certificates
Exhibit A-19 Form of Class R Certificates
Exhibit A-20 Form of Class R-X Certificates
Exhibit B [Reserved]
Exhibit C Form of Mortgage
Loan Purchase Agreement
Exhibit D Mortgage Loan
Schedule
Exhibit E Request for
Release
Exhibit F-1 Form of Trustee's Initial
Certification
Exhibit F-2 Form of Final Trust
Receipt
Exhibit G Form of
Custodial Agreement
Exhibit H Form of Lost
Note Affidavit
Exhibit I Form of Limited
Power of Attorney
Exhibit J Form of
Investment Letter
Exhibit K Form of Transfer
Affidavit for Residual Certificates
Exhibit L Form of
Transferor Certificate
Exhibit M Form of ERISA
Representation Letter
Exhibit N-1 Form Certification to be
Provided by the Depositor with Form 10-K
Exhibit N-2 Form Certification to be
Provided to the Depositor by the Trustee
Exhibit N-3 Form Certification to be
Provided to the Depositor by the Servicer
Exhibit O Form of Cap
Contract
Exhibit P Form of Annual
Statement as to Compliance
Exhibit Q Form of Addition
Notice
Exhibit R Form of
Subsequent Transfer Instrument
Schedule I Prepayment Charge
Schedule
<PAGE>
This Pooling and Servicing Agreement is dated as of April 1,
2005 (the "Agreement"), among FINANCIAL
ASSET SECURITIES CORP., as depositor
(the "Depositor"), NATIONAL HOME LOAN
SERVICES, INC., as servicer (the
"Servicer") and DEUTSCHE BANK NATIONAL
TRUST COMPANY, as trustee (the
"Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be
issued hereunder in multiple classes,
which in the aggregate will evidence the
entire beneficial ownership interest in
the Trust Fund created hereunder. The
Certificates will consist of twenty
classes of certificates, designated as (i)
the Class I-A1 Certificates, (ii) the
Class II-A1 Certificates, (iii) the Class
II-A2 Certificates, (iv) the Class
II-A3 Certificates, (v) the Class II-A4
Certificates, (vi) the Class M-1
Certificates, (vii) the Class M-2
Certificates (viii) the Class M-3
Certificates, (ix) the Class M-4
Certificates, (x) the Class M-5 Certificates,
(xi) the Class M-6 Certificates, (xii) the
Class M-7 Certificates, (xiii) the
Class M-8 Certificates, (xiv) the Class M-9
Certificates, (xv) the Class B-1
Certificates, (xvi) the Class B-2
Certificates, (xvii) the Class C Certificates,
(xiii) the Class P Certificates, (xix) the
Class R Certificates and (xx) the
Class R-X Certificates.
<PAGE>
REMIC 1
-------
As provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the
Mortgage Loans and certain other
related assets subject to this Agreement
(exclusive of the Pre-Funding Accounts,
the Interest Coverage Accounts, any
Subsequent Mortgage Loan Interest, the Net
WAC Rate Carryover Reserve Account, any
Servicer Prepayment Charge Payment
Amounts and the Cap Contract) as a REMIC
for federal income tax purposes, and
such segregated pool of assets shall be
designated as "REMIC 1." The Class R-1
Interest shall represent the sole class of
"residual interests" in REMIC 1 for
purposes of the REMIC Provisions (as
defined herein). The following table
irrevocably sets forth the designation, the
Uncertificated REMIC 1 Pass-Through
Rate, the initial Uncertificated Principal
Balance and, for purposes of
satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC 1
Regular Interests (as defined herein).
None of the REMIC 1 Regular Interests shall
be certificated.
`
REMIC 1
Initial Uncertificated Latest Possible
Designation Remittance Rate
Balance
Maturity Date(1)
--------------------------------------------------------------------------------
I-LT1
Variable(2) $
557,412,362.56 May 25, 2035
I-LT1PF
Variable(2) $
335,580,943.22 May 25, 2035
I-LT2
Variable(2) $
202,276,785.92 May 25, 2035
I-LT2PF
Variable(2) $
179,729,808.30 May 25, 2035
I-LTP
Variable(2) $
100.00 May 25, 2035
________________
(1) For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date
immediately following the maturity date for the Mortgage
Loan with the latest
maturity date has been designated as the "latest
possible maturity
date" for each REMIC 1 Regular Interest.
(2) Calculated in accordance with the
definition of "Uncertificated REMIC 1
Pass-Through Rate"
herein.
<PAGE>
REMIC 2
-------
As provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the
REMIC 1 Regular Interests as a REMIC
for federal income tax purposes, and such
segregated pool of assets shall be
designated as "REMIC 2." The Class R-2
Interest shall represent the sole class
of "residual interests" in REMIC 2 for
purposes of the REMIC Provisions under
federal income tax law. The following table
irrevocably sets forth the
designation, the Uncertificated REMIC 2
Pass-Through Rate, the initial
Uncertificated Principal Balance and, for
purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for
each of the REMIC 2 Regular Interests (as
defined herein) certificated. None of
the REMIC 2 Regular Interests will be
certificated.
`
Uncertificated REMIC 2 Initial Uncertificated
Assumed
Final
Designation Pass-Through
Rate
Principal Balance Maturity
Date(1)
--------------------------------------------------------------------------------
LTAA
Variable(2)
$
1,249,499,902.00 May 25, 2035
LTIA1
Variable(2)
$
7,135,020.00 May 25, 2035
LTIIA1
Variable(2)
$
918,000.00 May 25, 2035
LTIIA2
Variable(2)
$
853,300.00 May 25, 2035
LTIIA3
Variable(2)
$
925,800.00 May 25, 2035
LTIIA4
Variable(2)
$
355,130.00 May 25, 2035
LTM1
Variable(2)
$
669,380.00 May 25, 2035
LTM2
Variable(2)
$
337,880.00 May 25, 2035
LTM3
Variable(2)
$
235,880.00 May 25, 2035
LTM4
Variable(2)
$
229,500.00 May 25, 2035
LTM5
Variable(2)
$
235,880.00 May 25, 2035
LTM6
Variable(2)
$
165,750.00 May 25, 2035
LTM7
Variable(2)
$
153,000.00 May 25, 2035
LTM8
Variable(2)
$
146,630.00 May 25, 2035
LTM9
Variable(2)
$
121,130.00 May 25, 2035
LTB1
Variable(2)
$
95,630.00 May 25, 2035
LTB2
Variable(2)
$
108,340.00 May 25, 2035
LTZZ
Variable(2)
$
12,813,748.00 May 25, 2035
LTP
Variable(2)
$
100.00 May 25, 2035
________________
(1) For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date in
the month immediately following the maturity date for
the Mortgage Loan with
the latest possible maturity date has been designated
as the "latest
possible maturity date" for each REMIC 2 Regular Interest.
(2) Calculated in accordance with the
definition of "Uncertificated REMIC 2
Pass-Through Rate"
herein.
<PAGE>
REMIC 3
-------
As provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the
REMIC 2 Regular Interests as a REMIC
for federal income tax purposes, and such
segregated pool of assets shall be
designated as "REMIC 3." The Class R-3
Interest shall evidence the sole class of
"residual interests" in REMIC 3 for
purposes of the REMIC Provisions.
The following table irrevocably sets forth the designation,
the Pass-Through Rate, the Original Class
Certificate Principal Balance and, for
purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each
Class of Certificates that represents
one or more of the "regular interests" in
REMIC 3 created hereunder:
<TABLE>
<CAPTION>
Original Class
Certificate Principal
Assumed Final
Designation
Balance
Pass-Through Rate Maturity Date(1)
-------------------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
Class I-A1 ................. $
713,502,000.00
Variable(2) May
25, 2035
Class II-A1 ................ $
91,800,000.00
Variable(2) May
25, 2035
Class II-A2 ................ $
85,330,000.00
Variable(2) May
25, 2035
Class II-A3 ................ $
92,580,000.00
Variable(2) May
25, 2035
Class II-A4 ................ $
35,513,000.00
Variable(2) May
25, 2035
Class M-1 .................. $
66,938,000.00
Variable(2) May
25, 2035
Class M-2 .................. $
33,788,000.00
Variable(2) May
25, 2035
Class M-3 .................. $
23,588,000.00
Variable(2) May
25, 2035
Class M-4 .................. $
22,950,000.00
Variable(2) May
25, 2035
Class M-5 .................. $
23,588,000.00
Variable(2) May
25, 2035
Class M-6 .................. $
16,575,000.00
Variable(2) May
25, 2035
Class M-7 .................. $
15,300,000.00
Variable(2) May
25, 2035
Class M-8 .................. $
14,663,000.00
Variable(2) May
25, 2035
Class M-9 .................. $
12,113,000.00
Variable(2) May
25, 2035
Class B-1 .................. $
9,563,000.00
Variable(2) May
25, 2035
Class B-2 .................. $
10,834,000.00
Variable(2) May
25, 2035
Class C Interest ........... $
6,374,900.00(3) Variable(2)
May 25, 2035
Class P Interest ........... $
100.00
N/A(4)
May 25, 2035
</TABLE>
________________
(1) For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date in
the month immediately following the maturity date for
the Mortgage Loan with
the latest maturity date has been designated as the
"latest possible
maturity date" for each Class of Certificates that
represents one or more
of the "regular interests" in REMIC 3.
(2) Calculated in accordance with the
definition of "Pass-Through Rate" herein.
(3) The Class C Interest will accrue
interest at their variable Pass-Through
Rate on the Notional
Amount of the Class C Interest outstanding from time to
time which shall equal
the aggregate of the Uncertificated Principal
Balances of the REMIC
2 Regular Interests (other than REMIC 2 Regular
Interest LTP). The
Class C Interest will not accrue interest on its
Certificate Principal
Balance.
(4) The Class P Interest will not accrue
interest.
REMIC 4
-------
0As provided herein, the Trustee shall make an election to
treat the Class C Interest as a REMIC for
federal income tax purposes, and such
segregated pool of assets will be
designated as "REMIC 4." The Class R-4
Interest represents the sole class of
"residual interests" in REMIC 4 for
purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class
designation, Pass-Through Rate and Original
Class Certificate Principal Balance
for the Class C Certificates.
Original Class
Certificate Principal
Assumed Final
Class Designation
Balance
Pass-Through Rate Maturity Date(1)
--------------------------------------------------------------------------------
Class C
$6,374,900.00
Variable(2)
May 25, 2035
________________
(1) Solely for purposes of Section
1.860G-1(a)(4)(iii) of the Treasury
regulations, the
Distribution Date in the month immediately following the
maturity date for the
Mortgage Loan with the latest maturity date has been
designated as the
"latest possible maturity date" for the Class C
Certificates.
(2) The Class C Certificates will receive
100% of amounts received in respect of
the Class C Interest.
The Class C Certificates will also be entitled to
Subsequent Mortgage
Loan Interest, as a right with respect to a component of
the Class C
Certificates that will not be treated as a REMIC regular
interest but rather as
separate interest strips from the Subsequent Mortgage
Loans for a specified
period of time.
<PAGE>
REMIC 5
-------
As provided herein, the Trustee shall make an election to
treat the Class P Interest as a REMIC for
federal income tax purposes, and such
segregated pool of assets will be
designated as "REMIC 5." The Class R-5
Interest represents the sole class of
"residual interests" in REMIC 5 for
purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class
designation, Pass-Through Rate and Original
Class Certificate Principal Balance
for the Class P Certificates.
Original Class
Certificate Principal
Assumed Final
Class Designation
Balance
Pass-Through Rate Maturity Date(1)
--------------------------------------------------------------------------------
Class P
$ 100.00
Variable(2)
May 25, 2035
________________
(1) For purposes of Section
1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date in
the month immediately following the maturity date for
the Mortgage Loan with
the latest maturity date has been designated as the
"latest possible
maturity date" for the Class P Certificates.
(2) The Class P Certificates will receive
100% of amounts received in respect of
the Class P
Interest.
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement or in the Preliminary
Statement, the following words and phrases,
unless the context otherwise
requires, shall have the meanings specified
in this Article. Unless otherwise
specified, all calculations in respect of
interest on the Adjustable-Rate
Certificates shall be made on the basis of
the actual number of days elapsed and
a 360-day year and all calculations in
respect of interest on the Class C
Certificates and all other calculations of
interest described herein shall be
made on the basis of a 360-day year
consisting of twelve 30-day months. The
Class P Certificates and the Residual
Certificates are not entitled to
distributions in respect of interest and,
accordingly, will not accrue interest.
"1933 Act": The Securities Act of 1933, as amended.
"Account": Either of the Collection Account or Distribution
Account.
"Accrual Period": With respect to the Class C Certificates and
each Distribution Date, the calendar month
prior to the month of such
Distribution Date. With respect to the
Adjustable-Rate Certificates and each
Distribution Date, the period commencing on
the preceding Distribution Date (or
in the case of the first such Accrual
Period, commencing on the Closing Date)
and ending on the day preceding such
Distribution Date.
"Addition Notice": With respect to the transfer of Subsequent
Mortgage Loans to the Trust Fund pursuant
to Section 2.08, a notice of the
Depositor's designation of the Subsequent
Mortgage Loans to be sold to the Trust
Fund and the aggregate principal balance of
such Subsequent Mortgage Loans as of
the Subsequent Cut-off Date. The Addition
Notice shall be given not later than
three Business Days prior to the related
Subsequent Transfer Date and shall be
substantially in the form attached hereto
as Exhibit Q.
"Adjustable-Rate Certificates": Any Class A Certificate,
Mezzanine Certificate or Class B
Certificate.
"Adjustable-Rate Mortgage Loan": A first lien Mortgage Loan
which provides at any period during the
life of such loan for the adjustment of
the Mortgage Rate payable in respect
thereto. The Adjustable Rate Mortgage Loans
are identified as such on the Mortgage Loan
Schedule.
"Adjusted Net Maximum Mortgage Rate": With respect to any
Mortgage Loan (or the related REO
Property), as of any date of determination, a
per annum rate of interest equal to the
applicable Maximum Mortgage Rate for
such Mortgage Loan (or the Mortgage Rate in
the case of any Fixed-Rate Mortgage
Loan) as of the first day of the month
preceding the month in which the related
Distribution Date occurs minus the
Servicing Fee Rate.
"Adjusted Net Mortgage Rate": With respect to any Mortgage
Loan (or the related REO Property), as of
any date of determination, a per annum
rate of interest equal to the applicable
Mortgage Rate for such Mortgage Loan as
of the first day of the month preceding the
month in which the related
Distribution Date occurs minus the
Servicing Fee Rate.
"Adjustment Date": With respect to each Adjustable-Rate
Mortgage Loan, each adjustment date, on
which the Mortgage Rate of such Mortgage
Loan changes pursuant to the related
Mortgage Note. The first Adjustment Date
following the Cut-off Date as to each
Adjustable-Rate Mortgage Loan is set forth
in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan or REO Property, any
advance made by the Servicer in respect of
any Distribution Date pursuant to
Section 4.04.
"Advance Facility": As defined in Section 3.29 hereof.
"Advance Facility Trustee": As defined in Section 3.29 hereof.
"Advancing Person": As defined in Section 3.29 hereof.
"Advance Reimbursement Amounts": As defined in Section 3.29
hereof.
"Adverse REMIC Event": As defined in Section 9.01(f) hereof.
"Affiliate": With respect to any Person, any other Person
controlling, controlled by or under common
control with such Person. For
purposes of this definition, "control"
means the power to direct the management
and policies of a Person, directly or
indirectly, whether through ownership of
voting securities, by contract or otherwise
and "controlling" and "controlled"
shall have meanings correlative to the
foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements
hereto.
"Allocated Realized Loss Amount": With respect to any
Distribution Date and any Class of
Mezzanine Certificates or Class B
Certificates, the sum of (i) any Realized
Losses allocated to such Class of
Certificates on such Distribution Date and
(ii) the amount of any Allocated
Realized Loss Amount for such Class of
Certificates remaining unpaid from the
previous Distribution Date as reduced by an
amount equal to the increase in the
related Certificate Principal Balance due
to the receipt of Subsequent
Recoveries.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form,
which is sufficient under the laws of
the jurisdiction wherein the related
Mortgaged Property is located to reflect or
record the sale of the Mortgage.
"Assumed Final Maturity Date": As to each Class of
Certificates, the date set forth as such in
the Preliminary Statement.
"Available Funds": With respect to any Distribution Date, an
amount equal to the excess of (i) the sum
of (a) the aggregate of the related
Monthly Payments on the Mortgage Loans due
on the related Due Date and received
on or prior to the related Determination
Date, (b) Net Liquidation Proceeds,
Insurance Proceeds, Subsequent Recoveries,
partial Principal Prepayments,
proceeds from repurchases of and
substitutions for such Mortgage Loans and other
unscheduled recoveries of principal and
interest in respect of the Mortgage
Loans received during the prior calendar
month and all Principal Prepayments in
full received during the related Prepayment
Period, (c) the aggregate of any
amounts received in respect of a related
REO Property withdrawn from any REO
Account and deposited in the Collection
Account for such Distribution Date, (d)
the aggregate of any amounts deposited in
the Collection Account by the Servicer
in respect of related Prepayment Interest
Shortfalls for such Distribution Date,
(e) the aggregate of any Advances made by
the Servicer for such Distribution
Date in respect of the Mortgage Loans, (f)
the aggregate of any related advances
made by the Trustee in respect of the
Mortgage Loans for such Distribution Date
pursuant to Section 7.02, (g) the amount of
any Prepayment Charges collected by
the Servicer in connection with the full or
partial prepayment of any of the
Mortgage Loans and any Servicer Prepayment
Charge Payment Amount, (h) with
respect to the Distribution Date
immediately following the end of the Funding
Period, any amounts in the Pre-Funding
Accounts (exclusive of any investment
income therein) after giving effect to any
purchase of Subsequent Mortgage Loans
and (i) with respect to each Distribution
Date during the Funding Period and on
the Distribution Date immediately following
the end of the Funding Period, any
amounts withdrawn by the Trustee from the
Interest Coverage Accounts for
distribution on the Certificates on such
Distribution Date over (ii) the sum of
(a) amounts reimbursable or payable to the
Servicer pursuant to Section 3.11(a)
or the Trustee pursuant to Section 3.11(b),
(b) amounts deposited in the
Collection Account or the Distribution
Account pursuant to clauses (a) through
(g) above, as the case may be, in error,
(c) the amount of any Prepayment
Charges collected by the Servicer in
connection with the full or partial
prepayment of any of the Mortgage Loans and
any Servicer Prepayment Charge
Payment Amount, and (d) any indemnification
payments or expense reimbursements
made by the Trust Fund pursuant to Section
8.05.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11
of the United States Code), as amended.
"Base Rate": For any Distribution Date and the Adjustable-Rate
Certificates, the sum of (i) LIBOR plus
(ii) the related Certificate Margin.
"Book-Entry Certificates": Any of the Certificates that shall
be registered in the name of the Depository
or its nominee, the ownership of
which is reflected on the books of the
Depository or on the books of a Person
maintaining an account with the Depository
(directly, as a "Depository
Participant", or indirectly, as an indirect
participant in accordance with the
rules of the Depository and as described in
Section 5.02 hereof). On the Closing
Date, the Adjustable-Rate Certificates
shall be Book-Entry Certificates.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking or savings
institutions in the State of Delaware, the State
of New York, the State of Texas, the State
of California or in the city in which
the Corporate Trust Office of the Trustee
is located are authorized or obligated
by law or executive order to be closed.
"Cap Amount": The Cap Amount for any Class of the
Adjustable-Rate Certificates is equal to
(i) the aggregate amount received by
the Trust from the Cap Contract multiplied
by (ii) a fraction equal to (a) the
Certificate Principal Balance of such Class
immediately prior to the applicable
Distribution Date divided by (b) the
aggregate Certificate Principal Balance of
the Adjustable-Rate Certificates
immediately prior to the applicable
Distribution Date.
"Cap Contract": The Cap Contract between the Trustee and the
counterparty thereunder, a form of which is
attached hereto as Exhibit O.
"Certificate": Any Regular Certificate or Residual
Certificate.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the
Certificate Register, except that a
Disqualified Organization or non-U.S.
Person shall not be a Holder of a Residual
Certificate for any purpose hereof and,
solely for the purposes of giving any
consent pursuant to this Agreement, any
Certificate registered in the name of
the Depositor or the Servicer or any
Affiliate thereof shall be deemed not to be
outstanding and the Voting Rights to which
it is entitled shall not be taken
into account in determining whether the
requisite percentage of Voting Rights
necessary to effect any such consent has
been obtained, except as otherwise
provided in Section 11.01. The Trustee may
conclusively rely upon a certificate
of the Depositor or the Servicer in
determining whether a Certificate is held by
an Affiliate thereof. All references herein
to "Holders" or "Certificateholders"
shall reflect the rights of Certificate
Owners as they may indirectly exercise
such rights through the Depository and
participating members thereof, except as
otherwise specified herein; provided,
however, that the Trustee shall be
required to recognize as a "Holder" or
"Certificateholder" only the Person in
whose name a Certificate is registered in
the Certificate Register.
"Certificate Margin": With respect to each Class of
Adjustable-Rate Certificates and for
purposes of the Marker Rate and the Maximum
Uncertificated Accrued Interest Deferral
Amount, the specified REMIC 2 Regular
Interest, as follows:
<PAGE>
Certificate Margin
REMIC 2 Regular
-------------------------
Class
Interest
(1) (%)
(2) (%)
-------------------
-------------------------
I-A1
LTIA1
0.2000%
0.4000%
II-A1
LTIIA1
0.0800%
0.1600%
II-A2
LTIIA2
0.1400%
0.2800%
II-A3
LTIIA3
0.2200%
0.4400%
II-A4
LTIIA4
0.3000%
0.6000%
M-1
LTM1
0.4300%
0.6450%
M-2
LTM2
0.4800%
0.7200%
M-3
LTM3
0.5800%
0.8700%
M-4
LTM4
0.6500%
0.9750%
M-5
LTM5
0.6800%
1.0200%
M-6
LTM6
1.2000%
1.8000%
M-7
LTM7
1.3000%
1.9500%
M-8
LTM8
1.7500%
2.6250%
M-9
LTM9
3.0000%
4.5000%
B-1
LTB1
3.0000%
4.5000%
B-2
LTB2
2.5000%
3.7500%
__________
(1)For the Accrual Period for each
Distribution Date on or prior to the
Optional Termination
Date.
(2)For each other Accrual Period.
"Certificate Owner": With respect to each Book-Entry
Certificate, any beneficial owner
thereof.
"Certificate Principal Balance": With respect to any Class of
Regular Certificates (other than the Class
C Certificates) immediately prior to
any Distribution Date, will be equal to the
Initial Certificate Principal
Balance thereof plus any Subsequent
Recoveries added to the Certificate
Principal Balance of such Certificate
pursuant to Section 4.01, reduced by the
sum of all amounts actually distributed in
respect of principal of such Class
and, in the case of a Mezzanine Certificate
or Class B Certificate, Realized
Losses allocated thereto on all prior
Distribution Dates. With respect to the
Class C Certificates as of any date of
determination, an amount equal to the
excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of
the REMIC 2 Regular Interests over (B) the
then aggregate Certificate Principal
Balance of the Adjustable-Rate Certificates
and the Class P Certificates then
outstanding.
"Certificate Register" and "Certificate Registrar": The
register maintained and registrar appointed
pursuant to Section 5.02 hereof.
"Class": Collectively, Certificates which have the same
priority of payment and bear the same class
designation and the form of which is
identical except for variation in the
Percentage Interest evidenced thereby.
"Class A Certificates": Any Class I-A1 Certificate, Class
II-A1 Certificate, Class II-A2 Certificate
Class II-A3 Certificate or Class
II-A4 Certificate.
"Class B Certificates": Any Class B-1 Certificate or Class B-2
Certificate.
"Class B-1 Certificate": Any one of the Class B-1 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-16,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class B-1 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates
(after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the distribution
of the Class M-6 Principal
Distribution Amount on such Distribution
Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates
(after taking into account the
distribution of the Class M-7 Principal
Distribution Amount on such Distribution
Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates
(after taking into account the distribution
of the Class M-8 Principal
Distribution Amount on such Distribution
Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates
(after taking into account the
distribution of the Class M-9 Principal
Distribution Amount on such Distribution
Date), and (xi) the Certificate Principal
Balance of the Class B-1 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 97.30% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) minus the related
Overcollateralization Floor.
"Class B-2 Certificate": Any one of the Class B-2 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-17,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class B-2 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates
(after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the distribution
of the Class M-6 Principal
Distribution Amount on such Distribution
Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates
(after taking into account the
distribution of the Class M-7 Principal
Distribution Amount on such Distribution
Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates
(after taking into account the distribution
of the Class M-8 Principal
Distribution Amount on such Distribution
Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates
(after taking into account the
distribution of the Class M-9 Principal
Distribution Amount on such Distribution
Date), (xi) the Certificate Principal
Balance of the Class B-1 Certificates
(after taking into account the distribution
of the Class B-1 Principal
Distribution Amount on such Distribution
Date) and (xii) the Certificate
Principal Balance of the Class B-2
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 99.00% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus the
related Overcollateralization Floor.
"Class C Certificates": Any one of the Class C Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-18,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
4.
"Class C Interest": An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the
Holders of the Class C Certificates,
evidencing a Regular Interest in REMIC 3
for purposes of the REMIC Provisions.
"Class I-A1 Certificate": Any one of the Class I-A1
Certificates executed by the Trustee, and
authenticated and delivered by the
Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-1,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class II-A1 Certificate": Any one of the Class II-A1
Certificates executed by the Trustee, and
authenticated and delivered by the
Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-2,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class II-A2 Certificate": Any one of the Class II-A2
Certificates executed by the Trustee, and
authenticated and delivered by the
Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-3,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class II-A3 Certificate": Any one of the Class II-A3
Certificates executed by the Trustee, and
authenticated and delivered by the
Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-4,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class II-A4 Certificate": Any one of the Class II-A4
Certificates executed by the Trustee, and
authenticated and delivered by the
Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-4,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class M-1 Certificate": Any one of the Class M-1 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-5, representing
the right to distributions as set forth
herein and therein and evidencing a
regular interest in REMIC 3.
"Class M-1 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date) and (ii) the aggregate
Certificate Principal Balance of the Class
M-1 Certificates immediately prior to
such Distribution Date over (y) the lesser
of (A) the product of (i) 70.30% and
(ii) the aggregate Stated Principal Balance
of the Mortgage Loans as of the last
day of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus the
related Overcollateralization Floor.
"Class M-2 Certificate": Any one of the Class M-2 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-6, representing
the right to distributions as set forth
herein and therein and evidencing a
regular interest in REMIC 3.
"Class M-2 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1
Certificates (after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date) and (iii) the Certificate Principal
Balance of the Class M-2 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 75.60% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) minus the related
Overcollateralization Floor.
"Class M-3 Certificate": Any one of the Class M-3 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-7, representing
the right to distributions as set forth
herein and therein and evidencing a
regular interest in REMIC 3.
"Class M-3 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1
Certificates (after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date) and (iv) the Certificate
Principal Balance of the Class M-3
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 79.30% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus the
related Overcollateralization Floor.
"Class M-4 Certificate": Any one of the Class M-4 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-8, representing
the right to distributions as set forth
herein and therein and evidencing a
regular interest in REMIC 3.
"Class M-4 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1
Certificates (after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date) and (v) the Certificate Principal
Balance of the Class M-4 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 82.90% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) minus the related
Overcollateralization Floor.
"Class M-5 Certificate": Any one of the Class M-5 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-9, representing
the right to distributions as set forth
herein and therein and evidencing a
regular interest in REMIC 3.
"Class M-5 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1
Certificates (after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date) and (vi) the Certificate
Principal Balance of the Class M-5
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 86.60% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus the
related Overcollateralization Floor.
"Class M-6 Certificate": Any one of the Class M-6 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-10,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class M-6 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1
Certificates (after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal
Balance of the Class M-6 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 89.20% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) minus the related
Overcollateralization Floor.
"Class M-7 Certificate": Any one of the Class M-7 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-11,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class M-7 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1
Certificates (after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the distribution
of the Class M-6 Principal
Distribution Amount on such Distribution
Date) and (viii) the Certificate
Principal Balance of the Class M-7
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 91.60% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus the
related Overcollateralization Floor.
"Class M-8 Certificate": Any one of the Class M- Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-12,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class M-8 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1
Certificates (after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the distribution
of the Class M-6 Principal
Distribution Amount on such Distribution
Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates
(after taking into account the
distribution of the Class M-7 Principal
Distribution Amount on such Distribution
Date) and (ix) the Certificate Principal
Balance of the Class M-8 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 93.90% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) minus the related
Overcollateralization Floor.
"Class M-9 Certificate": Any one of the Class M-9 Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-13,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
3.
"Class M-9 Principal Distribution Amount": The excess of (x)
the sum of (i) the aggregate Certificate
Principal Balance of the Class A
Certificates (after taking into account the
distribution of the Senior Principal
Distribution Amount on such Distribution
Date), (ii) the aggregate Certificate
Principal Balance of the Class M-1
Certificates (after taking into account the
distribution of the Class M-1 Principal
Distribution Amount on such Distribution
Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates
(after taking into account the distribution
of the Class M-2 Principal
Distribution Amount on such Distribution
Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates
(after taking into account the
distribution of the Class M-3 Principal
Distribution Amount on such Distribution
Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates
(after taking into account the distribution
of the Class M-4 Principal
Distribution Amount on such Distribution
Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates
(after taking into account the
distribution of the Class M-5 Principal
Distribution Amount on such Distribution
Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates
(after taking into account the distribution
of the Class M-6 Principal
Distribution Amount on such Distribution
Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates
(after taking into account the
distribution of the Class M-7 Principal
Distribution Amount on such Distribution
Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates
(after taking into account the distribution
of the Class M-8 Principal
Distribution Amount on such Distribution
Date) and (x) the Certificate Principal
Balance of the Class M-9 Certificates
immediately prior to such Distribution
Date over (y) the lesser of (A) the product
of (i) 95.80% and (ii) the aggregate
Stated Principal Balance of the Mortgage
Loans as of the last day of the related
Due Period (after giving effect to
scheduled payments of principal due during
the related Due Period, to the extent
received or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) minus the related
Overcollateralization Floor.
"Class P Certificate": Any one of the Class P Certificates
executed by the Trustee, and authenticated
and delivered by the Certificate
Registrar, substantially in the form
annexed hereto as Exhibit A-19,
representing the right to distributions as
set forth herein and therein and
evidencing a regular interest in REMIC
5.
"Class P Interest": An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the
Holders of the Class P Certificates,
evidencing a Regular Interest in REMIC 3
for purposes of the REMIC Provisions.
"Class R Certificate": The Class R Certificate executed by the
Trustee, and authenticated and delivered by
the Certificate Registrar,
substantially in the form annexed hereto as
Exhibit A-20 and evidencing the
ownership of the Class R-1 Interest, the
Class R-2 Interest and the Class R-3
Interest.
"Class R-1 Interest": The uncertificated Residual Interest in
REMIC 1.
"Class R-2 Interest": The uncertificated Residual Interest in
REMIC 2.
"Class R-3 Interest": The uncertificated Residual Interest in
REMIC 3.
"Class R-4 Interest": The uncertificated Residual Interest in
REMIC 4.
"Class R-5 Interest": The uncertificated Residual Interest in
REMIC 5.
"Class R-X Certificate": The Class R-X Certificate executed by
the Trustee, and authenticated and
delivered by the Certificate Registrar,
substantially in the form annexed hereto as
Exhibit A-21 and evidencing the
ownership of the Class R-4 Interest and the
Class R-5 Interest.
"Close of Business": As used herein, with respect to any
Business Day, 5:00 p.m. (New York
time).
"Closing Date": April 28, 2005.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The account or accounts created and
maintained by the Servicer pursuant to
Section 3.10(a), which shall be entitled
"Deutsche Bank National Trust Company, as
Trustee, in trust for registered
Holders of First Franklin Mortgage Loan
Trust 2005-FF4, Asset-Backed
Certificates, Series 2005-FF4," which must
be an Eligible Account.
"Compensating Interest": As defined in Section 3.24 hereof.
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular
time its corporate trust business in
connection with this Agreement shall be
administered, which office at the date
of the execution of this instrument is
located at 1761 East St. Andrew Place,
Santa Ana, CA 92705-4934, or at such other
address as the Trustee may designate
from time to time by notice to the
Certificateholders, the Depositor, the
Servicer and the Seller.
"Corresponding Certificate": With respect to each REMIC 2
Regular Interest set forth below, the
corresponding Regular Certificate set
forth in the table below:
REMIC 2 REGULAR INTEREST
REGULAR CERTIFICATE
------------------------------------------------------
LTIA1
Class I-A1
LTIIA1
Class II-A1
LTIIA2
Class II-A2
LTIIA3
Class II-A3
LTIIA4
Class II-A4
LTM1
Class M-1
LTM2
Class M-2
LTM3
Class M-3
LTM4
Class M-4
LTM5
Class M-5
LTM6
Class M-6
LTM7
Class M-7
LTM8
Class M-8
LTM9
Class M-9
LTB1
Class B-1
LTB2
Class B-2
LTP
Class P
"Credit Enhancement Percentage": For any Distribution Date,
the percentage equivalent of a fraction,
the numerator of which is the sum of
the aggregate Certificate Principal Balance
of the Mezzanine Certificates, the
Class B Certificates and the Class C
Certificates, and the denominator of which
is the sum of (x) the aggregate Stated
Principal Balance of the Mortgage Loans
and (y) any amounts remaining on deposit in
the Pre-Funding Accounts (exclusive
of any investment income therein),
calculated prior to taking into account
payments of principal on the Mortgage Loans
and distribution of the Group I
Principal Distribution Amount and the Group
II Principal Distribution Amount to
the Holders of the Certificates then
entitled to distributions of principal on
such Distribution Date.
"Custodial Agreement": The Custodial Agreement, dated April 1,
2005, among the Custodian, the Trustee and
the Servicer.
"Custodian": Wells Fargo Bank, N.A., as custodian of the
Mortgage Files, or any successor thereto,
pursuant to the Custodial Agreement.
"Cut-off Date": With respect to each Initial Mortgage Loan,
April 1, 2005.
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan, the unpaid Stated Principal Balance
thereof as of the Cut-off Date of such
Mortgage Loan (or as of the applicable date
of substitution with respect to a
Qualified Substitute Mortgage Loan), after
giving effect to scheduled payments
due on or before the Cut-off Date, whether
or not received.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment
for such Mortgage Loan by a court of
competent jurisdiction in a proceeding
under the Bankruptcy Code, except such a
reduction resulting from a Deficient
Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property
by a court of competent jurisdiction
in an amount less than the then outstanding
Stated Principal Balance of the
Mortgage Loan, which valuation results from
a proceeding initiated under the
Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.02(c)
hereof.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced by one or more Qualified
Substitute Mortgage Loans.
"Delinquency Percentage": For any Distribution Date, the
percentage obtained by dividing (x) the
aggregate Stated Principal Balance of
Mortgage Loans that are Delinquent 60 days
or more (including Mortgage Loans
that are REO Properties, in foreclosure or
bankruptcy and that are also
Delinquent 60 days or more) by (y) the
aggregate Stated Principal Balance of the
Mortgage Loans, in each case, as of the
last day of the previous calendar month.
"Delinquent": With respect to any Mortgage Loan and related
Monthly Payment, the Monthly Payment due on
a Due Date which is not made by the
Close of Business on the next scheduled Due
Date for such Mortgage Loan. For
example, a Mortgage Loan is 60 or more days
Delinquent if the Monthly Payment
due on a Due Date is not made by the Close
of Business on the second scheduled
Due Date after such Due Date.
"Depositor": Financial Asset Securities Corp., a Delaware
corporation, or any successor in
interest.
"Depository": The initial Depository shall be The Depository
Trust Company, whose nominee is Cede &
Co., or any other organization registered
as a "clearing agency" pursuant to Section
17A of the Securities Exchange Act of
1934, as amended. The Depository shall
initially be the registered Holder of the
Book-Entry Certificates. The Depository
shall at all times be a "clearing
corporation" as defined in Section 8-102(3)
of the Uniform Commercial Code of
the State of New York.
"Depository Participant": A broker, dealer, bank or other
financial institution or other person for
whom from time to time a Depository
effects book-entry transfers and pledges of
securities deposited with the
Depository.
"Determination Date": With respect to any Distribution Date,
the 15th day of the calendar month in which
such Distribution Date occurs or, if
such 15th day is not a Business Day, the
Business Day immediately preceding such
15th day.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the
tenants thereof, the management or
operation of such REO Property, the holding
of such REO Property primarily for
sale to customers, the performance of any
construction work thereon or any use
of such REO Property in a trade or business
conducted by the REMIC other than
through an Independent Contractor;
provided, however, that the Trustee (or the
Servicer on behalf of the Trustee) shall
not be considered to Directly Operate
an REO Property solely because the Trustee
(or the Servicer on behalf of the
Trustee) establishes rental terms, chooses
tenants, enters into or renews
leases, deals with taxes and insurance, or
makes decisions as to repairs or
capital expenditures with respect to such
REO Property.
"Disqualified Organization": A "disqualified organization"
under Section 860E of the Code, which as of
the Closing Date is any of: (i) the
United States, any state or political
subdivision thereof, any foreign
government, any international organization,
or any agency or instrumentality of
any of the foregoing, (ii) any organization
(other than a cooperative described
in Section 521 of the Code) which is exempt
from the tax imposed by Chapter 1 of
the Code unless such organization is
subject to the tax imposed by Section 511
of the Code, (iii) any organization
described in Section 1381(a)(2)(C) of the
Code or (iv) an "electing large
partnership" within the meaning of Section 775
of the Code. A corporation will not be
treated as an instrumentality of the
United States or of any state or political
subdivision thereof, if all of its
activities are subject to tax and, a
majority of its board of directors is not
selected by a governmental unit. The term
"United States", "state" and
"international organizations" shall have
the meanings set forth in Section 7701
of the Code.
"Distribution Account": The trust account or accounts created
and maintained by the Trustee pursuant to
Section 3.10(b) which shall be
entitled "Distribution Account, Deutsche
Bank National Trust Company, as
Trustee, in trust for the registered
Certificateholders of First Franklin
Mortgage Loan Trust 2005-FF4, Asset-Backed
Certificates, Series 2005-FF4" 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.
"Due
Date": With respect to each Mortgage Loan and any
Distribution Date, the first day of the
calendar month in which such
Distribution Date occurs on which the
Monthly Payment for such Mortgage Loan was
due (or, in the case of any Mortgage Loan
under the terms of which the Monthly
Payment for such Mortgage Loan was due on a
day other than the first day of the
calendar month in which such Distribution
Date occurs, the day during the
related Due Period on which such Monthly
Payment was due), exclusive of any days
of grace.
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the
month preceding the month in which
such Distribution Date occurs and ending on
the first day of the month in which
such Distribution Date occurs.
"Eligible Account": Any of (i) an account or accounts
maintained with a federal or state
chartered depository institution or trust
company the short-term unsecured debt
obligations of which (or, in the case of a
depository institution or trust company
that is the principal subsidiary of a
holding company, the short-term unsecured
debt obligations of such holding
company) are rated A-1+ by S&P, F-1 by
Fitch and P-1 by Moody's (or comparable
ratings if S&P, Fitch and Moody's are
not the Rating Agencies) at the time any
amounts are held on deposit therein, (ii)
an account or accounts the deposits in
which are fully insured by the FDIC up to
the insured amount, (iii) a trust
account or accounts maintained with the
trust department of a federal or state
chartered depository institution, national
banking association or trust company
acting in its fiduciary capacity or (iv) an
account otherwise acceptable to each
Rating Agency without reduction or
withdrawal of their then current ratings of
the Certificates as evidenced by a letter
from each Rating Agency to the
Trustee. Eligible Accounts may bear
interest.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payments": The amounts constituting ground rents,
taxes, assessments, water rates, fire and
hazard insurance premiums and other
payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to
any Mortgage Loan.
"Excess Overcollateralized Amount": With respect to the
Adjustable-Rate Certificates and any
Distribution Date, the excess, if any, of
(i) the Overcollateralized Amount for such
Distribution Date, assuming that 100%
of the Principal Remittance Amount is
applied as a principal payment on such
Distribution Date over (ii) the
Overcollateralization Target Amount for such
Distribution Date.
"Extra Principal Distribution Amount": With respect to any
Distribution Date, the lesser of (x) the
Monthly Interest Distributable Amount
payable on the Class C Certificates on such
Distribution Date as reduced by
Realized Losses allocated thereto with
respect to such Distribution Date
pursuant to Section 4.08 and (y) the
Overcollateralization Deficiency Amount for
such Distribution Date.
"Fannie Mae": Federal National Mortgage Association or any
successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other
than a Mortgage Loan or REO Property
purchased by the Seller or the Servicer
pursuant to or as contemplated by
Section 2.03, 3.16(c) or 10.01), a
determination made by the Servicer that all
Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries which
the Servicer, in its reasonable good faith
judgment, expects to be finally
recoverable in respect thereof have been so
recovered. The Servicer shall
maintain records, prepared by a Servicing
Officer, of each Final Recovery
Determination made thereby.
"Fitch": Fitch Ratings, or its successor in interest.
"Fixed-Rate Mortgage Loan": A first lien Mortgage Loan which
provides for a fixed Mortgage Rate payable
with respect thereto. The Fixed-Rate
Mortgage Loans are identified as such on
the Mortgage Loan Schedule.
"Formula Rate": For any Distribution Date and any Class of the
Adjustable-Rate Certificates, the lesser of
(i) the Base Rate and (ii) the
Maximum Cap Rate.
"Freddie Mac": The Federal Home Loan Mortgage Corporation, or
any successor thereto.
"Funding Period": The period beginning on the Closing Date and
ending on the earlier to occur of (a) the
date upon which the amount on deposit
in the Pre-Funding Accounts (exclusive of
any investment income therein) has
been reduced to zero or (b) July 26,
2005.
"Gross Margin": With respect to each Adjustable-Rate Mortgage
Loan, the fixed percentage set forth in the
related Mortgage Note that is added
to the Index on each Adjustment Date in
accordance with the terms of the related
Mortgage Note used to determine the
Mortgage Rate for such Mortgage Loan.
"Group I Allocation Percentage": With respect to any
Distribution Date, the percentage
equivalent of a fraction, the numerator of
which is (i) the Group I Principal
Remittance Amount for such Distribution Date,
and the denominator of which is (ii) the
Principal Remittance Amount for such
Distribution Date.
"Group I Basic Principal Distribution Amount": With respect to
any Distribution Date, the Group I
Principal Remittance Amount.
"Group I Certificates": Any Class I-A1 Certificate.
"Group I Interest Coverage Account": The account established
and maintained pursuant to Section 4.08,
which account contains an amount, to be
paid by the Depositor to the Trustee on the
Closing Date, that equals
$2,766,861.27.
"Group I Interest Remittance Amount": With respect to any
Distribution Date, that portion of the
Available Funds for such Distribution
Date attributable to interest received or
advanced with respect to the Group I
Mortgage Loans or amounts withdrawn from
the Group I Interest Coverage Account.
"Group I Mortgage Loan": A Mortgage Loan assigned to Loan
Group I with a Stated Principal Balance at
origination that conforms to Fannie
Mae and Freddie Mac loan limits.
"Group I Pre-Funding Account": The account established and
maintained pursuant to Section 4.05, as
defined herein.
"Group I Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group
I Basic Principal Distribution
Amount for such Distribution Date and
(ii)(a) the Extra Principal Distribution
Amount for such Distribution Date
multiplied by (b) the Group I Allocation
Percentage.
"Group I Principal Remittance Amount": With respect to any
Distribution Date, that portion of
Available Funds equal to the sum of (i) each
scheduled payment of principal collected or
advanced on the Group I Mortgage
Loans by the Servicer that were due during
the related Due Period, (ii) the
principal portion of all partial and full
Principal Prepayments of the Group I
Mortgage Loans applied by the Servicer
during the related Prepayment Period,
(iii) the principal portion of all related
Net Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received
during the related Prepayment Period
with respect to the Group I Mortgage Loans,
(iv) that portion of the Purchase
Price, representing principal of any
repurchased Group I Mortgage Loan,
deposited to the Collection Account during
the related Prepayment Period, (v)
the principal portion of any related
Substitution Adjustments deposited in the
Collection Account during the related
Prepayment Period with respect to the
Group I Mortgage Loans, (vi) on the
Distribution Date on which the Trust Fund is
to be terminated pursuant to Section 10.01,
that portion of the Termination
Price, in respect of principal on the Group
I Mortgage Loans and (vii) on the
Distribution Date immediately following the
end of the Funding Period, any
remaining amounts in the Group I
Pre-Funding Account (exclusive of any
investment income therein) after giving
effect to any purchase of Subsequent
Group I Mortgage Loans.
"Group I Senior Principal Distribution Amount": The excess of
(x) the Certificate Principal Balance of
the Group I Certificates immediately
prior to such Distribution Date over (y)
the lesser of (A) the product of (i)
59.80% and (ii) the aggregate Stated
Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due
Period (after giving effect to
scheduled payments of principal due during
the related Due Period, to the extent
received or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) and (B) the
aggregate Stated Principal Balance of
the Group I Mortgage Loans as of the last
day of the related Due Period (after
giving effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of
principal received during the related
Prepayment Period) minus the related
Overcollateralization Floor.
"Group II Allocation Percentage": With respect to any
Distribution Date, the percentage
equivalent of a fraction, the numerator of
which is (i) the Group II Principal
Remittance Amount for such Distribution
Date, and the denominator of which is (ii)
the Principal Remittance Amount for
such Distribution Date.
"Group II Basic Principal Distribution Amount": With respect
to any Distribution Date, the Group II
Principal Remittance Amount.
"Group II Certificates": Any Class II-A1 Certificate, Class
II-A2 Certificate, Class II-A3 Certificate
or Class II-A4 Certificate.
"Group II Interest Coverage Account": The account established
and maintained pursuant to Section 4.08,
which account contains an amount, to be
paid by the Depositor to the Trustee on the
Closing Date, that equals
$1,183,613.73.
"Group II Interest Remittance Amount": With respect to any
Distribution Date, that portion of the
Available Funds for such Distribution
Date attributable to interest received or
advanced with respect to the Group II
Mortgage Loans or amounts withdrawn from
the Group II Interest Coverage Account.
"Group II Mortgage Loan": A Mortgage Loan assigned to Loan
Group II with a Stated Principal Balance at
origination that may or may not
conform to Fannie Mae and Freddie Mac loan
limits.
"Group II Pre-Funding Account": The account established and
maintained pursuant to Section 4.05, as
defined herein.
"Group II Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group
II Basic Principal Distribution
Amount for such Distribution Date and
(ii)(a) the Extra Principal Distribution
Amount for such Distribution Date
multiplied by (b) the Group II Allocation
Percentage.
"Group II Principal Remittance Amount": With respect to any
Distribution Date, that portion of
Available Funds equal to the sum of (i) each
scheduled payment of principal collected or
advanced on the Group II Mortgage
Loans by the Servicer that were due during
the related Due Period, (ii) the
principal portion of all partial and full
Principal Prepayments of the Group II
Mortgage Loans applied by the Servicer
during the related Prepayment Period,
(iii) the principal portion of all related
Net Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received
during the related Prepayment Period
with respect to the Group II Mortgage
Loans, (iv) that portion of the Purchase
Price, representing principal of any
repurchased Group II Mortgage Loan,
deposited to the Collection Account during
the related Prepayment Period, (v)
the principal portion of any related
Substitution Adjustments deposited in the
Collection Account during the related
Prepayment Period with respect to the
Group II Mortgage Loans, (vi) on the
Distribution Date on which the Trust Fund
is to be terminated pursuant to Section
10.01, that portion of the Termination
Price, in respect of principal on the Group
II Mortgage Loans and (vii) on the
Distribution Date immediately following the
end of the Funding Period, any
remaining amounts in the Group II
Pre-Funding Account (exclusive of any
investment income therein) after giving
effect to any purchase of Subsequent
Group II Mortgage Loans.
"Group II Senior Principal Distribution Amount": The excess of
(x) the aggregate Certificate Principal
Balance of the Group II Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 59.80% and (ii) the
aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day
of the related Due Period (after
giving effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of
principal received during the related
Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Group II
Mortgage Loans as of the last day of
the related Due Period (after giving effect
to scheduled payments of principal
due during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal
received during the related Prepayment
Period) minus the related
Overcollateralization Floor.
"Highest Priority": As of any date of determination, the Class
of Mezzanine Certificates or Class B
Certificates then outstanding with a
Certificate Principal Balance greater than
zero, with the highest priority for
payments pursuant to Section 4.01, in the
following order of decreasing
priority: Class 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 B-1
and Class B-2 Certificates.
"Indenture": An indenture relating to the issuance of notes
secured by the Class C Certificates, the
Class P Certificates and/or the Class R
Certificates (or any portion thereof).
"Independent": When used with respect to any specified Person,
any such Person who (a) is in fact
independent of the Depositor, the Servicer
and their respective Affiliates, (b) does
not have any direct financial interest
in or any material indirect financial
interest in the Depositor or the Servicer
or any Affiliate thereof, and (c) is not
connected with the Depositor or the
Servicer or any Affiliate thereof as an
officer, employee, promoter,
underwriter, trustee, partner, director or
Person performing similar functions;
provided, however, that a Person shall not
fail to be Independent of the
Depositor or the Servicer or any Affiliate
thereof merely because such Person is
the beneficial owner of 1% or less of any
class of securities issued by the
Depositor or the Servicer or any Affiliate
thereof, as the case may be.
"Independent Contractor": Either (i) any Person (other than
the Servicer) that would be an "independent
contractor" with respect to any of
the REMICs created hereunder within the
meaning of Section 856(d)(3) of the Code
if such REMIC were a real estate investment
trust (except that the ownership
tests set forth in that section shall be
considered to be met by any Person that
owns, directly or indirectly, 35% or more
of any Class of Certificates), so long
as each such REMIC does not receive or
derive any income from such Person and
provided that the relationship between such
Person and such REMIC is at arm's
length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or
(ii) any other Person (including the
Servicer) if the Trustee has received an
Opinion of Counsel to the effect that the
taking of any action in respect of any
REO Property by such Person, subject to any
conditions therein specified, that
is otherwise herein contemplated to be
taken by an Independent Contractor will
not cause such REO Property to cease to
qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the
Code (determined without regard to the
exception applicable for purposes of
Section 860D(a) of the Code), or cause any
income realized in respect of such REO
Property to fail to qualify as Rents from
Real Property.
"Index": With respect to each Adjustable-Rate Mortgage Loan
and with respect to each related Adjustment
Date, the index as specified in the
related Mortgage Note.
"Initial Certificate Principal Balance": With respect to any
Regular Certificate, the amount designated
"Initial Certificate Principal
Balance" on the face thereof.
"Initial Group I Mortgage Loan": Any of the Group I Mortgage
Loans included in the Trust Fund as of the
Closing Date. The aggregate principal
balance of the Initial Group I Mortgage
Loans as of the Cut-off Date is equal to
$557,412,462.56.
"Initial Group II Mortgage Loan": Any of the Group II Mortgage
Loans included in the Trust Fund as of the
Closing Date. The aggregate principal
balance of the Initial Group II Mortgage
Loans as of the Cut-off Date is equal
to $202,276,785.92.
"Initial Mortgage Loan": Any of the Initial Group I Mortgage
Loans or Initial Group II Mortgage Loans
included in the Trust Fund as of the
Closing Date.
"Insurance Proceeds": Proceeds of any title policy, hazard
policy or other insurance policy covering a
Mortgage Loan, to the extent such
proceeds are received by the Servicer and
are not to be applied to the
restoration of the related Mortgaged
Property or released to the Mortgagor in
accordance with the procedures that the
Servicer would follow in servicing
mortgage loans held for its own account,
subject to the terms and conditions of
the related Mortgage Note and Mortgage.
"Interest Coverage Accounts": The Group I Interest Coverage
Account and the Group II Interest Coverage
Account.
"Interest Determination Date": With respect to the
Adjustable-Rate Certificates and each
Accrual Period, the second LIBOR Business
Day preceding the commencement of such
Accrual Period.
"Late Collections": With respect to any Mortgage Loan, all
amounts received subsequent to the
Determination Date immediately following any
related Due Period, whether as late
payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or
otherwise, which represent late payments or
collections of principal and/or interest
due (without regard to any acceleration
of payments under the related Mortgage and
Mortgage Note) but delinquent on a
contractual basis for such Due Period and
not previously recovered.
"LIBOR": With respect to each Accrual Period, the rate
determined by the Trustee on the related
Interest Determination Date on the
basis of the London interbank offered rate
for one-month United States dollar
deposits, as such rate appears on the
Telerate Page 3750, as of 11:00 a.m.
(London time) on such Interest
Determination Date. If such rate does not appear
on Telerate Page 3750, the rate for such
Interest Determination Date will be
determined on the basis of the offered
rates of the Reference Banks for
one-month United States dollar deposits, as
of 11:00 a.m. (London time) on such
Interest Determination Date. The Trustee
will request the principal London
office of each of the Reference Banks to
provide a quotation of its rate. On
such Interest Determination Date, LIBOR for
the related Accrual Period will be
established by the Trustee as follows:
(i) If on such Interest Determination Date two or more
Reference Banks provide such offered
quotations, LIBOR for the related Accrual
Period shall be the arithmetic mean of such
offered quotations (rounded upwards
if necessary to the nearest whole multiple
of 1/16 of 1%); and
(ii) If on such Interest Determination Date fewer than two
Reference Banks provide such offered
quotations, LIBOR for the related Accrual
Period shall be the higher of (i) LIBOR as
determined on the previous Interest
Determination Date and (ii) the Reserve
Interest Rate.
"LIBOR Business Day": Any day on which banks in London,
England and The City of New York are open
and conducting transactions in foreign
currency and exchange.
"Liquidated Mortgage Loan": As to any Distribution Date, any
Mortgage Loan in respect of which the
Servicer has determined, in accordance
with the servicing procedures specified
herein, as of the end of the related
Prepayment Period, that all Liquidation
Proceeds which it expects to recover
with respect to the liquidation of the
Mortgage Loan or disposition of the
related REO Property have been
recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage
Loan is paid in full, (ii) a Final
Recovery Determination is made as to such
Mortgage Loan or (iii) such Mortgage
Loan is removed from the Trust Fund by
reason of its being purchased, sold or
replaced pursuant to or as contemplated by
Section 2.03, Section 3.16(c) or
Section 10.01. With respect to any REO
Property, either of the following events:
(i) a Final Recovery Determination is made
as to such REO Property or (ii) such
REO Property is removed from the Trust Fund
by reason of its being sold or
purchased pursuant to Section 3.23 or
Section 10.01.
"Liquidation Proceeds": The amount (other than amounts
received in respect of the rental of any
REO Property prior to REO Disposition)
received by the Servicer in connection with
(i) the taking of all or a part of a
Mortgaged Property by exercise of the power
of eminent domain or condemnation,
(ii) the liquidation of a defaulted
Mortgage Loan by means of a trustee's sale,
foreclosure sale or otherwise or (iii) the
repurchase, substitution or sale of a
Mortgage Loan or an REO Property pursuant
to or as contemplated by Section 2.03,
Section 3.16(c), Section 3.23 or Section
10.01.
"Loan-to-Value Ratio": As of any date and as to any Mortgage
Loan, the fraction, expressed as a
percentage, the numerator of which is the
Stated Principal Balance of the Mortgage
Loan and the denominator of which is
the Value of the related Mortgaged
Property.
"Loan Group": Either Loan Group I or Loan Group II, as the
context requires.
"Loan Group I": The group of Mortgage Loans identified in the
Mortgage Loan Schedule as having been
assigned to Loan Group I.
"Loan Group II": The group of Mortgage Loans identified in the
Mortgage Loan Schedule as having been
assigned to Loan Group II.
"Losses": As defined in Section 9.03.
"Lost Note Affidavit": With respect to any Mortgage Loan as to
which the original Mortgage Note has been
permanently lost, misplaced or
destroyed and has not been replaced, an
affidavit from the Seller certifying
that the original Mortgage Note has been
lost, misplaced or destroyed (together
with a copy of the related Mortgage Note)
and indemnifying the Trust against any
loss, cost or liability resulting from the
failure to deliver the original
Mortgage Note in the form of Exhibit H
hereto.
"Majority Certificateholders": The Holders of Certificates
evidencing at least 51% of the Voting
Rights.
"Marker Rate": With respect to the Class C Interest and any
Distribution Date, a per annum rate equal
to two (2) times the weighted average
of the Uncertificated REMIC 2 Pass-Through
Rates for REMIC 2 Regular Interest
LTIA1, REMIC 2 Regular Interest LTIIA1,
REMIC 2 Regular Interest LTIIA2, REMIC 2
Regular Interest LTIIA3, REMIC 2 Regular
Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest
LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2
Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8,
REMIC 2 Regular Interest LTM9, REMIC 2
Regular Interest LTB1, REMIC 2 Regular
Interest LTB2 and REMIC 2 Regular Interest
LTZZ, with the rate on each such
REMIC 2 Regular Interest (other than REMIC
2 Regular Interest LTZZ) subject to a
cap equal to the lesser of (i) LIBOR plus
the related Certificate Margin for the
related Corresponding Certificate and (ii)
the Net WAC Rate for the purpose of
this calculation and with the rate on REMIC
2 Regular Interest LTZZ subject to a
cap of zero for the purpose of this
calculation; provided, however, that for
this purpose, calculations of the
Uncertificated REMIC 2 Pass-Through Rate and
the related caps with respect to each such
REMIC 2 Regular Interest (other than
REMIC 2 Regular Interest LTZZ) shall be
multiplied by a fraction, the numerator
of which is the actual number of days in
the Accrual Period and the denominator
of which is 30.
"Maximum Cap Rate": For any Distribution Date and any Class of
the Adjustable-Rate Certificates, a per
annum rate equal to the product of (x)
the weighted average of the Adjusted Net
Maximum Mortgage Rates of the Mortgage
Loans, weighted on the basis of the
outstanding Principal Balances of the
Mortgage Loans as of the first day of the
month preceding the month of such
Distribution Date and (y) a fraction, the
numerator of which is 30 and the
denominator of which is the actual number
of days elapsed in the related Accrual
Period.
"Maximum Uncertificated Accrued Interest Deferral Amount":
With respect to any Distribution Date, the
excess of (a) accrued interest at the
Uncertificated REMIC 2 Pass-Through Rate
applicable to REMIC 2 Regular Interest
LTZZ for such Distribution Date on a
balance equal to the Uncertificated
Principal Balance of REMIC 2 Regular
Interest LTZZ minus the REMIC 2
Overcollateralization Amount, in each case
for such Distribution Date, over (b)
the sum of the Uncertificated Accrued
Interest on REMIC 2 Regular Interest
LTIA1, REMIC 2 Regular Interest LTIIA1,
REMIC 2 Regular Interest LTIIA2, REMIC 2
Regular Interest LTIIA3, REMIC 2 Regular
Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest
LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2
Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8,
REMIC 2 Regular Interest LTM9, REMIC 2
Regular Interest LTB1 and REMIC 2 Regular
Interest LTB2 with the rate on each such
REMIC 2 Regular Interest subject to a
cap equal to the lesser of (i) LIBOR plus
the related Certificate Margin for the
related Corresponding Certificate and (ii)
the Net WAC Rate for the purpose of
this calculation; provided, however, that
for this purpose, calculations of the
Uncertificated REMIC 2 Pass-Through Rate
and the related caps with respect to
each such REMIC 2 Regular Interest shall be
multiplied by a fraction, the
numerator of which is the actual number of
days in the Accrual Period and the
denominator of which is 30.
"Maximum Mortgage Rate": With respect to each Adjustable-Rate
Mortgage Loan, the percentage set forth in
the related Mortgage Note as the
maximum Mortgage Rate thereunder.
"Mezzanine Certificate": Any Class M-1 Certificate, Class M-2
Certificate, Class M-3 Certificate, Class
M-4 Certificate, Class M-5
Certificate, Class M-6 Certificate, Class
M-7 Certificate, Class M-8 Certificate
or Class M-9 Certificate.
"Minimum Mortgage Rate": With respect to each Adjustable-Rate
Mortgage Loan, the percentage set forth in
the related Mortgage Note as the
minimum Mortgage Rate thereunder.
"Monthly Interest Distributable Amount": With respect to any
Class of the Adjustable-Rate Certificates
and Class C Certificates and any
Distribution Date, the amount of interest
accrued during the related Accrual
Period at the related Pass-Through Rate on
the Certificate Principal Balance (or
Notional Amount in the case of the Class C
Certificates) of such Class
immediately prior to such Distribution
Date, in each case, reduced by any Net
Prepayment Interest Shortfalls or Relief
Act Interest Shortfalls.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and
interest on such Mortgage Loan which
is payable by the related Mortgagor from
time to time under the related Mortgage
Note, determined: (a) after giving effect
to (i) any Deficient Valuation and/or
Debt Service Reduction with respect to such
Mortgage Loan, (ii) any any
modifications to a Mortgage Loan pursuant
to Section 3.07 and (iii) any
reduction in the amount of interest
collectible from the related Mortgagor
pursuant to the Relief Act; (b) without
giving effect to any extension granted
or agreed to by the Servicer pursuant to
Section 3.07; and (c) on the assumption
that all other amounts, if any, due under
such Mortgage Loan are paid when due.
"Moody's": Moody's Investors Service, Inc., or its successor
in interest.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on, or first priority
security interest in, a Mortgaged
Property securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan
and any additional documents required
to be added to the Mortgage File pursuant
to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned
to the Trustee pursuant to Section 2.01 or
Section 2.03(d) as from time to time
held as a part of the Trust Fund, the
Mortgage Loans so held being identified in
the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The agreement between the
Seller and the Depositor, regarding the
transfer of the Mortgage Loans by the
Seller to or at the direction of the
Depositor, substantially in the form
attached hereto as Exhibit C.
"Mortgage Loan Schedule": As of any date, the list of Mortgage
Loans included in REMIC 1 on such date,
separately identifying the Group I
Mortgage Loans and the Group II Mortgage
Loans, attached hereto as Exhibit D, as
supplemented by each schedule of Subsequent
Mortgage Loans. The Mortgage Loan
Schedule shall be prepared by the Seller
and shall set forth the following
information with respect to each Mortgage
Loan, as applicable:
(1) the Mortgage Loan identifying number;
(2) [reserved];
(3) the state and zip code of the Mortgaged Property;
(4) a code indicating whether the Mortgaged Property was
represented by the borrower, at the time of origination, as
being owner-occupied;
(5) the type of Residential Dwelling constituting the
Mortgaged Property;
(6) the original months to maturity;
(7) the stated remaining months to maturity from the Cut-off
Date (or Subsequent Cut-off Date, with respect to a Subsequent
Mortgage Loan) based on the original amortization schedule;
(8) the Loan-to-Value Ratio at origination;
(9) the Mortgage Rate in effect immediately following the
Cut-off Date (or Subsequent Cut-off Date, with respect to a
Subsequent Mortgage Loan);
(10) the date on which the first Monthly Payment was due on
the Mortgage Loan;
(11) the stated maturity date;
(12) the amount of the Monthly Payment at origination;
(13) the amount of the Monthly Payment due on the first Due
Date after the Cut- off Date (or Subsequent Cut-off Date, with
respect to a Subsequent Mortgage Loan);
(14) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance;
(15) the original principal amount of the Mortgage Loan;
(16) the Stated Principal Balance of the Mortgage Loan as of
the Close of Business on the Cut-off Date (or Subsequent
Cut-off Date, with respect to a Subsequent Mortgage Loan);
(17) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out
refinancing);
(18) the Mortgage Rate at origination;
(19) a code indicating the documentation program (i.e., full
documentation, limited income verification, no income
verification, alternative income verification);
(20) the risk grade;
(21) the Value of the Mortgaged Property;
(22) the sale price of the Mortgaged Property, if applicable;
(23) the actual unpaid principal balance of the Mortgage Loan
as of the Cut-off Date (or Subsequent Cut-off Date, with
respect to a Subsequent Mortgage Loan);
(24) the type and term of the related Prepayment Charge;
(25) with respect to any Adjustable-Rate Mortgage Loan, the
rounding code, the minimum Mortgage Rate, the maximum Mortgage
Rate, the Gross Margin, the next Adjustment Date and the
Periodic Rate Cap;
(26) the program code;
(27) the Loan Group; and
(28) the lien priority.
The Mortgage Loan Schedule shall set forth the following
information, with respect to the Mortgage
Loans in the aggregate and for each
Loan Group as of the Cut-off Date (or
Subsequent Cut-off Date, with respect to a
Subsequent Mortgage Loan): (1) the number
of Mortgage Loans (separately
identifying the number of Fixed-Rate
Mortgage Loans and the number of
Adjustable-Rate Mortgage Loans); (2) the
current Principal Balance of the
Mortgage Loans; (3) the weighted average
Mortgage Rate of the Mortgage Loans and
(4) the weighted average remaining term to
maturity of the Mortgage Loans. The
Mortgage Loan Schedule shall be amended
from time to time by the Servicer in
accordance with the provisions of this
Agreement. With respect to any Qualified
Substitute Mortgage Loan, Cut-off Date
shall refer to the related Cut-off Date
for such Mortgage Loan, determined in
accordance with the definition of Cut-off
Date herein. On the Closing Date, the
Depositor will deliver to the Servicer, as
of the Cut-off Date, an electronic copy of
the Mortgage Loan Schedule.
"Mortgage Note": The original executed note or other evidence
of indebtedness evidencing the indebtedness
of a Mortgagor under a Mortgage
Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on
Exhibit D from time to time, and any REO
Properties acquired in respect thereof
and as supplemented by any Subsequent
Mortgage Loans identified on each schedule
of Subsequent Mortgage Loans attached to a
Subsequent Transfer Instrument.
"Mortgage Rate": With respect to each Fixed-Rate Mortgage
Loan, the rate set forth in the related
Mortgage Note. With respect to each
Adjustable-Rate Mortgage Loan, the annual
rate at which interest accrues on such
Mortgage Loan from time to time in
accordance with the provisions of the related
Mortgage Note, which rate (A) as of any
date of determination until the first
Adjustment Date following the Cut-off Date
(or Subsequent Cut-off Date, with
respect to a Subsequent Mortgage Loan)
shall be the rate set forth in the
Mortgage Loan Schedule as the Mortgage Rate
in effect immediately following the
Cut-off Date (or Subsequent Cut-off Date,
with respect to a Subsequent Mortgage
Loan) and (B) as of any date of
determination thereafter shall be the rate as
adjusted on the most recent Adjustment
Date, to equal the sum, rounded to the
next highest or nearest 0.125% (as provided
in the Mortgage Note), of the Index,
determined as set forth in the related
Mortgage Note, plus the related Gross
Margin subject to the limitations set forth
in the related Mortgage Note. With
respect to each Mortgage Loan that becomes
an REO Property, as of any date of
determination, the annual rate determined
in accordance with the immediately
preceding sentence as of the date such
Mortgage Loan became an REO Property.
"Mortgaged Property": The underlying property securing a
Mortgage Loan, including any REO Property,
consisting of a fee simple estate in
a parcel of real property improved by a
Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": With respect to any Liquidated
Mortgage Loan or any other disposition of
related Mortgaged Property (including
REO Property) the related Liquidation
Proceeds and Insurance Proceeds net of
Advances, Servicing Advances, Servicing
Fees and any other accrued and unpaid
servicing fees or ancillary income received
and retained in connection with the
liquidation of such Mortgage Loan or
Mortgaged Property.
"Net Monthly Excess Cashflow": With respect to each
Distribution Date, the excess of (x)
Available Funds for such Distribution Date
over (y) the sum for such Distribution Date
of (A) the Monthly Interest
Distributable Amounts for the
Adjustable-Rate Certificates, (B) the Unpaid
Interest Shortfall Amounts for the Class A
Certificates and (C) the Principal
Remittance Amount.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property), as of any date of
determination, a per annum rate of
interest equal to the then applicable
Mortgage Rate for such Mortgage Loan minus
the Servicing Fee Rate.
"Net Prepayment Interest Shortfall": With respect to any
Distribution Date, the excess, if any, of
any Prepayment Interest Shortfalls for
such date over the related Compensating
Interest.
"Net WAC Rate": For any Distribution Date and any Class of the
Adjustable-Rate Certificates, a per annum
rate equal to the product of (a) a
fraction, expressed as a percentage, the
numerator of which is the sum of (i)
the amount of interest which accrued on the
Mortgage Loans in the prior calendar
month for such Distribution Date minus the
sum of aggregate Servicing Fee
accrued for the Mortgage Loans and any
amounts paid to the Custodian pursuant to
the third sentence of the first paragraph
of Section 8.05 and (ii) amounts
withdrawn from the Interest Coverage
Accounts for such Distribution Date and the
denominator of which is the sum of (i) the
aggregate Principal Balance of the
Mortgage Loans as of the first day of the
calendar month preceding the month of
such Distribution Date (or as of the
Cut-off Date with respect to the first
Distribution Date) and (ii) any amounts on
deposit in the Pre-Funding Accounts
as of the first day of the calendar month
preceding the month of such
Distribution Date (or as of the Cut-off
Date with respect to the first
Distribution Date) and (b) a fraction whose
numerator is 360 and whose
denominator is the actual number of days in
the related Accrual Period. For
federal income tax purposes, the economic
equivalent of such rate shall be
expressed as the weighted average of the
REMIC 2 Pass-Through Rates on the REMIC
2 Regular Interests, weighted on the basis
of the Uncertificated Principal
Balance of each such REMIC 2 Regular
Interest.
"Net WAC Rate Carryover Amount": With respect to any Class of
the Adjustable-Rate Certificates and any
Distribution Date, the sum of (A) the
positive excess of (i) the amount of
interest accrued on such Class of
Certificates on such Distribution Date
calculated at the related Formula Rate,
over (ii) the amount of interest accrued on
such Class of Certificates at the
Net WAC Rate for such Distribution Date and
(B) the Net WAC Rate Carryover
Amount for the previous Distribution Date
not previously paid, together with
interest thereon at a rate equal to the
related Formula Rate for the most
recently ended Accrual Period.
"Net WAC Rate Carryover Reserve Account": The account
established and maintained pursuant to
Section 4.07.
"New Lease": Any lease of REO Property entered into on behalf
of the Trust, including any lease renewed
or extended on behalf of the Trust if
the Trust has the right to renegotiate the
terms of such lease.
"Nonrecoverable Advance": Any Advance or Servicing Advance
previously made or proposed to be made in
respect of a Mortgage Loan or REO
Property that, in the good faith business
judgment of the Servicer, will not be
ultimately recoverable from Late
Collections, Insurance Proceeds, Liquidation
Proceeds or condemnation proceeds on such
Mortgage Loan or REO Property as
provided herein.
"Notional Amount": Immediately prior to any Distribution Date
with respect to the Class C Interest, the
aggregate of the Uncertificated
Principal Balances of REMIC 2 Regular
Interests (other than REMIC 2 Regular
Interest LTP).
"Offered Certificates": The Class A Certificates and the
Mezzanine Certificates offered to the
public pursuant to the Prospectus
Supplement.
"Officers' Certificate": A certificate signed by the Chairman
of the Board, the Vice Chairman of the
Board, the President or a vice president
(however denominated), or by the Treasurer,
the Secretary, or one of the
assistant treasurers or assistant
secretaries of the Servicer, the Seller or the
Depositor, as applicable.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be a salaried counsel
for the Depositor or the Servicer,
acceptable to the Trustee, except that any
opinion of counsel relating to (a)
the qualification of any REMIC as a REMIC
or (b) compliance with the REMIC
Provisions must be an opinion of
Independent counsel.
"Optional Termination Date": The first Distribution Date on
which the Terminator may opt to terminate
the Trust Fund pursuant to Section
10.01.
"Original Class Certificate Principal Balance": With respect
to the Adjustable-Rate Certificates, the
Class C Certificates, the Class C
Interest, the Class P Certificates and the
Class P Interest, the corresponding
amounts set forth opposite such Class above
in the Preliminary Statement.
"Original Group I Pre-Funded Amount": The amount deposited by
the Depositor in the Group I Pre-Funding
Account on the Closing Date, which
amount is $335,580,943.22.
"Original Group II Pre-Funded Amount": The amount deposited by
the Depositor in the Group II Pre-Funding
Account on the Closing Date, which
amount is $179,729,808.30.
"Original Pre-Funded Amounts": The Original Group I Pre-Funded
Amount and the Original Group II Pre-Funded
Amount.
"Originator": First Franklin Financial Corporation, a Delaware
corporation, or its successor in
interest.
"Overcollateralization Deficiency Amount": With respect to any
Distribution Date, the amount, if any, by
which the Overcollateralization Target
Amount exceeds the Overcollateralized
Amount on such Distribution Date (assuming
that 100% of the Principal Remittance
Amount is applied as a principal
distribution on such Distribution
Date).
"Overcollateralization Floor": With respect to the Group I
Certificates, $4,464,967. With respect to
the Group II Certificates, $1,910,033.
With respect to the Mezzanine Certificates
and the Class B Certificates,
$6,375,000.
"Overcollateralization Target Amount" With respect to any
Distribution Date, an amount equal to 0.50%
of the sum of (i) the aggregate
Principal Balance of the Initial Mortgage
Loans as of the Cut-off Date and (ii)
the Original Pre-funded Amounts.
"Overcollateralized Amount": For any Distribution Date, the
amount equal to (i) the sum of (a) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(b) any funds on deposit in the
Pre-Funding Accounts as of the related
Determination Date (exclusive of any
investment income therein) minus (ii) the
sum of the aggregate Certificate
Principal Balance of the Adjustable-Rate
Certificates and the Class P
Certificates as of such Distribution Date
after giving effect to distributions
to be made on such Distribution Date.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate,
including any interest in such
Certificate as the Holder thereof and any
other interest therein, whether direct
or indirect, legal or beneficial, as owner
or as pledgee.
"Pass-Through Rate": With respect to any Class of the
Adjustable-Rate Certificates and any
Distribution Date, the lesser of (x) the
related Formula Rate for such Distribution
Date and (y) the Net WAC Rate for
such Distribution Date. With respect to the
Class C Interest and any
Distribution Date, a per annum rate equal
to the percentage equivalent of a
fraction, the numerator of which is (x) the
sum of (i) 100% of the interest on
REMIC 2 Regular Interest LTP and (ii)
interest on the Uncertificated Balance of
each REMIC 2 Regular Interest listed in
clause (y) at a rate equal to the
related Uncertificated REMIC 2 Pass-Through
Rate minus the Marker Rate and the
denominator of which is (y) the aggregate
Uncertificated Balance of REMIC 2
Regular Interests LTAA, LTIA1, LTIIA1,
LTIIA2, LTAII3, LTAII4, LTM1, LTM2, LTM3,
LTM4, LTM5, LTM6, LTM7, LTM8, LTM9, LTB1,
LTB2 and LTZZ.
With respect to the Class C Certificates, 100% of the interest
distributable to the Class C Interest,
expressed as a per annum rate.
"Paying Agent": Any paying agent appointed pursuant to Section
5.05.
"Percentage Interest": With respect to any Certificate (other
than a Residual Certificate), a fraction,
expressed as a percentage, the
numerator of which is the Initial
Certificate Principal Balance represented by
such Certificate and the denominator of
which is the Original Class Certificate
Principal Balance of the related Class.
With respect to a Residual Certificate,
the portion of the Class evidenced thereby,
expressed as a percentage, as stated
on the face of such Certificate; provided,
however, that the sum of all such
percentages for each such Class totals
100%.
"Periodic Rate Cap": With respect to each Adjustable-Rate
Mortgage Loan and any Adjustment Date
therefor, the fixed percentage set forth
in the related Mortgage Note, which is the
maximum amount by which the Mortgage
Rate for such Mortgage Loan may increase or
decrease (without regard to the
Maximum Mortgage Rate or the Minimum
Mortgage Rate) on such Adjustment Date from
the Mortgage Rate in effect immediately
prior to such Adjustment Date.
"Permitted Investments": Any one or more of the following
obligations or securities acquired at a
purchase price of not greater than par,
regardless of whether issued or managed by
the Depositor, the Servicer, the
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
agent acting in their respective commercial capacities)
incorporated
under the laws of the United States of America or any state thereof
and
subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or
contractual
commitment providing for such investment, such depository
institution
or trust company (or, if the only Rating Agency is S&P, in the
case of
the principal depository institution in a depository
institution
holding company, debt obligations of the depository institution
holding
company) or its ultimate parent has a short-term uninsured debt
rating
in one of the two highest available ratings of Moody's and the
highest
available rating category of Fitch and S&P and provided that
each such
investment has an original maturity of no more than 365 days;
and
provided further that, if the only Rating Agency is S&P and if
the
depository or trust company is a principal subsidiary of a bank
holding
company and the debt obligations of such subsidiary are not
separately
rated, the applicable rating shall be that of the bank holding
company;
and, provided further that, if the original maturity of such
short-
term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the
short-term
rating of such institution shall be A-1+ in the case of S&P if
S&P is
the Rating Agency; and (B) any other demand or time deposit or
deposit
which is fully insured by the FDIC;
(iii) repurchase obligations with a term not to exceed 30 days
with respect to any security described in clause (i) above and
entered
into with a depository institution or trust company (acting as
principal) rated F-1+ or higher by Fitch, P-1 by Moody's and rated
A-1+
or higher by S&P, provided, however, that collateral
transferred
pursuant to such repurchase obligation must be of the type
described in
clause (i) above and must (A) be valued daily at current market
prices
plus accrued interest, (B) pursuant to such valuation, be equal, at
all
times, to 105% of the cash transferred by the Trustee in exchange
for
such collateral and (C) be delivered to the Trustee or, if the
Trustee
is supplying the collateral, an agent for the Trustee, in such a
manner
as to accomplish perfection of a security interest in the
collateral by
possession of certificated securities;
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United
States of America or any State thereof and that are rated by
S&P (and
if rated by any other Rating Agency, also by such other Rating
Agency)
in its highest long-term unsecured rating category at the time of
such
investment or contractual commitment providing for such
investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand
or on a specified date not more than 30 days after the date of
acquisition thereof) that is rated by S&P (and if rated by any
other
Rating Agency, also by such other Rating Agency) in its highest
short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including those money market
funds managed or advised by the Trustee or its Affiliates, that
have
been rated "AAA" by Fitch (if rated by Fitch), "Aaa" by Moody's
and
"AAAm" or "AAAm-G" by S&P; and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other
obligation,
security or investment, as may be acceptable to the Rating Agencies
in
writing as a permitted investment of funds backing securities
having
ratings equivalent to its highest initial rating of the Class A
Certificates;
provided, that no instrument described
hereunder shall evidence either the right
to receive (a) only interest with respect
to the obligations underlying such
instrument or (b) both principal and
interest payments derived from obligations
underlying such instrument and the interest
and principal payments with respect
to such instrument provide a yield to
maturity at par greater than 120% of the
yield to maturity at par of the underlying
obligations.
"Permitted Transferee": Any transferee of a Residual
Certificate other than a Disqualified
Organization or a non-U.S. Person.
"Person": Any individual, corporation, limited liability
company, partnership, joint venture,
association, joint stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
"Plan": Any employee benefit plan or certain other retirement
plans and arrangements, including
individual retirement accounts and annuities,
Keogh plans and bank collective investment
funds and insurance company general
or separate accounts in which such plans,
accounts or arrangements are invested,
that are subject to ERISA or Section 4975
of the Code.
"Pool Balance": As of any date of determination, the aggregate
Stated Principal Balance of the Mortgage
Loans in both Loan Groups as of such
date.
"Pre-Funding Accounts": The Group I Pre-Funding Account and
the Group II Pre-Funding Account.
"Prepayment Assumption": As defined in the Prospectus
Supplement.
"Prepayment Charge": With respect to any Mortgage Loan, the
charges or premiums, if any, due in
connection with a full or partial Principal
Prepayment of such Mortgage Loan in
accordance with the terms thereof (other
than any Servicer Prepayment Charge Payment
Amount).
"Prepayment Charge Schedule": As of any date, the list of
Prepayment Charges on the Mortgage Loans
included in the Trust Fund on such
date, attached hereto as Schedule I
(including the prepayment charge summary
attached thereto). The Prepayment Charge
Schedule shall set forth the following
information with respect to each Prepayment
Charge:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination of the related Mortgage Loan;
(iv) the date on which the first monthly payment was due on
the related Mortgage Loan;
(v) the term of the related Prepayment Charge; and
(vi) the Stated Principal Balance of the related Mortgage Loan
as of the Cut-off Date (or Subsequent Cut-off Date, with respect to
a
Subsequent Mortgage Loan).
"Prepayment Interest Excess": With respect to any Distribution
Date, for each Mortgage Loan that was the
subject of a Principal Prepayment in
full during the portion of the related
Prepayment Period occurring between the
first day and the 15th day of the calendar
month in which such Distribution Date
occurs, an amount equal to interest (to the
extent received) at the applicable
Net Mortgage Rate on the amount of such
Principal Prepayment for the number of
days commencing on the first day of the
calendar month in which such
Distribution Date occurs and ending on the
date on which such prepayment is so
applied.
"Prepayment Interest Shortfall": With respect to any
Distribution Date, for each Mortgage Loan
that was the subject of a Principal
Prepayment in full during the portion of
the related Prepayment Period occurring
from the first day of the related
Prepayment Period through the last day of the
calendar month preceding the month in which
such Distribution Date occurs, an
amount equal to interest on the amount of
such Principal Prepayment for the
number of days commencing on the date such
Principal Prepayment was applied and
ending on the last day of the calendar
month preceding the month in which such
Distribution Date occurs.
"Prepayment Period": With respect to any Distribution Date,
the period commencing on the 16th day of
the calendar month preceding the month
in which the related Distribution Date
occurs and ending on the 15th day of the
calendar month in which such Distribution
Date occurs.
"Principal Balance": As to any Mortgage Loan other than a
Liquidated Mortgage Loan, and any day, the
related Cut-off Date Principal
Balance, minus all collections credited
against the Cut-off Date Principal
Balance of any such Mortgage Loan. For
purposes of this definition, a Liquidated
Mortgage Loan shall be deemed to have a
Principal Balance equal to the Principal
Balance of the related Mortgage Loan as of
the final recovery of related
Liquidation Proceeds and a Principal
Balance of zero thereafter. As to any REO
Property and any day, the Principal Balance
of the related Mortgage Loan
immediately prior to such Mortgage Loan
becoming REO Property minus any REO
Principal Amortization received with
respect thereto on or prior to such day.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is
received in advance of its scheduled Due
Date and which is not accompanied by an
amount of interest representing the full
amount of scheduled interest due on any Due
Date in any month or months
subsequent to the month of prepayment.
"Principal Remittance Amount": With respect to any
Distribution Date, the sum of the Group I
Principal Remittance Amount and the
Group II Principal Remittance Amount.
"Prospectus Supplement": That certain Prospectus Supplement
dated April 20, 2005 relating to the public
offering of the Class A Certificates
and the Mezzanine Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as
contemplated by Section 2.03, Section
3.16(c) or Section 10.01, and as confirmed
by an Officers' Certificate from the
party purchasing the Mortgage Loan to the
Trustee, an amount equal to the sum of
(i) 100% of the Stated Principal Balance
thereof as of the date of purchase (or
such other price as provided in Section
10.01), (ii) in the case of (x) a
Mortgage Loan, accrued interest on such
Stated Principal Balance at the
applicable Mortgage Rate in effect from
time to time from the Due Date as to
which interest was last covered by a
payment by the Mortgagor or an Advance by
the Servicer, which payment or Advance had
as of the date of purchase been
distributed pursuant to Section 4.01,
through the end of the calendar month in
which the purchase is to be effected, and
(y) an REO Property, the sum of (1)
accrued interest on such Stated Principal
Balance at the applicable Mortgage
Rate in effect from time to time from the
Due Date as to which interest was last
covered by a payment by the Mortgagor or an
advance by the Servicer through the
end of the calendar month immediately
preceding the calendar month in which such
REO Property was acquired, plus (2) REO
Imputed Interest for such REO Property
for each calendar month commencing with the
calendar month in which such REO
Property was acquired and ending with the
calendar month in which such purchase
is to be effected, net of the total of all
net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances
that as of the date of purchase had
been distributed as or to cover REO Imputed
Interest pursuant to Section 4.04,
(iii) any unreimbursed Servicing Advances
and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO
Property, (iv) any amounts
previously withdrawn from the Collection
Account in respect of such Mortgage
Loan or REO Property pursuant to Section
3.23 and (v) in the case of a Mortgage
Loan required to be purchased pursuant to
Section 2.03, expenses reasonably
incurred or to be incurred by the Servicer
or the Trustee in respect of the
breach or defect giving rise to the
purchase obligation, including any costs and
damages incurred by the Trust Fund in
connection with any violation by such loan
of any predatory, usury or abusive lending
law.
"Qualified Insurer": Any insurance company acceptable to
Fannie Mae.
"Qualified Substitute Mortgage Loan": A mortgage loan
substituted for a Deleted Mortgage Loan
pursuant to the terms of this Agreement
or the Mortgage Loan Purchase Agreement
which must, on the date of such
substitution, (i) have an outstanding
Stated Principal Balance (or in the case
of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an
aggregate Stated Principal Balance), after
application of all scheduled payments
of principal and interest due during or
prior to the month of substitution, not
in excess of, and not more than 5% less
than, the outstanding Stated Principal
Balance of the Deleted Mortgage Loan as of
the Due Date in the calendar month
during which the substitution occurs, (ii)
have a Mortgage Rate not less than
(and not more than one percentage point in
excess of) the Mortgage Rate of the
Deleted Mortgage Loan, (iii) if the
Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a
Maximum Mortgage Rate not less than the
Maximum Mortgage Rate on the Deleted
Mortgage Loan, (iv) if the Qualified
Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a Minimum
Mortgage Rate not less than the Minimum
Mortgage Rate of the Deleted Mortgage
Loan, (v) if the Qualified Substitute
Mortgage Loan is an Adjustable-Rate
Mortgage Loan, have a Gross Margin equal to
or greater than the Gross Margin of
the Deleted Mortgage Loan, (vi) if the
Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a next
Adjustment Date not more than two
months later than the next Adjustment Date
on the Deleted Mortgage Loan, (vii)
[reserved], (viii) have a remaining term to
maturity not greater than (and not
more than one year less than) that of the
Deleted Mortgage Loan, (ix) be current
as of the date of substitution, (x) have a
Loan-to-Value Ratio as of the date of
substitution equal to or lower than the
Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (xi) have a
risk grading determined by the
Originator at least equal to the risk
grading assigned on the Deleted Mortgage
Loan, (xii) have been underwritten or
reunderwritten by the Originator in
accordance with the same underwriting
criteria and guidelines as the Deleted
Mortgage Loan, (xiii) [reserved] and (xiv)
conform to each representation and
warranty set forth in Section 3.01 of the
Mortgage Loan Purchase Agreement
applicable to the Deleted Mortgage Loan. In
the event that one or more mortgage
loans are substituted for one or more
Deleted Mortgage Loans, the amounts
described in clause (i) hereof shall be
determined on the basis of aggregate
Stated Principal Balances, the Mortgage
Rates described in clauses (ii) through
(vi) hereof shall be satisfied for each
such mortgage loan, the risk gradings
described in clause (x) hereof shall be
satisfied as to each such mortgage loan,
the terms described in clause (viii) hereof
shall be determined on the basis of
weighted average remaining term to maturity
(provided that no such mortgage loan
may have a remaining term to maturity
longer than the Deleted Mortgage Loan),
the Loan-to-Value Ratios described in
clause (x) hereof shall be satisfied as to
each such mortgage loan and, except to the
extent otherwise provided in this
sentence, the representations and
warranties described in clause (xiv) hereof
must be satisfied as to each Qualified
Substitute Mortgage Loan or in the
aggregate, as the case may be.
"Rating Agency or Rating Agencies": Fitch, Moody's and S&P
or
their successors. If such agencies or their
successors are no longer in
existence, "Rating Agencies" shall be such
nationally recognized statistical
rating agencies, or other comparable
Persons, designated by the Depositor,
notice of which designation shall be given
to the Trustee and Servicer.
"Realized Loss": With respect to any Liquidated Mortgage Loan,
the amount of loss realized equal to the
portion of the Stated Principal Balance
remaining unpaid after application of all
Net Liquidation Proceeds in respect of
such Mortgage Loan. If the Servicer
receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of the
Realized Loss with respect to that
Mortgage Loan will be reduced to the extent
such recoveries are applied to
principal distributions on any Distribution
Date.
"Record Date": With respect to (i) the Class P Certificates,
the Class C Certificates and the Residual
Certificates, the Close of Business on
the last Business Day of the calendar month
preceding the month in which the
related Distribution Date occurs and (ii)
the Adjustable-Rate Certificates, the
Close of Business on the Business Day
immediately preceding the related
Distribution Date; provided, however, that
following the date on which
Definitive Certificates for any of the
Adjustable-Rate Certificates are
available pursuant to Section 5.02, the
Record Date for such Certificates that
are Definitive Certificates shall be the
last Business Day of the calendar month
preceding the month in which the related
Distribution Date occurs.
"Reference Banks": Those banks (i) with an established place
of business in London, England, (ii) not
controlling, under the control of or
under common control with the Originator or
the Servicer or any Affiliate
thereof and (iii) which have been
designated as such by the Trustee after
consultation with the Depositor; provided,
however, that if fewer than two of
such banks provide a LIBOR rate, then any
leading banks selected by the Trustee
after consultation with the Depositor which
are engaged in transactions in
United States dollar deposits in the
international Eurocurrency market.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of
which were not used to purchase the related
Mortgaged Property.
"Regular Certificate": Any of the Adjustable-Rate
Certificates, Class C Certificates or Class
P Certificates.
"Relief Act": The Servicemembers Civil Relief Act, as amended,
or any state law providing for similar
relief.
"Relief Act Interest Shortfall": With respect to any
Distribution Date, for any Mortgage Loan
with respect to which there has been a
reduction in the amount of interest
collectible thereon for the most recently
ended Due Period as a result of the
application of the Relief Act or any similar
state or local laws, the amount by which
(i) interest collectible on such
Mortgage Loan during such Due Period is
less than (ii) one month's interest on
the Principal Balance of such Mortgage Loan
at the Mortgage Rate for such
Mortgage Loan before giving effect to the
application of the Relief Act or such
state or local laws.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the
Code.
"REMIC 1": The segregated pool of assets subject hereto,
constituting the primary trust created
hereby and to be administered hereunder,
with respect to which a REMIC election is
to be made consisting of: (i) such
Mortgage Loans as from time to time are
subject to this Agreement, together with
the Mortgage Files relating thereto, and
together with all collections thereon
and proceeds thereof, (ii) any REO
Property, together with all collections
thereon and proceeds thereof, (iii) the
Trustee's rights with respect to the
Mortgage Loans under all insurance policies
required to be maintained pursuant
to this Agreement and any proceeds thereof,
(iv) the Depositor's rights under
the Mortgage Loan Purchase Agreement
(including any security interest created
thereby) and (v) the Collection Account,
the Distribution Account (subject to
the last sentence of this definition) and
any REO Account and such assets that
are deposited therein from time to time and
any investments thereof, together
with any and all income, proceeds and
payments with respect thereto.
Notwithstanding the foregoing, however, a
REMIC election will not be made with
respect to the Pre-Funding Account, the
Interest Coverage Accounts, any
Subsequent Mortgage Loan Interest, the Net
WAC Rate Carryover Reserve Account,
the Cap Contract or any Servicer Prepayment
Charge Payment Amounts.
"REMIC 1 Regular Interests": One of the separate
non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and
designated as a Regular Interest in REMIC
1. Each REMIC 1 Regular Interest shall
accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in
effect from time to time, and shall be
entitled to distributions of principal,
subject to the terms and conditions hereof,
in an aggregate amount equal to its
initial Uncertificated Principal Balance as
set forth in the Preliminary
Statement hereto. The following is a list
of each of the REMIC 1 Regular
Interests: REMIC 1 Regular Interest LT1,
REMIC 1 Regular Interest LT1PF, REMIC 1
Regular Interest LT2, REMIC 1 Regular
Interest LT2PF and REMIC 1 Regular
Interest LTP.
"REMIC 2": The segregated pool of assets consisting of all of
the REMIC 1 Regular Interests and conveyed
in trust to the Trustee, for the
benefit of REMIC 3, as holder of the REMIC
2 Regular Interests, and the Class R
Certificateholders, as Holders of the Class
R-2 Interest, pursuant to Article II
hereunder, and all amounts deposited
therein, with respect to which a separate
REMIC election is to be made.
"REMIC 2 Interest Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a)
the product of (i) the aggregate
Stated Principal Balance of the Mortgage
Loans and related REO Properties then
outstanding and (ii) the Uncertificated
REMIC 2 Pass-Through Rate for REMIC 2
Regular Interest LTAA minus the Marker
Rate, divided by (b) 12.
"REMIC 2 Overcollateralization Target Amount": 1.00% of the
Overcollateralization Target Amount.
"REMIC 2 Overcollateralization Amount": With respect to any
date of determination, (i) 1.00% of the
aggregate Uncertificated Principal
Balance of the REMIC 2 Regular Interests
minus (ii) the aggregate Uncertificated
Principal Balance of REMIC 2 Regular
Interest LTAA, REMIC 2 Regular Interest
LTIA1, REMIC 2 Regular Interest LTIIA1,
REMIC 2 Regular Interest LTIIA2, REMIC 2
Regular Interest LTIIA3, REMIC 2 Regular
Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest
LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2
Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8,
REMIC 2 Regular Interest LTM9, REMIC 2
Regular Interest LTB1, REMIC 2 Regular
Interest LTB2 and REMIC 2 Regular Interest
LTP, in each case as of such date of
determination.
"REMIC 2 Principal Loss Allocation Amount": With respect to
any Distribution Date, an amount equal to
the product of (i) the aggregate
Stated Principal Balance of the Mortgage
Loans and related REO Properties then
outstanding and the amounts on deposit in
the Pre-Funding Accounts (exclusive of
any investment income therein) and (ii) 1
minus a fraction, the numerator of
which is two times the aggregate
Uncertificated Principal Balance of REMIC 2
Regular Interest LTIA1, REMIC 2 Regular
Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest
LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2
Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC
2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest
LTB1 and REMIC 2 Regular Interest LTB2 and
the denominator of which is the
aggregate Uncertificated Principal Balance
of REMIC 2 Regular Interest LTIA1,
REMIC 2 Regular Interest LTIIA1, REMIC 2
Regular Interest LTIIA2, REMIC 2
Regular Interest LTIIA3, REMIC 2 Regular
Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest
LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2
Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8,
REMIC 2 Regular Interest LTM9, REMIC 2
Regular Interest LTB1, REMIC 2 Regular
Interest LTB2 and REMIC 2 Regular Interest
LTZZ.
"REMIC 2 Regular Interests": One of the separate
non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and
designated as a Regular Interest in REMIC
2. Each REMIC 2 Regular Interest shall
accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in
effect from time to time, and shall be
entitled to distributions of principal,
subject to the terms and conditions hereof,
in an aggregate amount equal to its
initial Uncertificated Principal Balance as
set forth in the Preliminary
Statement hereto. The following is a list
of each of the REMIC 2 Regular
Interests: REMIC 2 Regular Interest LTAA,
REMIC 2 Regular Interest LTIA1, REMIC
2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2
Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest
LTB1, REMIC 2 Regular Interest LTB2,
REMIC 2 Regular Interest LTZZ and REMIC 2
Regular Interest LTP.
"REMIC 3": The segregated pool of assets consisting of all of
the REMIC 2 Regular Interests conveyed in
trust to the Trustee, for the benefit
of the Holders of the Regular Certificates
and the Class R Certificates (in
respect of the Class R-3 Interest),
pursuant to Article II hereunder, and all
amounts deposited therein, with respect to
which a separate REMIC election is to
be made.
"REMIC 4": The segregated pool of assets consisting of the
Class C Interest conveyed in trust to the
Trustee, for the benefit of the
Holders of the Class C Certificates and the
Class R-X Certificates (in respect
of the Class R-4 Interest), pursuant to
Article II hereunder, and all amounts
deposited therein, with respect to which a
separate REMIC election is to be
made.
"REMIC 5": The segregated pool of assets consisting of the
Class P Interest conveyed in trust to the
Trustee, for the benefit of the
Holders of the Class P Certificates and the
Class R-X Certificates (in respect
of the Class R-5 Interest), pursuant to
Article II hereunder, and all amounts
deposited therein, with respect to which a
separate REMIC election is to be
made.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment
conduits which appear at Section
860A through 860G of Subchapter M of
Chapter 1 of the Code, and related
provisions, and regulations and rulings
promulgated thereunder, as the foregoing
may be in effect from time to time.
"REMIC Regular Interests": The REMIC 1 Regular Interests, the
REMIC 2 Regular Interests, the Class C
Interest and the Class P Interest.
"Remittance Report": A report prepared by the Servicer and
delivered to the Trustee pursuant to
Section 4.04.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in
Section 856(d) of the Code.
"REO Account": The account or accounts maintained by the
Servicer in respect of an REO Property
pursuant to Section 3.23.
"REO Disposition": The sale or other disposition of an REO
Property on behalf of the Trust Fund.
"REO Imputed Interest": As to any REO Property, for any
calendar month during which such REO
Property was at any time part of the Trust
Fund, one month's interest at the
applicable Net Mortgage Rate on the Stated
Principal Balance of such REO Property (or,
in the case of the first such
calendar month, of the related Mortgage
Loan if appropriate) as of the Close of
Business on the Distribution Date in such
calendar month.
"REO Principal Amortization": With respect to any REO
Property, for any calendar month, the
excess, if any, of (a) the aggregate of
all amounts received in respect of such REO
Property during such calendar month,
whether in the form of rental income, sale
proceeds (including, without
limitation, that portion of the Termination
Price paid in connection with a
purchase of all of the Mortgage Loans and
REO Properties pursuant to Section
10.01 that is allocable to such REO
Property) or otherwise, net of any portion
of such amounts (i) payable pursuant to
Section 3.23 in respect of the proper
operation, management and maintenance of
such REO Property or (ii) payable or
reimbursable to the Servicer pursuant to
Section 3.23 for unpaid Servicing Fees
in respect of the related Mortgage Loan and
unreimbursed Servicing Advances and
Advances in respect of such REO Property or
the related Mortgage Loan, over (b)
the REO Imputed Interest in respect of such
REO Property for such calendar
month.
"REO Property": A Mortgaged Property acquired by the Servicer
on behalf of the Trust Fund through
foreclosure or deed-in-lieu of foreclosure,
as described in Section 3.23.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibit E attached
hereto.
"Reserve Interest Rate": With respect to any Interest
Determination Date, the rate per annum that
the Trustee determines to be either
(i) the arithmetic mean (rounded upwards if
necessary to the nearest whole
multiple of 1/16 of 1%) of the one-month
United States dollar lending rates
which banks in The City of New York
selected by the Depositor are quoting on the
relevant Interest Determination Date to the
principal London offices of leading
banks in the London interbank market or
(ii) in the event that the Trustee can
determine no such arithmetic mean, in the
case of any Interest Determination
Date after the initial Interest
Determination Date, the lowest one-month United
States dollar lending rate which such New
York banks selected by the Depositor
are quoting on such Interest Determination
Date to leading European banks.
"Residential Dwelling": Any one of the following: (i) a
detached one-family dwelling, (ii) a
detached two- to four-family dwelling,
(iii) a one-family dwelling unit in a
Fannie Mae eligible condominium project,
(iv) a manufactured home, or (v) a detached
one-family dwelling in a planned
unit development, none of which is a
co-operative or mobile home.
"Residual Certificate": The Class R Certificates and the Class
R-X Certificates.
"Residual Interest": The sole class of "residual interests" in
a REMIC within the meaning of Section
860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee,
any director, any vice president, any
assistant vice president, the Secretary,
any assistant secretary, the Treasurer, any
assistant treasurer or any other
officer of the Trustee customarily
performing functions similar to those
performed by any of the above designated
officers and, with respect to a
particular matter, to whom such matter is
referred because of such officer's
knowledge of and familiarity with the
particular subject.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., or its
successor in interest.
"Seller": Greenwich Capital Financial Products, Inc., a
Delaware corporation, in its capacity as
Seller under the Mortgage Loan Purchase
Agreement.
"Senior Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group
I Senior Principal Distribution
Amount and (ii) the Group II Senior
Principal Distribution Amount.
"Servicer": National City Home Loan Services, Inc., a Delaware
corporation, or any successor servicer
appointed as herein provided, in its
capacity as Servicer hereunder.
"Servicer Certification": As defined in Section 3.22(b)
hereof.
"Servicer Event of Termination": One or more of the events
described in Section 7.01.
"Servicer Prepayment Charge Payment Amount": The amounts
payable by the Servicer in respect of any
waived Prepayment Charges pursuant to
Section 2.05 or Section 3.01.
"Servicer Remittance Date": With respect to any Distribution
Date, the third Business Day prior to such
Distribution Date.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.09.
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses
(including reasonable attorneys' fees and
expenses) incurred by the Servicer in the
performance of its servicing
obligations, including, but not limited to,
the cost of (i) the preservation,
restoration, inspection and protection of
the Mortgaged Property, (ii) any
enforcement or judicial proceedings,
including foreclosures, (iii) the
management and liquidation of the REO
Property, (iv) obtaining broker price
opinions, (v) locating missing Mortgage
Loan documents and (vi) compliance with
the obligations under Sections 3.01, 3.09,
3.14, 3.16, and 3.23. Servicing
Advances also include any reasonable
"out-of-pocket" costs and expenses
(including legal fees) incurred by the
Servicer in connection with executing and
recording instruments of satisfaction,
deeds of reconveyance or Assignments of
Mortgage in connection with any foreclosure
in respect of any Mortgage Loan to
the extent not recovered from the related
Mortgagor or otherwise payable under
this Agreement. The Servicer shall not be
required to make any Servicing Advance
that would be a Nonrecoverable Advance.
"Servicing Fee": With respect to each Mortgage Loan and for
any calendar month, an amount equal to one
month's interest (or in the event of
any payment of interest which accompanies a
Principal Prepayment in full made by
the Mortgagor during such calendar month,
interest for the number of days
covered by such payment of interest) at the
Servicing Fee Rate on the same
principal amount on which interest on such
Mortgage Loan accrues for such
calendar month. A portion of such Servicing
Fee may be retained by any
Sub-Servicer as its servicing
compensation.
"Servicing Fee Rate": 0.50% per annum.
"Servicing Officer": Any officer of the Servicer involved in,
or responsible for, the administration and
servicing of Mortgage Loans, whose
name and specimen signature appear on a
list of servicing officers furnished by
the Servicer to the Trustee and the
Depositor on the Closing Date, as such list
may from time to time be amended.
"Servicing Transfer Costs": Shall mean all reasonable costs
and expenses incurred by the Trustee in
connection with the transfer of
servicing from a predecessor servicer,
including, without limitation, any
reasonable costs or expenses associated
with the complete transfer of all
servicing data and the completion,
correction or manipulation of such servicing
data as may be required by the Trustee to
correct any errors or insufficiencies
in the servicing data or otherwise to
enable the Trustee (or any successor
servicer appointed pursuant to Section
7.02) to service the Mortgage Loans
properly and effectively.
"Startup Day": As defined in Section 9.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan:
(a) as of any date of determination up to
but not including the Distribution
Date on which the proceeds, if any, of a
Liquidation Event with respect to such
Mortgage Loan would be distributed, the
outstanding principal balance of such
Mortgage Loan as of the Cut-off Date as
shown in the Mortgage Loan Schedule,
minus the sum of (i) the principal portion
of each Monthly Payment due on a Due
Date subsequent to the Cut-off Date to the
extent received from the Mortgagor or
advanced by the Servicer and distributed
pursuant to Section 4.01 on or before
such date of determination, (ii) all
Principal Prepayments received after the
Cut-off Date to the extent distributed
pursuant to Section 4.01 on or before
such date of determination, (iii) all
Liquidation Proceeds and Insurance
Proceeds to the extent distributed pursuant
to Section 4.01 on or before such
date of determination, and (iv) any
Realized Loss incurred with respect thereto
as a result of a Deficient Valuation made
during or prior to the Due Period for
the most recent Distribution Date
coinciding with or preceding such date of
determination; and (b) as of any date of
determination coinciding with or
subsequent to the Distribution Date on
which the proceeds, if any, of a
Liquidation Event with respect to such
Mortgage Loan would be distributed, zero.
With respect to any REO Property: (a) as of
any date of determination up to but
not including the Distribution Date on
which the proceeds, if any, of a
Liquidation Event with respect to such REO
Property would be distributed, an
amount (not less than zero) equal to the
Stated Principal Balance of the related
Mortgage Loan as of the date on which such
REO Property was acquired on behalf
of the Trust Fund, minus the aggregate
amount of REO Principal Amortization in
respect of such REO Property for all
previously ended calendar months, to the
extent distributed pursuant to Section 4.01
on or before such date of
determination; and (b) as of any date of
determination coinciding with or
subsequent to the Distribution Date on
which the proceeds, if any, of a
Liquidation Event with respect to such REO
Property would be distributed, zero.
"Stepdown Date": The earlier to occur of (i) the Distribution
Date on which the aggregate Certificate
Principal Balance of the Class A
Certificates has been reduced to zero and
(ii) the later to occur of (x) the
Distribution Date occurring in May 2008 and
(y) the first Distribution Date on
which the Credit Enhancement Percentage
(calculated for this purpose only after
taking into account payments of principal
on the Mortgage Loans but prior to
distribution of the Group I Principal
Distribution Amount and the Group II
Principal Distribution Amount to the
Certificates then entitled to distributions
of principal on such Distribution Date) is
equal to or greater than 40.20%.
"Sub-Servicer": Any Person with which the Servicer has entered
into a Sub- Servicing Agreement and which
meets the qualifications of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicing Account": An account established by a
Sub-Servicer which meets the requirements
set forth in Section 3.08 and is
otherwise acceptable to the Servicer.
"Sub-Servicing Agreement": The written contract between the
Servicer and a Sub- Servicer relating to
servicing and administration of certain
Mortgage Loans as provided in Section
3.02.
"Subsequent Cut-off Date": With respect to those Subsequent
Mortgage Loans sold to the Trust Fund
pursuant to a Subsequent Transfer
Instrument, the later of (i) first day of
the month in which the related
Subsequent Transfer Date occurs or (ii) the
date of origination of such Mortgage
Loan.
"Subsequent Group I Mortgage Loan": A Subsequent Mortgage Loan
to be included in Loan Group I.
"Subsequent Group II Mortgage Loan": A Subsequent Mortgage
Loan to be included in Loan Group II.
"Subsequent Mortgage Loan": A Mortgage Loan sold by the
Depositor to the Trust Fund pursuant to
Section 2.08, such Mortgage Loan being
identified on the Mortgage Loan Schedule
attached to a Subsequent Transfer
Instrument.
"Subsequent Mortgage Loan Interest": Any amount constituting a
monthly payment of interest received or
advanced at the Net Mortgage Rate with
respect to (i) a Subsequent Group I
Mortgage Loan during the Due Period relating
to the first three Distribution Dates in
excess of 0.00% per annum and (ii) a
Subsequent Group II Mortgage Loan during
the Due Period relating to the first
three Distribution Dates in excess of 0.00%
per annum. The Subsequent Mortgage
Loan Interest shall be distributable to the
Class C Certificates. The Subsequent
Mortgage Loan Interest shall not be an
asset of any REMIC.
"Subsequent Mortgage Loan Purchase Agreement": The agreement
between the Depositor and the Seller,
regarding the transfer of the Subsequent
Mortgage Loans by the Seller to the
Depositor.
"Subsequent Recoveries": As of any Distribution Date, amounts
received by the Servicer (net of any
related expenses permitted to be reimbursed
pursuant to Section 3.11) specifically
related to a Mortgage Loan that was the
subject of a liquidation or an REO
Disposition prior to the related Prepayment
Period that resulted in a Realized
Loss.
"Subsequent Transfer Date": With respect to each Subsequent
Transfer Instrument, the date on which the
related Subsequent Mortgage Loans are
sold to the Trust Fund.
"Subsequent Transfer Instrument": Each Subsequent Transfer
Instrument, dated as of a Subsequent
Transfer Date, executed by the Trustee and
the Depositor substantially in the form
attached hereto as Exhibit R, by which
Subsequent Mortgage Loans are transferred
to the Trust Fund.
"Substitution Adjustment": As defined in Section 2.03(d)
hereof.
"Tax Matters Person": The tax matters person appointed
pursuant to Section 9.01(e) hereof.
"Tax Returns": The federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate
Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto,
Quarterly Notice to Residual Interest
Holders of the REMIC Taxable Income or Net
Loss Allocation, or any successor
forms, to be filed by the Trustee on behalf
of each REMIC, together with any and
all other information reports or returns
that may be required to be furnished to
the Certificateholders or filed with the
Internal Revenue Service or any other
governmental taxing authority under any
applicable provisions of federal, state
or local tax laws.
"Termination Price": As defined in Section 10.01(a) hereof.
"Terminator": As defined in Section 10.01(a) hereof.
"Trigger Event": A Trigger Event is in effect with respect to
any Distribution Date on or after the
Stepdown Date if:
(a) the Delinquency Percentage exceeds 39.00% of the Credit
Enhancement Percentage; or
(b) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the
related Due Period (reduced by the
aggregate amount of Subsequent Recoveries
received since the Cut-off Date
through the last day of the related Due
Period) divided by the aggregate Stated
Principal Balance of the Initial Mortgage
Loans as of the Cut-off Date and the
Original Pre-Funded Amounts exceeds the
applicable percentages set forth below
with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN
PERCENTAGE
--------------------------------------------------------------------------------
May 2007 through April 2008 1.25% for
the first month, plus an additional
1/12th of 1.50% for each month thereafter.
May 2008 through April 2009 2.75% for
the
first month, plus an additional 1/12th
of 1.75% for each month thereafter.
May 2009 through April 2010 4.50% for
the
first month, plus an additional 1/12th
of 1.25% for each month thereafter.
May 2010 through April 2011 5.75% for
the
first month, plus an additional 1/12th
of 0.50% for each month thereafter.
May 2011 through April 2012 6.25% for
each month.
"Trust": First Franklin Mortgage Loan Trust 2005-FF4, the
trust created hereunder.
"Trust Fund": All of the assets of the Trust, which is the
trust created hereunder consisting of REMIC
1, REMIC 2, REMIC 3, REMIC 4, REMIC
5, the Pre-Funding Accounts, the Interest
Coverage Accounts, any Subsequent
Mortgage Loan Interest, the Cap Contract
and the right to receive any amounts
from the Net WAC Rate Carryover Reserve
Account and any Servicer Prepayment
Charge Payment Amounts.
"Trustee": Deutsche Bank National Trust Company, a national
banking association, or any successor
trustee appointed as herein provided.
"Trustee Compensation": Such compensation, if any, as set
forth in the separate fee schedule between
the Trustee and the Depositor, which
compensation shall be payable to the
Trustee on each Distribution Date pursuant
to Section 8.05 as compensation for all
services rendered by it in the execution
of the trust hereby created and in the
exercise and performance of any of the
powers and duties of the Trustee
hereunder.
"Uncertificated Accrued Interest": With respect to each REMIC
Regular Interest on each Distribution Date,
an amount equal to one month's
interest at the related Uncertificated
REMIC Pass-Through Rate on the
Uncertificated Principal Balance of such
REMIC Regular Interest. In each case,
Uncertificated Accrued Interest will be
reduced by any Net Prepayment Interest
Shortfalls, Relief Act Interest Shortfalls
(allocated to such REMIC Regular
Interests based on their respective
entitlements to interest irrespective of any
Net Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls for such
Distribution Date).
"Uncertificated Principal Balance": With respect to each REMIC
Regular Interest, the amount of such REMIC
Regular Interest outstanding as of
any date of determination. As of the
Closing Date, the Uncertificated Principal
Balance of each REMIC Regular Interest
shall equal the amount set forth in the
Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated
Principal Balance of each REMIC
Regular Interest shall be reduced by all
distributions of principal made on such
REMIC Regular Interest on such Distribution
Date pursuant to Section 4.08 and,
if and to the extent necessary and
appropriate, shall be further reduced on such
Distribution Date by Realized Losses as
provided in Section 4.08, and the
Uncertificated Principal Balance of REMIC 2
Regular Interest LTZZ shall be
increased by interest deferrals as provided
in Section 4.08. With respect to the
Class C Interest as of any date of
determination, an amount equal to the excess,
if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC
2 Regular Interests over (B) the then
aggregate Certificate Principal Balance of
the Adjustable-Rate Certificates and the
Class P Certificates then outstanding.
The Uncertificated Principal Balance of
each REMIC Regular Interest that has an
Uncertificated Principal Balance shall
never be less than zero.
"Uncertificated REMIC Pass-Through Rate": The Uncertificated
REMIC 1 Pass-Through Rate or Uncertificated
REMIC 2 Pass-Through Rate, as
applicable.
"Uncertificated REMIC 1 Pass-Through Rate": With respect to
REMIC 1 Regular Interest LT1 and REMIC 1
Regular Interest LTP, and (i) the first
Distribution Date, the weighted average of
the Adjusted Net Mortgage Rates of
the Initial Group I Mortgage Loans and (ii)
thereafter, the weighted average of
the Adjusted Net Mortgage Rates of the
Group I Mortgage Loans. With respect to
REMIC 1 Regular Interest LT2, and (i) the
first Distribution Date, the weighted
average of the Adjusted Net Mortgage Rates
of the Initial Group II Mortgage
Loans and (ii) thereafter, the weighted
average of the Adjusted Net Mortgage
Rates of the Group II Mortgage Loans. With
respect to REMIC 1 Regular Interest
LT1PF and (i) the first three Distribution
Dates, 0.00% and (ii) thereafter, the
weighted average of the Adjusted Net
Mortgage Rates of the Group I Mortgage
Loans. With respect to REMIC 1 Regular
Interest LT2PF and (i) the first three
Distribution Dates, 0.00% and (ii)
thereafter, the weighted average of the
Adjusted Net Mortgage Rates of the Group II
Mortgage Loans.
"Uncertificated REMIC 2 Pass-Through Rate": For any
Distribution Date and each REMIC 2 Regular
Interest, the weighted average of the
Uncertificated REMIC 1 Pass-Through Rate on
the REMIC 1 Regular Interests,
weighted on the basis of the Uncertificated
Principal Balance of each such REMIC
1 Regular Interest.
"Uninsured Cause": Any cause of damage to a Mortgaged Property
such that the complete restoration of such
property is not fully reimbursable by
the hazard insurance policies required to
be maintained pursuant to Section
3.14.
"United States Person" or "U.S. Person": A citizen or resident
of the United States, a corporation,
partnership (or other entity treated as a
corporation or partnership for United
States federal income tax purposes)
created or organized in, or under the laws
of, the United States, any state
thereof, or the District of Columbia
(except in the case of a partnership, to
the extent provided in Treasury
regulations) provided that, for purposes solely
of the restrictions on the transfer of
Residual Certificates, no partnership or
other entity treated as a partnership for
United States federal income tax
purposes shall be treated as a United
States Person unless all persons that own
an interest in such partnership either
directly or through any entity that is
not a corporation for United States federal
income tax purposes are required by
the applicable operative agreement to be
United States Persons, or an estate the
income of which from sources without the
United States is includible in gross
income for United States federal income tax
purposes regardless of its
connection with the conduct of a trade or
business within the United States, or
a trust if a court within the United States
is able to exercise primary
supervision over the administration of the
trust and one or more United States
persons have authority to control all
substantial decisions of the trust. The
term "United States" shall have the meaning
set forth in Section 7701 of the
Code or successor provisions.
"Unpaid Interest Shortfall Amount": With respect to any Class
of the Adjustable-Rate Certificates and (i)
the first Distribution Date, zero,
and (ii) any Distribution Date after the
first Distribution Date, the amount, if
any, by which (a) the sum of (1) the
Monthly Interest Distributable Amount for
such Class for the immediately preceding
Distribution Date and (2) the
outstanding Unpaid Interest Shortfall
Amount, if any, for such Class for such
preceding Distribution Date exceeds (b) the
aggregate amount distributed on such
Class in respect of interest pursuant to
clause (a) of this definition on such
preceding Distribution Date, plus interest
on the amount of interest due but not
paid on the Certificates of such Class on
such preceding Distribution Date, to
the extent permitted by law, at the
Pass-Through Rate for such Class for the
related Accrual Period.
"Value": With respect to any Mortgaged Property, the lesser of
(i) the lesser of (a) the value thereof as
determined by an appraisal made for
the originator of the Mortgage Loan at the
time of origination of the Mortgage
Loan by an appraiser who met the minimum
requirements of Fannie Mae and Freddie
Mac, and (b) the value thereof as
determined by a review appraisal conducted by
the Originator in the event any such review
appraisal determines an appraised
value ten percent or more lower than the
value thereof as determined by the
appraisal referred to in clause (i)(a)
above and (ii) the purchase price paid
for the related Mortgaged Property by the
Mortgagor with the proceeds of the
Mortgage Loan, provided, however, in the
case of a Refinanced Mortgage Loan,
such value of the Mortgaged Property is
based solely upon the lesser of (1) the
value determined by an appraisal made for
the Originator of such Refinanced
Mortgage Loan at the time of origination of
such Refinanced Mortgage Loan by an
appraiser who met the minimum requirements
of Fannie Mae and Freddie Mac and (2)
the value thereof as determined by a review
appraisal conducted by the
Originator in the event any such review
appraisal determines an appraised value
ten percent or more lower than the value
thereof as determined by the appraisal
referred to in clause (ii)(1) above.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any
Certificate. At all times the
Adjustable-Rate Certificates and the Class
C Certificates shall have 98% of the
Voting Rights (allocated among the Holders
of the Adjustable-Rate Certificates
and the Class C Certificates in proportion
to the then outstanding Certificate
Principal Balances of their respective
Certificates), the Class P Certificates
shall have 1% of the Voting Rights and the
Residual Certificates shall have 1%
of the Voting Rights. The Voting Rights
allocated to any Class of Certificates
(other than the Class P Certificates and
the Residual Certificates) shall be
allocated among all Holders of each such
Class in proportion to the outstanding
Certificate Principal Balance of such
Certificates, and the Voting Rights
allocated to the Class P Certificates and
the Residual Certificates shall be
allocated among all Holders of each such
Class in proportion to such Holders'
respective Percentage Interest; provided,
however that when none of the Regular
Certificates are outstanding, 100% of the
Voting Rights shall be allocated among
Holders of the Residual Certificates in
accordance with such Holders' respective
Percentage Interests in the Certificates of
such Class.
SECTION 1.02 Accounting.
Unless otherwise specified herein, for the purpose of any
definition or calculation, whenever amounts
are required to be netted,
subtracted or added or any distributions
are taken into account such definition
or calculation and any related definitions
or calculations shall be determined
without duplication of such functions.
SECTION 1.03 Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of the Monthly Interest
Distributable Amount for the
Adjustable-Rate Certificates and the Class C
Certificates for any Distribution Date, (1)
the aggregate amount of any Net
Prepayment Interest Shortfalls and any
Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans for any
Distribution Date shall be allocated
first, among the Class C Certificates on a
PRO RATA basis based on, and to the
extent of, one month's interest at the then
applicable Pass-Through Rate on the
Notional Amount of each such Certificate
and, thereafter, among the
Adjustable-Rate Certificates on a PRO RATA
basis based on, and to the extent of,
one month's interest at the then applicable
respective Pass-Through Rate on the
respective Certificate Principal Balance of
each such Certificate and (2) the
aggregate amount of any Realized Losses and
Net WAC Rate Carryover Amounts shall
be allocated among the Class C Certificates
on a PRO RATA basis based on, and to
the extent of, one month's interest at the
then applicable Pass-Through Rate on
the Notional Amount of each such
Certificate.
For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC 1 Regular
Interests for any Distribution Date,
the aggregate amount of any Net Prepayment
Interest Shortfalls and any Relief
Act Interest Shortfalls incurred in respect
of the Mortgage Loans for any
Distribution Date shall be allocated (i)
with respect to the Group I Mortgage
Loans, to REMIC 1 Regular Interest LT1 and
REMIC 1 Regular Interest LT1PF, in
each case to the extent of one month's
interest at the then applicable
respective Uncertificated REMIC 1
Pass-Through Rate on the respective
Uncertificated Principal Balance of each
such Uncertificated REMIC 1 Interest;
provided, however, with respect to the
first three Distribution Dates, such
amounts relating to the Initial Group I
Mortgage Loans shall be allocated to
REMIC 1 Regular Interest LT1 and such
amounts relating to the Subsequent Group I
Mortgage Loans shall be allocated to REMIC
1 Regular Interest LT1PF and (ii)
with respect to the Group II Mortgage
Loans, to REMIC 1 Regular Interest LT2 and
REMIC 1 Regular Interest LT2PF, in each
case to the extent of one month's
interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through
Rate on the respective Uncertificated
Principal Balance of each such
Uncertificated REMIC 1 Interest; provided,
however, with respect to the first
three Distribution Dates, such amounts
relating to the Initial Group II Mortgage
Loans shall be allocated to REMIC 1 Regular
Interest LT2 and such amounts
relating to the Subsequent Group II
Mortgage Loans shall be allocated to REMIC 1
Regular Interest LT2PF.
For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC 2 Regular
Interests for any Distribution Date,
the aggregate amount of any Net Prepayment
Interest Shortfalls and any Relief
Act Interest Shortfalls incurred in respect
of the Mortgage Loans for any
Distribution Date shall be allocated among
REMIC 2 Regular Interest LTAA, REMIC
2 Regular Interest LTIA1, REMIC 2 Regular
Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest
LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2
Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC
2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest
LTB1, REMIC 2 Regular Interest LTB2 and
REMIC 2 Regular Interest LTZZ PRO RATA
based on, and to the extent of, one month's
interest at the then applicable
respective Uncertificated REMIC 2
Pass-Through Rate on the respective
Uncertificated Principal Balance of each
such REMIC 2 Regular Interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION
2.01 Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set
over and otherwise convey in trust to
the Trustee without recourse for the
benefit of the Certificateholders all the
right, title and interest of the Depositor,
including any security interest
therein for the benefit of the Depositor,
in and to (i) each Mortgage Loan
identified on the Mortgage Loan Schedule,
including the related Cut-off Date
Principal Balance, all interest accruing
thereon on and after the Cut-off Date
and all collections in respect of interest
and principal due after the Cut-off
Date; (ii) property which secured each such
Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of
foreclosure; (iii) its interest in
any insurance policies in respect of the
Mortgage Loans; (iv) the rights of the
Depositor under the Mortgage Loan Purchase
Agreement, (v) the right to receive
any amounts payable under the Cap Contract,
(vi) all other assets included or to
be included in the Trust Fund and (vii) all
proceeds of any of the foregoing.
Such assignment includes all interest and
principal due and collected by the
Depositor or the Servicer after the Cut-off
Date with respect to the Mortgage
Loans.
In connection with such transfer and assignment, the
Depositor, does hereby deliver to, and
deposit with the Custodian on behalf of
the Trustee, the following documents or
instruments with respect to each Initial
Mortgage Loan so transferred and assigned,
and in accordance with Section 2.08,
deliver or caused to be delivered to the
Trustee with respect to each Subsequent
Mortgage Loan, the following documents or
instruments (with respect to each
Mortgage Loan, a "Mortgage File"):
(i) the original Mortgage Note, endorsed either (A) in blank,
or (B) in the following form: "Pay to the order of Deutsche
Bank
National Trust Company, as Trustee, without recourse" or with
respect
to any lost
Mortgage Note, an original Lost Note Affidavit stating that
the original mortgage note was lost, misplaced or destroyed,
together
with a copy of the related mortgage note; provided, however, that
such
substitutions of Lost Note Affidavits for original Mortgage Notes
may
occur only with respect to Mortgage Loans, the aggregate Cut-off
Date
Principal Balance of which is less than or equal to 1.00% of the
Pool
Balance as of the Cut-off Date;
(ii) the original Mortgage with evidence of recording thereon,
and the original recorded power of attorney, if the Mortgage
was
executed pursuant to a power of attorney, with evidence of
recording
thereon or, if such Mortgage or power of attorney has been
submitted
for recording but has not been returned from the applicable
public
recording office, has been lost or is not otherwise available, a
copy
of such Mortgage or power of attorney, as the case may be,
certified to
be a true and complete copy of the original submitted for
recording;
(iii) an original Assignment, in form and substance acceptable
for recording. The Mortgage shall be assigned either (A) in blank
or
(B) to "Deutsche Bank National Trust Company, as Trustee,
without
recourse";
(iv) an original copy of any intervening assignment of
Mortgage showing a complete chain of assignments;
(v) the original or a certified copy of lender's title
insurance policy; and
(vi) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any.
The Depositor
herewith also delivers to the Trustee an
executed copy of the Mortgage Loan Purchase
Agreement.
If any of the documents referred to in Section 2.01(ii), (iii)
or (iv) above has as of the Closing Date
(or Subsequent Transfer Date, with
respect to Subsequent Mortgage Loans) been
submitted for recording but either
(x) has not been returned from the
applicable public recording office or (y) has
been lost or such public recording office
has retained the original of such
document, the obligations of the Depositor
to deliver such documents shall be
deemed to be satisfied upon (1) delivery to
the Custodian on behalf of the
Trustee no later than the Closing Date (or
Subsequent Transfer Date, with
respect to Subsequent Mortgage Loans), of a
copy of each such document certified
by the Originator in the case of (x) above
or the applicable public recording
office in the case of (y) above to be a
true and complete copy of the original
that was submitted for recording and (2) if
such copy is certified by the
Originator, delivery to the Custodian on
behalf of the Trustee, promptly upon
receipt thereof of either the original or a
copy of such document certified by
the applicable public recording office to
be a true and complete copy of the
original. If the original lender's title
insurance policy, or a certified copy
thereof, was not delivered pursuant to
Section 2.01(v) above, the Depositor
shall deliver or cause to be delivered to
the Custodian on behalf of the
Trustee, the original or a copy of a
written commitment or interim binder or
preliminary report of title issued by the
title insurance or escrow company,
with the original or a certified copy
thereof to be delivered to the Custodian
on behalf of the Trustee, promptly upon
receipt thereof. The Servicer or the
Depositor shall deliver or cause to be
delivered to the Custodian on behalf of
the Trustee promptly upon receipt thereof
any other documents constituting a
part of a Mortgage File received with
respect to any Mortgage Loan, including,
but not limited to, any original documents
evidencing an assumption or
modification of any Mortgage Loan.
Upon discovery or receipt of notice of any materially
defective document in, or that a document
is missing from, a Mortgage File, the
Trustee (or the Custodian on behalf of the
Trustee) shall notify the Servicer
and the Servicer shall enforce the
obligations of the Seller under the Mortgage
Loan Purchase Agreement to cure such defect
or deliver such missing document to
the Trustee or the Custodian within 120
days. If the Seller does not cure such
defect or deliver such missing document
within such time period, the Servicer
shall enforce the obligations of the Seller
to either repurchase or substitute
for such Mortgage Loan in accordance with
Section 2.03. In connection with the
foregoing, it is understood that the
Trustee (or the Custodian on behalf of the
Trustee) shall have no duty to discover any
such defects except in the course of
performing its review of the Mortgage Files
to the extent set forth herein.
The Trustee shall enforce the obligations of the Seller under
the Mortgage Loan Purchase Agreement to
cause the Assignments which were
delivered in blank to be completed and to
record all Assignments referred to in
Section 2.01(iii) hereof and, to the extent
necessary, in Section 2.01(iv)
hereof, and to deliver such assignments for
recording within 180 days of the
Closing Date. In the event that any such
Assignment is lost or returned
unrecorded because of a defect therein, the
Trustee shall enforce the
obligations of the Seller under the
Mortgage Loan Purchase Agreement to promptly
have a substitute Assignment prepared or
have such defect cured, as the case may
be, and thereafter cause each such
Assignment to be duly recorded.
Notwithstanding the foregoing, for administrative convenience
and facilitation of servicing and to reduce
closing costs, the Assignments of
Mortgage shall not be required to be
submitted for recording (except with
respect to any Mortgage Loan located in
Maryland) unless the Trustee (or the
Custodian on behalf of the Trustee) and the
Depositor receive notice that such
failure to record would result in a
withdrawal or a downgrading by any Rating
Agency of the rating on any Class of
Certificates; provided, however, each
Assignment shall be submitted for recording
in the manner described above, at no
expense to the Trust Fund or Trustee, upon
the earliest to occur of: (i)
reasonable direction by the Holders of
Certificates entitled to at least 25% of
the Voting Rights, (ii) the occurrence of a
Servicer Event of Termination, (iii)
the occurrence of a bankruptcy, insolvency
or foreclosure relating to the
Seller, (iv) the occurrence of a servicing
transfer as described in Section 7.02
hereof, (v) upon receipt of notice from the
Servicer, the occurrence of a
bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the
related Mortgage and (vi) upon receipt of
notice from the Servicer, any Mortgage
Loan that is 90 days or more Delinquent. In
the event of (i) through (vi) set
forth in the immediately preceding
sentence, the Trustee shall enforce the
obligations of the Seller to deliver such
Assignments for recording as provided
above, promptly and in any event within 30
days following receipt of notice by
the Seller. Notwithstanding the foregoing,
if the Seller fails to pay the cost
of recording the Assignments, such expense
will be paid by the Trustee (if it
reasonably believes it will be reimbursed)
and the Trustee shall be reimbursed
for such expenses by the Trust. The
Servicer shall not be deemed to be in breach
of its obligations to service in accordance
with the Servicing Standard by any
delay in its servicing activities resulting
from the failure to submit the
Assignments for recording.
The Servicer shall forward to the Custodian original documents
evidencing an assumption, modification,
consolidation or extension of any
Mortgage Loan entered into in accordance
with this Agreement within two weeks of
their execution; provided, however, that
the Servicer shall provide the
Custodian with a certified true copy of any
such document submitted for
recordation within two weeks of its
execution, and shall provide the original of
any document submitted for recordation or a
copy of such document certified by
the appropriate public recording office to
be a true and complete copy of the
original within 365 days of its submission
for recordation. In the event that
the Servicer cannot provide a copy of such
document certified by the public
recording office within such 365 day
period, the Servicer shall deliver to the
Custodian, within such 365 day period, an
Officers' Certificate of the Servicer
which shall (A) identify the recorded
document, (B) state that the recorded
document has not been delivered to the
Custodian due solely to a delay caused by
the public recording office, (C) state the
amount of time generally required by
the applicable recording office to record
and return a document submitted for
recordation, if known and (D) specify the
date the applicable recorded document
is expected to be delivered to the
Custodian, and, upon receipt of a copy of
such document certified by the public
recording office, the Servicer shall
immediately deliver such document to the
Custodian. In the event the appropriate
public recording office will not certify as
to the accuracy of such document,
the Servicer shall deliver a copy of such
document certified by an officer of
the Servicer to be a true and complete copy
of the original to the Custodian.
The Depositor shall deliver or cause the Seller to deliver (by
regular mail) to the Servicer copies of all
trailing documents required to be
included in the Mortgage File at the same
time the originals or certified copies
thereof are delivered to the Custodian,
such documents including but not limited
to the mortgagee policy of title insurance
and any mortgage loan documents upon
return from the recording office. Except as
provided in Section 3.17, the
Servicer shall not be responsible for any
Custodian fees or other costs incurred
in obtaining such documents or for any such
costs it may incur in connection
with performing its obligations pursuant to
this Agreement.
The parties hereto understand and agree that it is not
intended that any Mortgage Loan be included
in the Trust that is a "High-Cost
Home Loan" as defined by the Homeownership
and Equity Protection Act of 1994 or
any other applicable predatory or abusive
lending laws.
The Depositor hereby directs the Trustee to execute, deliver
and perform its obligations under the Cap
Contract on the Closing Date and
thereafter on behalf of the Holders of the
Adjustable-Rate Certificates. The
Depositor, the Servicer and the Holders of
the Adjustable-Rate Certificates by
their acceptance of such Certificates
acknowledge and agree that the Trustee
shall execute, deliver and perform its
obligations under the Cap Contract and
shall do so solely in its capacity as
Trustee of the Trust Fund and not in its
individual capacity.
SECTION 2.02 Acceptance by Trustee.
Subject to the provisions of Section 2.01 and subject to the
review described below and any exceptions
noted on the exception report
described in the next paragraph below, the
Trustee acknowledges receipt by it or
by a Custodian on its behalf of the
documents referred to in Section 2.01 above
and all other assets included in the
definition of "Trust Fund" and declares
that it (or a Custodian on its behalf)
holds and will hold such documents and
the other documents delivered to it
constituting a Mortgage File, and that it
holds or will hold all such assets and such
other assets included in the
definition of "Trust Fund" in trust for the
exclusive use and benefit of all
present and future Certificateholders.
The Trustee agrees that it or a Custodian on its behalf shall,
for the benefit of the Certificateholders,
review, or that it or a Custodian on
its behalf has reviewed pursuant to Section
2.01 each Mortgage File on or prior
to the Closing Date, with respect to each
Initial Mortgage Loan (or, with
respect to any document delivered after the
Startup Day, within 45 days of
receipt and with respect to any Qualified
Substitute Mortgage Loan, within 45
days after the assignment thereof). The
Trustee further agrees that it or a
Custodian on its behalf shall, for the
benefit of the Certificateholders,
certify to the Depositor and the Servicer
in substantially the form attached
hereto as Exhibit F-1, within 45 days after
the Closing Date, with respect to
each Initial Mortgage Loan, or on or prior
to the Subsequent Transfer Date, with
respect to each Subsequent Mortgage Loan
(or, with respect to any document
delivered after the Startup Day, within 45
days of receipt and with respect to
any Qualified Substitute Mortgage, within
45 days after the assignment thereof)
that, as to each Mortgage Loan listed in
the respective Mortgage Loan Schedule
(other than any Mortgage Loan paid in full
or any Mortgage Loan specifically
identified in the exception report annexed
thereto as not being covered by such
certification), (i) all documents required
to be delivered to it (or a Custodian
on its behalf) pursuant to Section 2.01 of
this Agreement are in its possession,
(ii) such documents have been reviewed by
it (or a Custodian on its behalf) and
have not been mutilated, damaged or torn
and appear on their face to relate to
such Mortgage Loan and (iii) based on its
examination and only as to the
foregoing, the information set forth in the
Mortgage Loan Schedule that
corresponds to items (1) and (3) of the
Mortgage Loan Schedule accurately
reflects information set forth in the
Mortgage File. It is herein acknowledged
that, in conducting such review, the
Trustee (or the Custodian, as applicable)
is under no duty or obligation to inspect,
review or examine any such documents,
instruments, certificates or other papers
to determine that they are genuine,
legally enforceable, valid or binding or
appropriate for the represented purpose
or that they have actually been recorded or
that they are other than what they
purport to be on their face.
Prior to the first anniversary date of this Agreement the
Trustee (or a Custodian on its behalf)
shall deliver to the Depositor and the
Servicer a final certification in the form
annexed hereto as Exhibit F-2, with
any applicable exceptions noted
thereon.
If in the process of reviewing the Mortgage Files and making
or preparing, as the case may be, the
certifications referred to above, the
Trustee (or the Custodian, as applicable)
finds any document or documents
constituting a part of a Mortgage File to
be missing or not to conform with
respect to any characteristics which are
within the scope of the Trustee's (or
the Custodian's, as applicable) review as
provided herein, at the conclusion of
its review, the Trustee shall so notify (or
cause a Custodian on its behalf to
so notify) the Seller, the Depositor and
the Servicer upon receipt by the
Trustee of written notification of such
findings. In addition, upon the
discovery by the Depositor or the Servicer
(or upon receipt by the Trustee of
written notification of such breach) of a
breach of any of the representations
and warranties made by the Seller in the
Mortgage Loan Purchase Agreement in
respect of any Mortgage Loan which
materially adversely affects such Mortgage
Loan or the interests of the related
Certificateholders in such Mortgage Loan,
the party discovering such breach shall
give prompt written notice to the other
parties to this Agreement.
Notwithstanding anything to the contrary in this Agreement, in
no event shall the Trustee be liable to any
party hereto or to any third party
for the performance of any custody-related
functions, including without
limitation with respect to which the
Custodian shall fail to take action on
behalf of the Trustee or, with respect to
the performance of custody-related
functions the Custodian shall fail to
satisfy all the related requirements under
this Agreement or the Custodial
Agreement.
The Depositor and the Trustee intend that the assignment and
transfer herein contemplated constitute a
sale of the Mortgage Loans, the
related Mortgage Notes and the related
documents, conveying good title thereto
free and clear of any liens and
encumbrances, from the Depositor to the Trustee
in trust for the benefit of the
Certificateholders and that such property not be
part of the Depositor's estate or property
of the Depositor in the event of any
insolvency by the Depositor. In the event
that such conveyance is deemed to be,
or to be made as security for, a loan, the
parties intend that the Depositor
shall be deemed to have granted and does
hereby grant to the Trustee a first
priority perfected security interest in all
of the Depositor's right, title and
interest in and to the Mortgage Loans, the
related Mortgage Notes and the
related documents, and that this Agreement
shall constitute a security agreement
under applicable law.
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by
the Seller.
(a) Upon discovery or receipt of written notice of any
materially defective document in, or that a
document is missing from, a Mortgage
File or of the breach by the Seller of any
representation, warranty or covenant
under the Mortgage Loan Purchase Agreement
in respect of any Mortgage Loan which
materially adversely affects the value of
such Mortgage Loan or the interest
therein of the Certificateholders, the
Trustee (or the Custodian on behalf of
the Trustee) shall promptly notify the
Servicer of such defect, missing document
or breach and the Servicer shall request
that the Seller deliver such missing
document or cure such defect or breach
within 120 days from the date the Seller
was notified of such missing document,
defect or breach, and if the Seller does
not deliver such missing document or cure
such defect or breach in all material
respects during such period, the Servicer
shall enforce the Seller's obligation
under the Mortgage Loan Purchase Agreement
and notify the Seller of its
obligation to repurchase such Mortgage Loan
from the Trust Fund at the Purchase
Price on or prior to the Determination Date
following the expiration of such 120
day period (subject to Section 2.03(e));
provided that, in connection with any
such breach that could not reasonably have
been cured within such 120 day
period, if the Seller has commenced to cure
such breach within such 120 day
period, the Seller shall be permitted to
proceed thereafter diligently and
expeditiously to cure the same within the
additional period provided under the
Mortgage Loan Purchase Agreement. The
Purchase Price for the repurchased
Mortgage Loan shall be remitted to the
Servicer for deposit in the Collection
Account, and the Trustee (or the Custodian
on behalf of the Trustee), upon
receipt of written certification from the
Servicer of such deposit, shall
release to the Seller the related Mortgage
File and shall execute and deliver
such instruments of transfer or assignment,
in each case without recourse, as
the Seller shall furnish to it and as shall
be necessary to vest in the Seller
any Mortgage Loan released pursuant hereto
and the Trustee shall have no further
responsibility with regard to such Mortgage
File (it being understood that
neither the Trustee nor the Custodian shall
any responsibility for determining
the sufficiency of such assignment for its
intended purpose). In lieu of
repurchasing any such Mortgage Loan as
provided above, the Seller may cause such
Mortgage Loan to be removed from the Trust
Fund (in which case it shall become a
Deleted Mortgage Loan) and substitute one
or more Qualified Substitute Mortgage
Loans in the manner and subject to the
limitations set forth in Section 2.03(d);
provided, however, the Seller may not
substitute for any Mortgage Loan which
breaches a representation or warranty
regarding abusive or predatory lending
laws. It is understood and agreed that the
obligation of the Seller to cure or
to repurchase (or to substitute for) any
Mortgage Loan as to which a document is
missing, a material defect in a constituent
document exists or as to which such
a breach has occurred and is continuing
shall constitute the sole remedy against
the Seller respecting such omission, defect
or breach available to the Trustee
on behalf of the Certificateholders.
(b) Within 90 days of the earlier of discovery by the
Depositor or receipt of notice by the
Depositor of the breach of any
representation, warranty or covenant of the
Depositor set forth in Section 2.06,
which materially and adversely affects the
interests of the Certificateholders
in any Mortgage Loan, the Depositor shall
cure such breach in all material
respects.
(c) Within 90 days of
the earlier of discovery by the Servicer
or receipt of notice by the Servicer of the
breach of any representation,
warranty or covenant of the Servicer set
forth in Section 2.05 which materially
and adversely affects the interests of the
Certificateholders in any Mortgage
Loan, the Servicer shall cure such breach
in all material respects.
(d) Any substitution of Qualified Substitute Mortgage Loans
for Deleted Mortgage Loans made pursuant to
Section 2.03(a) must be effected
prior to the last Business Day that is
within two years after the Closing Date.
As to any Deleted Mortgage Loan for which
the Seller substitutes a Qualified
Substitute Mortgage Loan or Loans, such
substitution shall be effected by the
Seller delivering to the Trustee (or the
Custodian on behalf of the Trustee),
for such Qualified Substitute Mortgage Loan
or Loans, the Mortgage Note, the
Mortgage and the Assignment to the Trustee
in blank and such other documents and
agreements, with all necessary endorsements
thereon, as are required by Section
2.01, together with an Officers'
Certificate providing that each such Qualified
Substitute Mortgage Loan satisfies the
definition thereof and specifying the
Substitution Adjustment (as described
below), if any, in connection with such
substitution. The Trustee (or a Custodian
on its behalf) shall acknowledge
receipt for such Qualified Substitute
Mortgage Loan or Loans and, within 45 days
thereafter, shall review such documents as
specified in Section 2.02 and deliver
to the Servicer, with respect to such
Qualified Substitute Mortgage Loan or
Loans, a certification substantially in the
form attached hereto as Exhibit F-1,
with any applicable exceptions noted
thereon. Within one year of the date of
substitution, the Trustee (or the Custodian
on its behalf) shall deliver to the
Servicer a certification substantially in
the form of Exhibit F-2 hereto with
respect to such Qualified Substitute
Mortgage Loan or Loans, with any applicable
exceptions noted thereon. Monthly Payments
due with respect to Qualified
Substitute Mortgage Loans in the month of
substitution are not part of the Trust
Fund and will be retained by the Seller.
For the month of substitution,
distributions to Certificateholders will
reflect the collections and recoveries
in respect of such Deleted Mortgage Loan in
the Due Period preceding the month
of substitution and the Seller shall
thereafter be entitled to retain all
amounts subsequently received in respect of
such Deleted Mortgage Loan. The
Servicer shall give or cause to be given
written notice to the Trustee, who
shall forward such notice to the
Certificateholders, that such substitution has
taken place, shall amend the Mortgage Loan
Schedule to reflect the removal of
such Deleted Mortgage Loan from the terms
of this Agreement and the substitution
of the Qualified Substitute Mortgage Loan
or Loans and shall deliver a copy of
such amended Mortgage Loan Schedule to the
Trustee. Upon such substitution by
the Seller such Qualified Substitute
Mortgage Loan or Loans shall constitute
part of the Mortgage Pool and shall be
subject in all respects to the terms of
this Agreement and the Mortgage Loan
Purchase Agreement, including all
applicable representations and warranties
thereof included in the Mortgage Loan
Purchase Agreement as of the date of
substitution.
For any month in which the Seller substitutes one or more
Qualified Substitute Mortgage Loans for one
or more Deleted Mortgage Loans, the
Servicer will determine the amount (the
"Substitution Adjustment"), if any, by
which the aggregate Purchase Price of all
such Deleted Mortgage Loans exceeds
the aggregate, as to each such Qualified
Substitute Mortgage Loan, of the Stated
Principal Balance thereof as of the date of
substitution, together with one
month's interest on such Stated Principal
Balance at the applicable Mortgage
Rate. On the date of such substitution, the
Seller will deliver or cause to be
delivered to the Servicer for deposit in
the Collection Account an amount equal
to the Substitution Adjustment, if any, and
the Trustee (or the Custodian on
behalf of the Trustee), upon receipt of the
related Qualified Substitute
Mortgage Loan or Loans and certification by
the Servicer of such deposit, shall
release to the Seller the related Mortgage
File or Files and shall execute and
deliver such instruments of transfer or
assignment, in each case without
recourse, as the Seller shall deliver to it
and as shall be necessary to vest
therein any Deleted Mortgage Loan released
pursuant hereto.
In addition, the Seller shall obtain at its own expense and
deliver to the Trustee an Opinion of
Counsel to the effect that such
substitution will not cause (a) any federal
tax to be imposed on the Trust Fund,
including without limitation, any federal
tax imposed on "prohibited
transactions" under Section 860F(a)(I) of
the Code or on "contributions after
the startup date" under Section 860G(d)(I)
of the Code or (b) any REMIC to fail
to qualify as a REMIC at any time that any
Certificate is outstanding. If such
Opinion of Counsel can not be delivered,
then such substitution may only be
effected at such time as the required
Opinion of Counsel can be given.
(e) Upon discovery by the Depositor, the Servicer or the
Trustee that any Mortgage Loan does not
constitute a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the
Code, the party discovering such fact
shall within two Business Days give written
notice thereof to the other parties
hereto. In connection therewith, the Seller
or the Depositor, as the case may
be, shall repurchase or, subject to the
limitations set forth in Section
2.03(d), substitute one or more Qualified
Substitute Mortgage Loans for the
affected Mortgage Loan within 90 days of
the earlier of discovery or receipt of
such notice with respect to such affected
Mortgage Loan. Such repurchase or
substitution shall be made (i) by the
Seller if the affected Mortgage Loan's
status as a non-qualified mortgage is or
results from a breach of any
representation, warranty or covenant made
by the Seller under the Mortgage Loan
Purchase Agreement or (ii) the Depositor,
if the affected Mortgage Loan's status
as a non-qualified mortgage is a breach of
any representation or warranty of the
Depositor set forth in Section 2.06, or if
its status as a non-qualified
mortgage is a breach of no representation
or warranty. Any such repurchase or
substitution shall be made in the same
manner as set forth in Section 2.03(a) or
2.03(d), if made by the Seller, or Section
2.03(b), if made by the Depositor.
The Trustee (or the Custodian on behalf of
the Trustee) shall reconvey to the
Depositor or the Seller, as the case may
be, the Mortgage Loan to be released
pursuant hereto in the same manner, and on
the same terms and conditions, as it
would a Mortgage Loan repurchased for
breach of a representation or warranty.
SECTION 2.04 Intentionally Omitted.
SECTION 2.05 Representations, Warranties and Covenants of the
Servicer.
The Servicer hereby represents, warrants and covenants to the
Trustee, for the benefit of each of the
Trustee and the Certificateholders, and
to the Depositor, that as of the Closing
Date or as of such date specifically
provided herein:
(i) The Servicer is duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its formation
and
has all licenses necessary to carry on its business as now
being
conducted and is licensed, qualified and in good standing in the
states
where the Mortgaged Property is located (or is otherwise exempt
under
applicable law from such qualification) if the laws of such
state
require licensing or qualification in order to conduct business of
the
type conducted by the Servicer or to ensure the enforceability
or
validity of each Mortgage Loan; the Servicer has the power and
authority to execute and deliver this Agreement and to perform
in
accordance herewith; the execution, delivery and performance of
this
Agreement (including all instruments of transfer to be
delivered
pursuant to this Agreement) and all documents and instruments
contemplated hereby which are executed and delivered by the
Servicer
and the consummation of the transactions contemplated hereby have
been
duly and validly authorized; this Agreement and all documents
and
instruments contemplated hereby which are executed and delivered by
the
Servicer, assuming due authorization, execution and delivery by
the
other parties hereto, evidences the valid, binding and
enforceable
obligation of the Servicer, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting
the enforcement of creditors' rights generally; and all
requisite
corporate action has been taken by the Servicer to make this
Agreement
and all documents and instruments contemplated hereby which are
executed and delivered by the Servicer valid and binding upon
the
Servicer in accordance with its terms;
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer
and
will not result in the material breach of any term or provision of
the
charter or by-laws of the Servicer or result in the breach of any
term
or provision of, or conflict with or constitute a default under
or
result in the acceleration of any obligation under, any
agreement,
indenture or loan or credit agreement or other instrument to which
the
Servicer or its property is subject, or result in the violation of
any
law, rule, regulation, order, judgment or decree to which the
Servicer
or its property is subject;
(iii) The execution and delivery of this Agreement by the
Servicer and the performance and compliance with its obligations
and
covenants hereunder do not require the consent or approval of
any
governmental authority or, if such consent or approval is required,
it
has been obtained;
(iv) [Reserved];
(v) The Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every
covenant
contained in this Agreement;
(vi) There is no action, suit, proceeding or investigation
pending or, to its knowledge, threatened against the Servicer
that,
either individually or in the aggregate, (A) may result in any
change
in the business, operations, financial condition, properties or
assets
of the Servicer that might prohibit or materially and adversely
affect
the performance by such Servicer of its obligations under, or
the
validity or enforceability of, this Agreement, or (B) may result in
any
material impairment of the right or ability of the Servicer to
carry on
its business substantially as now conducted, or (C) would draw
into
question the validity or enforceability of this Agreement or of
any
action taken or to be taken in connection with the obligations of
the
Servicer contemplated herein, or (D) would otherwise be likely
to
impair materially the ability of the Servicer to perform under
the
terms of this Agreement;
(vii) Neither this Agreement nor any information, certificate
of an officer, statement furnished in writing or report delivered
to
the Trustee by the Servicer in connection with the transactions
contemplated hereby contains any untrue statement of a material
fact;
(viii) The Servicer will not waive any Prepayment Charge
unless it is waived in accordance with the standard set forth
in
Section 3.01; and
(ix) The Servicer has accurately and fully reported, and will
continue to accurately and fully report on a monthly basis, its
borrower credit files to each of the three national credit
repositories
in a timely manner.
It is understood and agreed that the representations,
warranties and covenants set forth in this
Section 2.05 shall survive delivery
of the Mortgage Files to the Trustee (or
the Custodian on behalf of the Trustee)
and shall inure to the benefit of the
Trustee, the Depositor and the
Certificateholders. Upon discovery by any
of the Depositor, the Servicer or the
Trustee of a breach of any of the foregoing
representations, warranties and
covenants which materially and adversely
affects the value of any Mortgage Loan,
Prepayment Charge or the interests therein
of the Certificateholders, the party
discovering such breach shall give prompt
written notice (but in no event later
than two Business Days following such
discovery) to the Servicer and the
Trustee. Notwithstanding the foregoing,
within 90 days of the earlier of
discovery by the Servicer or receipt of
notice by the Servicer of the breach of
the representation or covenant of the
Servicer set forth in Section 2.05(x)
above which materially and adversely
affects the interests of the Holders of the
Class P Certificates in any Prepayment
Charge, the Servicer must pay the amount
of such waived Prepayment Charge, for the
benefit of the Holders of the Class P
Certificates, by depositing such amount
into the Collection Account. The
foregoing shall not, however, limit any
remedies available to the
Certificateholders, the Depositor or the
Trustee on behalf of the
Certificateholders, pursuant to the
Mortgage Loan Purchase Agreement respecting
a breach of the representations, warranties
and covenants of the Originator made
in its capacity as a party to the Mortgage
Loan Purchase Agreement.
SECTION 2.06 Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Trust, the
Servicer and the Trustee on behalf of the
Certificateholders as follows:
(i) This agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor
in
accordance with its terms, except as enforceability may be limited
by
applicable bankruptcy, insolvency, reorganization, moratorium or
other
similar laws now or hereafter in effect affecting the enforcement
of
creditors' rights in general and except as such enforceability may
be
limited by general principles of equity (whether considered in
a
proceeding at law or in equity);
(ii) Immediately prior to the sale and assignment by the
Depositor to the Trustee on behalf of the Trust of each Mortgage
Loan,
the Depositor had good and marketable title to each Mortgage
Loan
(insofar as such title was conveyed to it by the Seller) subject to
no
prior lien, claim, participation interest, mortgage, security
interest,
pledge, charge or other encumbrance or other interest of any
nature;
(iii) As of the Closing Date, the Depositor has transferred
all right, title and interest in the Mortgage Loans to the Trustee
on
behalf of the Trust;
(iv) The Depositor has not transferred the Mortgage Loans to
the Trustee on behalf of the Trust with any intent to hinder, delay
or
defraud any of its creditors;
(v) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware,
with full corporate power and authority to own its assets and
conduct
its business as presently being conducted;
(vi) The Depositor is not in violation of its articles of
incorporation or by-laws or in default in the performance or
observance
of any material obligation, agreement, covenant or condition
contained
in any contract, indenture, mortgage, loan agreement, note, lease
or
other instrument to which the Depositor is a party or by which it
or
its properties may be bound, which default might result in any
material
adverse changes in the financial condition, earnings, affairs
or
business of the Depositor or which might materially and
adversely
affect the properties or assets, taken as a whole, of the
Depositor;
(vii) The execution, delivery and performance of this
Agreement by the Depositor, and the consummation of the
transactions
contemplated thereby, do not and will not result in a material
breach
or violation of any of the terms or provisions of, or, to the
knowledge
of the Depositor, constitute a default under, any indenture,
mortgage,
deed of trust, loan agreement or other agreement or instrument to
which
the Depositor is a party or by which the Depositor is bound or to
which
any of the property or assets of the Depositor is subject, nor
will
such actions result in any violation of the provisions of the
articles
of incorporation or by-laws of the Depositor or, to the best of
the
Depositor's knowledge without independent investigation, any
statute or
any order, rule or regulation of any court or governmental agency
or
body having jurisdiction over the Depositor or any of its
properties or
assets (except for such conflicts, breaches, violations and
defaults as
would not have a material adverse effect on the ability of the
Depositor to perform its obligations under this Agreement);
(viii) To the best of the Depositor's knowledge without any
independent investigation, no consent, approval, authorization,
order,
registration or qualification of or with any court or
governmental
agency or body of the United States or any other jurisdiction
is
required for the issuance of the Certificates, or the consummation
by
the Depositor of the other transactions contemplated by this
Agreement,
except such consents, approvals, authorizations, registrations
or
qualifications as (a) may be required under State securities or
Blue
Sky laws, (b) have been previously obtained or (c) the failure of
which
to obtain would not have a material adverse effect on the
performance
by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement; and
(ix) There are no actions, proceedings or investigations
pending before or, to the Depositor's knowledge, threatened by
any
court, administrative agency or other tribunal to which the
Depositor
is a party or of which any of its properties is the subject: (a)
which
if determined adversely to the Depositor would have a material
adverse
effect on the business, results of operations or financial
condition of
the Depositor; (b) asserting the invalidity of this Agreement or
the
Certificates; (c) seeking to prevent the issuance of the
Certificates
or the consummation by the Depositor of any of the transactions
contemplated by this Agreement, as the case may be; or (d) which
might
materially and adversely affect the performance by the Depositor of
its
obligations under, or the validity or enforceability of, this
Agreement.
SECTION 2.07 Issuance of Certificates.
The Trustee (or Custodian on behalf of the Trustee)
acknowledges the assignment to it of the
Mortgage Loans and the delivery to it
(or to a Custodian on its behalf) of the
Mortgage Files, subject to the
provisions of Sections 2.01 and 2.02,
together with the assignment to it of all
other assets included in the Trust Fund,
receipt of which is hereby
acknowledged. Concurrently with such
assignment and delivery and in exchange
therefor, the Trustee, pursuant to the
written request of the Depositor executed
by an officer of the Depositor, has
executed, authenticated and delivered to or
upon the order of the Depositor, the
Certificates in authorized denominations.
The interests evidenced by the Certificates
constitute the entire beneficial
ownership interest in the Trust Fund.
SECTION 2.08 Conveyance of Subsequent Mortgage Loans.
(a) Subject to the conditions set forth in paragraph (b) below
in consideration of the Trustee's delivery
on the Subsequent Transfer Dates to
or upon the order of the Depositor of all
or a portion of the balance of funds
in the Pre-Funding Accounts, the Depositor
shall on any Subsequent Transfer Date
sell, transfer, assign, set over and convey
without recourse to the Trust Fund
but subject to the other terms and
provisions of this Agreement all of the
right, title and interest of the Depositor
in and to (i) the Subsequent Mortgage
Loans identified on the Mortgage Loan
Schedule attached to the related
Subsequent Transfer Instrument delivered by
the Depositor on such Subsequent
Transfer Date, (ii) all interest accruing
thereon on and after the Subsequent
Cut-off Date and all collections in respect
of interest and principal due after
the Subsequent Cut-off Date and (iii) all
items with respect to such Subsequent
Mortgage Loans to be delivered pursuant to
Section 2.01 and the other items in
the related Mortgage Files; provided,
however, that the Depositor reserves and
retains all right, title and interest in
and to principal received and interest
accruing on the Subsequent Mortgage Loans
prior to the related Subsequent
Cut-off Date. The transfer to the Trustee
for deposit in the Mortgage Pool by
the Depositor of the Subsequent Mortgage
Loans identified on the Mortgage Loan
Schedule shall be absolute and is intended
by the Depositor, the Servicer, the
Trustee and the Certificateholders to
constitute and to be treated as a sale of
the Subsequent Mortgage Loans by the
Depositor to the Trust Fund. The related
Mortgage File for each Subsequent Mortgage
Loan shall be delivered to the
Custodian (on behalf of the Trustee) at
least three Business Days prior to the
related Subsequent Transfer Date.
The purchase price paid by the Trustee from amounts released
from the Group I Pre-Funding Account or the
Group II Pre-Funding Account, as
applicable, shall be one-hundred percent
(100%) of the aggregate Stated
Principal Balance of the related Subsequent
Mortgage Loans so transferred (as
identified on the Mortgage Loan Schedule
provided by the Depositor). This
Agreement shall constitute a fixed-price
purchase contract in accordance with
Section 860G(a)(3)(A)(ii) of the Code.
(b) The Depositor shall transfer to the Trustee for deposit in
the Mortgage Pool the Subsequent Mortgage
Loans and the other property and
rights related thereto as described in
paragraph (a) above, and the Trustee
shall release funds from the Group I
Pre-Funding Account or the Group II
Pre-Funding Account, as applicable, only
upon the satisfaction of each of the
following conditions on or prior to the
related Subsequent Transfer Date:
(i) the Depositor shall have provided the Trustee and the
Rating Agencies with a timely Addition Notice and shall have
provided
any information reasonably requested by the Trustee with respect to
the
Subsequent Mortgage Loans;
(ii) the Depositor shall have delivered to the Trustee a duly
executed Subsequent Transfer Instrument, which shall include a
Mortgage
Loan Schedule listing the Subsequent Mortgage Loans, and the
Seller
shall have delivered a computer file acceptable to the Trustee
containing such Mortgage Loan Schedule to the Trustee at least
three
Business Days prior to the related Subsequent Transfer Date;
(iii) as of each Subsequent Transfer Date, as evidenced by
delivery of the Subsequent Transfer Instrument, substantially in
the
form of
Exhibit R, the Depositor shall not be insolvent nor shall it
have been rendered insolvent by such transfer nor shall it be aware
of
any pending insolvency;
(iv) such sale and transfer shall not result in a material
adverse tax consequence to the Trust Fund or the
Certificateholders;
(v) the Funding Period shall not have terminated;
(vi) the Depositor shall not have selected the Subsequent
Mortgage Loans in a manner that it believed to be adverse to
the
interests of the Certificateholders;
(vii) the Depositor shall have delivered to the Trustee a
Subsequent Transfer Instrument confirming the satisfaction of
the
conditions
precedent specified in this Section 2.08 and, pursuant to
the Subsequent Transfer Instrument, assigned to the Trustee
without
recourse for the benefit of the Certificateholders all the right,
title
and interest of the Depositor, in, to and under the Subsequent
Mortgage
Loan Purchase Agreement, to the extent of the Subsequent
Mortgage
Loans; and
(viii) the Depositor shall have delivered to the Trustee an
Opinion of Counsel addressed to the Trustee and the Rating
Agencies
with respect to the transfer of the Subsequent Mortgage Loans
substantially in the form of the Opinion of Counsel delivered to
the
Trustee on the Closing Date regarding the true sale of the
Subsequent
Mortgage Loans.
(c) The obligation of the Trust Fund to purchase a Subsequent
Mortgage Loan on any Subsequent Transfer
Date is subject to the satisfaction of
the conditions set forth in the immediately
preceding paragraph and the accuracy
of the following representations and
warranties with respect to each such
Subsequent Mortgage Loan determined as of
the applicable Subsequent Cut-off
Date: (i) such Subsequent Mortgage Loan may
not be 30 or more days delinquent as
of the last day of the month preceding the
Subsequent Cut-off Date; (ii) the
original term to stated maturity of such
Subsequent Mortgage Loan will not be
less than 180 months and will not exceed
360 months; (iii) the Subsequent
Mortgage Loan may not provide for negative
amortization; (iv) such Subsequent
Mortgage Loan will not have a loan-to-value
ratio greater than 103.00%; (v) such
Subsequent Mortgage Loans will have, as of
the Subsequent Cut-off Date, a
weighted average term since origination not
in excess of 3 months; (vi) such
Subsequent Mortgage Loan, if a Fixed Rate
Mortgage Loan, shall have a Mortgage
Rate that is not less than 4.750% per annum
or greater than 10.250% per annum;
(vii) such Subsequent Mortgage Loan must
have a first payment date occurring on
or before August 1, 2005 and will include
30 days' interest thereon; (viii) if
the Subsequent Mortgage Loan is an
Adjustable-Rate Mortgage Loan, the Subsequent
Mortgage Loan will have a Gross Margin not
less than 2.750% per annum; (ix) if
the Subsequent Mortgage Loan is an
Adjustable-Rate Mortgage Loan, the Subsequent
Mortgage Loan will have a Maximum Mortgage
Rate not less than 10.000% per annum;
(x) if the Subsequent Mortgage Loan is an
Adjustable-Rate Mortgage Loan, the
Subsequent Mortgage Loan will have a
Minimum Mortgage Rate not less than 4.000%
per annum and (xi) such Subsequent Mortgage
Loan shall have been underwritten in
accordance with the criteria set forth
under "First Franklin Financial
Corporation--Underwriting Standards" in the
Prospectus Supplement.
(d) Following the purchase of any Subsequent Group I Mortgage
Loan by the Trust, the Group I Mortgage
Loans (including such Subsequent Group I
Mortgage Loans) will: (i) have a weighted
average original term to stated
maturity of not more than 360 months; (ii)
have a weighted average Mortgage Rate
of not less than 6.000% per annum and not
more than 7.500% per annum; (iii) have
a weighted average Loan-to-Value Ratio of
not more than 85.00%; (iv) have no
Mortgage Loan with a Stated Principal
Balance at origination which does not
conform to Fannie Mae and Freddie Mac loan
limits; (v) will consist of Mortgage
Loans with Prepayment Charges representing
no less than 75.00% by aggregate
Stated Principal Balance of the Group I
Mortgage Loans; (vi) have a weighted
average FICO score of not less than 630 and
(vii) have no more than 13.00% of
Fixed-Rate Mortgage Loans by aggregate
Stated Principal Balance of the Group I
Mortgage Loans. In addition, the
Adjustable-Rate Group I Mortgage Loans will
have a weighted average Gross Margin not
less than 5.00% per annum. For purposes
of the calculations described in this
paragraph, percentages of the Group I
Mortgage Loans will be based on the Stated
Principal Balance of the Initial
Group I Mortgage Loans as of the Cut-off
Date and the Stated Principal Balance
of the Subsequent Group I Mortgage Loans as
of the related Subsequent Cut-off
Date.
Following the purchase of any Subsequent Group II Mortgage
Loan by the Trust, the Group II Mortgage
Loans (including such Subsequent Group
II Mortgage Loans) will: (i) have a
weighted average original term to stated
maturity of not more than 360 months; (ii)
have a weighted average Mortgage Rate
of not less than 6.000% per annum and not
more than 7.500% per annum; (iii) have
a weighted average Loan-to-Value Ratio of
not more than 103.00%; (iv) have no
Mortgage Loan with a principal balance in
excess of $1,200,000; (v) will consist
of Mortgage Loans with Prepayment Charges
representing no less than 75.00% by
aggregate Stated Principal Balance of the
Group II Mortgage Loans; (vi) have a
weighted average FICO score of not less
than 630 and (vii) have no more than
13.00% of Fixed-Rate Mortgage Loans by
aggregate Stated Principal Balance of the
Group II Mortgage Loans. In addition, the
Adjustable-Rate Group II Mortgage
Loans will have a weighted average Gross
Margin not less than 5.000% per annum.
For purposes of the calculations described
in this paragraph, percentages of the
Group II Mortgage Loans will be based on
the Stated Principal Balance of the
Initial Group II Mortgage Loans as of the
Cut-off Date and the Stated Principal
Balance of the Subsequent Group II Mortgage
Loans as of the related Subsequent
Cut-off Date.
(e) Notwithstanding the foregoing, any Subsequent Mortgage
Loan may be rejected by any Rating Agency
if the inclusion of any such
Subsequent Mortgage Loan would adversely
affect the ratings of any Class of
Certificates. At least one Business Day
prior to the Subsequent Transfer Date,
each Rating Agency shall notify the Trustee
as to which Subsequent Mortgage
Loans, if any, shall not be included in the
transfer on the Subsequent Transfer
Date; provided, however, that the Seller
shall have delivered to each Rating
Agency at least three Business Days prior
to such Subsequent Transfer Date a
computer file acceptable to each Rating
Agency describing the characteristics
specified in paragraphs (c) and (d)
above.
SECTION 2.09 Conveyance of REMIC Regular Interests and
Acceptance of REMIC 1, REMIC 2, REMIC 3, REMIC 4
and REMIC 5 by the Trustee; Issuance of
Certificates.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer,
assign, set over and otherwise convey in
trust to the Trustee without recourse all
the right, title and interest of the
Depositor in and to the assets described in
the definition of REMIC 1 for the
benefit of the holders of the REMIC 1
Regular Interests (which are
uncertificated) and the Class R
Certificates (in respect of the Class R-1
Interest). The Trustee acknowledges receipt
of the assets described in the
definition of REMIC 1 and declares that it
holds and will hold the same in trust
for the exclusive use and benefit of the
holders of the REMIC 1 Regular
Interests and the Class R Certificates (in
respect of the Class R-1 Interest).
The interests evidenced by the Class R-1
Interest, together with the REMIC 1
Regular Interests, constitute the entire
beneficial ownership interest in REMIC
1.
(b) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer,
assign, set over and otherwise convey in
trust to the Trustee without recourse all
the right, title and interest of the
Depositor in and to the REMIC 1 Regular
Interests for the benefit of the holders
of the REMIC 2 Regular Interests (which are
uncertificated) and the Class R
Certificates (in respect of the Class R-2
Interest). The Trustee acknowledges
receipt of the REMIC 1 Regular Interests
and declares that it holds and will
hold the same in trust for the exclusive
use and benefit of the holders of the
REMIC 2 Regular Interests and the Class R
Certificates (in respect of the Class
R-2 Interest). The interests evidenced by
the Class R-2 Interest, together with
the REMIC 2 Regular Interests, constitute
the entire beneficial ownership
interest in REMIC 2.
(c) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer,
assign, set over and otherwise convey in
trust to the Trustee without recourse all
the right, title and interest of the
Depositor in and to the REMIC 2 Regular
Interests (which are uncertificated) for
the benefit of the Holders of the Regular
Certificates and the Class R
Certificates (in respect of the Class R-3
Interest). The Trustee acknowledges
receipt of the REMIC 2 Regular Interests
and declares that it holds and will
hold the same in trust for the exclusive
use and benefit of the Holders of the
Regular Certificates and the Class R
Certificates (in respect of the Class R-3
Interest). The interests evidenced by the
Class R-3 Interest, together with the
Regular Certificates (other than the Class
C Certificates and the Class P
Certificates), the Class C Interest and the
Class P Interest, constitute the
entire beneficial ownership interest in
REMIC 3.
(d) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer,
assign, set over and otherwise convey in
trust to the Trustee without rec
