Exhibit 4.1
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
HOME LOAN SERVICES, INC.,
Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2007
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FIRST FRANKLIN MORTGAGE LOAN TRUST,
MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-FFC
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 9
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.. 58
SECTION 2.01. Conveyance of Mortgage Loans........................... 58
SECTION 2.02. Acceptance by the Trustee of the Mortgage Loans........ 60
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor.............................................. 62
SECTION 2.04. Representations and Warranties of the Servicer......... 65
SECTION 2.05. Substitutions and Repurchases of Mortgage Loans that
are not "Qualified Mortgages".......................... 67
SECTION 2.06. Authentication and Delivery of Certificates............ 67
SECTION 2.07. REMIC Elections........................................ 67
SECTION 2.08. [RESERVED]............................................. 72
SECTION 2.09. Covenants of the Servicer.............................. 72
SECTION 2.10. [RESERVED]............................................. 72
SECTION 2.11. Permitted Activities of the Issuing Entity............. 72
SECTION 2.12. Qualifying Special Purpose Entity...................... 72
SECTION 2.13. Depositor Notification of NIM Notes.................... 72
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............... 72
SECTION 3.01. Servicer to Service Mortgage Loans..................... 73
SECTION 3.02. Servicing and Subservicing; Enforcement of the
Obligations of Servicer................................ 74
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of
the Servicer........................................... 75
SECTION 3.04. Trustee to Act as Servicer............................. 75
SECTION 3.05. Collection of Mortgage Loan Payments; Collection
Account; Certificate Account........................... 76
SECTION 3.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts........................................ 80
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans........................... 80
SECTION 3.08. Permitted Withdrawals from the Collection Account and
Certificate Account.................................... 80
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SECTION 3.09. [RESERVED]............................................. 83
SECTION 3.10. Maintenance of Hazard Insurance........................ 83
SECTION 3.11. Enforcement of Due-On-Sale Clauses; Assumption
Agreements............................................. 84
SECTION 3.12. Realization Upon Defaulted Mortgage Loans;
Determination of Excess Proceeds; Special Loss
Mitigation............................................. 84
SECTION 3.13. Trustee to Cooperate; Release of Mortgage Files........ 88
SECTION 3.14. Documents, Records and Funds in Possession of Servicer
to be Held for the Trustee............................. 90
SECTION 3.15. Servicing Compensation................................. 90
SECTION 3.16. Access to Certain Documentation........................ 90
SECTION 3.17. Annual Statement as to Compliance...................... 91
SECTION 3.18. Annual Independent Public Accountants' Servicing
Statement; Financial Statements........................ 91
SECTION 3.19. Subordination of Liens................................. 94
SECTION 3.20. Periodic Filings....................................... 94
SECTION 3.21. Indemnification by Trustee............................. 97
SECTION 3.22. Indemnification by Servicer............................ 98
SECTION 3.23. Prepayment Charge Reporting Requirements............... 98
SECTION 3.24. Information to the Trustee............................. 99
SECTION 3.25. Indemnification........................................ 99
SECTION 3.26. Solicitation........................................... 100
SECTION 3.27. High Cost Mortgage Loans............................... 100
ARTICLE IV DISTRIBUTIONS................................................. 100
SECTION 4.01. Advances............................................... 100
SECTION 4.02. Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls......................... 101
SECTION 4.03. Distributions on the REMIC Interests................... 102
SECTION 4.04. Distributions.......................................... 102
SECTION 4.05. Monthly Statements to Certificateholders............... [_]
SECTION 4.06. Class A Certificate Guaranty Insurance Policy Matters.. [_]
SECTION 4.07. Effects of Payments by the Class A Certificate
Insurer................................................ 113
ARTICLE V THE CERTIFICATES............................................... 117
SECTION 5.01. The Certificates....................................... 117
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SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates............................... 119
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...... 123
SECTION 5.04. Persons Deemed Owners.................................. 123
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses.............................................. 123
SECTION 5.06. Book-Entry Certificates................................ 124
SECTION 5.07. Notices to Depository.................................. 125
SECTION 5.08. Definitive Certificates................................ 125
SECTION 5.09. Maintenance of Office or Agency........................ 125
SECTION 5.10. Authenticating Agents.................................. 126
ARTICLE VI THE DEPOSITOR AND THE SERVICER................................ 126
SECTION 6.01. Respective Liabilities of the Depositor and
the Servicer........................................... 126
SECTION 6.02. Merger or Consolidation of the Depositor or
the Servicer........................................... 127
SECTION 6.03. Limitation on Liability of the Depositor,
the Servicer and Others................................ 127
SECTION 6.04. Limitation on Resignation of Servicer.................. 128
SECTION 6.05. Errors and Omissions Insurance; Fidelity Bonds......... 128
ARTICLE VII DEFAULT; TERMINATION OF SERVICER............................. 129
SECTION 7.01. Events of Default...................................... 129
SECTION 7.02. Trustee to Act; Appointment of Successor............... 130
SECTION 7.03. Notification to Certificateholders..................... 131
ARTICLE VIII CONCERNING THE TRUSTEE...................................... 131
SECTION 8.01. Duties of the Trustee.................................. 131
SECTION 8.02. Certain Matters Affecting the Trustee.................. 133
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.. 134
SECTION 8.04. Trustee May Own Certificates........................... 134
SECTION 8.05. Trustee's Fees and Expenses............................ 135
SECTION 8.06. Indemnification and Expenses of Trustee................ 135
SECTION 8.07. Eligibility Requirements for Trustee................... 136
SECTION 8.08. Resignation and Removal of Trustee..................... 136
SECTION 8.09. Successor Trustee...................................... 137
SECTION 8.10. Merger or Consolidation of Trustee..................... 137
SECTION 8.11. Appointment of Co-Trustee or Separate Trustee.......... 138
SECTION 8.12. Tax Matters............................................ 139
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ARTICLE IX TERMINATION................................................... 141
SECTION 9.01. Termination upon Liquidation or Repurchase of all
Mortgage Loans......................................... 141
SECTION 9.02. Final Distribution on the Certificates................. 142
SECTION 9.03. Additional Termination Requirements.................... 143
ARTICLE X MISCELLANEOUS PROVISIONS....................................... 145
SECTION 10.01. Amendment.............................................. 145
SECTION 10.02. Counterparts........................................... 147
SECTION 10.03. Governing Law.......................................... 147
SECTION 10.04. Intention of Parties................................... 147
SECTION 10.05. Notices................................................ 147
SECTION 10.06. Severability of Provisions............................. 148
SECTION 10.07. Assignment; Sales; Advance Facilities.................. 148
SECTION 10.08. Limitation on Rights of Certificateholders............. 150
SECTION 10.09. Inspection and Audit Rights............................ 150
SECTION 10.10. Certificates Nonassessable and Fully Paid.............. 151
SECTION 10.11. Compliance with Regulation AB.......................... 151
SECTION 10.12. Third Party Rights..................................... 151
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EXHIBIT A FORMS OF CERTIFICATES
EXHIBIT B MORTGAGE LOAN SCHEDULE
EXHIBIT C [RESERVED]
EXHIBIT D FORM OF TRUSTEE CERTIFICATION
EXHIBIT E-1 FORM OF TRANSFEREE'S LETTER AND AFFIDAVIT
EXHIBIT E-2 FORM OF TRANSFEROR'S AFFIDAVIT
EXHIBIT F FORM OF TRANSFEROR CERTIFICATE
EXHIBIT G FORM OF INVESTMENT LETTER (ACCREDITED INVESTOR)
EXHIBIT H FORM OF RULE 144A INVESTMENT LETTER
(QUALIFIED INSTITUTIONAL BUYER)
EXHIBIT I FORM OF REQUEST FOR RELEASE
EXHIBIT J [RESERVED]
EXHIBIT K FORM OF BACK-UP CERTIFICATION OF TRUSTEE
EXHIBIT L FORM OF OFFICER'S CERTIFICATE OF SERVICER
EXHIBIT M [RESERVED]
EXHIBIT N [RESERVED]
EXHIBIT O FORM OF TRANSFEROR REPRESENTATION LETTER FOR TRANSFER TO
REGULATION S BOOK-ENTRY CERTIFICATE FROM A HOLDER OF A RULE 144A
BOOK-ENTRY CERTIFICATE OR DEFINITIVE CERTIFICATE
EXHIBIT P FORM OF TRANSFEROR REPRESENTATION LETTER FOR TRANSFER PURSUANT TO
RULE 144A FROM A HOLDER OF A REGULATION S BOOK-ENTRY CERTIFICATE
OR DEFINITIVE CERTIFICATE
EXHIBIT Q [RESERVED]
EXHIBIT R FORM OF ASSESSMENT OF COMPLIANCE
EXHIBIT S SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
EXHIBIT T FORM OF XXXXXXXX-XXXXX CERTIFICATIONS
EXHIBIT U FORM OF ITEM 1123 CERTIFICATION OF SERVICER
EXHIBIT V FORM OF DELINQUENCY REPORT
EXHIBIT W-1 FORM OF CLASS A CERTIFICATE GUARANTY INSURANCE POLICY
EXHIBIT W-2 FORM OF INSURANCE AGREEMENT
SCHEDULE X
SCHEDULE Y
SCHEDULE Z
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POOLING AND SERVICING AGREEMENT, dated as of May 1, 2007 (the "Agreement"),
among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a Delaware corporation, as
depositor (the "Depositor"), HOME LOAN SERVICES, INC., a Nevada corporation, as
servicer (the "Servicer"), and LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, as trustee (the "Trustee").
The Depositor is the owner of the Trust Fund that is hereby conveyed to the
Trustee in return for the Certificates. The Trust Fund for federal income tax
purposes will consist of (i) two real estate mortgage investment conduits, (ii)
the right to receive payments distributable to the Class P Certificates pursuant
to Section 4.04(b)(i) hereof and (iii) the grantor trusts described in Section
2.07 hereof. The Lower Tier REMIC will consist of all of the assets constituting
the Trust Fund (other than the assets described in clauses (ii) and (iii) above
and other than the Lower Tier REMIC Regular Interests) and will be evidenced by
the Lower Tier REMIC Regular Interests (which will be uncertificated and will
represent the "regular interests" in the Lower Tier REMIC) and the Class LTR
Interest as the single "residual interest" in the Lower Tier REMIC. The Trustee
will hold the Lower Tier REMIC Regular Interests. The Upper Tier REMIC will
consist of the Lower Tier REMIC Regular Interests and the Class A Certificate
Guaranty Insurance Policy and will be evidenced by the REMIC Regular Interests
(which will represent the "regular interests" in the Upper Tier REMIC) and the
Residual Interest as the single "residual interest" in the Upper Tier REMIC. The
Class R Certificate will represent beneficial ownership of the Class LTR
Interest and the Residual Interest. The "latest possible maturity date" for
federal income tax purposes of all interests created hereby will be the Latest
Possible Maturity Date. The characterization of the Class A Certificate Guaranty
Insurance Policy as part of the Upper Tier REMIC is for federal income tax
purposes only, and notwithstanding such characterization, the Class A
Certificate Guaranty Insurance Policy shall not be included in, nor constitute
the property of, the Trust Fund or any sub-trust or sub-division thereof.
All covenants and agreements made by the Sponsor in the MLML Purchase
Agreement, FFFC in the FFFC Purchase Agreement and by the Depositor and the
Trustee herein with respect to the Mortgage Loans and the other property
constituting the Trust Fund are for the benefit of the Holders from time to time
of the Certificates, the Class A Certificate Insurer and, to the extent provided
herein, the NIMs Insurer.
THE LOWER TIER REMIC
The following table sets forth the designations, initial principal balances,
interest rates, Classes of Corresponding Certificates and related Mortgage Group
for each interest in the Lower Tier REMIC:
Class(es) of Corresponding
Certificates or Related Mortgage
Class Initial Principal Balance Interest Rate Group
----- ------------------------- ------------- --------------------------------
LTA-1 (1) (8) A-1, R
LTA-2A (1) (8) A-2A
LTA-2B (1) (8) X-0X
XXX-0 (1) (8) M-1
LTM-2 (1) (8) M-2
LTM-3 (1) (8) M-3
LTM-4 (1) (8) M-4
LTB-1 (1) (8) B-1
LTB-2 (1) (8) B-2
LTB-3 (1) (8) B-3
LTB-4 (1) (8) B-4
LTIX (2) (8) N/A
LTII1A (3) (8) Group One
LTII1B (4) (9) Group One
LTII2A (5) (8) Group Two
LTII2B (6) (10) Group Two
LTIIX (7) (8) N/A
LTR (11) (11) N/A
(1) The initial principal balance of each of these Lower Tier REMIC Regular
Interests shall equal 1/4 of the initial Certificate Principal Balance of
its Corresponding Certificates.
(2) The initial principal balance of the Class LTIX Interest shall equal the
excess of (i) 50% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans over (ii) the initial principal balance of the Lower Tier
REMIC I Marker Interests.
(3) The initial principal balance of the Class LTII1A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group One Mortgage Loans over (ii) the aggregate of the initial
Certificate Principal Balances of Certificate Group One.
(4) The initial principal balance of the Class LTII1B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group One
Mortgage Loans.
(5) The initial principal balance of the Class LTII2A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group Two Mortgage Loans over (ii) the aggregate of the initial
Certificate Principal Balances of Certificate Group Two.
(6) The initial principal balance of the Class LTII2B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group Two
Mortgage Loans.
(7) The initial principal balance of the Class LTIIX Interest shall equal the
excess of (i) 50% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans over (ii) the initial principal balance of the Lower Tier
REMIC II Marker Interests.
(8) For each Distribution Date, the interest rate for each of the Lower Tier
REMIC Regular Interests (other than the Class LTII1B and the Class LTII2B
Interests) shall be a per annum rate (but not less than zero) equal to the
product of (i) the weighted average Net Mortgage Rate for the Mortgage
Loans calculated based on the respective Net Mortgage Rates and the Stated
Principal Balances of the Mortgage Loans as of the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, as of
the Cut-off Date) and (ii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual
Period for the LIBOR Certificates.
(9) For each Distribution Date, the interest rate for the Class LTII1B Interest
shall be a per annum rate equal to the product of (i) the Group One Net WAC
for such Distribution Date and (ii) a fraction the numerator of which is 30
and the denominator of which is the actual number of days in the Accrual
Period for the LIBOR Certificates.
(10) For each Distribution Date, the interest rate for the Class LTII2B Interest
shall be a per annum rate equal to the product of (i) the Group Two Net WAC
for such Distribution Date and (ii) a fraction the numerator of which is 30
and the denominator of which is the actual number of days in the Accrual
Period for the LIBOR Certificates.
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(11) The Class LTR Interest shall have no principal amount and shall bear no
interest.
UPPER TIER REMIC
The following table sets forth the designation, the initial principal balances,
the interest rates and Classes of Related Certificates for each of the interests
in the Upper Tier REMIC.
Class Initial Principal Balance Rate Class of Related Certificates
----- ------------------------- ---- -----------------------------
UTA-1 (1) (2) A-1
UTA-2A (1) (2) A-2A
UTA-2B (1) (2) A-2B
UTM-1 (1) (2) M-1
UTM-2 (1) (2) M-2
UTM-3 (1) (2) M-3
UTM-4 (1) (2) M-4
UTB-1 (1) (2) B-1
UTB-2 (1) (2) B-2
UTB-3 (1) (2) B-3
UTB-4 (1) (2) B-4
Uncertificated Class C Interest (3) (3) N/A
Residual Interest (1) (2) R
(1) The initial principal balance of each of these REMIC Regular Interests
shall equal the initial principal balance of its Class of Related
Certificates.
(2) The interest rates on each of these REMIC Regular Interests and the
Residual Interest shall be an annual rate equal to the Pass-Through Rate
for the Class of Related Certificates, provided that in lieu of the
applicable Available Funds Cap set forth in the definition of an applicable
Pass-Through Rate, the applicable Upper Tier REMIC Net WAC Cap shall be
used.
(3) The Uncertificated Class C Interest shall have an initial principal balance
equal to the initial Overcollateralization Amount. The Uncertificated Class
C Interest shall accrue interest on a notional balance set forth in the
definition of Class C Current Interest at a rate equal to the Class C
Distributable Interest Rate. The Uncertificated Class C Interest shall be
represented by the Class C Certificates.
THE CERTIFICATES
The following table sets forth the Class designation, interest rate and
initial Class principal amount for each Class of Certificates comprising
interests in the Trust Fund.
Class Initial Class Principal Amount Interest Rate
----- ------------------------------ -------------
A-1 (1) (2)
A-2A (1) (2)
A-2B (1) (2)
M-1 (1) (2)
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M-2 (1) (2)
M-3 (1) (2)
M-4 (1) (2)
B-1 (1) (2)
B-2 (1) (2)
B-3 (1) (2)
B-4 (1) (2)
C (3) (3)
P (4) (4)
R (1) (2)(5)
(1) Each of these Classes of Certificates shall have initial principal balances
as set forth in Section 5.01 hereof.
(2) Each of these Classes of Certificates shall bear interest at a per annum
rate equal to the Pass-Through Rate for such Certificates set forth in the
definitions herein.
(3) For federal income tax purposes, the Class C Certificate shall represent
(i) the right to receive all distributions with respect to the REMIC
Regular Interests represented by the Uncertificated Class C Interest and
(ii) certain obligations with respect to notional principal contracts as
described in Section 2.07.
(4) The Class P Certificates shall be entitled to the amounts distributable
pursuant to Section 4.04(b) hereof and shall not represent a REMIC regular
interest.
(5) The Class R Interest represents ownership of the Class LTR Interest and the
Residual Interest.
In consideration of the mutual agreements herein contained, the Depositor,
the Servicer and the Trustee hereby agree as follows:
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: The Servicer's normal servicing practices,
which will conform to the mortgage servicing practices of prudent mortgage
lending institutions that service for their own account mortgage loans of the
same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
Accountant's Attestation: As defined in Section 3.18(b) hereof.
Accrual Period: With respect to each Class of LIBOR Certificates, their
Corresponding REMIC Regular Interests and the Lower Tier REMIC Interests and any
Distribution Date, the period commencing on the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, the Closing
Date) and ending on the day immediately preceding such Distribution Date; and
with respect to the Class B Certificates and any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
All calculations of interest on each Class of LIBOR Certificates, their
Corresponding REMIC Regular Interests and the Lower Tier REMIC Interests will be
made on the basis of the actual number of days elapsed in the related Accrual
Period and a 360 day year and all calculations of interest on the Class B
Certificates will be made on the basis of a 360-day year consisting of twelve
30-day months.
Additional Form 10-D Disclosure: As defined in Section 3.20 hereof.
Advance: The aggregate of the advances required to be made by the Servicer
with respect to any Distribution Date pursuant to Section 4.01, the amount of
any such advances being equal to the sum of the aggregate amount of all payments
of principal and interest (or, with respect to the interest-only Mortgage Loans,
payments of scheduled interest) (net of the Servicing Fee) on the related
Mortgage Loans that were due during the applicable Due Period and not received
as of the close of business on the related Determination Date, except as
provided in Section 4.01 hereof, less the aggregate amount of any such
Delinquent payments that the Servicer has determined would constitute a
Non-Recoverable Advance were an advance to be made with respect thereto;
provided, however, that with respect to (i) any Mortgage Loan that is 150 days
delinquent or more (whether or not the Mortgage Loan has been converted to an
REO Property), (ii) shortfalls in principal and interest due to bankruptcy
proceedings or the application of the Relief Act or similar laws, (iii) the
principal portion of any amount paid on a Balloon Loan and (iv) shortfalls due
to modifications as provided in Section 3.05(a), there will be no obligation to
make advances and, provided further, however, that with respect to any Mortgage
Loan that has been converted to an REO Property which is less than 150 days
delinquent, the obligation to make Advances shall only be to payments of
interest (subject to the exceptions described above and net of the related
Servicing Fees), to be calculated after taking into account rental income.
Advance Facility: A financing or other facility as described in Section
10.07.
Advancing Person: A Person to whom the Servicer's rights under this
Agreement to be reimbursed for any Advances or Servicing Advances have been
assigned pursuant to Section 10.07.
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AFC Percentage: Any of the Group One AFC Percentage or the Group Two AFC
Percentage.
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such Person. For the
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 the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Certificate Principal Balance: For any date of determination, the
sum of the Class A-1 Certificate Principal Balance, the Class A-2A Certificate
Principal Balance, the Class A-2B Certificate Principal Balance, the Class R
Certificate Principal Balance, the Class M-1 Certificate Principal Balance, the
Class M-2 Certificate Principal Balance, the Class M-3 Certificate Principal
Balance, the Class M-4 Certificate Principal Balance, the Class B-1 Certificate
Principal Balance, the Class B-2 Certificate Principal Balance, the Class B-3
Certificate Principal Balance and the Class B-4 Certificate Principal Balance,
in each case as of such date of determination.
Agreement: This Pooling and Servicing Agreement and any and all amendments
or supplements hereto made in accordance with the terms herein.
Applied Realized Loss Amount: With respect to any Distribution Date, the
amount, if any, by which the sum of (i) the Aggregate Certificate Principal
Balance and (ii) the Class C Certificate Principal Balance after distributions
of principal on such Distribution Date exceeds the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date.
Appraised Value: With respect to a Mortgage Loan the proceeds of which were
used to purchase the related Mortgaged Property, the "Appraised Value" of a
Mortgaged Property is the lesser of (1) the appraised value based on an
appraisal made for the Sponsor by an independent fee appraiser at the time of
the origination of the related Mortgage Loan, and (2) the sales price of such
Mortgaged Property at such time of origination. With respect to a Mortgage Loan
the proceeds of which were used to refinance an existing mortgage loan, the
"Appraised Value" is the appraised value of the Mortgaged Property based upon
the appraisal obtained at the time of refinancing.
Assessment of Compliance: As defined in Section 3.18(a) hereof.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction where the related Mortgaged Property is located to reflect of
record the sale and assignment of the Mortgage Loan to the Trustee, which
assignment, notice of transfer or equivalent instrument may, if permitted by
law, be in the form of one or more blanket assignments covering Mortgages
secured by Mortgaged Properties located in the same county.
Auction: The one-time auction conducted by the Trustee, as described in
Section 9.01(b) hereof.
Auction Date: The date on which the Auction occurs.
Authenticating Agent: As defined in Section 5.10.
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Available Funds Cap: Any of the Class A-1 Available Funds Cap, the Class
A-2 Available Funds Cap or the Weighted Average Available Funds Cap.
Balloon Loan: A Mortgage Loan having an original term to stated maturity of
approximately 10, 15 or 20 years which provides for level monthly payments of
principal and interest based on a 30- or 40-year amortization schedule, with a
balloon payment of the remaining outstanding principal balance due on such
Mortgage Loan at its stated maturity.
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 5.06). As of the Closing Date, each of
the Class A (other than the Class R Certificate), Class M and Class B
Certificates constitutes a Class of Book-Entry Certificates.
Business Day: Any day other than (1) a Saturday or a Sunday, or (2) a day
on which banking institutions in the State of California, State of Illinois,
State of Pennsylvania or in the City of New York, New York are authorized or
obligated by law or executive order to be closed, or (3) with respect to Home
Loan Services, Inc. only, a day on which the New York Stock Exchange is closed.
Certificate: Any one of the certificates of any Class executed by the
Trustee and authenticated by the Authenticating Agent in substantially the forms
attached hereto as Exhibit A.
Certificate Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.05(e) in the name of the Trustee for the
benefit of the Certificateholders and the Class A Certificate Insurer and
designated "LaSalle Bank National Association, as trustee, in trust for
registered holders of First Franklin Mortgage Loan Trust, Mortgage Loan
Asset-Backed Certificates, Series 2007-FFC." Funds in the Certificate Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Certificate Group: Either of Certificate Group One or Certificate Group
Two.
Certificate Group One: The Class A-1 and Class R Certificates. For purposes
of Section 2.07 hereof, Certificate Group One shall be related to Group One.
Certificate Group Two: The Class A-2 Certificates. For purposes of Section
2.07 hereof, Certificate Group Two shall be related to Group Two.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
that is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: As to any Certificate and as of any
Distribution Date, the Initial Certificate Principal Balance of such Certificate
less the sum of (1) all amounts distributed with respect to such Certificate in
reduction of the Certificate Principal Balance thereof on previous Distribution
Dates pursuant to Section 4.04, and (2) any Applied Realized Loss Amounts
allocated to such Certificate on previous Distribution Dates pursuant to Section
4.04(i). On each Distribution Date, after all distributions of principal on such
Distribution Date, a portion of the Class C Interest Carry Forward Amount in an
amount equal to the excess of the Overcollateralization Amount on such
Distribution Date over the
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Overcollateralization Amount as of the preceding Distribution Date (or, in the
case of the first Distribution Date, the initial Overcollateralization Amount
(based on the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date)) will be added to the aggregate Certificate Principal Balance of the Class
C Certificates (on a pro rata basis). Notwithstanding the foregoing on any
Distribution Date relating to a Due Period in which a Subsequent Recovery has
been received by the Servicer, the Certificate Principal Balance of any Class of
Certificates then outstanding for which any Applied Realized Loss Amount has
been allocated will be increased, in order of seniority, by an amount equal to
the lesser of (i) the Unpaid Realized Loss Amount for such Class of Certificates
and (ii) the total of any Subsequent Recovery distributed on such date to the
Certificateholders (reduced by the amount of the increase in the Certificate
Principal Balance of any more senior Class of Certificates pursuant to this
sentence on such Distribution Date).
Certificate Register: The register maintained pursuant to Section 5.02(a)
hereof.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository) in the case of any Class of Regular Certificates or the Class R
Certificate, except that solely for the purpose of giving any consent pursuant
to this Agreement, any Certificate registered in the name of the Depositor or
any Affiliate of the Depositor shall be deemed not to be Outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; provided, however, that if any such
Person (including the Depositor) owns 100% of the Percentage Interests evidenced
by a Class of Certificates, such Certificates shall be deemed to be Outstanding
for purposes of any provision hereof that requires the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action
hereunder. The Trustee is entitled to rely conclusively on a certification of
the Depositor or any Affiliate of the Depositor in determining which
Certificates are registered in the name of an Affiliate of the Depositor.
Class: All Certificates bearing the same Class designation as set forth in
Section 5.01 hereof.
Class A Certificate Guaranty Insurance Policy: The certificate guaranty
insurance policy provided by the Class A Certificate Insurer for the benefit of
the Holders of the Class A Certificates (in the form attached hereto as Exhibit
W-1).
Class A Certificate Guaranty Insurance Policy Premium: As to any
Distribution Date, the product of (i) the Certificate Principal Balance of the
Class A Certificates (prior to any distributions of principal on such
Distribution Date), (ii) the Class A Certificate Guaranty Insurance Premium Rate
and (iii) a fraction, the numerator of which is the number of days in the
related Accrual Period and the denominator of which is 360.
Class A Certificate Guaranty Insurance Premium Rate: The premium rate set
forth in the Insurance Agreement pursuant to the definition of "Premium
Percentage" therein.
Class A Certificate Insurer: Ambac Assurance Corporation.
Class A Certificate Insurer Default: The continuing failure of the Class A
Certificate Insurer to make a payment required to be made by it under the Class
A Certificate Guaranty Insurance Policy.
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Class A Certificate Principal Balance: As of any date of determination, the
sum of the Class A-1 Certificate Principal Balance, the Class A-2A Certificate
Principal Balance, the Class A-2B Certificate Principal Balance and the Class R
Certificate Principal Balance.
Class A Certificates: Any of the Class A-1 Certificates, Class A-2
Certificates and the Class R Certificates; provided, however, that for purposes
of the Class A Certificate Guaranty Insurance Policy, the "Class A Certificates"
means the Class A-1 Certificate and the Class A-2 Certificates only.
Class A Principal Distribution Amount: With respect to any Distribution
Date (1) prior to the related Stepdown Date or any Distribution Date on which a
Stepdown Trigger Event exists, 100% of the Principal Distribution Amount for
such Distribution Date and (2) on or after the Stepdown Date where a Stepdown
Trigger Event does not exist, the excess of (A) the Class A Certificate
Principal Balance immediately prior to such Distribution Date over (B) the
lesser of (i) 44.10% of the aggregate Stated Principal Balance of the Mortgage
Loans as of such Distribution Date and (ii) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date over the
Minimum Required Overcollateralization Amount; provided, however, that in no
event will the Class A Principal Distribution Amount with respect to any
Distribution Date exceed the aggregate Certificate Principal Balance of the
Class A Certificates.
Class A-1 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the difference between (A) the product of (i) 12, (ii) the
quotient of (x) the total scheduled interest due on the Mortgage Loans in Group
One based on the Net Mortgage Rates in effect on the related Due Date and (y)
the sum of (a) the current Certificate Principal Balance of the Class A-1 and
Class R Certificates and (b) the product of the current Certificate Principal
Balance of the Subordinate Certificates and the Group One AFC Percentage and and
(iii) a fraction, the numerator of which is 30 and the denominator of which is
the actual number of days in the related Accrual Period and (B) the Class A
Certificate Guaranty Insurance Premium Rate.
Class A-1 Certificate Principal Balance: As of any date of determination,
the Certificate Principal Balance of the Class A-1 Certificates.
Class A-1 Certificates: Any Certificate designated as a "Class A-1
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class A-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-1 Pass-Through Rate on
the Class A-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class A-1
Current Interest or a Class A-1 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class A-1
Certificates.
Class A-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-1 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class A-1 Pass-Through Rate for the
related Accrual Period.
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Class A-1 Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date, 0.2200% per annum and, as of any Distribution
Date after the Initial Optional Termination Date, 0.4400% per annum.
Class A-1 Pass-Through Rate: For the first Distribution Date, 5.5400% per
annum. As of any Distribution Date thereafter, the lesser of (1) One-Month LIBOR
plus the Class A-1 Margin and (2) the Class A-1 Available Funds Cap for such
Distribution Date.
Class A-2 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the difference between (A) the product of (i) 12, (ii) the
quotient of (x) the total scheduled interest due on the Mortgage Loans in Group
Two based on the Net Mortgage Rates in effect on the related Due Date and (y)
the sum of (a) the current Certificate Principal Balance of the Class A-2
Certificates and (b) the product of the current Certificate Principal Balance of
the Subordinate Certificates and the Group Two AFC Percentage and and (iii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Accrual Period and (B) the Class A
Certificate Guaranty Insurance Premium Rate.
Class A-2 Certificates: Any of the Class A-2A and Class A-2B Certificates.
Class A-2A Certificate: Any Certificate designated as a "Class A-2A
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class A-2A Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class A-2A Certificates.
Class A-2A Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2A Pass-Through Rate on
the Class A-2A Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class A-2A
Current Interest or a Class A-2A Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class A-2A
Certificates.
Class A-2A Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2A Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2A Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class A-2A Pass-Through Rate for the
related Accrual Period.
Class A-2A Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date, 0.1500% per annum and, as of any Distribution
Date after the Initial Optional Termination Date, 0.3000% per annum.
Class A-2A Pass-Through Rate: For the first Distribution Date, 5.4700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2A Margin and (2) the Class A-2 Available Funds Cap for such
Distribution Date.
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Class A-2B Certificate: Any Certificate designated as a "Class A-2B
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class A-2B Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class A-2B Certificates.
Class A-2B Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2B Pass-Through Rate on
the Class A-2B Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class A-2B
Current Interest or a Class A-2B Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class A-2B
Certificates.
Class A-2B Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2B Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2B Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class A-2B Pass-Through Rate for the
related Accrual Period.
Class A-2B Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date, 0.2200% per annum and, as of any Distribution
Date after the Initial Optional Termination Date, 0.4400% per annum.
Class A-2B Pass-Through Rate: For the first Distribution Date, 5.5400% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2B Margin and (2) the Class A-2 Available Funds Cap for such
Distribution Date.
Class B Certificates: Any of the Class B-1, Class B-2, Class B-3 and Class
B-4 Certificates.
Class B-1 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class B-1 Certificates.
Class B-1 Certificate: Any Certificate designated as "Class B-1
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class B-1 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-1 Certificates.
Class B-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-1 Pass-Through Rate on
the Class B-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class B-1
Current Interest or a Class B-1 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class B-1
Certificates.
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Class B-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-1 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class B-1 Pass-Through Rate for the
related Accrual Period.
Class B-1 Pass-Through Rate: For the first Distribution Date, 7.500% per
annum. As of any Distribution Date thereafter, the lesser of (1) (x) as of any
Distribution Date up to and including the Initial Optional Termination Date,
7.500% per annum or (y) as of any Distribution Date after the Initial Optional
Termination Date, 8.000% per annum and (2) the Weighted Average Available Funds
Cap for such Distribution Date.
Class B-1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Class A Certificate Principal Balance and the
Class M Certificate Principal Balance, have been reduced to zero and a Stepdown
Trigger Event exists, or as long as a Stepdown Trigger Event does not exist, the
excess of (1) the sum of (A) the Class A Certificate Principal Balance (after
taking into account distributions of the Class A Principal Distribution Amount
on such Distribution Date), (B) the Class M-1 Certificate Principal Balance
(after taking into account distributions of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class M-2 Certificate Principal
Balance (after taking into account distributions of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class M-3 Certificate
Principal Balance (after taking into account distributions of the Class M-3
Principal Distribution Amount on such Distribution Date), (E) the Class M-4
Certificate Principal Balance (after taking into account distributions of the
Class M-4 Principal Distribution Amount on such Distribution Date) and (F) the
Class B-1 Certificate Principal Balance immediately prior to such Distribution
Date over (2) the lesser of (A) 65.70% of the Stated Principal Balance of the
Mortgage Loans as of such Distribution Date and (B) the excess of the Stated
Principal Balance of the Mortgage Loans as of such Distribution Date over the
Minimum Required Overcollateralization Amount. Notwithstanding the foregoing,
(I) on any Distribution Date prior to the Stepdown Date on which the Certificate
Principal Balance of each Class of Class A Certificates and Class M Certificates
has been reduced to zero, the Class B-1 Principal Distribution Amount will equal
the lesser of (x) the outstanding Certificate Principal Balance of the Class B-1
Certificates and (y) 100% of the Principal Distribution Amount remaining after
any distributions on such Class A and Class M Certificates and (II) in no event
will the Class B-1 Principal Distribution Amount with respect to any
Distribution Date exceed the Class B-1 Certificate Principal Balance.
Class B-1 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-1 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class B-1 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of the Class B-1 Certificates pursuant to the last sentence of
the definition of "Certificate Principal Balance."
Class B-2 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class B-2 Certificates.
Class B-2 Certificate: Any Certificate designated as a "Class B-2
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
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Class B-2 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-2 Certificates.
Class B-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-2 Pass-Through Rate on
the Class B-2 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class B-2
Current Interest or a Class B-2 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class B-2
Certificates.
Class B-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-2 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class B-2 Pass-Through Rate for the
related Accrual Period.
Class B-2 Pass-Through Rate: For the first Distribution Date, 7.500% per
annum. As of any Distribution Date thereafter, the lesser of (1) (x) as of any
Distribution Date up to and including the Initial Optional Termination Date,
7.500% per annum or (y) as of any Distribution Date after the Initial Optional
Termination Date, 8.000% per annum and (2) the Weighted Average Available Funds
Cap for such Distribution Date.
Class B-2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Class A Certificate Principal Balance, the
Class M Certificate Principal Balance and the Class B-1 Certificate Principal
Balance have been reduced to zero and a Stepdown Trigger Event exists, or as
long as a Stepdown Trigger Event does not exist, the excess of (1) the sum of
(A) the Class A Certificate Principal Balance (after taking into account
distributions of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class M-1 Certificate Principal Balance (after taking into
account distributions of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class M-2 Certificate Principal Balance (after
taking into account distributions of the Class M-2 Principal Distribution Amount
on such Distribution Date), (D) the Class M-3 Certificate Principal Balance
(after taking into account distributions of the Class M-3 Principal Distribution
Amount on such Distribution Date), (E) the Class M-4 Certificate Principal
Balance (after taking into account distributions of the Class M-4 Principal
Distribution Amount on such Distribution Date), (F) the Class B-1 Certificate
Principal Balance (after taking into account distributions of the Class B-1
Principal Distribution Amount on such Distribution Date) and (G) the Class B-2
Certificate Principal Balance immediately prior to such Distribution Date over
(2) the lesser of (A) 69.80% of the Stated Principal Balance of the Mortgage
Loans as of such Distribution Date and (B) the excess of the Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the foregoing, (I) on any
Distribution Date prior to the Stepdown Date on which the Certificate Principal
Balance of each Class of Class A, Class M and Class B-1 Certificates has been
reduced to zero, the Class B-2 Principal Distribution Amount will equal the
lesser of (x) the outstanding Certificate Principal Balance of the Class B-2
Certificates and (y) 100% of the Principal Distribution Amount remaining after
any distributions on such Class A, Class M and Class B-1 Certificates and (II)
in no event will the Class B-2 Principal Distribution Amount with respect to any
Distribution Date exceed the Class B-2 Certificate Principal Balance.
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Class B-2 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-2 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class B-2 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of the Class B-2 Certificates pursuant to the last sentence of
the definition of "Certificate Principal Balance."
Class B-3 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class B-3 Certificates.
Class B-3 Certificate: Any Certificate designated as a "Class B-3
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class B-3 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-3 Certificates.
Class B-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-3 Pass-Through Rate on
the Class B-3 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class B-3
Current Interest or a Class B-3 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class B-3
Certificates.
Class B-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-3 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class B-3 Pass-Through Rate for the
related Accrual Period.
Class B-3 Pass-Through Rate: For the first Distribution Date, 7.500% per
annum. As of any Distribution Date thereafter, the lesser of (1) (x) as of any
Distribution Date up to and including the Initial Optional Termination Date,
7.500% per annum or (y) as of any Distribution Date after the Initial Optional
Termination Date, 8.000% per annum and (2) the Weighted Average Available Funds
Cap for such Distribution Date.
Class B-3 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Class A Certificate Principal Balance, the
Class M Certificate Principal Balance, the Class B-1 Certificate Principal
Balance and the Class B-2 Certificate Principal Balance have been reduced to
zero and a Stepdown Trigger Event exists, or as long as a Stepdown Trigger Event
does not exist, the excess of (1) the sum of (A) the Class A Certificate
Principal Balance (after taking into account distributions of the Class A
Principal Distribution Amount on such Distribution Date), (B) the Class M-1
Certificate Principal Balance (after taking into account distributions of the
Class M-1 Principal Distribution Amount on such Distribution Date), (C) the
Class M-2 Certificate Principal Balance (after taking into account distributions
of the Class M-2 Principal Distribution Amount on such Distribution Date), (D)
the Class M-3 Certificate Principal Balance (after taking into account
distributions of the Class M-3 Principal Distribution Amount on such
Distribution Date), (E) the Class M-4 Certificate Principal Balance (after
taking into account
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distributions of the Class M-4 Principal Distribution Amount on such
Distribution Date), (F) the Class B-1 Certificate Principal Balance (after
taking into account distributions of the Class B-1 Principal Distribution Amount
on such Distribution Date), (G) the Class B-2 Certificate Principal Balance
(after taking into account distributions of the Class B-2 Principal Distribution
Amount on such Distribution Date) and (H) the Class B-3 Certificate Principal
Balance immediately prior to such Distribution Date over (2) the lesser of (A)
74.00% of the Stated Principal Balance of the Mortgage Loans as of such
Distribution Date and (B) the excess of the Stated Principal Balance of the
Mortgage Loans as of the such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the foregoing, (I) on any
Distribution Date prior to the Stepdown Date on which the Certificate Principal
Balance of each Class of Class A, Class M, Class B-1 and Class B-2 Certificates
has been reduced to zero, the Class B-3 Principal Distribution Amount will equal
the lesser of (x) the outstanding Certificate Principal Balance of the Class B-3
Certificates and (y) 100% of the Principal Distribution Amount remaining after
any distributions on such Class A, Class M, Class B-1 and Class B-2 Certificates
and (II) in no event will the Class B-3 Principal Distribution Amount with
respect to any Distribution Date exceed the Class B-3 Certificate Principal
Balance.
Class B-3 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-3 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class B-3 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of the Class B-3 Certificates pursuant to the last sentence of
the definition of "Certificate Principal Balance".
Class B-4 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class B-4 Certificates.
Class B-4 Certificate: Any Certificate designated as a "Class B-4
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class B-4 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-4 Certificates.
Class B-4 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-4 Pass-Through Rate on
the Class B-4 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class B-4
Current Interest or a Class B-4 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class B-4
Certificates.
Class B-4 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-4 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-4 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class B-4 Pass-Through Rate for the
related Accrual Period.
Class B-4 Pass-Through Rate: For the first Distribution Date, 7.500% per
annum. As of any Distribution Date thereafter, the lesser of (1) (x) as of any
Distribution Date up to and including the Initial
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Optional Termination Date, 7.500% per annum or (y) as of any Distribution Date
after the Initial Optional Termination Date, 8.000% per annum and (2) the
Weighted Average Available Funds Cap for such Distribution Date.
Class B-4 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Class A Certificate Principal Balance, the
Class M Certificate Principal Balance, the Class B-1 Certificate Principal
Balance, the Class B-2 Certificate Principal Balance and the Class B-3
Certificate Principal Balance have been reduced to zero and a Stepdown Trigger
Event exists, or as long as a Stepdown Trigger Event does not exist, the excess
of (1) the sum of (A) the Class A Certificate Principal Balance (after taking
into account distributions of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class M-1 Certificate Principal Balance (after
taking into account distributions of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class M-2 Certificate Principal Balance
(after taking into account distributions of the Class M-2 Principal Distribution
Amount on such Distribution Date), (D) the Class M-3 Certificate Principal
Balance (after taking into account distributions of the Class M-3 Principal
Distribution Amount on such Distribution Date), (E) the Class M-4 Certificate
Principal Balance (after taking into account distributions of the Class M-4
Principal Distribution Amount on such Distribution Date), (F) the Class B-1
Certificate Principal Balance (after taking into account distributions of the
Class B-1 Principal Distribution Amount on such Distribution Date), (G) the
Class B-2 Certificate Principal Balance (after taking into account distributions
of the Class B-2 Principal Distribution Amount on such Distribution Date), (H)
the Class B-3 Certificate Principal Balance (after taking into account
distributions of the Class B-3 Principal Distribution Amount on such
Distribution Date) and (I) the Class B-4 Certificate Principal Balance
immediately prior to such Distribution Date over (2) the lesser of (A) 78.50% of
the Stated Principal Balance of the Mortgage Loans as of such Distribution Date
and (B) the excess of the Stated Principal Balance of the Mortgage Loans as of
the such Distribution Date over the Minimum Required Overcollateralization
Amount. Notwithstanding the foregoing, (I) on any Distribution Date prior to the
Stepdown Date on which the Certificate Principal Balance of each Class of Class
A, Class M, Class B-1, Class B-2 and Class B-3 Certificates has been reduced to
zero, the Class B-4 Principal Distribution Amount will equal the lesser of (x)
the outstanding Certificate Principal Balance of the Class B-4 Certificates and
(y) 100% of the Principal Distribution Amount remaining after any distributions
on such Class A, Class M, Class B-1, Class B-2 and Class B-3 Certificates and
(II) in no event will the Class B-4 Principal Distribution Amount with respect
to any Distribution Date exceed the Class B-4 Certificate Principal Balance.
Class B-4 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-4 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class B-4 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of the Class B-4 Certificates pursuant to the last sentence of
the definition of "Certificate Principal Balance".
Class C Applied Realized Loss Amount: As of any Distribution Date, the sum
of all Applied Realized Loss Amounts with respect to the Mortgage Loans which
have been applied to the reduction of the Certificate Principal Balance of the
Class C Certificates.
Class C Certificate: Any Certificate designated as a "Class C Certificate"
on the face thereof, executed by the Trustee and authenticated by the
Authenticating Agent in substantially the form set forth in Exhibit A hereto,
representing the right to distributions as set forth herein.
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Class C Certificate Principal Balance: As of any date of determination, the
aggregate Certificate Principal Balance of the Class C Certificates.
Class C Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class C Distributable Interest Rate on
a notional amount equal to the aggregate principal balance of the Lower Tier
REMIC Regular Interests immediately prior to such Distribution Date, plus the
interest portion of any previous distributions on such Class that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class C
Certificates.
Class C Distributable Interest Rate: The excess, if any, of (a) the
weighted average of the interest rates on the Lower Tier REMIC Regular Interests
over (b) two times the weighted average of the interest rates on the Lower Tier
REMIC I Marker Interests and the Class LTIX Interest (treating for purposes of
this clause (b) the interest rate on each of the Lower Tier REMIC I Marker
Interests with an "A" in its designation as being subject to a cap and a floor
equal to the sum of (i) the interest rate of the Corresponding REMIC Regular
Interest of the Corresponding Certificates and (ii) the Class A Certificate
Guaranty Insurance Premium Rate (as adjusted, if necessary, for the length of
the Accrual Period for the LIBOR Certificates) and treating the interest rate on
each of the other Lower Tier REMIC I Marker Interests as being subject to a cap
and a floor equal to the interest rate of the Corresponding REMIC Regular
Interest of the Corresponding Certificates (as adjusted, if necessary, for the
length of the Accrual Period for the LIBOR Certificates) and treating the Class
LTIX Interest as being capped at zero). The averages described in the preceding
sentence shall be weighted on the basis of the respective principal balances of
the Lower Tier REMIC Regular Interests immediately prior to any date of
determination.
Class C Interest Carry Forward Amount: As of any Distribution Date, the
excess of (A) the Class C Current Interest with respect to prior Distribution
Dates over (B) the amount actually distributed to the Class C Certificates with
respect to interest on such prior Distribution Dates or added to the aggregate
Certificate Principal Balance of the Class C Certificates (other than amounts so
added attributable to Subsequent Recoveries).
Class C Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class C Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class C Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class C Certificates pursuant to the last sentence of
the definition of "Certificate Principal Balance".
Class LTA-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificates and an interest rate equal to the Net
Rate.
Class LTA-2A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-2B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
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Class LTB-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-4 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTII1A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Cut-off Date Principal Balance of the Group One Mortgage Loans over
(ii) the aggregate of the initial Certificate Principal Balances of Certificate
Group One, and with an interest rate equal to the Net Rate.
Class LTII1B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Cut-off
Date Principal Balance of the Group One Mortgage Loans, and with an interest
rate equal to the rate set forth in footnote 9 to the description of the Lower
Tier REMIC in the Preliminary Statement.
Class LTII2A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Cut-off Date Principal Balance of the Group Two Mortgage Loans over
(ii) the aggregate of the initial Certificate Principal Balances of Certificate
Group Two, and with an interest rate equal to the Net Rate.
Class LTII2B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Cut-off
Date Principal Balance of the Group Two Mortgage Loans, and with an interest
rate equal to the rate set forth in footnote 10 to the description of the Lower
Tier REMIC in the Preliminary Statement.
Class LTIX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) 50% of the
aggregate Cut-off Date Principal Balance of the Mortgage Loans over (ii) the
initial principal balance of the Lower Tier REMIC I Marker Interests, and with
an interest rate equal to the Net Rate.
Class LTIIX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) 50% of the
aggregate Cut-off Date Principal Balance of the Mortgage Loans over (ii) the
initial principal balance of the Lower Tier REMIC II Marker Interests, and with
an interest rate equal to the Net Rate.
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Class LTM-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-4 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTR Interest: The sole class of "residual interest" in the Lower Tier
REMIC.
Class M Certificates: Any of the Class M-1, Class M-2, Class M-3 and Class
M-4 Certificates.
Class M Certificate Principal Balance: For any date of determination, the
sum of the Class M-1 Certificate Principal Balance, Class M-2 Certificate
Principal Balance, Class M-3 Certificate Principal Balance and Class M-4
Certificate Principal Balance.
Class M-1 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-1 Certificates.
Class M-1 Certificate: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class M-1 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-1 Certificates.
Class M-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-1 Pass-Through Rate on
the Class M-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-1
Current Interest or a Class M-1 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-1
Certificates.
Class M-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-1 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-1 Pass-Through Rate for the
related Accrual Period.
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Class M-1 Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date, 2.4000% per annum and, as of any Distribution
Date after the Initial Optional Termination Date, 3.6000% per annum.
Class M-1 Pass-Through Rate: For the first Distribution Date, 7.7200% per
annum. As of any Distribution Date thereafter, the lesser of (1) One-Month LIBOR
plus the Class M-1 Margin and (2) the Weighted Average Available Funds Cap for
such Distribution Date.
Class M-1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Class A Certificate Principal Balance has been
reduced to zero and a Stepdown Trigger Event exists, or as long as a Stepdown
Trigger Event does not exist, the excess of (1) the sum of (A) the Class A
Certificate Principal Balance (after taking into account distributions of the
Class A Principal Distribution Amount on such Distribution Date) and (B) the
Class M-1 Certificate Principal Balance immediately prior to such Distribution
Date over (2) the lesser of (A) 46.10% of the Stated Principal Balances of the
Mortgage Loans as of the such Distribution Date and (B) the excess of the Stated
Principal Balances for the Mortgage Loans as of such Distribution Date over the
Minimum Required Overcollateralization Amount. Notwithstanding the foregoing,
(I) on any Distribution Date prior to the Stepdown Date on which the Certificate
Principal Balance of each Class of Class A Certificates has been reduced to
zero, the Class M-1 Principal Distribution Amount will equal the lesser of (x)
the outstanding Certificate Principal Balance of the Class M-1 Certificates and
(y) 100% of the Principal Distribution Amount remaining after any distributions
on such Class A Certificates and (II) in no event will the Class M-1 Principal
Distribution Amount with respect to any Distribution Date exceed the Class M-1
Certificate Principal Balance.
Class M-1 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-1 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-1 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-1 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class M-2 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-2 Certificates.
Class M-2 Certificate: Any Certificate designated as a "Class M-2
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class M-2 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-2 Certificates.
Class M-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-2 Pass-Through Rate on
the Class M-2 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-2
Current Interest or a Class M-2 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-2
Certificates.
-00-
Xxxxx X-0 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-2 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-2 Pass-Through Rate for the
related Accrual Period.
Class M-2 Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date, 3.7500% per annum and, as of any Distribution
Date after the Initial Optional Termination Date, 5.6250% per annum.
Class M-2 Pass-Through Rate: For the first Distribution Date, 9.0700% per
annum. As of any Distribution Date thereafter, the lesser of (1) One-Month LIBOR
plus the Class M-2 Margin and (2) the Weighted Average Available Funds Cap for
such Distribution Date.
Class M-2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Class A Certificate Principal Balance and the
Class M-1 Certificate Principal Balance have been reduced to zero and a Stepdown
Trigger Event exists, or as long as a Stepdown Trigger Event does not exist, the
excess of (1) the sum of (A) the Class A Certificate Principal Balance (after
taking into account distributions of the Class A Principal Distribution Amount
on such Distribution Date), (B) the Class M-1 Certificate Principal Balance
(after taking into account distributions of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class M-2 Certificate Principal
Balance immediately prior to such Distribution Date over (2) the lesser of (A)
51.10% of the Stated Principal Balances of the Mortgage Loans as of such
Distribution Date and (B) the excess of the Stated Principal Balances for the
Mortgage Loans as of the such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the foregoing, (I) on any
Distribution Date prior to the Stepdown Date on which the Certificate Principal
Balance of each Class of Class A Certificates and the Class M-1 Certificates has
been reduced to zero, the Class M-2 Principal Distribution Amount will equal the
lesser of (x) the outstanding Certificate Principal Balance of the Class M-2
Certificates and (y) 100% of the Principal Distribution Amount remaining after
any distributions on such Class A and Class M-1 Certificates and (II) in no
event will the Class M-2 Principal Distribution Amount with respect to any
Distribution Date exceed the Class M-2 Certificate Principal Balance.
Class M-2 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-2 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-2 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-2 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class M-3 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-3 Certificates.
Class M-3 Certificate: Any Certificate designated as a "Class M-3
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
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Class M-3 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-3 Certificates.
Class M-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-3 Pass-Through Rate on
the Class M-3 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-3
Current Interest or a Class M-3 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-3
Certificates.
Class M-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-3 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-3 Pass-Through Rate for the
related Accrual Period.
Class M-3 Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date, 4.0000% per annum and, as of any Distribution
Date after the Initial Optional Termination Date, 6.0000% per annum.
Class M-3 Pass-Through Rate: For the first Distribution Date, 9.3200% per
annum. As of any Distribution Date thereafter, the lesser of (1) One-Month LIBOR
plus the Class M-3 Margin and (2) the Weighted Average Available Funds Cap for
such Distribution Date.
Class M-3 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Class A Certificate Principal Balance, Class
M-1 Certificate Principal Balance and, Class M-2 Certificate Principal Balance
have been reduced to zero and a Stepdown Trigger Event exists, or as long as a
Stepdown Trigger Event does not exist, the excess of (1) the sum of (A) the
Class A Certificate Principal Balance (after taking into account distributions
of the Class A Principal Distribution Amount on such Distribution Date), (B) the
Class M-1 Certificate Principal Balance (after taking into account distributions
of the Class M-1 Principal Distribution Amount on such Distribution Date), (C)
the Class M-2 Certificate Principal Balance (after taking into account
distributions of the Class M-2 Principal Distribution Amount on such
Distribution Date) and (D) the Class M-3 Certificate Principal Balance
immediately prior to such Distribution Date over (2) the lesser of (A) 56.00% of
the Stated Principal Balances of the Mortgage Loans as of such Distribution Date
and (B) the excess of the Stated Principal Balances for the Mortgage Loans as of
the such Distribution Date over the Minimum Required Overcollateralization
Amount. Notwithstanding the foregoing, (I) on any Distribution Date prior to the
Stepdown Date on which the Certificate Principal Balance of each Class of Class
A Certificates, the Class M-1 Certificates and the Class M-2 Certificates has
been reduced to zero, the Class M-3 Principal Distribution Amount will equal the
lesser of (x) the outstanding Certificate Principal Balance of the Class M-3
Certificates and (y) 100% of the Principal Distribution Amount remaining after
any distributions on such Class A, Class M-1 and Class M-2 Certificates and (II)
in no event will the Class M-3 Principal Distribution Amount with respect to any
Distribution Date exceed the Class M-3 Certificate Principal Balance.
Class M-3 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-3 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-3 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the
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Certificate Principal Balance of such Class M-3 Certificates pursuant to the
last sentence of the definition of "Certificate Principal Balance."
Class M-4 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-4 Certificates.
Class M-4 Certificate: Any Certificate designated as a "Class M-4
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth as Exhibit A
hereto, representing the right to distributions as set forth herein.
Class M-4 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-4 Certificates.
Class M-4 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-4 Pass-Through Rate on
the Class M-4 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-4
Current Interest or a Class M-4 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-4
Certificates.
Class M-4 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-4 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-4 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-4 Pass-Through Rate for the
related Accrual Period.
Class M-4 Margin: As of any Distribution Date up to and including the
Initial Optional Termination Date, 4.6000% per annum and, as of any Distribution
Date after the Initial Optional Termination Date, 6.9000% per annum.
Class M-4 Pass-Through Rate: For the first Distribution Date, 9.9200% per
annum. As of any Distribution Date thereafter, the lesser of (1) One-Month LIBOR
plus the Class M-4 Margin and (2) the Weighted Average Available Funds Cap for
such Distribution Date.
Class M-4 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Class A Certificate Principal Balance, Class
M-1 Certificate Principal Balance, Class M-2 Certificate Principal Balance and
Class M-3 Certificate Principal Balance have been reduced to zero and a Stepdown
Trigger Event exists, or as long as a Stepdown Trigger Event does not exist, the
excess of (1) the sum of (A) the Class A Certificate Principal Balance (after
taking into account distributions of the Class A Principal Distribution Amount
on such Distribution Date), (B) the Class M-1 Certificate Principal Balance
(after taking into account distributions of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class M-2 Certificate Principal
Balance (after taking into account distributions of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class M-3 Certificate
Principal Balance (after taking into account distributions of the Class M-3
Principal Distribution Amount on such Distribution Date) and (E) the Class M-4
Certificate Principal Balance immediately prior to such Distribution Date over
(2) the lesser of (A) 60.60% of the Stated Principal Balances of the Mortgage
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Loans as of such Distribution Date and (B) the excess of the Stated Principal
Balances for the Mortgage Loans as of the such Distribution Date over the
Minimum Required Overcollateralization Amount. Notwithstanding the foregoing,
(I) on any Distribution Date prior to the Stepdown Date on which the Certificate
Principal Balance of each Class of Class A Certificates, the Class M-1
Certificates, the Class M-2 Certificates and the Class M-3 Certificates has been
reduced to zero, the Class M-4 Principal Distribution Amount will equal the
lesser of (x) the outstanding Certificate Principal Balance of the Class M-4
Certificates and (y) 100% of the Principal Distribution Amount remaining after
any distributions on such Class A, Class M-1, Class M-2 and Class M-3
Certificates and (II) in no event will the Class M-4 Principal Distribution
Amount with respect to any Distribution Date exceed the Class M-4 Certificate
Principal Balance.
Class M-4 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-4 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-4 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-4 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class P Certificate: Any Certificate designated as a Class P Certificate on
the face thereof, executed by the Trustee and authenticated by the
Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class Payment Shortfall: [Reserved]
Class R Certificate: The Class R Certificate executed by the Trustee and
authenticated by the Authenticating Agent in substantially the form set forth in
Exhibit A.
Class R Certificate Principal Balance: As of any date of determination, the
aggregate Certificate Principal Balance of the Class R Certificate.
Class R Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class R Pass-Through Rate on the Class
R Certificate Principal Balance as of such Distribution Date plus the portion of
any previous distributions on such Class in respect of Class R Current Interest
or a Class R Interest Carry Forward Amount that is recovered as a voidable
preference by a trustee in bankruptcy, less any Non-Supported Interest Shortfall
allocated on such Distribution Date to the Class R Certificate.
Class R Interest Carry Forward Amount: As of any Distribution Date, the sum
of (1) the excess of (A) the Class R Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to the Class R
Certificate with respect to Current Interest or Interest Carry Forward Amounts
on such prior Distribution Dates and (2) interest on such excess (to the extent
permitted by applicable law) at the Class R Pass-Through Rate for the related
Accrual Period.
Class R Margin: As of any Distribution Date up to and including the Initial
Optional Termination Date for the Certificates, 0.2200% per annum and, as of any
Distribution Date after the Initial Optional Termination Date, 0.4400% per
annum.
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Class R Pass-Through Rate: For the first Distribution Date, 5.5400% per
annum. As of any Distribution Date thereafter, the lesser of (1) One-Month LIBOR
plus the Class R Margin and (2) the Class A-1 Available Funds Cap for such
Distribution Date.
Closing Date: May 29, 2007.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The separate Eligible Accounts created and initially
maintained by the Servicer pursuant to Section 3.05(d) in the name of the
Trustee for the benefit of the Certificateholders and the Class A Certificate
Insurer and designated, "Home Loan Services, Inc., as servicer for LaSalle Bank
National Association, as trustee, in trust for registered holders of First
Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series
2007-FFC and the Class A Certificate Insurer". Funds in the Collection Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Commission: The Securities and Exchange Commission.
Compensating Interest: For any Distribution Date and all Principal
Prepayments in full in respect of a Mortgage Loan that are received during the
period from the first day of the related Prepayment Period through the last day
of the calendar month preceding such Distribution Date, a payment made by the
Servicer in an amount not to exceed the product of (a) one-twelfth of 0.25% and
(b) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, equal to the amount of interest at the Net Mortgage Rate for
that Mortgage Loan from the date of prepayment through the 30th day of such
preceding calendar month; provided that any month consisting of less than 30
days shall be deemed to consist of 30 days.
Corresponding Certificates: With respect to the Class LTA-1 Interest, the
Class A-1 and Class R Certificates. With respect to the Class LTA-2A Interest,
the Class A-2A Certificates. With respect to the Class LTA-2B Interest, the
Class A-2B Certificates. With respect to the Class LTM-1 Interest, the Class M-1
Certificates. With respect to the Class LTM-2 Interest, the Class M-2
Certificates. With respect to the Class LTM-3 Interest, the Class M-3
Certificates. With respect to the Class LTM-4 Interest, the Class M-4
Certificates. With respect to the Class LTB-1 Interest, the Class B-1
Certificates. With respect to the Class LTB-2 Interest, the Class B-2
Certificates. With respect to the Class LTB-3 Interest, the Class B-3
Certificates. With respect to the Class LTB-4 Interest, the Class B-4
Certificates.
Corresponding REMIC Regular Interest: For each Class of Certificates, the
interest in the Upper Tier REMIC listed on the same row in the table entitled
"Upper Tier REMIC" in the Preliminary Statement.
Current Interest: Any of the Class A-1 Current Interest, the Class A-2A
Current Interest, the Class A-2B Current Interest, the Class R Current Interest,
the Class M-1 Current Interest, the Class M-2 Current Interest, the Class M-3
Current Interest, the Class M-4 Current Interest, the Class B-1 Current
Interest, the Class B-2 Current Interest, the Class B-3 Current Interest, the
Class B-4 Current Interest and the Class C Current Interest.
Cut-off Date: May 1, 2007.
-25-
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the calendar day
immediately preceding the Cut-off Date after application of all payments of
principal due on or prior to the Cut-off Date, whether or not received, and all
Principal Prepayments received prior to the Cut-off Date, but without giving
effect to any installments of principal received in respect of Due Dates after
the Cut-off Date.
Definitive Certificates: As defined in Section 5.06.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
Delinquent: A Mortgage Loan is "delinquent" if any payment due thereon is
not made pursuant to the terms of such Mortgage Loan by the close of business on
the day such payment is scheduled to be due. A Mortgage Loan is "30 days
delinquent" if such payment has not been received by the close of business on
the corresponding day of the month immediately succeeding the month in which
such payment was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month. With
respect to any Mortgage Loan due on any day other than the first day of the
month, such Mortgage Loan shall be deemed to be due on the first day of the
immediately succeeding month. Similarly for "60 days delinquent," "90 days
delinquent" and so on.
Denomination: With respect to each Certificate, the amount set forth on the
face thereof as the "Initial Principal Balance of this Certificate."
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The initial Depository shall be The Depository Trust Company
("DTC"), the nominee of which 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 Agreement: With respect to Classes of Book-Entry Certificates,
the agreement between the Trustee and the initial Depository.
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.
Designated Transaction: A transaction in which the assets underlying the
Certificates consist of single-family residential, multi-family residential,
home equity, manufactured housing and/or commercial mortgage obligations that
are secured by single-family residential, multi-family residential, commercial
real property or leasehold interests therein.
Determination Date: With respect to any Distribution Date, the 15th day of
the month of such Distribution Date or, if such 15th day is not a Business Day,
the immediately preceding Business Day.
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Disqualified Organization: (1) 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, (2) any organization
(other than a cooperative described in Section 521 of the Code) which is exempt
from tax under Chapter 1 of Subtitle A of the Code unless such organization is
subject to the tax imposed by Section 511 of the Code and (3) any organization
described in Section 1381(a)(2)(C) of the Code.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if such 25th day is not a Business Day, the
next succeeding Business Day, commencing in June 2007.
Due Date: With respect to any Distribution Date and any Mortgage Loan, the
day during the related Due Period on which a Scheduled Payment is due.
Due Period: With respect to any Distribution Date, the period beginning on
the second day of the calendar month preceding the calendar month in which such
Distribution Date occurs and ending on the first day of the month in which such
Distribution Date occurs.
Eligible Account: An account that is (1) maintained with a depository
institution the long-term unsecured debt obligations of which are rated by each
Rating Agency in one of its two highest rating categories, or (2) maintained
with the corporate trust department of a bank which (A) has a rating of at least
Baa3 or P-3 by Moody's and (B) is either the Depositor or the corporate trust
department of a national banking association or banking corporation which has a
rating of at least A-1 by S&P or F1 by Fitch, or (iii) an account or accounts
the deposits in which are fully insured by the FDIC, or (iv) an account or
accounts, acceptable to each Rating Agency and the the Class A Certificate
Insurer without reduction or withdrawal of the rating of any Class of
Certificates, as evidenced in writing, by a depository institution in which such
accounts are insured by the FDIC (to the limit established by the FDIC), the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to and acceptable to the Trustee,
the Class A Certificate Insurer and each Rating Agency, the Certificateholders
have a claim with respect to the funds in such account and a perfected first
security interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, or (v) maintained at an eligible institution whose commercial paper,
short-term debt or other short-term deposits are rated at least A-1+ by S&P and
F-1+ by Fitch, or (vi) maintained with a federal or state chartered depository
institution the deposits in which are insured by the FDIC to the applicable
limits and the short-term unsecured debt obligations of which (or, in the case
of a depository institution that is a 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 Prime-1 by Moody's (if rated by such rating agencies) at
the time any deposits are held on deposit therein, or (vii) a segregated trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company having capital and
surplus of not less than $50,000,000 or (viii) otherwise acceptable to each
Rating Agency, as evidenced by a letter from each Rating Agency and the the
Class A Certificate Insurer to the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, including any
successor or amendatory provisions.
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ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that would satisfy the requirements would
satisfy the requirements of Prohibited Transaction Exemption 90-29, Exemption
Application No. D-8012, 55 Fed. Reg. 21459 (1990), as amended, granted by the
United States Department of Labor (or any other applicable underwriter's
exemption granted to the Underwriter by the United States Department of Labor),
except, in relevant part, for the requirement that the certificates have
received a rating at the time of acquisition that is in one of the three (or
four, in the case of a "designated transaction") highest generic rating
categories by at least one of S&P, Moody's or Fitch.
ERISA Restricted Certificates: The Class B-4 Certificates, Class C
Certificates and Class P Certificates and any other Certificate, as long as the
acquisition and holding of such other Certificate is not covered by and exempt
under any underwriter's exemption granted by the United States Department of
Labor.
Escrow Account: As defined in Section 3.06 hereof.
Event of Default: As defined in Section 7.01 hereof.
Exception Report: As defined in Section 2.02 hereof.
Excess Interest: On any Distribution Date, for each Class of the Class A,
Class M and Class B Certificates, the excess, if any, of (1) the amount of
interest such Class of Certificates is entitled to receive on such Distribution
Date over (2) the amount of interest such Class of Certificates would have been
entitled to receive on such Distribution Date at an interest rate equal to the
REMIC Pass-Through Rate.
Excess Proceeds: With respect to any Liquidated Loan, any Liquidation
Proceeds that are in excess of the sum of (1) the unpaid principal balance of
such Liquidated Loan as of the date of such liquidation plus (2) interest at the
Mortgage Rate from the Due Date as to which interest was last paid or advanced
to Certificateholders (and not reimbursed to the Servicer) up to the Due Date in
the month in which such Liquidation Proceeds are required to be distributed on
the unpaid principal balance of such Liquidated Loan outstanding during each Due
Period as to which such interest was not paid or advanced.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Extra Principal Distribution Amount: With respect to any Distribution Date,
(1) prior to the Stepdown Date, the excess of (A) the sum of (i) the Aggregate
Certificate Principal Balance immediately preceding such Distribution Date
reduced by the Principal Funds with respect to such Distribution Date, and (ii)
$92,016,870 over (B) the Pool Stated Principal Balance of the Mortgage Loans as
of such Distribution Date and (2) on and after the Stepdown Date, (A) the sum of
(x) the Aggregate Certificate Principal Balance immediately preceding such
Distribution Date, reduced by the Principal Funds with respect to such
Distribution Date and (y) the greater of (a) 21.50% of Pool Stated Principal
Balance of the Mortgage Loans as of such Distribution Date and (b) the Minimum
Required Overcollateralization Amount less (B) the Pool Stated Principal Balance
of the Mortgage Loans as of such Distribution Date; provided, however, that if
on any Distribution Date a Stepdown Trigger Event is in effect, the Extra
Principal Distribution Amount will not be reduced to the applicable percentage
of the then-current aggregate Stated Principal Balance of the Mortgage Loans
(and will remain fixed at the applicable percentage of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date
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immediately prior to the Stepdown Trigger Event) until the next Distribution
Date on which the Stepdown Trigger Event is not in effect.
Xxxxxx Xxx: A federally chartered and privately owned corporation organized
and existing under the Federal National Mortgage Association Charter Act, or any
successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FFFC: First Franklin Financial Corporation, or any successor thereto.
FFFC Purchase Agreement: The Mortgage Loan Purchase Agreement, dated as of
May 1, 2007, between the Depositor, as purchaser, and FFFC, as seller.
Fitch: Fitch, Inc., or any successor in interest.
Xxxxxxx Mac: A corporate instrumentality of the United States created and
existing under Title III of the Emergency Home Finance Act of 1970, as amended,
or any successor thereto.
Grantor Trusts: The grantor trusts described in Section 2.07 hereof.
Group One: The portion of the Mortgage Pool identified as "Group One" in
the Prospectus Supplement.
Group One AFC Percentage: As of any Distribution Date, the quotient of (i)
the difference between (x) the aggregate Stated Principal Balance of the Group
One Mortgage Loans as of the first day of the related Accrual Period and (y) the
current Certificate Principal Balance of the Class A-1 and Class R Certificates
and (ii) the difference between (x) the aggregate Stated Principal Balance of
the Mortgage Loans as of the first day of the related Accrual Period and (y) the
current Certificate Principal Balance of the Class A Certificates.
Group One Mortgage Loan: Any Mortgage Loan at any time identified in the
Mortgage Loan Schedule attached hereto as Exhibit B as a Group One Mortgage
Loan.
Group One Net Rate: The per annum rate set forth in footnote 9 to the
description of the Lower Tier REMIC in the Preliminary Statement hereto.
Group One Net WAC: The Net WAC of Group One.
Group One Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Certificate Principal Balance of
the Class A-1 and Class R Certificates and (ii) the product of (x) the Group One
Principal Distribution Percentage and (y) the Class A Principal Distribution
Amount; provided, however, that (A) with respect to any Distribution Date on
which the Class A-1 Certificates are outstanding and the Certificate Principal
Balances of the Class A-2 Certificates is reduced to zero, the Group Two
Principal Distribution Amount in excess of the amount necessary to reduce the
Certificate Principal Balance of the Class A-2 Certificates to zero will be
applied to increase the Group One Principal Distribution Amount and (B) with
respect to any Distribution Date thereafter, the Group One Principal
Distribution Amount will equal the Class A Principal Distribution Amount.
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Group One Principal Distribution Percentage: With respect to any
Distribution Date, a fraction expressed as a percentage, the numerator of which
is the amount of Principal Funds received with respect to Mortgage Loans in
Group One and the denominator of which is the amount of Principal Funds received
from all of the Mortgage Loans in the mortgage pool.
Group Two: The portion of the Mortgage Pool identified as "Group Two" in
the Prospectus Supplement.
Group Two AFC Percentage: As of any Distribution Date, the quotient of (i)
the difference between (x) the aggregate Stated Principal Balance of the Group
Two Mortgage Loans as of the first day of the related Accrual Period and (y) the
current Certificate Principal Balance of the Class A-2 Certificates and (ii) the
difference between (x) the aggregate Stated Principal Balance of the Mortgage
Loans as of the first day of the related Accrual Period and (y) the current
Certificate Principal Balance of the Class A Certificates.
Group Two Mortgage Loan: Any Mortgage Loan at any time identified in the
Mortgage Loan Schedule attached hereto as Exhibit B as a Group Two Mortgage
Loan.
Group Two Net Rate: The per annum rate set forth in footnote 10 to the
description of the Lower Tier REMIC in the Preliminary Statement hereto.
Group Two Net WAC: The Net WAC of Group Two.
Group Two Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Certificate Principal Balance of
the Class A-2 Certificates and (ii) the product of (x) the Group Two Principal
Distribution Percentage and (y) the Class A Principal Distribution Amount;
provided, however, that (A) with respect to any Distribution Date on which the
Class A-2 Certificates are outstanding and the Certificate Principal Balances of
the Class A-1 and Class R Certificates is reduced to zero, the Group One
Principal Distribution Amount in excess of the amount necessary to reduce the
Certificate Principal Balance of the Class A-1 Certificates and Class R
Certificates to zero will be applied to increase the Group Two Principal
Distribution Amount and (B) with respect to any Distribution Date thereafter,
the Group Two Principal Distribution Amount will equal the Class A Principal
Distribution Amount.
Group Two Principal Distribution Percentage: With respect to any
Distribution Date, a fraction expressed as a percentage, the numerator of which
is the amount of Principal Funds received with respect to Mortgage Loans in
Group Two and the denominator of which is the amount of Principal Funds received
from all of the Mortgage Loans in the mortgage pool.
Holder: Has the meaning set forth in the Class A Certificate Guaranty
Insurance Policy.
Indenture: An indenture relating to the issuance of the NIM Notes, which
may (but need not) be guaranteed by a NIMs Insurer.
Initial Certificate Principal Balance: With respect to any Certificate
(other than the Class P Certificates), the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing Date as set forth in
Section 5.01 hereof.
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Initial Optional Termination Date: The first Distribution Date on which the
aggregate Certificate Principal Balance of the outstanding Regular Certificates
is equal to or less than 10% of the aggregate Certificate Principal Balance of
the Regular Certificates as of the Closing Date.
Insurance Agreement: means the Insurance and Indemnity Agreement, dated as
of May 29, 2007, by and among Ambac, the Depositor, the Sponsor, the Servicer
and the Trustee (in the form attached hereto as Exhibit W-2).
Insurance Policy: With respect to any Mortgage Loan or the related
Mortgaged Property included in the Trust Fund, any insurance policy, including
all riders and endorsements thereto in effect with respect to such Mortgage Loan
or Mortgaged Property, including any replacement policy or policies for any
insurance policies.
Insurance Proceeds: Proceeds paid in respect of a Mortgage Loan or the
related Mortgaged Property pursuant to any Insurance Policy or any other
insurance policy covering such Mortgage Loan or Mortgaged Property, to the
extent such proceeds are payable to the mortgagee under the Mortgage, the
Servicer or the Trustee under the deed of trust and are not applied to the
restoration of the related Mortgaged Property or released either to the
Mortgagor or to the holder of a senior lien on the related Mortgaged Property in
accordance with the procedures that the Servicer would follow in servicing
mortgage loans held for its own account, in each case other than any amount
included in such Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to a Mortgage Loan or the related Mortgaged
Property.
Interest Carry Forward Amount: Any of the Class A-1 Interest Carry Forward
Amount, the Class A-2A Interest Carry Forward Amount, the Class A-2B Interest
Carry Forward Amount, the Class R Interest Carry Forward Amount, the Class M-1
Interest Carry Forward Amount, the Class M-2 Interest Carry Forward Amount, the
Class M-3 Interest Carry Forward Amount, the Class M-4 Interest Carry Forward
Amount, the Class B-1 Interest Carry Forward Amount, the Class B-2 Interest
Carry Forward Amount, the Class B-3 Interest Carry Forward Amount, the Class B-4
Interest Carry Forward Amount or the Class C Interest Carry Forward Amount, as
the case may be.
Interest Determination Date: With respect to the LIBOR Certificates, (i)
for any Accrual Period other than the first Accrual Period, the second LIBOR
Business Day preceding the commencement of such Accrual Period and (ii) for the
first Accrual Period, May 24, 2007.
Interest Funds: With respect to any Distribution Date, the sum, without
duplication, of (1) all scheduled interest due during the related Due Period and
received before the related Servicer Remittance Date less the Servicing Fee, (2)
all Advances relating to interest with respect to the Mortgage Loans, (3) all
Compensating Interest with respect to the Mortgage Loans, (4) Liquidation
Proceeds with respect to the Mortgage Loans (to the extent such Liquidation
Proceeds relate to interest) collected during the related Prepayment Period, (5)
all proceeds of any purchase pursuant to Section 2.02 or 2.03 during the related
Prepayment Period or pursuant to Section 9.01 not later than the related
Determination Date (to the extent that such proceeds relate to interest) less
the Servicing Fee and (6) all Prepayment Charges received with respect to the
Mortgage Loans during the related Prepayment Period, less (A) all
Non-Recoverable Advances relating to interest and (B) other amounts reimbursable
(including without
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limitation indemnity payments) to the Servicer and the Trustee pursuant to this
Agreement allocable to interest.
Issuing Entity: First Franklin Mortgage Loan Trust, Series 2007-FFC.
Latest Possible Maturity Date: The latest maturity date for any Mortgage
Loan in the Trust Fund plus one month.
LIBOR Business Day: Any day on which banks in the City of London, England,
Chicago, Illinois and New York City, U.S.A. are open and conducting transactions
in foreign currency and exchange.
LIBOR Certificates: The Class A and Class M Certificates.
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan that either (a) pursuant to Section 3.12 has been realized upon or
liquidated through deed-in-lieu of foreclosure, foreclosure sale, trustee's sale
or other realization as provided by applicable law governing the real property
subject to the related Mortgage and any security agreements and as to which the
Servicer has certified (in accordance with Section 3.12) in the related
Prepayment Period that it has received all amounts it expects to receive in
connection with such liquidation or (b) is delinquent 180 days or longer, the
Servicer has certified in a certificate of an officer of the Servicer delivered
to the Depositor and the Trustee that it does not believe that there is a
reasonable likelihood that any further net proceeds will be received or
recovered with respect to such Mortgage Loan.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of Mortgage Loans, whether
through trustee's sale, foreclosure sale, sale by the Servicer pursuant to this
Agreement or otherwise or amounts received in connection with any condemnation
or partial release of a Mortgaged Property and any other proceeds received in
connection with an REO Property, less the sum of related unreimbursed Advances,
Servicing Fees, Servicing Advances and any other expenses related to such
Mortgage Loan.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the lesser
of (X) the Appraised Value of the related Mortgaged Property and (Y) the sales
price of the related Mortgaged Property at the time of origination.
Losses: Any losses, claims, damages, liabilities or expenses collectively.
Lower Tier REMIC: As described in the Preliminary Statement and Section
2.07.
Lower Tier REMIC I Marker Interests: Each of the classes of Lower Tier
REMIC Regular Interests other than the Class LTIX Interest, the Class LTIIX
Interest, the Class LTII1A Interest, the Class LTII1B Interest, the Class LTII2A
Interest and the Class LTII2B Interest.
Lower Tier REMIC II Marker Interests: Each of the Class LTII1A Interest,
the Class LTII1B Interest, the Class LTII2A Interest and the Class LTII2B
Interest.
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Xxxxx Xxxx REMIC Interests: Each of the Class LTA-1 Interest, the Class
LTA-2A Interest, the Class LTA-2B Interest, the Class LTM-1 Interest, the Class
LTM-2 Interest, the Class LTM-3 Interest, the Class LTM-4 Interest, the Class
LTB-1 Interest, the Class LTB-2 Interest, the Class LTB-3 Interest, the Class
LTB-4 Interest, the Class LTII1A Interest, the Class LTII1B Interest, the Class
LTII2A Interest, the Class LTII2B Interest, the Class LTIX Interest, the Class
LTIIX Interest and the Class LTR Interest.
Lower Tier REMIC Regular Interests: Each of the Lower Tier REMIC Interests
other than the Class LTR Interest.
Lower Tier REMIC Subordinate Balance Ratio: The ratio of (i) the principal
balance of the Class LTII1A Interest to (ii) the principal balance of the Class
LTII2A Interest that is equal to the ratio of (i) the excess of (A) the
aggregate Stated Principal Balance of Group One over (B) the current Certificate
Principal Balance of the Class A-1 and Class R Certificates to (ii) the excess
of (A) the aggregate Stated Principal Balance of Group Two over (B) the current
Certificate Principal Balance of the Class A-2 Certificates.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS System.
MERS System: The system of recording transfers of mortgage electronically
maintained by MERS.
MIN: The loan number for any MERS Loan.
Minimum Required Overcollateralization Amount: An amount equal to the
product of (x) 0.50% and (y) the Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
MLML Purchase Agreement: The Mortgage Loan Purchase Agreement, dated as of
May 1, 2007, between the Depositor, as purchaser, and the Sponsor, as seller.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee, solely
as nominee for the originator of such Mortgage Loan and its successors and
assigns.
Monthly Statement: The statement delivered to the Certificateholders and
made available to the Class A Certificate Insurer pursuant to Section 4.05.
Moody's: Xxxxx'x Investors Service, Inc. or any successor in interest.
Mortgage: With respect to a Mortgage Loan, the mortgage, deed of trust or
other instrument with all riders thereto creating a second lien or a second
priority ownership interest in an estate in fee simple in real property securing
a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Group: Either of Group One or Group Two.
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Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Trustee to reflect the deletion of Deleted Mortgage Loans and the
addition of Replacement Mortgage Loans pursuant to the provisions of this
Agreement) transferred to the Trustee as part of the Trust Fund and from time to
time subject to this Agreement, attached hereto as Exhibit B, setting forth the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the borrower name and address;
(iii) the unpaid principal balance of the Mortgage Loans;
(iv) the Mortgage Rate;
(iv) the original maturity date and the months remaining before
maturity date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the first payment due date of the Mortgage Loan;
(ix) the Loan-to-Value Ratio at origination with respect to a Mortgage
Loan;
(x) a code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
(xi) a code indicating the property type;
(xii) the location of the related Mortgaged Property;
(xiii) a code indicating whether a Prepayment Charge is applicable;
(xiv) the period during which such Prepayment Charge is in effect;
(xv) the amount of such Prepayment Charge;
(xvi) any limitations or other conditions on the enforceability of
such Prepayment Charge; and
(xvii) any other information pertaining to the Prepayment Charge
specified in the related Mortgage Note;
(xviii) the Credit Score and date obtained; and
(xix) the MIN.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to the provisions hereof as from time to time are held as a
part of the Trust Fund (including any REO
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Property), the mortgage loans so held being identified in the Mortgage Loan
Schedule, notwithstanding foreclosure or other acquisition of title of the
related Mortgaged Property. Any mortgage loan that was intended by the parties
hereto to be transferred to the Trust Fund as indicated by such Mortgage Loan
Schedule which is in fact not so transferred for any reason shall continue to be
a Mortgage Loan hereunder until the Purchase Price with respect thereto has been
paid to the Trust Fund.
Mortgage Note: The original executed note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan and all
amendments, modifications and attachments thereto with all riders attached
thereto.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per annum
rate equal to the then current Mortgage Rate less the Servicing Fee Rate.
Net Rate: The per annum rate set forth in footnote 8 to the description of
the Lower Tier REMIC in the Preliminary Statement hereto.
Net WAC: With respect to any Distribution Date and for any Mortgage Group,
the weighted average Net Mortgage Rate for the Mortgage Loans in such Mortgage
Group calculated based on the respective Net Mortgage Rates and the Stated
Principal Balances of such Mortgage Loans as of the preceding Distribution Date
(or, in the case of the first Distribution Date, as of the Cut-off Date).
NIMs Insurer: Any of the one or more insurers, if any, that may be
guaranteeing certain payments under any NIM Notes; provided, that upon the
payment in full of the NIM Notes, all rights of the NIMs Insurer hereunder shall
terminate
NIM Notes: The net interest margin or excess cashflow securities to be
issued pursuant to any Indenture.
NIMs Insurer Default: As defined in Section 10.13.
Non-Recoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Servicer that, in the good faith judgment of the
Servicer, will not or, in the case of a current delinquency, would not, be
ultimately recoverable by the Servicer from the related Mortgagor, related
Liquidation Proceeds or otherwise related to the Mortgage Loans.
Non-Recoverable Servicing Advance: Any portion of a Servicing Advance
previously made or proposed to be made by the Servicer that, in the good faith
judgment of the Servicer, will not or, in the case of a current Servicing
Advance, would not, be ultimately recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise related to the Mortgage
Loans.
Non-Supported Interest Shortfall: As defined in Section 4.02.
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Offered Certificates: The Class A, Class M, Class B-1, Class B-2 and Class
B-3 Certificates.
Officer's Certificate: A certificate (1) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a vice president (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the assistant treasurers or assistant secretaries of the Depositor, or
Trustee, the Servicer (or any other officer customarily performing functions
similar to those performed by any of the above designated officers and to whom,
with respect to a particular matter, such matter is referred because of such
officer's knowledge of and familiarity with a particular subject) or (2), if
provided for in this Agreement, signed by a Servicing Officer, as the case may
be, and delivered to the Depositor, the Servicer, the Trustee or the Class A
Certificate Insurer, as the case may be, as required by this Agreement.
One-Month LIBOR: With respect to any Accrual Period, the rate determined by
the Trustee on the related Interest Determination Date on the basis of (a) the
offered rates for one-month United States dollar deposits from Reuters, as of
11:00 a.m. (London time) on such Interest Determination Date (or if such service
is no longer offered, such other service for displaying LIBOR or comparable
rates as may be reasonably selected by the Trustee) or (b) if such rate does not
appear on Reuters as of 11:00 a.m. (London time), the Trustee will determine
such rate on the basis of the offered rates of the Reference Banks for one-month
United States dollar deposits, as such rates appear on the Reuters Screen LIBO
Page, as of 11:00 a.m. (London time) on such Interest Determination Date. If
One-Month LIBOR is determined pursuant to clause (b) above, on each Interest
Determination Date, One-Month 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, One-Month 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 0.03125%).
(ii) If on such Interest Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the
related Accrual Period shall be the higher of (i) One-Month LIBOR
as determined on the previous Interest Determination Date and
(ii) the Reserve Interest Rate.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or the Servicer reasonably acceptable to each addressee of such
opinion; provided, however, that with respect to Section 6.04 or 10.01, or the
interpretation or application of the REMIC Provisions, such counsel must (1) in
fact be independent of the Depositor and the Servicer, (2) not have any direct
financial interest in the Depositor or the Servicer or in any Affiliate of
either such party, and (3) not be connected with the Depositor or the Servicer
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Optional Termination: The termination of the Trust Fund hereunder pursuant
to clause (a) of Section 9.01 hereof.
Optional Termination Amount: The repurchase price received by the Trustee
in connection with any repurchase of all of the Mortgage Loans pursuant to
Section 9.01.
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Optional Termination Price: On any date after the Initial Optional
Termination Date an amount equal to the sum of (i) the then aggregate
outstanding Stated Principal Balance of the Mortgage Loans (or, if such Mortgage
Loan is an REO Property, the fair market value of such REO Property) plus
accrued interest thereon at the applicable Mortgage Rate through the Due Date in
the month in which the proceeds of the auction will be distributed on the
Certificates; (ii) any unreimbursed indemnity amounts, fees or out-of-pocket
costs and expenses owed to the Trustee or the Servicer and all unreimbursed
Advances and Servicing Advances, in each case incurred by such party in the
performance of its obligations; (iii) any unreimbursed costs, penalties and/or
damages incurred by the Trust Fund in connection with any violation relating to
any of the Mortgage Loans of any predatory or abusive lending law; (iv) all
reasonable fees and expenses incurred by the Trustee in connection with such
auction and (v) unless the Class A Certificate Insurer consents to such
termination, an amount sufficient to prevent any additional draws under the
Class A Certificate Guaranty Insurance Policy and equal to all amounts owed to
the Class A Certificate Insurer.
Originator: FFFC or any successor thereto.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except: (1) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and (2) Certificates in exchange for
which or in lieu of which other Certificates have been executed by the Trustee
and delivered by the Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Distribution Date, a Mortgage Loan
with a Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in full, and that did not become a Liquidated Loan, prior
to the end of the related Due Period.
Overcollateralization Amount: As of any date of determination, the excess
of (1) the Stated Principal Balance of the Mortgage Loans over (2) the
Certificate Principal Balance of the Certificates (other than the Class P
Certificates and the Class C Certificates).
Ownership Interest: As to any Certificate, any ownership 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.
Pass-Through Rate: With respect to any Class of Certificates, the
corresponding Pass-Through Rate for such Class of Certificates.
Percentage Interest: With respect to:
(i) any Class, the percentage interest in the undivided beneficial
ownership interest evidenced by such Class which shall be equal
to the Certificate Principal Balance of such Class divided by the
aggregate Certificate Principal Balance of all Classes; and
(ii) any Certificate, the Percentage Interest evidenced thereby of the
related Class shall equal the percentage obtained by dividing the
Denomination of such
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Certificate by the aggregate of the Denominations of all
Certificates of such Class; except that in the case of any Class
P Certificates, the Percentage Interest with respect to such
Certificate shown on the face of such Certificate.
Permitted Activities: The primary activities of the Issuing Entity created
pursuant to this Agreement which shall be:
(i) holding Mortgage Loans transferred from the Depositor and other
assets of the Issuing Entity, including any credit enhancement
and passive derivative financial instruments that pertain to
beneficial interests issued or sold to parties other than the
Depositor, its Affiliates, or its agents;
(ii) issuing Certificates and other interests in the assets of the
Issuing Entity;
(iii) through the appropriate subtrust, as applicable, receiving
collections on the Mortgage Loans and making payments on such
Certificates and interests in accordance with the terms of this
Agreement; and
(iv) engaging in other activities that are necessary or incidental to
accomplish these limited purposes, which activities cannot be
contrary to the status of the Issuing Entity as a qualified
special purpose entity under existing accounting literature.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
the timely payment of such obligations is backed by the full
faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency rating the
Certificates;
(iii) commercial or finance company paper, other than commercial or
finance company paper issued by the Depositor, the Trustee or any
of their Affiliates, which is then receiving the highest
commercial or finance company paper rating of each such Rating
Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances (other than banker's acceptances issued by the
Trustee or any of its Affiliates) issued by any depository
institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision
and examination by federal and/or state banking authorities,
provided that the commercial paper and/or long term unsecured
debt obligations of such depository institution or trust company
are then rated one of the two highest long-term and the highest
short-term ratings of each such Rating Agency for such
securities;
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(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that
such deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation rated in the two highest long-term
or the highest short-term ratings of each Rating Agency
containing, at the time of the issuance of such agreements, such
terms and conditions as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by any
such Rating Agency (without regard to the Class A Certificate
Guaranty Insurance Policy) as evidenced by a letter from each
Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (v) above;
(viii) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the
face amount thereof) bearing interest or sold at a discount
issued by any corporation, other than the Trustee or any of its
Affiliates, incorporated under the laws of the United States or
any state thereof which, at the time of such investment, have one
of the two highest long term ratings of each Rating Agency;
(ix) interests in any money market fund (including those managed or
advised by the Trustee or its Affiliates), which at the date of
acquisition of the interests in such fund and throughout the time
such interests are held in such fund has the highest applicable
long term rating by each Rating Agency rating such fund; and
(x) short term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the
United States or any state thereof, other than the Trustee or any
of its Affiliates, which on the date of acquisition has been
rated by each such Rating Agency in their respective highest
applicable rating category;
provided, that no such instrument shall be a Permitted Investment if such
instrument (i) evidences the right to receive interest only payments with
respect to the obligations underlying such instrument, (ii) is purchased at a
premium or above par or (iii) is purchased at a deep discount; provided,
further, that no such instrument shall be a Permitted Investment (A) if such
instrument evidences principal and interest payments derived from obligations
underlying such instrument and the interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, or (B) if it may be redeemed at
a price below the purchase price (the foregoing clause (B) not to apply to
investments in units of money market funds pursuant to clause (ix) above); and
provided, further, (I) that no amount beneficially owned by any REMIC
(including, without limitation, any amounts collected by the Servicer but not
yet deposited in the Collection Account) may be invested in investments (other
than money market funds) treated as equity interests for Federal income tax
purposes, unless the Servicer shall receive an Opinion of Counsel, at the
expense of the party requesting that such investment be made, to the effect that
such investment will not adversely affect the status of the any REMIC provided
for herein as a REMIC under the Code or result in imposition of a tax on the
Issuing
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Entity or any REMIC provided for herein and (II) each such investment must be a
"permitted investment" within the meaning of Section 860G(a)(5) of the Code.
Permitted Investments that are subject to prepayment or call may not be
purchased at a price in excess of par.
Permitted Transferee: Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the
Class R Certificate, (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) a Person that is not a citizen or
resident of the United States, a corporation or 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 or any
State thereof or the District of Columbia or an estate whose income from sources
without the United States is includable 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, unless, in the case of this clause (v), such
Person has furnished the transferor and the Trustee with a duly completed
Internal Revenue Service Form W-8ECI or applicable successor form. The terms
"United States," "State" and "International Organization" shall have the
meanings set forth in Section 7701 of the Code. A corporation will not be
treated as an instrumentality of the United States or of any State thereof for
these purposes if all of its activities are subject to tax and, with the
exception of the Federal Home Loan Mortgage Corporation, a majority of its board
of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Pool Stated Principal Balance: As to any Distribution Date, the aggregate
of the Stated Principal Balances, as of such Distribution Date, of the Mortgage
Loans that were Outstanding Mortgage Loans as of such date.
Prepayment Assumption: A rate of prepayment, as described in the Prospectus
Supplement in the definition of "Modeling Assumptions," relating to the Offered
Certificates.
Prepayment Charges: Any prepayment premium or charge payable by a Mortgagor
in connection with any Principal Prepayment on a Mortgage Loan pursuant to the
terms of the related Mortgage Note or Mortgage, as applicable.
Prepayment Interest Excess: With respect to any Servicer Remittance 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 of the calendar month in which such Servicer Remittance Date occurs and the
last day of the related Prepayment Period, 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 Servicer Remittance Date occurs and ending on the
date on which such Principal Prepayment is so applied.
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Prepayment Interest Shortfall: With respect to any Distribution Date, for
each Mortgage Loan that was the subject of a Principal Prepayment in full (other
than a Principal Prepayment in full resulting from the purchase of a Mortgage
Loan pursuant to Section 2.02, 2.03 or 9.01 hereof and other than a Principal
Prepayment in full on a Mortgage Loan received during the period from and
including the first day to and including the 14th day of the month of such
Distribution Date), the amount, if any, by which (i) one month's interest at the
applicable Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan as of the preceding Distribution Date exceeds (ii) the amount of interest
paid or collected in connection with such Principal Prepayment.
Prepayment Period: With respect to any Distribution Date (i) with respect
to prepayments in full or any other amounts received in connection with a
Principal Prepayment in full, the period beginning with the opening of business
on the 15th day of the calendar month preceding the month in which such
Distribution Date occurs (or in the case of the first Distribution Date,
beginning with the opening of business on the Cut-off Date) and ending on the
close of business on the 14th day of the month in which such Distribution Date
occurs and (ii) with respect to partial prepayments and any other amounts
received in connection with a payment in part, the calendar month preceding the
month of such Distribution Date.
Principal Distribution Amount: With respect to each Distribution Date, the
sum of (i) the Principal Funds for such Distribution Date and (ii) any Extra
Principal Distribution Amount for such Distribution Date.
Principal Funds: With respect to the Mortgage Loans and any Distribution
Date, the sum, without duplication, of (1) the scheduled principal due during
the related Due Period and received before the related Servicer Remittance Date
or advanced on or before the related Servicer Remittance Date, (2) Principal
Prepayments in full collected in the related Prepayment Period, (3) the Stated
Principal Balance of each Mortgage Loan that was purchased by the Depositor or
the Servicer during the related Prepayment Period or, in the case of a purchase
pursuant to Section 9.01, on the Business Day prior to such Distribution Date,
(4) the amount, if any, by which the aggregate unpaid principal balance of any
Replacement Mortgage Loan is less than the aggregate unpaid principal of the
related Deleted Mortgage Loans delivered by the Sellers in connection with a
substitution of a Mortgage Loan pursuant to Section 2.03(c), (5) all Liquidation
Proceeds collected during the related Prepayment Period (to the extent such
Liquidation Proceeds relate to principal and represent payment in full), (6) all
Subsequent Recoveries received with regard to the applicable Prepayment Period
and (7) all other collections and recoveries in respect of principal, including
any partial prepayments of principal, with regard to the applicable Prepayment
Period, less (A) all Non-Recoverable Advances relating to principal with respect
to the Mortgage Loans and (B) other amounts reimbursable (including without
limitation indemnity payments) to the Servicer and the Trustee pursuant to this
Agreement allocable to principal.
Principal Prepayment: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including Mortgage Loans
purchased or repurchased under Sections 2.02, 2.03 and 9.01 hereof) that is
received or recovered in advance of its scheduled Due Date and is not
accompanied by an amount as to interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of prepayment.
Partial Principal Prepayments shall be applied by the Servicer in accordance
with the terms of the related Mortgage Note.
Prospectus Supplement: The Prospectus Supplement dated May 25, 2007,
relating to the public offering of the Offered Certificates.
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PUD: A Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
repurchased by the Sponsor or FFFC pursuant to Section 2.02 or 2.03 hereof, an
amount equal to the sum of (i) 100% of the unpaid principal balance of the
Mortgage Loan as of the date of such purchase together with any unreimbursed
Servicing Advances, (ii) accrued interest thereon at the applicable Mortgage
Rate from (a) the date through which interest was last paid by the Mortgagor to
(b) the Due Date in the month in which the Purchase Price is to be distributed
to Certificateholders and (iii) any unreimbursed costs, penalties and/or damages
incurred by the Issuing Entity in connection with any violation relating to such
Mortgage Loan of any predatory or abusive lending law.
QIB: A "qualified institutional buyer" within the meaning of Rule 144A.
Rating Agency: Either of S&P or Xxxxx'x. If any such organization or its
successor is no longer in existence, "Rating Agency" shall be a nationally
recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
Realized Loss: With respect to (1) a Liquidated Loan, the amount, if any,
by which the Stated Principal Balance and accrued interest thereon at the Net
Mortgage Rate exceeds the amount actually recovered by the Servicer with respect
thereto (net of reimbursement of Advances and Servicing Advances) at the time
such Mortgage Loan became a Liquidated Loan or (2) with respect to a Mortgage
Loan which is not a Liquidated Loan, any amount of principal that the Mortgagor
is no longer legally required to pay (except for the extinguishment of debt that
results from the exercise of remedies due to default by the Mortgagor).
Record Date: With respect to the first Distribution Date, the Closing Date.
With respect to any other Distribution Date, the close of business on the last
Business Day of the month preceding the month in which the applicable
Distribution Date occurs.
Reference Banks: Barclays Bank PLC, JPMorgan Chase Bank, N.A., Citibank,
N.A., Xxxxx Fargo Bank, N.A. and NatWest, N.A.; provided that if any of the
foregoing banks are not suitable to serve as a Reference Bank, then any leading
banks selected by the Trustee which are engaged in transactions in Eurodollar
deposits in the international Eurocurrency market (i) with an established place
of business in London, England, (ii) whose quotations appear on the Reuters
Screen LIBO Page on the relevant Interest Determination Date and (iii) which
have been designated as such by the Servicer.
Regular Certificate: Any one of the Class A, Class M and Class B
Certificates.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed Reg. 1,506, 1.531 (Jan. 7, 2005)) or by the staff of
the Commission, or as may be provided by the Commission or its staff from time
to time.
Regulation S: Regulation S promulgated under the Securities Act or any
successor provision thereto, in each case as the same may be amended from time
to time; and all references to any rule,
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section or subsection of, or definition or term contained in, Regulation S means
such rule, section, subsection, definition or term, as the case may be, or any
successor thereto, in each case as the same may be amended from time to time.
Regulation S Book-Entry Certificates: Certificates sold in offshore
transactions in reliance on Regulation S in the form of one or more permanent
global Certificates in definitive, fully registered form without interest
coupons, which shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for DTC and
registered in the name of a nominee of DTC.
Related Certificates: For each interest in the Upper Tier REMIC, the Class
of Certificates listed on the same row in the table entitled "Upper Tier REMIC"
in the Preliminary Statement.
Relief Act: The Servicemembers Civil Relief Act or any similar state or
local law.
Relief Act Shortfall: With respect to any Distribution Date and any
Mortgage Loan, any reduction in the amount of interest or principal collectible
on such Mortgage Loan for the most recently ended calendar month as a result of
the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code. References herein to "the REMICs" or "a REMIC" shall
mean any of (or, as the context requires, all of) the Lower Tier REMIC and the
Upper Tier REMIC.
REMIC Pass-Through Rate: In the case of a Class of the Class A, Class M and
Class B Certificates, the Upper Tier REMIC Net WAC Cap for the Corresponding
REMIC Regular Interest.
REMIC Provisions: Provisions of the federal income tax law relating to real
estate mortgage investment conduits, which appear at sections 860A through 860G
of Subchapter M of Chapter 1 of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time as
well as provisions of applicable state laws.
REMIC Regular Interests: Each of the interests in the Upper Tier REMIC as
set forth in the Preliminary Statement other than the Residual Interest.
Remittance Report: As defined in Section 4.04(j) hereof.
REO Property: A Mortgaged Property acquired by the Servicer, on behalf of
the Trustee for the benefit of the Certificateholders, through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.
Replacement Mortgage Loan: One or more Mortgage Loans substituted by the
Depositor for a Deleted Mortgage Loan, which must, on the date of such
substitution, as confirmed in a Request for Release substantially in the form of
Exhibit I, (1) have a 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 deduction of the principal portion of the Scheduled
Payment due in the month of substitution, not in excess of, and not less than
90% of the Stated Principal Balance of the Deleted Mortgage Loan; (2) have a
Mortgage Rate not less than or no more than 1% per annum higher than the
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Mortgage Rate of the Deleted Mortgage Loan; (3) have a similar or higher FICO
score or credit grade than that of the Deleted Mortgage Loan; (4) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (5) have a
remaining term to maturity no greater than (and not more than one year less
than) that of the Deleted Mortgage Loan; (6) provide for a Prepayment Charge on
terms substantially similar to those of the Prepayment Charge, if any, of the
Deleted Mortgage Loan; (7) have the same lien priority as the Deleted Mortgage
Loan; (8) constitute the same occupancy type as the Deleted Mortgage Loan; and
(9) comply with each representation and warranty set forth in Section 2.03
hereof.
Request for Release: The Request for Release of Documents submitted by the
Servicer to the Trustee, substantially in the form of Exhibit I hereto.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy that is required to be maintained from time to time under this Agreement.
Required Percentage: As of any Distribution Date following the Stepdown
Date, the quotient of (x) the excess of (1) the aggregate Stated Principal
Balance of the Mortgage Loans, as of the prior Distribution Date over (2) the
Certificate Principal Balance of the most senior class of Certificates
outstanding as of such Distribution Date (for purposes of this calculation, the
Class A Certificates are considered to be a single class), prior to giving
effect to distributions to be made on such Distribution Date, and (y) the
aggregate Stated Principal Balance of the Mortgage Loans, as of the prior
Distribution Date.
Requirements: Any rules or regulations promulgated pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 (as such may be amended from time to time).
Reserve Interest Rate: With respect to any Interest Determination Date, the
rate per annum that the Trustee determines to be (1) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 0.03125%) of the
one-month United States dollar lending rates which New York City banks selected
by the Trustee are quoting on the relevant Interest Determination Date to the
principal London offices of leading banks in the London interbank market or (2)
in the event that the Trustee can determine no such arithmetic mean, the lowest
one-month United States dollar lending rate which New York City banks selected
by the Trustee are quoting on such Interest Determination Date to leading
European banks.
Residual Interest: An interest in the Upper Tier REMIC that is entitled to
all distributions of principal and interest on the Class R Certificate other
than distributions in respect of the Class LTR Interest and distributions on the
Class R Certificate in respect of Excess Interest.
Responsible Officer: When used with respect to the Trustee or the Servicer,
any officer of the Trustee or the Servicer with direct responsibility for the
administration of this Agreement and any other officer to whom, with respect to
a particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
Reuters: Reuters Monitor Money Rates Service.
Reuters Screen LIBO Page: The display designated as page "LIBO" on Reuters
(or such other page as may replace such LIBO page on that service for the
purpose of displaying London interbank offered rates of major banks.
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S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., or
any successor in interest.
Xxxxxxxx-Xxxxx Certification: Has the meaning set forth in Section 3.20.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Sellers: The Sponsor and FFFC.
Servicer: Home Loan Services, Inc., or its successor in interest.
Servicer Remittance Date: With respect to any Distribution Date, the later
of (x) the date that is two Business Days after the 15th day of the month in
which such Distribution Date occurs and (y) the 18th day (or if such day is not
a Business Day, the immediately succeeding Business Day) of the month in which
such Distribution Date occurs.
Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses incurred in the performance by the Servicer of its servicing
obligations hereunder, including, but not limited to, the cost of (1) the
preservation, inspection, restoration and protection of a Mortgaged Property,
including without limitation advances in respect of prior liens, real estate
taxes and assessments, (2) any collection, enforcement or judicial proceedings,
including without limitation foreclosures, collections and liquidations, (3) the
conservation, management, sale and liquidation of any REO Property, (4)
executing and recording instruments of satisfaction, deeds of reconveyance,
substitutions of trustees on deeds of trust or Assignments of Mortgage to the
extent not otherwise recovered from the related Mortgagors or payable under this
Agreement, (5) correcting errors of prior servicers; costs and expenses charged
to the Servicer by the Trustee; tax tracking; title research; flood
certifications and lender paid mortgage insurance, (6) obtaining or correcting
any legal documentation required to be included in the Mortgage Files and
reasonably necessary for the Servicer to perform its obligations under this
Agreement and (7) compliance with the obligations under Sections 3.01 and 3.10.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to the product of (x) the Servicing Fee Rate and (y) the Stated
Principal Balance of such Mortgage Loan as of the preceding Distribution Date
or, in the event of any payment of interest that accompanies a Principal
Prepayment in full made by the Mortgagor, interest at the Servicing Fee Rate on
the Stated Principal Balance of such Mortgage Loan as of the preceding
Distribution Date for the period covered by such payment of interest.
Servicing Fee Rate: 0.50% per annum for each Mortgage Loan.
Servicing Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans whose name and
facsimile signature appear on a list of servicing
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officers furnished to the Trustee by the Servicer on the Closing Date pursuant
to this Agreement, as such lists may from time to time be amended.
Servicing Rights Pledgee: One or more lenders, selected by the Servicer, to
which the Servicer may pledge and assign all of its right, title and interest
in, to and under this Agreement.
Servicing Transfer Costs: In the event that the Servicer does not reimburse
the Trustee under this Agreement, all costs associated with the transfer of
servicing from the predecessor Servicer, including, without limitation, any
costs or expenses associated with the termination of the predecessor Servicer,
the appointment of a successor servicer, the complete transfer of all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the Trustee or any successor servicer to correct any errors
or insufficiencies in the servicing data or otherwise to enable the Trustee or
successor servicer to service the Mortgage Loans properly and effectively.
SFAS 140: Statement of Financial Accounting Standard No. 140, Accounting
for Transfers and Servicing of Financial Assets and Extinguishments of
Liabilities dated September 2000, published by the Financial Accounting
Standards Board of the Financial Accounting Foundation.
Sponsor: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or
its successor in interest.
Startup Day: As defined in Section 2.07 hereof.
Stated Principal Balance: With respect to any Mortgage Loan or related REO
Property (1) as of the Cut-off Date, the Cut-off Date Principal Balance thereof,
and (2) as of any Distribution Date, such Cut-off Date Principal Balance, minus
the sum of (A) the principal portion of the Scheduled Payments (x) due with
respect to such Mortgage Loan during each Due Period ending prior to such
Distribution Date and (y) that were received by the Servicer as of the close of
business on the Determination Date related to such Distribution Date or with
respect to which Advances were made on the Servicer Remittance Date prior to
such Distribution Date and (B) all Principal Prepayments with respect to such
Mortgage Loan received on or prior to the last day of the related Prepayment
Period, and all Liquidation Proceeds to the extent applied by the Servicer as
recoveries of principal in accordance with Section 3.12 with respect to such
Mortgage Loan, that were received by the Servicer on or before the last day of
the related Prepayment Period for Liquidation Proceeds in full and the last day
of the preceding calendar month for Liquidation Proceeds in part.
Notwithstanding the foregoing, the Stated Principal Balance of a Liquidated Loan
shall be deemed to be zero.
Stepdown Date: The earlier to occur of: (A) the first Distribution Date on
which the aggregate Certificate Principal Balance of the Class A Certificates
has been reduced to zero; or (B) the later to occur of (1) the Distribution Date
in June 2010 or (2) the first Distribution Date on which (A) the aggregate
Certificate Principal Balance of the Class A Certificates (after giving effect
to distributions of the Principal Funds amount for such Distribution Date) is
less than or equal to (B) 44.10% of the aggregate Stated Principal Balance of
the Mortgage Loans.
Stepdown Required Loss Percentage: For any Distribution Date, the
applicable percentage for such Distribution Date set forth in the following
table:
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DISTRIBUTION DATE OCCURRING IN STEPDOWN REQUIRED LOSS PERCENTAGE
------------------------------ ----------------------------------------------------
June 2009 - May 2010 4.50% with respect to June 2009, plus an additional
1/12th of 2.00% for each month thereafter
June 2010 - May 2011 6.50% with respect to June 2010, plus an additional
1/12th of 2.25% for each month thereafter
June 2011 - May 2012 8.75% with respect to June 2011, plus an additional
1/12th of 1.75% for each month thereafter
June 2012 - May 2013 10.50% with respect to June 2012, plus an additional
1/12th of 0.50% for each month thereafter
June 2013 and thereafter 11.00%
Stepdown Trigger Event: With respect to the Certificates on or after the
Stepdown Date, a Distribution Date on which (1) the quotient, measured on a
rolling three month basis, of (A) the aggregate Stated Principal Balance of all
Mortgage Loans that are 60 or more days Delinquent (including, for the purposes
of this calculation, Mortgage Loans in foreclosure and REO Properties and
Mortgage Loans with respect to which the applicable Mortgagor is in bankruptcy)
and (B) the aggregate Stated Principal Balance of the Mortgage Loans as of the
preceding Servicer Remittance Date, equals or exceeds the product of (i) 14.25%
and (ii) the Required Percentage or (2) the quotient (expressed as a percentage)
of (A) the aggregate Realized Losses incurred from the Cut-off Date through the
last day of the calendar month preceding such Distribution Date and (B) the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date
exceeds the Stepdown Required Loss Percentage. For purposes hereof, for any
Distribution Date, the calculation of "rolling three-month basis" requires
first, the calculation of the quotient described in (a) of this definition for
each of the three (3) Due Periods immediately prior to such Distribution Date,
second, the addition of such three (3) quotients and third, dividing the sum of
such three (3) quotients by three (3).
Subcontractor: Any outsourcer that performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to 5% or more of the
Mortgage Loans under the direction or authority of a Servicer (measured by
aggregate Stated Principal Balance of the Mortgage Loans, annually at the
commencement of the calendar year prior to the year in which an Assessment of
Compliance is required to be delivered, multiplied by a fraction, the numerator
of which is the number of months during which such Subcontractor performs such
discrete functions and the denominator of which is 12, or, in the case of the
year in which the Closing Date occurs, the number of months elapsed in such
calendar year).
Subordinate Certificates: The Class M and Class B Certificates.
Subsequent Recovery: Any amount received on a Mortgage Loan (net of amounts
reimbursed to the Servicer related to Liquidated Mortgage Loans) subsequent to
such Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Sub-Servicer: Any Person that services Mortgage Loans on behalf of the
Servicer pursuant to a Subservicing Agreement and is responsible for the
performance of the material servicing functions required to be performed by the
Servicer under this Agreement that are identified in Item 1122(d) of Regulation
AB with respect to 10% or more of the Mortgage Loans under the direction or
authority of the
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Servicer (measured by aggregate Stated Principal Balance of the Mortgage Loans,
annually at the commencement of the calendar year prior to the year in which an
Assessment of Compliance is required to be delivered, multiplied by a fraction,
the numerator of which is the number of months during which such Subservicer
services the related Mortgage Loans and the denominator of which is 12, or, in
the case of the year in which the Closing Date occurs, the number of months
elapsed in such calendar year). Any subservicer shall meet the qualifications
set forth in Section 3.02.
Subservicing Agreement: As defined in Section 3.02(a).
Substitution Adjustment Amount: As defined in Section 2.03(c).
Tax Matters Person: The Person designated as "tax matters person" in the
manner provided under Treasury regulation Section 1.860F-4(d) and Treasury
regulation Section 301.6231(a)(7)-1.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a Certificate.
Trust Fund: The corpus of the Issuing Entity created hereunder consisting
of (i) the Mortgage Loans and all interest and principal received on or with
respect thereto on and after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof, exclusive of interest not
required to be deposited in the Collection Account; (ii) the Collection Account
and the Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed in lieu of foreclosure or
otherwise; (iv) the mortgagee's rights under the Insurance Policies with respect
to the Mortgage Loans and/or the related Mortgaged Properties and (v) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid property. For the avoidance of doubt, notwithstanding
anything to the contrary herein, the Class A Certificate Guaranty Insurance
Policy shall not be included in, nor constitute the property of, the Trust Fund
or any sub-trust or sub-division thereof.
Trustee: LaSalle Bank National Association, a national banking association,
not in its individual capacity, but solely in its capacity as trustee for the
benefit of the Certificateholders and the Class A Certificate Insurer under this
Agreement, and any successor thereto, and any corporation or national banking
association resulting from or surviving any consolidation or merger to which it
or its successors may be a party and any successor trustee as may from time to
time be serving as successor trustee hereunder; it being understood that certain
duties of the Trustee under Sections 2.01, 2.02 and 3.13 with respect to the
possession and administration of the Mortgage Files generally may be carried out
by a custodian engaged by the Trustee.
Uncertificated Class C Interest: An uncertificated REMIC Regular Interest
having the characteristics described in the Preliminary Statement.
Unpaid Realized Loss Amount: The Class M-1 Unpaid Realized Loss Amount,
Class M-2 Unpaid Realized Loss Amount, Class M-3 Unpaid Realized Loss Amount,
Class M-4 Unpaid Realized Loss Amount, Class B-1 Unpaid Realized Loss Amount,
Class B-2 Unpaid Realized Loss Amount, Class B-3 Unpaid Realized Loss Amount,
Class B-4 Unpaid Realized Loss Amount and Class C Unpaid Realized Loss Amount,
collectively.
Upper Tier REMIC: As described in the Preliminary Statement and Section
2.07.
Upper Tier REMIC Net WAC Cap: In the case of the Class UTA-1 Interest and
the Residual Interest, a per annum rate equal to the excess of (i) the weighted
average of the interest rate of the Class
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LTII1B Interest for such Distribution Date over (ii) the Class A Certificate
Guaranty Insurance Premium Rate. In the case of the Class UTA-2A and Class
UTA-2B Interests, a per annum rate equal to the excess of (i) the weighted
average of the interest rate of the Class LTII2B Interest for such Distribution
Date over (ii) the Class A Certificate Guaranty Insurance Premium Rate. In the
case of the Class UTM-1, Class UTM-2, Class UTM-3, Class UTM-4, Class UTB-1,
Class UTB-2, Class UTB-3 and Class UTB-4 Interests, a per annum rate equal to
the weighted average of the interest rates of Class LTII1B and Class LTII2B
Interests for such Distribution Date weighted, respectively, on the basis of the
uncertificated principal balances of the Class LTII1A and the Class LTII2A
Interests. In the case of any interest in the Upper Tier REMIC that accrues
interest on a "30/360" basis, the per annum rates described in this definition
shall be adjusted to reflect accruals on such basis.
Voting Rights: The portion of the voting rights of all the Certificates
that is allocated to any of the Certificates for purposes of the voting
provisions hereunder. Voting Rights allocated to each Class of Certificates
shall be allocated as follows: (1) 98% to the Class A, Class M and Class B
Certificates, with the allocation among such Certificates to be in proportion to
the Certificate Principal Balance of each Class relative to the Certificate
Principal Balance of all other Classes and (2) each Class of the Class C and
Class P will be allocated 1% of the Voting Rights. Voting Rights will be
allocated among the Certificates of each such Class in accordance with their
respective Percentage Interests.
Weighted Average Available Funds Cap: With respect to a Distribution Date,
the per annum rate determined by the weighted average of the Class A-1 Available
Funds Cap and the Class A-2 Available Funds Cap without regard to the Class A
Certificate Guaranty Insurance Policy Premium and weighted on the basis of the
Group One AFC Percentage or Group Two AFC Percentage, as applicable (and with
regard to the Class B Certificates only, multiplied by a fraction, the numerator
of which is the actual number of days in the related Accrual Period and the
denominator of which is 30).
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans
The Depositor, concurrently with the execution and delivery hereof, does
hereby sell, transfer, assign, set over and convey to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
of the Trust Fund. Such assignment includes all interest and principal received
on or with respect to the Mortgage Loans on or after the Cut-off Date (other
than Scheduled Payments due on the Mortgage Loans on or before the Cut-off
Date).
It is agreed and understood by the Depositor, the Servicer and the Trustee
that it is not intended that any Mortgage Loan be included in the Trust that is,
without limitation, either (i) a "High-Cost Home Loan" as defined in the New
Jersey Home Ownership Act effective November 27, 2003; (ii) a "High-Cost Home
Loan" as defined in the New Mexico Home Loan Protection Act effective January 1,
2004; (iii) a "High-Cost Home Mortgage Loan" as defined in the Massachusetts
Predatory Home Loan Practices Act effective November 7, 2004; (iv) a "High-Cost
Home Loan" as defined by the Indiana High Cost Home Loan Law effective January
1, 2005 or (v) a "High-Cost Home Loan" as defined by the Illinois High Risk Home
Loan Act effective January 1, 2004.
In connection with such assignment, the Depositor does hereby deliver to,
and deposit with the Trustee the following documents or instruments with respect
to each Mortgage Loan:
(A) The original Mortgage Note endorsed in blank or, "Pay to the order
of LaSalle Bank National Association, as trustee for the First Franklin
Mortgage Loan Trust, Series 2007-FFC, Mortgage Loan Asset-Backed
Certificates, without recourse" together with all riders thereto. The
Mortgage Note shall include all intervening endorsements showing a complete
chain of the title from the Originator of the Mortgage Loan to
[____________________].
(B) Except as provided below and for each Mortgage Loan that is not a
MERS Loan, the original recorded Mortgage together with all riders thereto,
with evidence of recording thereon, or, if the original Mortgage has not
yet been returned from the recording office, a copy of the original
Mortgage together with all riders thereto certified to be a true copy of
the original of the Mortgage that has been delivered for recording in the
appropriate recording office of the jurisdiction in which the Mortgaged
Property is located and in the case of each MERS Loan, the original
Mortgage together with all riders thereto, noting the presence of the MIN
of the Loan and either language indicating that the Mortgage Loan is a MOM
Loan or if the Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the
public recording office in which such Mortgage has been recorded.
(C) In the case of each Mortgage Loan that is not a MERS Loan, the
original Assignment of each Mortgage in blank or, to "LaSalle Bank National
Association, as trustee for the First Franklin Mortgage Loan Trust, Series
2007-FFC, Mortgage Loan Asset-Backed Certificates."
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(D) The original policy of title insurance (or a preliminary title
report, commitment or binder if the original title insurance policy has not
been received from the title insurance company).
(E) Originals of any intervening assignments of the Mortgage, with
evidence of recording thereon or, if the original intervening assignment
has not yet been returned from the recording office, a copy of such
assignment certified to be a true copy of the original of the assignment
which has been sent for recording in the appropriate jurisdiction in which
the Mortgaged Property is located.
(F) Originals of all assumption and modification agreements, if any.
(G) If in connection with any Mortgage Loan, the Depositor cannot
deliver the Mortgage, Assignments of Mortgage or assumption, consolidation
or modification, as the case may be, with evidence of recording thereon, if
applicable, concurrently with the execution and delivery of this Agreement
solely because of a delay caused by the public recording office where such
Mortgage, Assignments of Mortgage or assumption, consolidation or
modification, as the case may be, has been delivered for recordation, the
Depositor shall deliver or cause to be delivered to the Trustee written
notice stating that such Mortgage or assumption, consolidation or
modification, as the case may be, has been delivered to the appropriate
public recording office for recordation. Thereafter, the Depositor shall
deliver or cause to be delivered to the Trustee such Mortgage, Assignments
of Mortgage or assumption, consolidation or modification, as the case may
be, with evidence of recording indicated thereon, if applicable, upon
receipt thereof from the public recording office. To the extent any
required endorsement is not contained on a Mortgage Note or an Assignment
of Mortgage, the Depositor shall make or cause to be made such endorsement.
(H) With respect to any Mortgage Loan, none of the Depositor, the
Servicer or the Trustee shall be obligated to cause to be recorded the
Assignment of Mortgage referred to in this Section 2.01. In the event an
Assignment of Mortgage is not recorded, the Servicer shall have no
liability for its failure to receive and act on notices related to such
Assignment of Mortgage.
Upon the occurrence of an Event of Default or an "event of default" under
the Insurance Agreement, the Class A Certificate Insurer may direct the Trustee
to cause (i) the Assignments in blank to be completed to show "LaSalle Bank
National Association, as Trustee for the First Franklin Mortgage Loan Trust,
Series 2007-FFC, Mortgage Loan Asset-Backed Certificates" as the assignee and
(ii) the Assignments to be recorded in the appropriate jurisdictions. The cost
of such completion and recordation shall not be subject to the cap provided
under Section 8.06(c) and will be an "unanticipated expense" reimbursable under
Section 3.08.
The ownership of each Mortgage Note, the Mortgage and the contents of the
related Mortgage File is vested in the Trustee on behalf of the
Certificateholders and the Class A Certificate Insurer. Neither the Depositor
nor the Servicer shall take any action inconsistent with such ownership and
shall not claim any ownership interest therein. The Depositor and the Servicer
shall respond to any third party inquiries with respect to ownership of the
Mortgage Loans by stating that such ownership is held by the Trustee on behalf
of the Certificateholders and the Class A Certificate Insurer. Mortgage
documents relating to the Mortgage Loans not delivered to the Trustee are and
shall be held in trust by the Servicer, for the benefit of the Trustee as the
owner thereof, and the Servicer's possession of the contents of each
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Mortgage File so retained is for the sole purpose of servicing the related
Mortgage Loan, and such retention and possession by the Servicer, is in a
custodial capacity only. The Depositor agrees to take no action inconsistent
with the Trustee's ownership of the Mortgage Loans, to promptly indicate to all
inquiring parties that the Mortgage Loans have been sold and to claim no
ownership interest in the Mortgage Loans.
It is the intention of this Agreement that the conveyance of the
Depositor's right, title and interest in and to the Trust Fund pursuant to this
Agreement shall constitute a purchase and sale and not a loan. If the conveyance
of Mortgage Loans from either of the Sellers to the Depositor is characterized
as a pledge and not a sale, then the Depositor shall be deemed to have
transferred to the Trustee all of the Depositor's right, title and interest in,
to and under the obligations of such Seller deemed to be secured by said pledge;
and it is the intention of this Agreement that the Depositor shall also be
deemed to have granted to the Trustee a first priority security interest in all
of the Depositor's right, title, and interest in, to and under the obligations
of such Seller to the Depositor deemed to be secured by said pledge and that the
Trustee shall be deemed to be an independent custodian for purposes of
perfection of the security interest granted to the Depositor. If the conveyance
of the Mortgage Loans from the Depositor to the Trustee is characterized as a
pledge, it is the intention of this Agreement that this Agreement shall
constitute a security agreement under applicable law, and that the Depositor
shall be deemed to have granted to the Trustee a first priority security
interest in all of the Depositor's right, title and interest in, to and under
the Mortgage Loans, all payments of principal of or interest on such Mortgage
Loans, all other rights relating to and payments made in respect of the Trust
Fund, and all proceeds of any thereof. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person in any
Certificates, the security interest created hereby shall continue in full force
and effect and the Trustee shall be deemed to be the collateral agent for the
benefit of such Person.
In addition to the conveyance made in the first paragraph of this Section
2.01, the Depositor does hereby convey, assign and set over to the Trustee for
the benefit of the Certificateholders its rights and interests under the FFFC
Purchase Agreement, including the Depositor's right, title and interest in the
representations and warranties contained in the FFFC Purchase Agreement, its
rights and interests under the MLML Purchase Agreement, including the
Depositor's right, title and interest in the representations and warranties
contained in the MLML Purchase Agreement, and the benefit of the repurchase
obligations and the obligation of the respective Seller contained in the FFFC
Purchase Agreement and the MLML Purchase Agreement, respectively, to take, at
the request of the Depositor, the Trustee or the Class A Certificate Insurer,
all action on its part which is reasonably necessary to ensure the
enforceability of a Mortgage Loan. The Trustee hereby accepts such assignment,
and shall be entitled to exercise all rights of the Depositor under the FFFC
Purchase Agreement and the MLML Purchase Agreement as if, for such purpose, it
were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit
and conveyance does not and is not intended to result in creation or assumption
by the Trustee of any obligation of the Depositor, the Sellers, or any other
Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto.
SECTION 2.02. Acceptance by the Trustee of the Mortgage Loans
Except as set forth in the exception report delivered contemporaneously
herewith (the "Exception Report"), the Trustee acknowledges receipt of the
Mortgage Note for each Mortgage Loan and delivery of a Mortgage File (but does
not acknowledge receipt of all documents required to be included in such
Mortgage File) with respect to each Mortgage Loan and declares that it holds and
will hold such documents and any other documents constituting a part of the
Mortgage Files delivered to it in trust for
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the use and benefit of all present and future Certificateholders and the Class A
Certificate Insurer. The Depositor will cause the applicable Seller to
repurchase any Mortgage Loan to which a material exception was taken in the
Exception Report unless such exception is cured to the satisfaction of the
Depositor and the Trustee within 45 Business Days of the Closing Date.
The Trustee acknowledges receipt of the FFFC Purchase Agreement and the
MLML Purchase Agreement.
The Trustee agrees, for the benefit of Certificateholders, the NIMs Insurer
and the Class A Certificate Insurer to review each Mortgage File delivered to it
within sixty (60) days after the Closing Date. The Trustee will ascertain and to
certify, within seventy (70) days of the Closing Date, to the Depositor, the
Servicer, the NIMs Insurer and the Class A Certificate Insurer that all
documents required by Section 2.01 (A)-(B), (C) (if applicable), and (D)-(E),
and the documents if actually received by it, under Section 2.01(F), have been
executed and received, and that such documents relate to the Mortgage Loans
identified in Exhibit B that have been conveyed to it. It is herein acknowledged
that, in conducting such review, the Trustee shall not be under any duty or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that they are genuine, enforceable or
appropriate for the represented purpose, that they have actually been recorded
or that they are other than what they purport to be on their face. If the
Trustee finds any document or documents constituting a part of a Mortgage File
to be missing or defective (that is, mutilated, damaged, defaced or unexecuted)
in any material respect, the Trustee shall promptly (and in any event within no
more than five Business Days) after such finding so notify the Servicer, the
related Seller, the Depositor, the NIMs Insurer and the Class A Certificate
Insurer. In addition, the Trustee shall also notify the Servicer, the related
Seller, the Depositor, the NIMs Insurer and the Class A Certificate Insurer if
the original Mortgage with evidence of recording thereon with respect to a
Mortgage Loan is not received within seventy (70) days of the Closing Date; if
it has not been received because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation, the Depositor
shall deliver or cause to be delivered to the Trustee written notice stating
that such Mortgage has been delivered to the appropriate public recording office
for recordation and thereafter the Depositor shall deliver or cause to be
delivered such Mortgage with evidence of recording thereon upon receipt thereof
from the public recording office. The Trustee shall request that the related
Seller correct or cure such omission, defect or other irregularity, or
substitute a Mortgage Loan pursuant to the provisions of Section 2.03(c), within
ninety (90) days from the date the related Seller was notified of such omission
or defect and, if such Seller does not correct or cure such omission or defect
within such period, that such Seller purchase such Mortgage Loan from the
Issuing Entity within ninety (90) days from the date the Trustee notified such
Seller of such omission, defect or other irregularity at the Purchase Price of
such Mortgage Loan.
The Purchase Price for any Mortgage Loan purchased pursuant to this Section
2.02 shall be paid to the Servicer and deposited by the Servicer in the
Certificate Account or Collection Account, as appropriate, promptly upon
receipt, and upon receipt by the Trustee of written notification of such deposit
signed by a Servicing Officer or receipt of such deposit by the Trustee, the
Trustee, upon receipt of a Request for Release and certification of the Servicer
of such required deposit, shall promptly release to the related Seller the
related Mortgage File and the Trustee shall execute and deliver such instruments
of transfer or assignment, without recourse, as shall be requested by the
related Seller and necessary to vest in the related Seller or its designee, as
the case may be, any Mortgage Loan released pursuant hereto, and the Trustee
shall have no further responsibility with regard to such Mortgage Loan. It is
understood and agreed that the obligation of the related Seller to purchase,
cure or substitute any Mortgage Loan as to which a material defect in or
omission of a constituent document exists shall constitute the sole remedy
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respecting such defect or omission available to the Trustee on behalf of
Certificateholders, the NIMs Insurer and the Class A Certificate Insurer. The
preceding sentence shall not, however, limit any remedies available to
Certificateholders, the NIMs Insurer, the Class A Certificate Insurer, the
Depositor or the Trustee pursuant to the FFFC Purchase Agreement or the MLML
Purchase Agreement.
The Trustee shall be under no duty or obligation to inspect, review and
examine such documents, instruments, certificates or other papers to determine
that they are genuine, enforceable, recordable, duly authorized, sufficient,
legal, valid or appropriate to the represented purpose, or that they have
actually been recorded, or that they are other than what they purport to be on
their face. The Trustee shall keep confidential the name of each Mortgagor
except as required for the performance of this Agreement and the Trustee shall
not solicit any such Mortgagor for the purpose of refinancing the related
Mortgage Loan; notwithstanding anything herein to the contrary, the foregoing
shall not be construed to prohibit (i) disclosure of any and all information
that is or becomes publicly known, or information obtained by the Trustee from
sources other than the other parties hereto, (ii) disclosure of any and all
information (A) if required to do so by any applicable law, rule or regulation,
(B) to any government agency or regulatory body having or claiming authority to
regulate or oversee any aspects of the business of the Trustee or that of any
Affiliate, (C) pursuant to any subpoena, civil investigation demand or similar
demand or request of any court, regulatory authority, arbitrator or arbitration
to which the Trustee or any Affiliate or an officer, director, employer or
shareholder thereof is a party or (D) to any Affiliate, independent or internal
auditor, agent, employee or attorney of the Trustee having a need to know the
same, provided that the Trustee advises such recipient of the confidential
nature of the information being disclosed, or (iii) any other disclosure
authorized by the Depositor.
Within seventy (70) days of the Closing Date, the Trustee shall deliver to
the Depositor, the Servicer, the NIMs Insurer and the Class A Certificate
Insurer the Trustee's Certification, substantially in the form of Exhibit D
attached hereto, evidencing the completeness of the Mortgage Files, with any
exceptions noted thereto.
SECTION 2.03. Representations, Warranties and Covenants of the Depositor
(a) The Depositor hereby represents and warrants to the Servicer, the
Trustee, the NIMs Insurer and the Class A Certificate Insurer as follows, as of
the date hereof:
(i) The Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has full power and authority (corporate and other) necessary to own or hold
its properties and to conduct its business as now conducted by it and to
enter into and perform its obligations under this Agreement, the FFFC
Purchase Agreement and the MLML Purchase Agreement.
(ii) The Depositor has the full corporate power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement, the FFFC Purchase Agreement
and the MLML Purchase Agreement and has duly authorized, by all necessary
corporate action on its part, the execution, delivery and performance of
this this Agreement, the FFFC Purchase Agreement and the MLML Purchase
Agreement; and this Agreement, the FFFC Purchase Agreement and the MLML
Purchase Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, subject, as to enforceability, to (i)
bankruptcy, insolvency, reorganization,
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moratorium and other similar laws affecting creditors' rights generally and
(ii) general principles of equity, regardless of whether enforcement is
sought in a proceeding in equity or at law.
(iii) The execution and delivery of this Agreement, the FFFC Purchase
Agreement and the MLML Purchase Agreement by the Depositor, the
consummation of the transactions contemplated by this Agreement, the FFFC
Purchase Agreement and the MLML Purchase Agreement, and the fulfillment of
or compliance with the terms hereof are in the ordinary course of business
of the Depositor and will not (A) result in a material breach of any term
or provision of the charter or by-laws of the Depositor or (B) materially
conflict with, result in a violation or acceleration of, or result in a
material default under, the terms of any other material agreement or
instrument to which the Depositor is a party or by which it may be bound or
(C) constitute a material violation of any statute, order or regulation
applicable to the Depositor of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Depositor; and the
Depositor is not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation may
materially impair the Depositor's ability to perform or meet any of its
obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's
knowledge, threatened, against the Depositor that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement, the FFFC Purchase Agreement and the MLML Purchase Agreement or
the ability of the Depositor to perform its obligations under this
Agreement, the FFFC Purchase Agreement and the MLML Purchase Agreement in
accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of, or compliance by the Depositor with, this
Agreement, the FFFC Purchase Agreement and the MLML Purchase Agreement or
the consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, the Depositor has
obtained the same. The Depositor hereby represents and warrants to the
Trustee and the Class A Certificate Insurer with respect to each Mortgage
Loan as of the Closing Date, and following the transfer of the Mortgage
Loans to it by the Sponsor, the Depositor had good title to the Mortgage
Loans and the Mortgage Notes were subject to no offsets, claims, liens,
mortgage, pledge, charge, security interest, defenses or counterclaims.
(b) The representations and warranties of FFFC with respect to the
Mortgage Loans in the FFFC Purchase Agreement, which have been assigned to the
Trustee hereunder, were made as of the Closing Date as specified in the FFFC
Purchase Agreement. The representations and warranties of the Sponsor with
respect to the Mortgage Loans in the MLML Purchase Agreement, which have been
assigned to the Trustee hereunder, were made as of the Closing Date as specified
in the MLML Purchase Agreement. The Trustee acknowledges that the Depositor
shall have no obligation or liability with respect to any breach of any
representation or warranty with respect to the Mortgage Loans (except as set
forth in Section 2.03(a)(v)) under any circumstances.
(c) Upon discovery by any of the Depositor, the Servicer, the related
Seller, the Trustee (or its custodian), the NIMs Insurer or the Class A
Certificate Insurer of a breach of any of such
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representations and warranties that adversely and materially affects the value
of the related Mortgage Loan, Prepayment Charges or the interests of the
Certificateholders or the Class A Certificate Insurer, the party discovering
such breach shall give prompt written notice to the other parties. Within ninety
(90) days of the discovery of such breach of any representation or warranty, the
Depositor shall cause the related Seller to either (a) cure such breach in all
material respects, (b) repurchase such Mortgage Loan or any property acquired in
respect thereof from the Trustee at the Purchase Price or (c) within the two
year period following the Closing Date, substitute a Replacement Mortgage Loan
for the affected Mortgage Loan. If a breach of the representations and
warranties set forth in the Purchase Agreement hereof exists solely due to the
unenforceability of a Prepayment Charge, the Trustee or the other party having
notice thereof shall notify the Servicer thereof and not seek to enforce the
repurchase remedy provided for herein unless such Mortgage Loan is not current.
In the event that such breach relates solely to the unenforceability of a
Prepayment Charge, amounts received in respect of such indemnity up to the
amount of such Prepayment Charge shall be distributed pursuant to Section
4.04(b)(i). As provided in the FFFC Purchase Agreement and the MLML Purchase
Agreement, if the related Seller substitutes for a Mortgage Loan for which there
is a breach of any representation or warranty in the FFFC Purchase Agreement or
the MLML Purchase Agreement, as applicable, which adversely and materially
affects the value of such Mortgage Loan and such substitute mortgage loan is not
a Replacement Mortgage Loan, under the terms of the FFFC Purchase Agreement and
the MLML Purchase Agreement, the related Seller will, in exchange for such
substitute Mortgage Loan, (i) provide the applicable Purchase Price for the
affected Mortgage Loan or (ii) within two years of the Closing Date, substitute
such affected Mortgage Loan with a Replacement Mortgage Loan. Any such
substitution shall not be effected prior to the additional delivery to the
Trustee of a Request for Release substantially in the form of Exhibit I and
shall not be effected unless it is within two years of the Startup Day.
With respect to any Mortgage Loan repurchased by the related Seller
pursuant to the FFFC Purchase Agreement or the MLML Purchase Agreement, as
applicable, the principal portion of the funds received by the Servicer in
respect of such repurchase of a Mortgage Loan will be considered a Principal
Prepayment and shall be deposited in the Certificate Account pursuant to Section
3.05. Upon receipt by the Trustee of notice from the Servicer of receipt by the
Servicer of the full amount of the Purchase Price for a Deleted Mortgage Loan,
and upon receipt by the Trustee of the Mortgage File for a Replacement Mortgage
Loan substituted for a Deleted Mortgage Loan and a Request for Release, the
Trustee shall release and reassign to the related Seller the related Mortgage
File for the Deleted Mortgage Loan and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be necessary to vest in such party or its
designee or assignee title to any Deleted Mortgage Loan released pursuant
hereto, free and clear of all security interests, liens and other encumbrances
created by this Agreement, which instruments shall be prepared by the Depositor
or the related Seller, and the Trustee (and its custodian) shall have no further
responsibility with respect to the Mortgage File relating to such Deleted
Mortgage Loan.
With respect to each Replacement Mortgage Loan to be delivered to the
Trustee pursuant to the terms of this Article II in exchange for a Deleted
Mortgage Loan: (i) the related Seller must deliver to the Trustee the Mortgage
File for the Replacement Mortgage Loan containing the documents set forth in
Section 2.01 along with a written certification certifying as to the Mortgage
Loan satisfying all requirements under the definition of Replacement Mortgage
Loan and the delivery of such Mortgage File and containing the granting language
set forth in Section 2.01; and (ii) the Depositor will be deemed to have made,
with respect to such Replacement Mortgage Loan, each of the representations and
warranties made by it with respect to the related Deleted Mortgage Loan. The
Trustee shall review the Mortgage
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File with respect to each Replacement Mortgage Loan and certify to the Depositor
that all documents required by Section 2.01(A)-(B), (C) (if applicable), and
(D)-(E) have been executed and received.
For any month in which a Seller substitutes one or more Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, such Seller will
determine the amount (if any) by which the aggregate principal balance of all
such Replacement Mortgage Loans as of the date of substitution and the aggregate
Prepayment Charges with respect to such Replacement Mortgage Loans is less than
the aggregate Stated Principal Balance (after application of the principal
portion of the Scheduled Payment due in the month of substitution) and aggregate
Prepayment Charges of all such Deleted Mortgage Loans. An amount equal to the
aggregate of the deficiencies described in the preceding sentence (such amount,
the "Substitution Adjustment Amount") plus an amount equal to any unreimbursed
costs, penalties and/or damages incurred by the Trust Fund in connection with
any violation relating to such Deleted Mortgage Loan of any predatory or abusive
lending law shall be remitted by the related Seller to the Trustee for deposit
into the Certificate Account by such Seller on the Determination Date for the
Distribution Date relating to the Prepayment Period during which the related
Mortgage Loan became required to be purchased or replaced hereunder.
Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Replacement Mortgage Loan for a
Deleted Mortgage Loan shall be made unless the Trustee and the Class A
Certificate Insurer shall have received an Opinion of Counsel (at the expense of
the party seeking to make the substitution) that, under current law, such
substitution will not (A) affect adversely the status of any REMIC established
hereunder as a REMIC, or of the related "regular interests" as "regular
interests" in any such REMIC, or (B) cause any such REMIC to engage in a
"prohibited transaction" or prohibited contribution pursuant to the REMIC
Provisions.
The Depositor 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 Replacement Mortgage Loan or Replacement Mortgage Loans.
Upon such substitution by the related Seller, such Replacement Mortgage Loan or
Replacement Mortgage Loans shall constitute part of the Mortgage Pool and shall
be subject in all respects to the terms of this Agreement and the FFFC Purchase
Agreement or the MLML Purchase Agreement, as applicable, including all
applicable representations and warranties thereof included in the FFFC Purchase
Agreement or the MLML Purchase Agreement, as applicable, as of the date of
substitution.
(d) It is understood and agreed that the representations, warranties
and indemnification (i) set forth in this Section 2.03, (ii) of FFFC set forth
in the FFFC Purchase Agreement and assigned to the Trustee by the Depositor
hereunder and (iii) of the Sponsor set forth in the MLML Purchase Agreement and
assigned to the Trustee by the Depositor hereunder shall each survive delivery
of the Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to
the Trustee and shall continue throughout the term of this Agreement.
(e) The Depositor shall deliver a copy of the Mortgage Loan Schedule
to the Servicer on the Closing Date.
SECTION 2.04. Representations and Warranties of the Servicer
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(a) The Servicer hereby represents and warrants to the Depositor and
the Trustee as follows, as of the date hereof:
(i) The Servicer is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by the Servicer in any state in which a
Mortgaged Property is located or is otherwise not required under applicable
law to effect such qualification and, in any event, is in compliance with
the doing business laws of any such state, to the extent necessary to
ensure its ability to enforce each Mortgage Loan, to service the Mortgage
Loans in accordance with the terms of this Agreement and to perform any of
its other obligations under this Agreement in accordance with the terms
hereof.
(ii) The Servicer has the corporate power and authority and to service
each Mortgage Loan, and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary corporate action on the part of the Servicer
the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery hereof by
the other parties hereto, constitutes a legal, valid and binding obligation
of the Servicer, enforceable against the Servicer in accordance with its
terms, except that (a) the enforceability hereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(iii) The execution and delivery of this Agreement by the Servicer,
the servicing of the Mortgage Loans under this Agreement, the consummation
of any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms hereof are in the ordinary
course of business of the Servicer and will not (A) result in a material
breach of any term or provision of the charter or by-laws of the Servicer
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which the Servicer is a party or
by which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to the Servicer of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Servicer; and the Servicer is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair the
Servicer's ability to perform or meet any of its obligations under this
Agreement.
(iv) The Servicer is an approved servicer of mortgage loans for Xxxxxx
Xxx.
(v) No litigation is pending or, to the best of the Servicer's
knowledge, threatened, against the Servicer that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Servicer to service the Mortgage Loans or
to perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of, or
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compliance by the Servicer with, this Agreement or the consummation of the
transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, the Servicer has obtained the same.
SECTION 2.05. Substitutions and Repurchases of Mortgage Loans that are not
"Qualified Mortgages"
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 promptly
(and in any event within five (5) Business Days of discovery) give written
notice thereof to the other parties and the Class A Certificate Insurer. In
connection therewith, the Depositor shall cause the related Seller, at the
Seller's option, either (i) substitute, if the conditions in Section 2.03(c)
with respect to substitutions are satisfied, a Replacement Mortgage Loan for the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within
ninety (90) days of such discovery in the same manner as it would a Mortgage
Loan for a breach of representation or warranty contained in Section 2.03. The
Trustee, upon the written direction of the related Seller, shall reconvey to the
related Seller 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 contained in Section
2.03.
SECTION 2.06. Authentication and Delivery of Certificates
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, the Trustee has caused
to be authenticated and delivered to or upon the order of the Depositor, in
exchange for the Mortgage Loans, Certificates duly authenticated by the
Authenticating Agent in authorized denominations evidencing ownership of the
entire Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders of
the Certificates and to perform its duties set forth in this Agreement in
accordance with the provisions hereof.
SECTION 2.07. REMIC Elections
(a) The Depositor hereby instructs and authorizes the Trustee to make
an appropriate election to treat each of the Upper Tier REMIC and the Lower Tier
REMIC as a REMIC. The Trustee shall sign the returns providing for such
elections and such other tax or information returns that are required to be
signed by the Trustee under applicable law. This Agreement shall be construed so
as to carry out the intention of the parties that each of the Upper Tier REMIC
and the Lower Tier REMIC be treated as a REMIC at all times prior to the date on
which the Trust Fund is terminated.
(b) The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests created
hereby. The "Startup Day" for purposes of the REMIC Provisions shall be the
Closing Date. Each REMIC's fiscal year shall be the calendar year.
The Lower Tier REMIC shall consist of all of the assets of the Trust Fund
other than (i) amounts distributable to the Class P Certificates pursuant to
Section 4.04(b)(i) hereof, (ii) the interests issued by the Lower Tier REMIC,
and (iii) the grantor trusts described in Section 2.07 hereof. The Lower Tier
REMIC shall issue the Lower Tier REMIC
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Regular Interests, which shall be designated as regular interests of such REMIC
and shall issue the Class LTR Interest, which shall be designated as the sole
class of residual interest in the Lower Tier REMIC. Each of the Lower Tier REMIC
Regular Interests shall have the characteristics set forth in its definition and
the Preliminary Statement.
The assets of the Upper Tier REMIC shall be the Lower Tier REMIC Regular
Interests and the Class A Certificate Guaranty Insurance Policy. The REMIC
Regular Interests shall be designated as the regular interests in the Upper Tier
REMIC and the Residual Interest shall be designated as the sole class of
residual interest in the Upper Tier REMIC. For federal income tax purposes, the
pass-through rate on each REMIC Regular Interest (other than the Uncertificated
Class C Interest) and on the sole class of residual interest in the Upper Tier
REMIC shall be subject to a cap equal to the Upper Tier REMIC Net WAC Cap. The
characterization of the Class A Certificate Guaranty Insurance Policy as part of
the Upper Tier REMIC is for federal income tax purposes only, and
notwithstanding such characterization, the Class A Certificate Guaranty
Insurance Policy shall not be included in, nor constitute the property of, the
Trust Fund or any sub-trust or sub-division thereof.
The beneficial ownership of the Class LTR Interest and the Residual
Interest shall be represented by the Class R Certificate. The Class LTR Interest
shall not have a principal balance or bear interest.
(c) The "tax matters person" with respect to each REMIC for purposes
of the REMIC Provisions shall be the beneficial owner of the Class R
Certificate; provided, however, that the Holder of the Class R Certificate, by
its acceptance thereof, irrevocably appoints the Trustee as its agent and
attorney-in-fact to act as "tax matters person" with respect to each such REMIC
for purposes of the REMIC Provisions. If there is more than one beneficial owner
of the Class R Certificate, the "tax matters person" shall be the Person with
the greatest percentage interest in the Class R Certificate and, if there is
more than one such Person, shall be determined under Treasury regulation Section
1.860F-4(d) and Treasury regulation Section 301.6231(a)(7)-1.
(d) (i) It is intended that the rights of each Class of the Class A,
Class M and Class B Certificates to receive payments in respect of Excess
Interest shall be treated as a right in interest rate cap contracts written by
the Class C Certificateholders in favor of the holders of each Class of the
Class A, Class M and Class B Certificates and such shall be accounted for as
property held separate and apart from the regular interests in the Upper Tier
REMIC held by the holders of the Class A Certificates (other than the Class R
Certificate), Class M Certificates, Class B Certificates and the residual
interest in the Upper Tier REMIC held by the holder of the Class R Certificate.
For information reporting requirements, the rights of the Class A, Class M and
Class B Certificates to receive payments in respect of Excess Interest shall be
assumed to have zero or a de minimis value. This provision is intended to
satisfy the requirements of Treasury Regulations Section 1.860G-2(i) for the
treatment of property rights coupled with REMIC interests to be separately
respected and shall be interpreted consistently with such regulation. On each
Distribution Date, to the extent that any of the Class A, Class M and Class B
Certificates receive payments in respect of Excess Interest, such amounts will
be treated as distributed by the Upper Tier REMIC to the Class C Certificates
pro rata in payment of the amounts specified in Section 4.04(g) and then paid to
the relevant Class of Certificates pursuant to the related interest rate cap
agreement.
(ii) [Reserved].
(e) The parties intend that the portion of the Trust Fund consisting
of the Uncertificated Class C Interest and the obligation of the holders of the
Class C Certificates to pay amounts in respect of Excess Interest to the holders
of the Class A, Class M and Class B Certificates shall be treated as a "grantor
trust" under the Code, for the benefit of the holders of the Class C
Certificates,
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and the provisions hereof shall be interpreted consistently with this intention.
In furtherance of such intention, the Trustee shall (i) furnish or cause to be
furnished to the holders of the Class C Certificates information regarding their
allocable share, if any, of the income with respect to such grantor trust, (ii)
file or cause to be filed with the Internal Revenue Service Form 1041 (together
with any necessary attachments) and such other forms as may be applicable and
(iii) comply with such information reporting obligations with respect to
payments from such grantor trust to the holders of Class A, Class M, Class B and
Class C Certificates as may be applicable under the Code.
(f) The parties intend that the portion of the Trust Fund consisting
of the right to receive amounts distributable to the Class P Certificates
pursuant to Section 4.04(b)(i) hereof shall be treated as a "grantor trust"
under the Code, for the benefit of the holders of the Class P Certificates, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall (i) furnish or cause to be
furnished to the holders of the Class P Certificates information regarding their
allocable share of the income with respect to such grantor trust and (ii) file
or cause to be filed with the Internal Revenue Service Form 1041 (together with
any necessary attachments) and such other forms as may be applicable.
(g) [Reserved]
(h) All payments of principal and interest at the Net Mortgage Rate on
each of the Mortgage Loans (other than amounts distributable to the Class P
Certificates pursuant to Section 4.04(b)(i) hereof) received by the Lower Tier
REMIC with respect to the Mortgage Loans shall be paid to the Lower Tier REMIC
Regular Interests until the principal balance of all such interests have been
reduced to zero and any losses allocated to such interests have been reimbursed.
Any excess amounts shall be distributed to the Class LTR Interest. On each
Distribution Date, payments and losses shall be allocated among the Lower Tier
REMIC Regular Interests so that (i) each of the Lower Tier REMIC I Marker
Interests shall have a principal balance equal to 25% of the principal balance
of the Corresponding Certificates, (ii) the Class LTIX Interest has a principal
balance equal to the excess of (x) 50% of the remaining principal balance of the
Mortgage Loans over (y) the aggregate principal balance of the Lower Tier REMIC
I Marker Interests (if necessary to reflect an increase in
overcollateralization, accrued and unpaid interest on the Class LTIX interest
may be added to its principal amount to achieve this result) and (iii) the
aggregate principal amount of the Class LTII1A Interest, Class LTII1B Interest,
Class LTII2A Interest, Class LTII2B Interest and Class LTIIX Interest shall
equal 50% of the remaining principal balance of the Mortgage Loans.
Distributions and losses allocated to the Lower Tier REMIC Regular Interests
described in clause (iii) of the preceding sentence will be allocated among such
Lower Tier REMIC Regular Interests in the following manner: (x) such
distributions shall be deemed made to such Lower Tier REMIC Regular Interests
first, so as to keep the principal balance of the each such Lower Tier REMIC
Regular Interest with "B" at the end of its designation equal to 0.05% of the
aggregate scheduled principal balance of the Mortgage Loans in the related
Mortgage Group; second, to such Lower Tier REMIC Regular Interests with "A" at
the end of its designation so that the uncertificated principal balance of each
such Lower Tier REMIC Regular Interest is equal to 0.05% of the excess of (I)
the aggregate scheduled principal balance of the Mortgage Loans in the related
Mortgage Group over (II) the aggregate principal balance of Certificate Group
One, in the case of the Class LTII1A Interest, or Certificate Group Two, in the
case of the Class LTII2A Interest (except that if 0.05% of any such excess is
greater than the principal amount of the related Lower Tier REMIC II Marker
Interest with "A" at the end of its designation, the least amount of principal
shall be distributed to each Lower Tier REMIC II Marker Interest with "A" at the
end of its designation such that the Lower Tier REMIC Subordinate Balance Ratio
is maintained) and finally, any remaining distributions of principal to the
Class LTIIX
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Interest and (y) such losses shall be allocated among the Lower Tier REMIC
Regular Interests described in clause (iii) of the preceding sentence first, so
as to keep the principal balance of the each such Lower Tier REMIC Regular
Interest with "B" at the end of its designation equal to 0.05% of the aggregate
scheduled principal balance of the Mortgage Loans in the related Mortgage Group;
second, to such Lower Tier REMIC Regular Interests with "A" at the end of its
designation so that the uncertificated principal balance of each such Lower Tier
REMIC Regular Interest is equal to 0.05% of the excess of (I) the aggregate
scheduled principal balance of the Mortgage Loans in the related Mortgage Group
over (II) the aggregate principal balance of Certificate Group One, in the case
of the Class LTII1A Interest, or Certificate Group Two, in the case of the Class
LTII2A Interest (except that if 0.05% of any such excess is greater than the
principal amount of the related Lower Tier REMIC II Marker Interest with "A" at
the end of its designation, the least amount of losses shall be allocated to
each Lower REMIC II Marker Interest with "A" at the end of its designation such
that the Lower Tier REMIC Subordinate Balance Ratio is maintained) and finally,
any remaining losses to the Class LTIIX Interest. Notwithstanding the preceding
two sentences, however, losses not allocated to any Class of Certificates will
not be allocated to any Lower Tier REMIC Regular Interests. All computations
with respect to the Lower Tier REMIC Regular Interests shall be taken out to ten
decimal places.
Any available funds remaining in the Lower Tier REMIC on a Distribution
Date after distributions to the Lower Tier REMIC Regular Interests shall be
distributed to the Class R Certificates in respect of the Class LTR Interest.
If on any Distribution Date the Certificate Principal Balance of any Class
of Certificates is increased pursuant to the last sentence of the definition of
"Certificate Principal Balance", then there shall be an equivalent increase in
the principal amounts of the Lower Tier REMIC Regular Interests, with such
increase allocated (before the making of distributions and the allocation of
losses on the Lower Tier REMIC Regular Interests on such Distribution Date)
among the Lower Tier REMIC Regular Interests so that, to the greatest extent
possible, (i) each of the Lower Tier REMIC I Marker Interests has a principal
balance equal to 25% of the principal balance of the Corresponding Certificates,
(ii) the Class LTIX Interest has a principal balance equal to the excess of (x)
50% of the remaining principal balance of the Mortgage Loans over (y) the
aggregate principal balance of the Lower Tier REMIC I Marker Interests and (iii)
the aggregate principal amount of the Lower Tier REMIC II Marker Interests and
the Class LTIIX Interest shall equal 50% of the remaining principal balance of
the Mortgage Loans. Allocations in connection with clause (iii) shall be made so
that, to the greatest extent possible, (a) the principal balance of each Lower
Tier REMIC II Marker Interest with "B" at the end of its designation equals
0.05% of the aggregate scheduled principal balance of the Mortgage Loans in
related Mortgage Group, (b) the principal balance of each Lower Tier REMIC II
Marker Interest with "A" at the end of its designation equals 0.05% of the
excess of (x) the aggregate scheduled principal balance of the Mortgage Loans in
related Mortgage Group over (y) the aggregate principal balance of Certificate
Group One in the case of the Class LTII1A Interest, or Certificate Group Two in
the case of the Class LTII2A Interest and (c) any remaining allocations are made
to the Class LTIIX Interest.
For purposes of this Section 2.07, (i) the Class LTII1A Interest and Class
LTII1B Interest shall be related to Group One, and (ii) the Class LTII2A
Interest and Class LTII2B Interest shall be related to Group Two.
(i) In the event that any REMIC provided for herein fails to qualify
as a REMIC, loses its status as a REMIC or incurs federal, state or local taxes
as a result of a prohibited transaction or prohibited contribution under the
REMIC Provisions due to the negligent performance by the Servicer of
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its duties and obligations set forth herein, the Servicer shall indemnify the
Trustee, the Issuing Entity, the NIMs Insurer and the Class A Certificate
Insurer against any and all Losses resulting from such negligence; provided,
however, that the Servicer shall not be liable for any such Losses attributable
to the action or inaction of the Trustee, the Depositor or the Holder of the
residual interest in such REMIC, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of the residual interest in
such REMIC on which the Servicer has relied. The foregoing shall not be deemed
to limit or restrict the rights and remedies of the Holder of the residual
interest in such REMIC now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Servicer have any
liability (1) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than those arising out of a
negligent performance by the Servicer of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the Certificates).
(j) In the event that any REMIC provided for herein fails to qualify
as a REMIC, loses its status as a REMIC, or incurs federal, state or local taxes
as a result of a prohibited transaction or prohibited contribution under the
REMIC Provisions due to the negligent performance by the Trustee of its duties
and obligations set forth herein, the Trustee shall indemnify the Issuing Entity
against any and all Losses resulting from such negligence; provided, however,
that the Trustee shall not be liable for any such Losses attributable to the
action or inaction of the Servicer, the Depositor or the Holder of the residual
interest in such REMIC, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of the residual interest in such REMIC on
which the Trustee has relied. The foregoing shall not be deemed to limit or
restrict the rights and remedies of the Holder of the residual interest in such
REMIC now or hereafter existing at law or in equity. Notwithstanding the
foregoing, however, in no event shall the Trustee have any liability (1) for any
action or omission that is taken in accordance with and in compliance with the
express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than those arising out of a negligent
performance by the Trustee of its duties and obligations set forth herein, and
(3) for any special or consequential damages to Certificateholders (in addition
to payment of principal and interest on the Certificates). For avoidance of
doubt, until the later to occur of (i) the Class A Certificate Guaranty
Insurance Policy has terminated in accordance with its terms and (ii) the Class
A Certificate Insurer has been paid any Reimbursement Amounts (as such term is
defined in the Insurance Agreement) owed to the Class A Certificate Insurer, the
Class A Certificate Insurer shall have the right to enforce such indemnification
on behalf of the Issuing Entity. The Class A Certificate Insurer's expenses of
enforcement shall constitute Reimbursement Amounts reimbursable in accordance
with the priorities set forth in Section 4.04 hereof.
SECTION 2.08. [RESERVED]
SECTION 2.09. Covenants of the Servicer
(a) The Servicer hereby covenants to each of the other parties to this
Agreement that the Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of the insurer
under each Required Insurance Policy.
(b) In accordance with Accepted Servicing Practices the Servicer will fully
furnish (for the period it services the Mortgage Loans), in accordance with the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
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files to Equifax, Experian and Trans Union Credit Information Company on a
monthly basis except as the Servicer deems prudent for the prevention or
resolution of disputes with the Mortgagors.
SECTION 2.10. [RESERVED]
SECTION 2.11. Permitted Activities of the Issuing Entity
The Issuing Entity is created for the object and purpose of engaging in the
Permitted Activities. In furtherance of the foregoing, the Trustee is hereby
authorized and directed to execute and deliver on behalf of the Issuing Entity,
and to perform the duties and obligations of the Issuing Entity under the
Insurance Agreement, the Class A Certificate Guaranty Insurance Policy, an
insurance and indemnity agreement with a NIMs Insurer and any other agreement or
instrument related thereto, in each case in such form as the Depositor shall
direct or shall approve in writing, the execution and delivery of any such
agreement by the Depositor to be conclusive evidence of its approval thereof.
SECTION 2.12. Qualifying Special Purpose Entity
For purposes of SFAS 140, the parties hereto intend that the Issuing Entity
shall be treated as a "qualifying special purpose entity" as such term is used
in SFAS 140 and any successor rule thereto and its power and authority as stated
in Section 2.11 of this Agreement shall be limited in accordance with paragraph
35 or SFAS 140.
SECTION 2.13. Depositor Notification of NIM Notes
The Depositor shall notify the Servicer, the Trustee and the Class A
Certificate Insurer in writing when NIM Notes are issued with the contact
information of the issuer and of the identity and contact information of the
NIMs Insurer, if applicable, and when all previously issued NIM Notes are no
longer outstanding. The Servicer and the Trustee shall have at least 10 days'
notice of the issuance of any NIM Notes.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01. Servicer to Service Mortgage Loans
For and on behalf of the Certificateholders and the Class A Certificate
Insurer, the Servicer shall service and administer the Mortgage Loans in
accordance with Accepted Servicing Practices. In connection with such servicing
and administration, the Servicer shall have full power and authority, acting
alone and/or through subservicers as provided in Section 3.02 hereof, to do or
cause to be done any and all things that it may deem necessary or desirable in
connection with such servicing and administration, including but not limited to,
the power and authority, subject to the terms hereof (i) to execute and deliver,
on behalf of the Certificateholders and the Trustee, customary consents or
waivers and other instruments and documents, (ii) to consent to transfers of any
Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages
(but only in the manner provided in this Agreement), (iii) to collect any
Insurance Proceeds and other Liquidation Proceeds and (iv) subject to Section
3.12(a), to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property
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securing any Mortgage Loan; provided that, subject to Section 6.03, the Servicer
shall not take any action that is inconsistent with or prejudices the interests
of the Issuing Entity, the Certificateholders or the Class A Certificate Insurer
in any Mortgage Loan serviced by it under this Agreement or the rights and
interests of the other parties to this Agreement except as otherwise required by
this Agreement or by law. Notwithstanding anything in this Agreement to the
contrary, including Section 3.05, the Servicer shall not make or permit any
modification, waiver or amendment of any term of any Mortgage Loan which would
cause any of the REMICs provided for herein to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860G(a) or 860G(d) of the
Code. The Servicer shall represent and protect the interest of the Trust Fund in
the same manner as it currently protects its own interest in mortgage loans in
its own portfolio in any claim, proceeding or litigation regarding a Mortgage
Loan, but in any case not in any manner that is a lesser standard than that
provided in the first sentence of this Section 3.01. Without limiting the
generality of the foregoing, the Servicer, in its own name or in the name of the
Depositor and the Trustee, is hereby authorized and empowered by the Depositor
and the Trustee, when the Servicer believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, subordinations and all
other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by any or all
of them as are necessary or appropriate to enable the Servicer to service and
administer the Mortgage Loans, to the extent that the Servicer is not permitted
to execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee shall execute such
documents and deliver them to the Servicer. For purposes of this Section 3.01,
the Trustee hereby grants to the Servicer a limited power of attorney in such
form as shall be prepared by the Servicer and agreed to by the Trustee and the
Servicer to execute and file any and all documents necessary to fulfill the
obligations of the Servicer under this Section 3.01.
Upon request of the Servicer, the Trustee shall furnish the Servicer with
any powers of attorney and other documents in form as provided to it necessary
or appropriate to enable the Servicer to service and administer the Mortgage
Loans. The Trustee shall not be responsible for and the Servicer shall indemnify
the Trustee for any action taken by the Servicer pursuant to the application of
any power of attorney to the extent indemnification by the Servicer is required
by Section 3.25 and provided that the Servicer shall have no obligation to
indemnify the Trustee for such action to the extent such action was taken
pursuant to and in accordance with specific written instructions from the
Trustee, which instructions are not based on Servicer's recommendations or
proposals. Notwithstanding anything contained herein to the contrary, the
Servicer shall not without the Trustee's written consent, hire or procure
counsel to represent the Trustee without indicating its representative capacity.
The Servicer shall not be required to make any Advance or Servicing Advance
with respect to a Mortgage Loan that is 150 days or more delinquent.
The Servicer shall deliver a list of Servicing Officers and specimen
signatures to the Trustee by the Closing Date.
The Servicer further is authorized and empowered by the Trustee, on behalf
of the Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan on
the MERS System, or cause the removal from the registration of any Mortgage Loan
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on the MERS System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses incurred in connection with the
actions described in the preceding sentence or as a result of MERS discontinuing
or becoming unable to continue operations in connection with the MERS System,
shall be subject to withdrawal by the Servicer from the Collection Account
(provided that such expenses constitute "unanticipated expenses" within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii)).
With respect to any Mortgage Loan, the related Servicer may consent to the
refinancing of the prior senior lien relating to such Mortgage Loan, provided
that the following requirements are met:
(1) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan
is no higher than the Combined Loan-to-Value Ratio prior to such refinancing;
(2) the interest rate for the loan evidencing the refinanced senior
lien is no more than 2.0% higher than the interest rate on the loan evidencing
the existing senior lien immediately prior to the date of such refinancing; and
(3) the loan evidencing the refinanced senior lien is not subject to
negative amortization.
Notwithstanding the foregoing, the restriction in clauses (1) - (3) shall
not be applicable if the Mortgage Loan is in default or, in the judgment of the
related Servicer, such default is reasonably foreseeable.
In connection with any modification pursuant to this Section and to the
extent there are any unreimbursed Advances or Servicing Advances with respect to
the related Mortgage Loan, the related Servicer shall reimburse itself for such
amounts from the Collection Account.
SECTION 3.02. Servicing and Subservicing; Enforcement of the Obligations of
Servicer
(a) The Servicer may arrange for the subservicing of any Mortgage Loan
by a subservicer, which may be an affiliate, pursuant to a subservicing
agreement (each, a "Subservicing Agreement"); provided, however, that (i) such
subservicing arrangement and the terms of the related Subservicing Agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder, (ii) that such agreement
would not result in a withdrawal or downgrading by any Rating Agency of the
ratings of any Certificates or any of the NIM Notes evidenced by a letter to
that effect delivered by each Rating Agency to the Depositor and the NIMs
Insurer and (iii) the NIMs Insurer and the Class A Certificate Insurer shall
have consented to such subservicing agreement, which consent shall not be
unreasonably withheld. Notwithstanding the provisions of any Subservicing
Agreement, any of the provisions of this Agreement relating to agreements or
arrangements between the Servicer and a subservicer or reference to actions
taken through a subservicer or otherwise, the Servicer shall remain obligated
and liable to the Depositor, the Trustee and the Certificateholders for the
servicing and administration of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and
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administering the Mortgage Loans. Every Subservicing Agreement entered into by
the Servicer shall contain a provision giving any successor servicer the option
to terminate such agreement, with the consent of the NIMs Insurer and the Class
A Certificate Insurer (which consent shall not be unreasonably withheld), in the
event a successor servicer is appointed. All actions of each subservicer
performed pursuant to the related Subservicing Agreement shall be performed as
an agent of the Servicer with the same force and effect as if performed directly
by the Servicer. The Servicer shall deliver to the Trustee, the NIMs Insurer and
the Class A Certificate Insurer copies of all Subservicing Agreements. The
Trustee shall have no obligations, duties or liabilities with respect to a
subservicer, including, without limitation, any obligation, duty or liability to
monitor such subservicer or to pay a Subservicer's fees and expenses. If the
Servicer is terminated, these subservicing agreements will automatically
terminate in accordance with the terms therein unless the successor servicer
elects otherwise.
(b) For purposes of this Agreement, the Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the
Mortgage Loans that are received by a subservicer regardless of whether such
payments are remitted by the subservicer to the Servicer.
(c) The Servicer shall not permit a Subservicer to perform any
servicing responsibilities hereunder with respect to the Mortgage Loans unless
that Subservicer first agrees in writing with the Servicer to deliver an
Assessment of Compliance and an Accountant's Attestation in such manner and at
such times that permits that Servicer to comply with Section 3.17 of this
Agreement.
(d) The Servicer may enter into a special servicing advisory agreement
with a holder of the Class R Certificate and/or one or more other class of
subordinated certificates issued by the Issuing Entity or of a net interest
margin trust holding certificates issued by the Issuing Entity and/or an advisor
designated by the holder of the Class R Certificate. Pursuant to such agreement,
the Servicer may provide such holder or advisor, in its capacity as special
servicing advisor, with loan-level information with respect to the Mortgage
Loans, and the holder of the Class R Certificate or the special servicing
advisor designated by the holder of the Class R Certificate may advise the
Servicer with respect to the commencement of foreclosure proceedings or other
actions to liquidate such Mortgage Loans and/or any other efforts to maximize
recoveries with respect to such Mortgage Loans.
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of the
Servicer
Neither the Trustee nor the Depositor shall have any responsibility or
liability for any action or failure to act by the Servicer, and neither of them
is obligated to supervise the performance of the Servicer hereunder or
otherwise.
SECTION 3.04. Trustee to Act as Servicer
Subject to Sections 6.04 and 7.02, in the event that the Servicer shall for
any reason no longer be the servicer hereunder (including by reason of an Event
of Default), the Trustee or its designee (provided that such designee must be
acceptable to the Class A Certificate Insurer) (i) may, in its discretion but
with prior written consent of the Class A Certificate Insurer (such consent not
to be unreasonably withheld), (ii) shall, at the direction of the NIMS Insurer,
if any, with prior written consent of the Class A Certificate Insurer, (iii)
shall, at the direction of the Class A Certificate Insurer, or (iv) shall at the
direction of the certificateholders with prior written consent of the Class A
Certificate Insurer, within a period of time not to exceed ninety (90) days from
the date of notice of termination or resignation, thereupon assume all of the
rights and obligations of the Servicer hereunder
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arising thereafter (except that the Trustee shall not be (i) liable for losses
arising out of any acts or omissions of the predecessor servicer hereunder, (ii)
obligated to make Advances or Servicing Advances if it is prohibited from doing
so by applicable law, (iii) obligated to effectuate repurchases or substitutions
of Mortgage Loans hereunder, including pursuant to Section 2.02, 2.03 or 2.05
hereof, (iv) responsible for any expenses of the Servicer pursuant to Section
2.03 or (v) deemed to have made any representations and warranties hereunder,
including pursuant to Section 2.04 or the first paragraph of Section 6.02
hereof; provided, however that the Trustee (subject to clause (ii) above) or its
designee, in its capacity as the successor servicer, shall immediately assume
the terminated or resigning Servicer's obligation to make Advances and Servicing
Advances). No such termination or resignation shall affect any obligation of the
Servicer to pay amounts owed under this Agreement and to perform its duties
under this Agreement until its successor assumes all of its rights and
obligations hereunder. If the Servicer shall for any reason no longer be a
servicer (including by reason of any Event of Default), the Trustee (or any
other successor servicer) may, at its option, succeed to any rights and
obligations of the Servicer under any subservicing agreement in accordance with
the terms thereof; provided, however, that the Trustee (or any other successor
servicer) shall not incur any liability or have any obligations in its capacity
as servicer under a subservicing agreement arising prior to the date of such
succession unless it expressly elects to succeed to the rights and obligations
of the Servicer thereunder; and the Servicer shall not thereby be relieved of
any liability or obligations under the subservicing agreement arising prior to
the date of such succession. To the extent any costs or expenses, including
without limitation, Servicing Transfer Costs incurred by the Trustee in
connection with this Section 3.04 or Section 7.02, are not paid by the Servicer
pursuant to this Agreement within thirty (30) days of the date of the Trustee's
invoice thereof, such amounts shall be payable out of the Certificate Account;
provided that if the Servicer has been terminated by reason of an Event of
Default, the terminated servicer shall reimburse the Issuing Entity for any such
expense incurred by the Issuing Entity upon receipt of a reasonably detailed
invoice evidencing such expenses. If the Trustee is unwilling or unable to act
as servicer, the Trustee shall seek to appoint a successor servicer that is
eligible in accordance with the criteria specified in this Agreement and
reasonably acceptable to the NIMs Insurer and the Class A Certificate Insurer.
The Servicer shall, upon request of the Trustee, but at the expense of the
Servicer if the Servicer has been terminated by reason of an Event of Default,
deliver to the assuming party all documents and records relating to each
subservicing agreement and the Mortgage Loans then being serviced and otherwise
use its best efforts to effect the orderly and efficient transfer of the
subservicing agreement to the assuming party.
SECTION 3.05. Collection of Mortgage Loan Payments; Collection Account;
Certificate Account
(a) The Servicer shall make reasonable efforts in accordance with
Accepted Servicing Practices to collect all payments called for under the terms
and provisions of the Mortgage Loans to the extent such procedures shall be
consistent with this Agreement and the terms and provisions of any related
Required Insurance Policy. Consistent with the foregoing, the Servicer may in
its discretion (i) waive any late payment charge or, if applicable, any default
interest charge, or (ii) subject to Section 3.01 and applicable REMIC
requirements, extend the due dates for payments due on a Mortgage Note for a
period not greater than 180 days; provided, however, that any extension pursuant
to clause (ii) above shall not affect the amortization schedule of any Mortgage
Loan for purposes of any computation hereunder, except as provided below;
provided, further, that the NIMs Insurer's and the Class A Certificate Insurer's
prior written consent shall be required for any modification, waiver or
amendment after the Cut-off Date if the aggregate number of outstanding Mortgage
Loans which have been modified, waived or amended exceeds 5% of the number of
Mortgage Loans as of the Cut-Off Date. In the event of
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any such arrangement pursuant to clause (ii) above, subject to Section 4.01, the
Servicer shall make any Advances on the related Mortgage Loan during the
scheduled period in accordance with the amortization schedule of such Mortgage
Loan without modification thereof by reason of such arrangements.
Notwithstanding clause (ii) above and its related provisos, in the event that
any Mortgage Loan is in default or, in the judgment of the Servicer, such
default is reasonably foreseeable, the Servicer, consistent with the standards
set forth in Section 3.01 and not subject to the requirement to make Advances
pursuant to Section 4.01, may also waive, modify or vary any term of such
Mortgage Loan (including modifications that would change the Mortgage Rate,
forgive the payment of principal or interest or extend the final maturity date
of such Mortgage Loan), accept payment from the related Mortgagor of an amount
less than the Stated Principal Balance in final satisfaction of such Mortgage
Loan, or consent to the postponement of strict compliance with any such term or
otherwise grant indulgence to any Mortgagor (any and all such waivers,
modifications, variances, forgiveness of principal or interest, postponements,
or indulgences collectively referred to herein as "forbearance"), provided,
however, that in determining which course of action permitted by this sentence
it shall pursue, the Servicer shall adhere to the standards of Section 3.01. The
Servicer's analysis supporting any forbearance and the conclusion that any
forbearance meets the standards of Section 3.01 shall be reflected in writing in
the Mortgage File.
With respect to Mortgage Loans affected by a hurricane or other natural
disaster, if the Mortgaged Property is located in public and individual
assistance counties, as designated by Federal Emergency Management Agency (as
set forth on its website xxx.xxxx.xxx), and to the extent that the related
Mortgagor or the related Mortgaged Property is affected thereby the Servicer (or
the Subservicer, if such Servicer is no longer servicing Mortgage Loans), may if
it determines that it is reasonable to do so, cease collection activities,
charging late fees and credit reporting activity for all such affected
Mortgagors in such counties for a reasonable period of time. In addition, the
Servicer (or the Subservicer, if applicable) may, if it determines that it is
reasonable to do so, suspend all foreclosure and bankruptcy activity relating to
such affected Mortgage Loans for a reasonable period of time.
(b) The Servicer will not waive any Prepayment Charge or portion
thereof unless, (i) the enforceability thereof shall have been limited by
bankruptcy, insolvency, moratorium, receivership or other similar laws relating
to creditors' rights generally or is otherwise prohibited by law, or (ii) the
collectability thereof shall have been limited due to acceleration in connection
with a foreclosure or other involuntary payment, or (iii) the Servicer has not
been provided with information sufficient to enable it to collect the Prepayment
Charge, or (iv) in the Servicer's reasonable judgment as described in Section
3.01 hereof, (x) such waiver relates to a default or a reasonably foreseeable
default, (y) such waiver would maximize recovery of total proceeds taking into
account the value of such Prepayment Charge and related Mortgage Loan and (z)
doing so is standard and customary in servicing similar Mortgage Loans
(including any waiver of a Prepayment Charge in connection with a refinancing of
a Mortgage Loan that is related to a default or a reasonably foreseeable
default), or (v) the collection of the Prepayment Charge or of a similar type of
prepayment premium would be considered "predatory" or "illegal" pursuant to
written guidance published by any applicable federal, state or local regulatory
authority having jurisdiction over such matters or has been challenged by any
such authority, or (vi) unless the Depositor has notified the Servicer that
there are NIM Notes outstanding, there is a certified class action in which a
similar type of prepayment premium is being challenged. Except as provided in
the preceding sentence, in no event will the Servicer waive a Prepayment Charge
in connection with a refinancing of a Mortgage Loan that is not related to a
default or a reasonably foreseeable default. If the Servicer waives or does not
collect all or a portion of a Prepayment Charge relating to a Principal
Prepayment in full or in part due to any action or omission of the Servicer,
other than as provided above, the Servicer shall deposit the
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amount of such Prepayment Charge (or such portion thereof as had been waived for
deposit) into the Collection Account for distribution in accordance with the
terms of this Agreement.
(c) The Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any public or governmental authority with
respect to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which such payment
is required is prohibited by applicable law.
(d) The Servicer shall establish and initially maintain, on behalf of
Trustee for the benefit of the Certificateholders and the Class A Certificate
Insurer, a Collection Account. The Servicer shall deposit into such Collection
Account daily, within two (2) Business Days of receipt thereof, in immediately
available funds, the following payments and collections received or made by it
on and after the Cut-off Date with respect to the Mortgage Loans:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans, other than principal due on the
Mortgage Loans on or prior to the Cut-off Date;
(ii) all payments on account of interest on the Mortgage Loans net of
the Servicing Fee permitted under Section 3.15, other than (x) interest due
on the Mortgage Loans on or prior to the Cut-off Date and (y) Prepayment
Interest Excess;
(iii) all Liquidation Proceeds, other than proceeds to be applied to
the restoration or repair of the Mortgaged Property or released to either
the Mortgagor or the holder of a senior lien on the Mortgaged Property in
accordance with the Servicer's normal servicing procedures;
(iv) all Subsequent Recoveries;
(v) all Compensating Interest;
(vi) any amount required to be deposited by the Servicer pursuant to
Section 3.05(f) in connection with any losses on Permitted Investments;
(vii) any amounts required to be deposited by the Servicer pursuant to
Section 3.10 hereof;
(viii) all Advances made by the Servicer pursuant to Section 4.01;
(ix) all Prepayment Charges; and
(x) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Servicer into the
Collection Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, all servicing related fees,
including late payment charges, insufficient funds charges and payments in the
nature of assumption fees (i.e. fees related to the assumption of a Mortgage
Loan upon the purchase of the related Mortgaged Property, modification fees,
extension fees and other similar ancillary fees and charges (other than
Prepayment Charges)) if collected, and any Prepayment Interest Excess need not
be remitted by the Servicer. Rather, such fees and charges may be retained by
the Servicer as additional servicing
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compensation. In the event that the Servicer shall remit any amount not required
to be remitted and not otherwise subject to withdrawal pursuant to Section 3.08
hereof, it may at any time withdraw or direct the Trustee, or such other
institution maintaining the Collection Account, to withdraw such amount from the
Collection Account, any provision herein to the contrary notwithstanding. The
Servicer shall maintain adequate records with respect to all withdrawals made
pursuant to this Section. All funds deposited in the Collection Account shall be
held in trust for the Certificateholders and the Class A Certificate Insurer
until withdrawn in accordance with Section 3.08. In no event shall the Trustee
incur liability for withdrawals from the Collection Account at the direction of
the Servicer.
The Servicer shall give notice to the Trustee of the location of the
Collection Account maintained by it when established and prior to any change
thereof. Not later than twenty days after each Distribution Date, at the request
of the Trustee, the Servicer shall make available to the Trustee the most
current available bank statement for the Collection Account. Copies of such
statement shall be provided by the Trustee to any Certificateholder and to any
Person identified to the Trustee as a prospective transferee of a Certificate,
upon request at the expense of the requesting party, provided such statement is
delivered by the Servicer to the Trustee.
(e) The Trustee shall establish and maintain, on behalf of the
Certificateholders and the Class A Certificate Insurer, the Certificate Account.
The Trustee shall, promptly upon receipt, deposit or cause to be deposited in
the Certificate Account and retain therein the following:
(i) the aggregate amount withdrawn by the Servicer from the Collection
Account for deposit in the Certificate Account;
(ii) the Purchase Price and any Substitution Adjustment Amount;
(iii) any amount required to be deposited by the Trustee pursuant to
Section 3.05(f) in connection with any losses on Permitted Investments; and
(iv) the Optional Termination Amount paid by the winning bidder at the
Auction or by the NIMs Insurer, the Servicer or one of their affiliates
pursuant to Section 9.01.
Any amounts received by the Trustee which are required to be deposited in
the Certificate Account by the Servicer may be invested in Permitted Investments
on the Business Day on which they were received. The foregoing requirements for
remittance by the Servicer and deposit by the Servicer into the Certificate
Account shall be exclusive. If the Servicer fails to remit any funds due by the
time designated herein, the Servicer shall pay to the Trustee, for its own
account, interest accrued on such funds at the prime rate as set forth in The
Wall Street Journal from and including the applicable due date, to but excluding
the day such funds are paid to the Trustee. In the event that the Servicer shall
remit any amount not required to be remitted and not otherwise subject to
withdrawal pursuant to Section 3.08 hereof, it may at any time withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. All funds deposited in the Certificate Account shall be held by
the Trustee in trust for the Certificateholders and the Class A Certificate
Insurer until disbursed in accordance with this Agreement or withdrawn in
accordance with Section 3.08. In no event shall the Trustee incur liability for
withdrawals from the Certificate Account at the direction of the Servicer. The
Trustee shall give notice to the Servicer of the location of the Certificate
Account maintained by it when established and prior to any change thereof.
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(f) Each institution that maintains the Collection Account shall, and
each institution that maintains the Certificate Account may but shall not be
required to, invest the funds in each such account, as directed by the Servicer
or the Trustee, as applicable, in writing, in Permitted Investments, which shall
mature not later than (i) in the case of the Collection Account, the Business
Day preceding the Servicer Remittance Date (except that if such Permitted
Investment is an obligation of the institution that maintains such Collection
Account or is otherwise immediately available, then such Permitted Investment
shall mature not later than the Servicer Remittance Date) and (ii) in the case
of the Certificate Account, the Business Day immediately preceding the first
Distribution Date that follows the date of such investment (except that if such
Permitted Investment is an obligation of the institution that maintains such
Certificate Account or is otherwise immediately available, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee for the benefit of the
Certificateholders and the Class A Certificate Insurer. All income and gain net
of any losses realized from amounts on deposit in the Collection Account shall
be for the benefit of the Servicer as servicing compensation and shall be
remitted to it monthly as provided herein. The amount of any losses incurred in
the Collection Account in respect of any such investments shall be deposited by
the Servicer in the Collection Account out of the Servicer's own funds
immediately as realized. All income and gain net of any losses realized from
amounts on deposit in the Certificate Account shall be for the benefit of the
Trustee and shall be remitted to or withdrawn by it monthly as provided herein.
The amount of any losses incurred in the Certificate Account in respect of any
such investments shall be deposited by the Trustee in the Certificate Account
out of the Trustee's own funds immediately as realized.
SECTION 3.06. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts
To the extent required by the related Mortgage Note, the Servicer shall
establish and maintain one or more accounts (each, an "Escrow Account") and
deposit and retain therein all collections from the Mortgagors (or advances by
the Servicer) for the payment of taxes, assessments, hazard insurance premiums
or comparable items for the account of the Mortgagors. Nothing herein shall
require the Servicer to compel a Mortgagor to establish an Escrow Account in
violation of applicable law.
Withdrawals of amounts so collected from the Escrow Accounts may be made
only to effect timely payment of taxes, assessments, hazard insurance premiums,
condominium or PUD association dues, or comparable items, to reimburse the
Servicer out of related collections for any payments made pursuant to Sections
3.01 hereof (with respect to taxes and assessments, dues or comparable items and
insurance premiums) and 3.10 hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required by law or the terms of the related Mortgage or Mortgage
Note, to Mortgagors on balances in the Escrow Account to withdraw funds
deposited in error or amounts previously deposited but returned as unpaid due to
a "not sufficient funds" or other denial by the related Mortgagor's banking
institution or to clear and terminate the Escrow Account at the termination of
this Agreement in accordance with Section 9.01 hereof. The Escrow Accounts shall
not be a part of the Trust Fund.
SECTION 3.07. Access to Certain Documentation and Information Regarding the
Mortgage Loans
Upon reasonable advance notice in writing if required by federal
regulation, the Servicer will provide to each Certificateholder that is a
savings and loan association, bank or insurance company certain reports and
reasonable access to information and documentation regarding the Mortgage Loans
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sufficient to permit such Certificateholder to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided, that the Servicer shall be entitled to
be reimbursed by each such Certificateholder for actual expenses incurred by the
Servicer in providing such reports and access.
The Servicer may from time to time provide the Depositor, and any Person
designated by the Depositor, with reports and information regarding the Mortgage
Loans, including without limitation, information requested by the Depositor or
an originator of the Mortgage Loans for required institutional risk control. In
addition, subject to limitations of applicable privacy laws, the Servicer may
make public information regarding performance of the Mortgage Loans.
SECTION 3.08. Permitted Withdrawals from the Collection Account and
Certificate Account
(a) The Servicer may from time to time, make withdrawals from the
Collection Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously paid to or
withheld by the Servicer), as servicing compensation in accordance with
Section 3.15, that portion of any payment of interest that equals the
Servicing Fee for the period with respect to which such interest payment
was made, and, as additional servicing compensation, those other amounts
set forth in Section 3.15;
(ii) to reimburse the Servicer (or the Trustee as successor servicer)
for Advances made by it (or to reimburse the Advancing Person for Advances
made by it) with respect to the Mortgage Loans, such right of reimbursement
pursuant to this subclause (ii) being limited to amounts received on
particular Mortgage Loan(s) (including, for this purpose, Liquidation
Proceeds (which include Condemnation Proceeds and Insurance Proceeds)) that
represent late recoveries of payments of principal and/or interest on such
particular Mortgage Loan(s) in respect of which any such Advance was made;
(iii) to reimburse the Servicer for any Non-Recoverable Advance
previously made and any Non-Recoverable Servicing Advances previously made
to the extent that, in the case of Non-Recoverable Servicing Advances,
reimbursement therefor constitutes "unanticipated expenses" within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii);
(iv) to pay to the Servicer earnings on or investment income with
respect to funds in or credited to the Collection Account;
(v) to reimburse the Servicer from Insurance Proceeds for Insured
Expenses covered by the related Insurance Policy;
(vi) [Reserved];
(vii) to pay the Servicer (or the Trustee as successor servicer) any
unpaid Servicing Fees and to reimburse it for any unreimbursed Servicing
Advances (to the extent that reimbursement for Servicing Advances would
constitute an "unanticipated expense" within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii)), the Servicer's right to
reimbursement of Servicing Advances pursuant to this subclause (vii) with
respect to any
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Mortgage Loan being limited to amounts received on particular Mortgage
Loan(s)(including, for this purpose, Liquidation Proceeds and purchase and
repurchase proceeds and including any Subsequent Recoveries related to any
Liquidated Loan) that represent late recoveries of the payments for which
such advances were made pursuant to Section 3.01 or Section 3.06;
(viii) to pay to the Depositor or the Servicer, as applicable, with
respect to each Mortgage Loan or property acquired in respect thereof that
has been purchased pursuant to Section 2.02, 2.03 or 3.12, all amounts
received thereon and not taken into account in determining the related
Stated Principal Balance of such repurchased Mortgage Loan;
(ix) to reimburse the Servicer, the Trustee or the Depositor for
expenses incurred by any of them in connection with the Mortgage Loans or
the Certificates and reimbursable pursuant to Section 2.01, Section 3.04,
Section 3.25 or Section 6.03 hereof provided that reimbursement therefor
would constitute "unanticipated" expenses within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii);
(x) to reimburse the Trustee for enforcement expenses reasonably
incurred in respect of a breach or defect giving rise to the purchase
obligation in Section 2.03 that were incurred in the Purchase Price of the
Mortgage Loans including any expenses arising out of the enforcement of the
purchase obligation; provided that any such expenses will be reimbursable
under this subclause (x) only to the extent that such expenses would
constitute "unanticipated expenses" within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii) if paid by one of the REMICs provided
for herein;
(xi) to pay the Servicer any unpaid Servicing Fees for any Mortgage
Loan upon such Mortgage Loan being charged off and upon termination of the
obligations of the Servicer;
(xii) to withdraw pursuant to Section 3.05 any amount deposited in the
Collection Account and not required to be or incorrectly deposited therein
or amounts previously deposited but returned as unpaid due to insufficient
funds or other denial by the related Mortgagor's banking institution; and
(xiii) to clear and terminate the Collection Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
In addition, the Servicer will use commercially reasonable efforts to cause
to be withdrawn from the Collection Account no later than 2:30 p.m. ET, but in
any case no later than 4:00 p.m. ET on the Servicer Remittance Date, the
Interest Funds and the Principal Funds (for this purpose only, neither Interest
Funds nor Principal Funds shall include a deduction for any amount reimbursable
to the Trustee unless such amounts have actually been reimbursed from such funds
at the discretion of the Servicer), to the extent on deposit, and such amount
shall be deposited in the Certificate Account; provided, however, if the Trustee
does not receive such Interest Funds and Principal Funds on the Servicer
Remittance Date, the Servicer shall pay, out of its own funds, interest on such
amount at a rate equal to the "prime rate" as published by The Wall Street
Journal at such time for each date or part thereof.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account.
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The Servicer shall provide written notification to the Trustee on or prior
to the next succeeding Servicer Remittance Date upon making any withdrawals from
the Collection Account pursuant to subclauses (iii) and (vii) above.
Unless otherwise specified, any amounts reimbursable to the Servicer or the
Trustee from amounts on deposit in the Collection Account or the Certificate
Accounts shall be deemed to come from first, Interest Funds, and thereafter,
Principal Funds for the related Distribution Date.
(b) The Trustee shall withdraw funds from the Certificate Account for
distribution to the Certificateholders and the Class A Certificate Insurer in
the manner specified in this Agreement (and shall withhold from the amounts so
withdrawn, the amount of any taxes that it is authorized to retain pursuant to
this Agreement). In addition, prior to making such distributions to the
Certificateholders and the Class A Certificate Insurer, the Trustee may from
time to time make withdrawals from the Certificate Account for the following
purposes:
(i) to withdraw pursuant to Section 3.05 any amount deposited in the
Certificate Account and not required to be deposited therein;
(ii) to clear and terminate the Certificate Account upon termination
of the Agreement pursuant to Section 9.01 hereof (after paying all amounts
necessary to the Trustee or the Servicer in connection with any such
termination);
(iii) to pay to the Trustee for any fees, expenses and indemnification
reimbursable pursuant to this Agreement, including without limitation
Sections 2.01, 3.04, 6.03, 8.05 and 8.06 hereof; and
(iv) to pay to the Trustee earnings on or investment income with
respect to funds in or credited to the Certificate Account.
SECTION 3.09. [RESERVED]
SECTION 3.10. [RESERVED]
SECTION 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements
When a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, the Servicer shall, except as set forth below, to the extent it has
knowledge of such conveyance or prospective conveyance, exercise its rights to
accelerate the maturity of the related Mortgage Loan under any "due-on-sale"
clause contained in the related Mortgage or Mortgage Note; provided, however,
that the Servicer shall not exercise any such right if the "due-on-sale" clause,
in the reasonable belief of the Servicer, is not enforceable under applicable
law; provided, further, that the Servicer shall not take any action in relation
to the enforcement of any "due-on-sale" clause that would adversely affect or
jeopardize coverage under any Required Insurance Policy. In such event, the
Servicer shall make reasonable efforts to enter into an assumption and
modification agreement with the Person to whom such property has been or is
about to be conveyed, pursuant to which such Person becomes liable under the
Mortgage Note and, unless prohibited by applicable law or the Mortgage, the
Mortgagor remains liable thereon. If the foregoing is not permitted under
applicable law, the Servicer is authorized to enter into a substitution of
liability agreement with such Person, pursuant to which the original Mortgagor
is released from liability and such
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Person is substituted as Mortgagor and becomes liable under the Note. In
addition to the foregoing, the Servicer shall not be required to enforce any
"due-on-sale" clause in accordance with Accepted Servicing Practices if, in the
reasonable judgment of the Servicer, not entering into an assumption and
modification agreement with a Person to whom such property shall be conveyed and
releasing the original Mortgagor from liability would be in the best interests
of the Certificateholders and the Class A Certificate Insurer. The Mortgage
Loan, as assumed, shall conform in all respects to the requirements,
representations and warranties of this Agreement. The Servicer shall notify the
Trustee that any such assumption or substitution agreement has been completed by
forwarding to the Trustee the original copy of such assumption or substitution
agreement (indicating the Mortgage File to which it relates), which copy shall
be added by the Trustee to the related Mortgage File and which shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. The Servicer shall
be responsible for recording any such assumption or substitution agreements. In
connection with any such assumption or substitution agreement, the Monthly
Payment on the related Mortgage Loan shall not be changed but shall remain as in
effect immediately prior to the assumption or substitution, the stated maturity
or outstanding principal amount of such Mortgage Loan shall not be changed nor
shall any required monthly payments of principal or interest be deferred or
forgiven. Any fee collected by the Servicer for consenting to any such
conveyance or entering into an assumption or substitution agreement shall be
retained by or paid to the Servicer as additional servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or any transfer or assumption which the
Servicer reasonably believes, in accordance with Accepted Servicing Practices,
it is restricted by law from preventing.
SECTION 3.12. Realization Upon Defaulted Mortgage Loans; Determination of
Excess Proceeds; Special Loss Mitigation
(a) The Servicer shall use reasonable efforts consistent with the servicing
standard set forth in Section 3.01 to foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of Delinquent payments. In connection with such foreclosure
or other conversion, the Servicer shall follow such practices and procedures as
it shall deem necessary or advisable and as shall be normal and usual in its
general mortgage servicing activities and the requirements of the insurer under
any Required Insurance Policy; provided, however, that the Servicer shall not be
required to expend its own funds in connection with the restoration of any
property that shall have suffered damage due to an uninsured cause unless it
shall determine (i) that such restoration will increase the proceeds of
liquidation of the Mortgage Loan after reimbursement to itself of such expenses
and (ii) that such expenses will be recoverable to it through Liquidation
Proceeds (respecting which it shall have priority for purposes of withdrawals
from the Collection Account pursuant to Section 3.08 hereof). The Servicer shall
be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the proceeds of liquidation of the related Mortgaged Property and,
if applicable, as a Non-Recoverable Servicing Advance, as contemplated in
Section 3.08 hereof.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trustee, on behalf of the Certificateholders and the
Class A Certificate Insurer, or its nominee (which nominee shall not be the
Servicer). Pursuant to its efforts to sell such REO Property, the Servicer shall
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either itself or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Certificateholders, rent the
same, or any part thereof, as the Servicer deems to be in the best interest of
the Servicer and the Certificateholders for the period prior to the sale of such
REO Property. The Servicer or an Affiliate thereof may receive usual and
customary real estate referral fees for real estate brokers in connection with
the listing and disposition of REO Property. The Servicer shall prepare a
statement with respect to each REO Property that has been rented showing the
aggregate rental income received and all expenses incurred in connection with
the management and maintenance of such REO Property at such times as is
necessary to enable the Servicer to comply with the reporting requirements of
the REMIC Provisions. The net monthly rental income, if any, from such REO
Property shall be deposited in the Collection Account no later than the close of
business on each Determination Date. The Servicer shall perform the tax
reporting and withholding related to foreclosures, abandonments and cancellation
of indebtedness income as specified by Sections 1445, 6050J and 6050P of the
Code by preparing and filing such tax and information returns, as may be
required.
In the event that the Issuing Entity acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Servicer shall dispose of such Mortgaged Property prior to
the expiration of three years from the end of the year of its acquisition by the
Issuing Entity or, at the expense of the Issuing Entity, obtain, in accordance
with applicable procedures for obtaining an automatic extension of the grace
period, more than sixty (60) days prior to the day on which such three-year
period would otherwise expire, an extension of the three-year grace period, in
which case such property must be disposed of prior to the end of such extension,
unless the Trustee, the Class A Certificate Insurer and the NIMs Insurer shall
have been supplied with an Opinion of Counsel addressed to the Trustee (such
Opinion of Counsel not to be an expense of the Trustee, the Class A Certificate
Insurer or the NIMs Insurer), to the effect that the holding by the Issuing
Entity of such Mortgaged Property subsequent to such three-year period or
extension will not result in the imposition of taxes on "prohibited
transactions" of the Issuing Entity or any of the REMICs provided for herein as
defined in section 860F of the Code or cause any of the REMICs provided for
herein to fail to qualify as a REMIC at any time that any Certificates are
outstanding, in which case the Issuing Entity may continue to hold such
Mortgaged Property (subject to any conditions contained in such Opinion of
Counsel). Notwithstanding any other provision of this Agreement, no Mortgaged
Property acquired by the Issuing Entity shall be held, rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Issuing Entity in such a manner or pursuant to any terms that
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of section 860G(a)(8) of the Code or (ii) subject
the Issuing Entity or any REMIC provided for herein to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under section 860G(c) of the Code or otherwise, unless the Servicer or
the Depositor has agreed to indemnify and hold harmless the Trustee and the
Issuing Entity with respect to the imposition of any such taxes. The Servicer
shall have no liability for any losses resulting from a foreclosure on a second
lien Mortgage Loan in connection with the foreclosure of the related first lien
mortgage loan that is not a Mortgage Loan if the Servicer does not receive
notice of such foreclosure action.
The decision of the Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by the Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any Mortgaged Properties acquired
through foreclosure or other judicial proceeding, net of reimbursement to the
Servicer for expenses incurred (including any property or other taxes) in
connection with such management and net of
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unreimbursed Servicing Fees, Advances, Servicing Advances and any management fee
paid or to be paid with respect to the management of such Mortgaged Property,
shall be applied to the payment of principal of, and interest on, the related
defaulted Mortgage Loans (with interest accruing as though such Mortgage Loans
were still current) and all such income shall be deemed, for all purposes in
this Agreement, to be payments on account of principal and interest on the
related Mortgage Notes and shall be deposited into the Collection Account. To
the extent the income received during a Prepayment Period is in excess of the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan, such excess shall be considered to
be a partial Principal Prepayment for all purposes hereof.
Notwithstanding the foregoing provisions of this Section 3.12 or any other
provision of this Agreement, with respect to any Mortgage Loan as to which the
assistant vice president for foreclosures or the vice president of default
management of the Servicer has actual knowledge (which shall not be presumed due
to any documents received by the Servicer) of, the presence of any toxic or
hazardous substance on the related Mortgaged Property, the Servicer shall not,
on behalf of the Trustee, either (i) obtain title to such Mortgaged Property as
a result of or in lieu of foreclosure or otherwise, or (ii) otherwise acquire
possession of, or take any other action with respect to, such Mortgaged
Property, if, as a result of any such action, the Trustee, the Issuing Entity or
the Certificateholders would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer believes (and unless the Class A
Certificate Insurer consents in writing), based on its reasonable judgment and a
report prepared by a Person who regularly conducts environmental audits using
customary industry standards, that:
(1) such Mortgaged Property is in material compliance with applicable
environmental laws or, if not, that it would be in the best economic interest of
the Issuing Entity to take such actions as are necessary to bring the Mortgaged
Property into compliance therewith; and
(2) it is probable that there are no circumstances present at such
Mortgaged Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
for which additional investigation, testing, monitoring, containment, clean-up
or remediation could be required under any federal, state or local law or
regulation, or that if any such materials are present for which such action
could be required, that it would be in the best economic interest of the Issuing
Entity to take such actions with respect to the affected Mortgaged Property.
The Servicer shall forward a copy of the environmental audit report to the
Depositor and the Trustee. The cost of the environmental audit report
contemplated by this Section 3.12 shall be advanced by the Servicer, subject to
the Servicer's right to be reimbursed therefor from the Collection Account, such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If the Servicer determines, as described above, that it is in the best
economic interest of the Issuing Entity to take such actions as are necessary to
bring any such Mortgaged Property into compliance with applicable environmental
laws, or to take such action with respect to the containment, clean-up or
remediation of hazardous substances, hazardous materials, hazardous wastes or
petroleum-based materials affecting any such Mortgaged Property, then the
Servicer may take such action as it deems to be in the best economic interest of
the Issuing Entity; provided that any amounts disbursed by the Servicer
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pursuant to this Section 3.12 shall constitute Advances. The cost of any such
compliance, containment, clean-up or remediation shall be advanced by the
Servicer, subject to the Servicer's right to be reimbursed therefor from the
Collection Account, such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Collection Account received in
respect of the affected Mortgage Loan or other Mortgage Loans. If the Servicer
decides not to take such action, it may not obtain title to such Mortgaged
Property.
The Liquidation Proceeds from any liquidation of a Mortgage Loan, net of
any payment to the Servicer as provided above, shall be deposited in the
Collection Account on the next succeeding Determination Date following receipt
thereof for distribution on the related Distribution Date.
The proceeds of any Liquidated Loan, as well as any recovery resulting from
a partial collection of Liquidation Proceeds, will be applied as between the
parties in the following order of priority: first, to reimburse the Servicer for
any related unreimbursed Servicing Advances and unpaid Servicing Fees, pursuant
to Section 3.08(a)(vii) or this Section 3.12; second, to reimburse the Servicer
for any unreimbursed Advances, pursuant to Section 3.08(a)(ii) or this Section
3.12; third, to accrued and unpaid interest (to the extent no Advance has been
made for such amount) on the Mortgage Loan, at the applicable Net Mortgage Rate
to the Due Date occurring in the month in which such amounts are required to be
distributed; fourth, as a recovery of principal of the Mortgage Loan; and fifth,
to any prepayment charges.
The proceeds of any net income from an REO Property will be applied as
between the parties in the following order of priority: first, to reimburse the
Servicer for any related unreimbursed Servicing Advances and unpaid Servicing
Fees, pursuant to Section 3.08(a)(vii) or this Section 3.12; second, to
reimburse the Servicer for any unreimbursed Advances, pursuant to Section
3.08(a)(ii) or this Section 3.12; third, as a recovery of principal; and fourth,
to accrued and unpaid interest (to the extent no Advance has been made for such
amount) on the related REO Property, at the applicable Net Mortgage Rate to the
Due Date occurring in the month in which such amounts are required to be
distributed.
(b) On each Determination Date, the Servicer shall determine the respective
aggregate amounts of Excess Proceeds, if any, that occurred in the related
Prepayment Period.
(c) [Reserved].
(d) With respect to such of the Mortgage Loans as come into and continue in
default, the Servicer will decide, in its reasonable business judgment, whether
to (i) foreclose upon the Mortgaged Properties securing those Mortgage Loans
pursuant to Section 3.12(a), (ii) write off the unpaid principal balance of the
Mortgage Loans as bad debt (provided that the Servicer has determined that no
net recovery is possible through foreclosure proceedings or other liquidation of
the related Mortgaged Property), (iii) take a deed in lieu of foreclosure, (iv)
accept a short sale or short refinance; (v) arrange for a repayment plan or
refinancing, or (vi) agree to a modification of such Mortgage Loan. As to any
Mortgage Loan that becomes 120 days delinquent, the Servicer may obtain a
broker's price opinion, the cost of which will be reimbursable as a Servicing
Advance. After obtaining the broker's price opinion, the Servicer will
determine, in its reasonable business judgment, whether a net recovery is
possible through foreclosure proceedings or other liquidation of the related
Mortgage Property. If the Servicer determines that no such recovery is possible,
it must charge off the related Mortgage Loan at the time it becomes 180 days
delinquent. Once a Mortgage Loan has been charged off, the Servicer will
discontinue making Advances, the Servicer will not be entitled to future
Servicing Fees (except as provided below)
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with respect to such Mortgage Loan, and the Mortgage Loan will be treated as a
Liquidated Mortgage Loan. If the Servicer determines that such net recovery is
possible through foreclosure proceedings or other liquidation of the related
Mortgaged Property on a Mortgage Loan that becomes 180 days delinquent, the
Servicer will continue to be entitled to Servicing Fees, the Servicer need not
charge off such Mortgage Loan and may continue making Advances, and the Servicer
will be required to notify the Trustee and the Class A Certificate Insurer of
such decision.
(e) Any Mortgage Loan that is charged off, pursuant to (d) above, may
continue to be serviced by the Servicer for the Certificateholders using
specialized collection procedures (including foreclosure, if appropriate). The
Servicer and the Class A Certificate Insurer will be entitled to Servicing Fees
and reimbursement of expenses in connection with such Mortgage Loans after the
date of charge off, only to the extent of funds available from any recoveries on
any such Mortgage Loans. Any such Mortgage Loans serviced in accordance with the
specialized collection procedures shall be serviced for approximately six
months. Any net recoveries received on such Mortgage Loans during such six month
period will be treated as Subsequent Recoveries and serviced pursuant to Section
3.05(d) herein.
SECTION 3.13. Trustee to Cooperate; Release of Mortgage Files
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will promptly notify the Trustee or
its custodian by delivering a Request for Release substantially in the form of
Exhibit I. Upon receipt of a copy of such request, the Trustee or its custodian
shall promptly release the related Mortgage File to the Servicer, the cost of
which may be charged to the Servicer by the Trustee, and the Servicer is
authorized to cause the removal from the registration on the MERS System of any
such Mortgage if applicable, and the Servicer, on behalf of the Trustee shall
execute and deliver the request for reconveyance, deed of reconveyance or
release or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage together with the Mortgage Note with written evidence of cancellation
thereon. Expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the Mortgagor to the extent
permitted by law, and otherwise to the Trust Fund to the extent such expenses
constitute "unanticipated expenses" within the meaning of Treasury Regulations
Section 1.860G-(1)(b)(3)(ii). From time to time and as shall be appropriate for
the servicing or foreclosure of any Mortgage Loan, including for collection
under any policy of flood insurance, any fidelity bond or errors or omissions
policy, or for the purposes of effecting a partial release of any Mortgaged
Property from the lien of the Mortgage or the making of any corrections to the
Mortgage Note or the Mortgage or any of the other documents included in the
Mortgage File, the Trustee or its custodian shall, upon delivery to the Trustee
or its custodian of a Request for Release in the form of Exhibit I signed by a
Servicing Officer, release the Mortgage File to the Servicer, and the cost of
delivery of the Mortgage File may be charged to the Servicer by the Trustee.
Subject to the further limitations set forth below, the Servicer shall cause the
Mortgage File or documents so released to be returned to the Trustee or its
custodian when the need therefor by the Servicer no longer exists, unless the
Mortgage Loan is liquidated and the proceeds thereof are deposited in the
Collection Account.
Each Request for Release may be delivered to the Trustee or its custodian
(i) via mail or courier, (ii) via facsimile or (iii) by such other means,
including, without limitation, electronic or computer readable medium, as the
Servicer and the Trustee or its custodian shall mutually agree. The Trustee or
its custodian shall release the related Mortgage File(s) within four Business
Days of receipt of a properly completed Request for Release pursuant to clauses
(i), (ii) or (iii) above. Receipt of a properly completed Request for Release
shall be authorization to the Trustee or its custodian to release such Mortgage
Files,
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provided the Trustee or its custodian has determined that such Request for
Release has been executed, with respect to clauses (i) or (ii) above, or
approved, with respect to clause (iii) above, by an authorized Servicing Officer
of the Servicer, and so long as the Trustee or its custodian complies with its
duties and obligations under this Agreement. If the Trustee or its custodian is
unable to release the Mortgage Files within the period previously specified, the
Trustee or its custodian shall immediately notify the Servicer indicating the
reason for such delay. The Servicer shall not pay penalties or damages due to
the Trustee's or its designee's negligent failure to release the related
Mortgage File or the Trustee's or its designee's negligent failure to execute
and release documents in a timely manner, and such amounts shall be Servicer
Advances.
On each day that the Servicer remits to the Trustee or its custodian
Requests for Releases pursuant to clauses (ii) or (iii) above, the Servicer
shall also submit to the Trustee or its custodian a summary of the total number
of such Requests for Releases requested on such day by the same method as
described in such clauses (ii) and (iii) above.
If the Servicer at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, the Servicer
may deliver or cause to be delivered to the Trustee for signature, or on behalf
of the Trustee execute, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity. Notwithstanding the foregoing, the Servicer shall cause
possession of any Mortgage File or of the documents therein that shall have been
released by the Trustee to be returned to the Trustee promptly after possession
thereof shall have been released by the Trustee unless (i) the Mortgage Loan has
been liquidated and the Liquidation Proceeds relating to the Mortgage Loan have
been deposited in the Collection Account, and the Servicer shall have delivered
to the Trustee a Request for Release in the form of Exhibit I or (ii) the
Mortgage File or document shall have been delivered to an attorney or to a
public trustee or other public official as required by law for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property and the Servicer shall have delivered to the Trustee an
Officer's Certificate of a Servicing Officer certifying as to the name and
address of the Person to which the Mortgage File or the documents therein were
delivered and the purpose or purposes of such delivery.
The Servicer shall not have any liability for and shall be excused from the
performance of the Agreement to the extent the Servicer is unable to perform due
to the Trustee's or the Custodian's failure to release the related Mortgage File
or the Trustee's or the Custodian's failure to execute and release documents in
a timely manner.
SECTION 3.14. Documents, Records and Funds in Possession of Servicer to be
Held for the Trustee.
All Mortgage Files and funds collected or held by, or under the control of,
the Servicer in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds, including but not
limited to, any funds on deposit in the Collection Account, shall be held by the
Servicer for and on behalf of the Trustee and shall be and remain the sole and
exclusive property of the Trust Fund, subject to the applicable provisions of
this Agreement. The Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the Collection
Account, Certificate Account or in any Escrow Account, or any funds that
otherwise are or
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may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of set off against any Mortgage File or any funds collected on,
or in connection with, a Mortgage Loan, except, however, that the Servicer shall
be entitled to set off against and deduct from any such funds any amounts that
are properly due and payable to the Servicer under this Agreement.
SECTION 3.15. Servicing Compensation
As compensation for its activities hereunder, the Servicer shall be
entitled to retain or withdraw from the Collection Account out of each payment
or recovery of interest on a Mortgage Loan included in the Trust Fund an amount
equal to interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the related Mortgage Loan as of the immediately preceding
Distribution Date.
Additional servicing compensation in the form of any Excess Proceeds, late
payment fees, assumption fees (i.e. fees related to the assumption of a Mortgage
Loan upon the purchase of the related Mortgaged Property), bad check charges,
modification fees and similar fees and charges payable by the Mortgagor,
Prepayment Interest Excess, all income and gain net of any losses realized from
Permitted Investments in the Collection Account, and any other benefits arising
from the Collection Account and the Escrow Account shall be retained by the
Servicer to the extent not required to be deposited in the Collection Account
and the Escrow Account pursuant to Sections 3.05, 3.06 or 3.12(a) hereof. The
Servicer shall be required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement. In no event shall
the Trustee be liable for any Servicing Fee or for any differential between the
Servicing Fee and the amount necessary to induce a successor servicer to act as
successor servicer under this Agreement.
SECTION 3.16. Access to Certain Documentation
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of the Certificates and the examiners
and supervisory agents of the OTS, the FDIC and such other authorities, as
applicable, access to the documentation regarding the Mortgage Loans required by
applicable regulations of the OTS and the FDIC. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices of the Servicer designated by it provided,
that the Servicer shall be entitled to be reimbursed by each such
Certificateholder for actual expenses incurred by the Servicer in providing such
reports and access. Nothing in this Section shall limit the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section as a result of such obligation shall not constitute a
breach of this Section. The Servicer shall provide to the Trustee access to its
records regarding the Mortgage Loans upon reasonable prior notice and during
regular business hours.
SECTION 3.17. Annual Statement as to Compliance
Not later than (a) March 12 of each calendar year (other than the calendar
year during which the Closing Date occurs) or (b) with respect to any calendar
year during which an annual report on Form 10-K is not required to be filed
pursuant to Section 3.20 on behalf of the Issuing Entity, by April 15 of each
calendar year (or if such day is not a Business Day, the immediately succeeding
Business Day), the
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Servicer shall deliver to the Trustee, the Depositor and the Class A Certificate
Insurer, an Officer's Certificate in the form attached hereto as Exhibit U
stating, as to each signatory thereof, that (i) a review of the activities of
the Servicer during the preceding calendar year and of the performance of the
Servicer under this Agreement has been made under such officer's supervision,
and (ii) to the best of such officer's knowledge, based on such review, such
Servicer has fulfilled all its obligations under this Agreement in all material
respects throughout such year or a portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status thereof. With
respect to any Subservicer that meets the criteria of Item 1108(a)(2)(i) through
(iii) of Regulation AB, the Servicer shall deliver, on behalf of that
Subservicer, the Officer's Certificate set forth in this Section 3.17 as and
when required with respect to such Subservicer.
SECTION 3.18. Annual Independent Public Accountants' Servicing Statement;
Financial Statements
(a) Not later than (i) March 12 of each calendar year (other than the
calendar year during which the Closing Date occurs) or (ii) with respect to any
calendar year during which an annual report on Form 10-K is not required to be
filed pursuant to Section 3.20 on behalf of the Issuing Entity, by April 15 of
each calendar year (or if such day is not a Business Day, the immediately
succeeding Business Day), the Servicer, at its own expense, shall deliver to the
Trustee, the Depositor and the Class A Certificate Insurer, an officer's
assessment of its compliance with the Servicing Criteria during the preceding
calendar year as required by Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB (the "Assessment of Compliance"), which assessment
shall be substantially in the form of Exhibit R hereto.
(b) Not later than (i) March 12 of each calendar year (other than the
calendar year during which the Closing Date occurs) or (ii) with respect to any
calendar year during which an annual report on Form 10-K is not required to be
filed pursuant to Section 3.20 on behalf of the Issuing Entity, April 15 of each
calendar year (or if such day is not a Business Day, the immediately succeeding
Business Day), the Servicer, at its own expense, shall cause a nationally or
regionally recognized firm of independent registered public accountants (who may
also render other services to any Servicer, the Sponsor or any Affiliate
thereof) which is a member of the American Institute of Certified Public
Accountants to furnish a statement to be provided to the Trustee, the Depositor
and the Class A Certificate Insurer, that attests to and reports on the
Assessment of Compliance provided by such Servicer pursuant to Section 3.18(a)
(the "Accountant's Attestation"). Such Accountant's Attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act.
(c) The Servicer shall deliver on behalf of any Subservicer and each
Subcontractor (unless, in the case of any Subcontractor, the Depositor has
notified the Servicer and the Trustee in writing that such compliance statement
is not required by Regulation AB) not later than March 12 of each calendar year
(other than the calendar year during which the Closing Date occurs) with respect
to any calendar year during which the Issuing Entity's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission, to the Trustee, the Depositor and the Class A
Certificate Insurer, an Assessment of Compliance, which assessment shall be
substantially in the form of Exhibit R hereto. The Servicer shall deliver on
behalf of any Subservicer (other than the calendar year during which the Closing
Date occurs) with respect to any calendar year during which the Issuing Entity's
annual report on Form 10-K is not required
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to be filed in accordance with the Exchange Act and the rules and regulations of
the Commission, by April 15 of each calendar year (or, in each case, if such day
is not a Business Day, the immediately succeeding Business Day) to the Trustee,
the Depositor and the Class A Certificate Insurer, an Assessment of Compliance,
which assessment shall be substantially in the form of Exhibit R hereto.
(d) Not later than March 12 of each calendar year (other than the
calendar year during which the Closing Date occurs) with respect to any calendar
year during which the Issuing Entity's annual report on Form 10-K is required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission, the Servicer shall cause each Subservicer and each Subcontractor
(unless, in the case of any Subcontractor, the Depositor has notified the
Trustee and Servicer in writing that such compliance statement is not required
by Regulation AB) to provide for delivery to the Trustee, the Depositor and the
Class A Certificate Insurer, an Accountant's Attestation by a registered public
accounting firm that attests to, and reports on, the Assessment of Compliance
pursuant to Section 3.18(c) above. Other than the calendar year during which the
Closing Date occurs, with respect to any calendar year during which the Issuing
Entity's annual report on Form 10-K is not required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission, not later
than April 15 of each calendar year (or, in each case, if such day is not a
Business Day, the immediately succeeding Business Day), the Servicer shall cause
each Subservicer to provide for delivery to the Trustee, the Depositor and the
Class A Certificate Insurer, an Accountant's Attestation by a registered public
accounting firm that attests to, and reports on, the Assessment of Compliance
pursuant to Section 3.18(c) above.
(e) Not later than, with respect to any calendar year during which the
Issuing Entity's annual report on Form 10K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission, 15
calendar days before the date on which the Issuing Entity's annual report on
Form 10-K with respect to the transactions contemplated by this Agreement is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission (or, in each case, if such day is not a Business
Day, the immediately preceding Business Day), the Trustee shall deliver to the
Depositor and the Servicer, and make available to the Class A Certificate
Insurer, an Assessment of Compliance with regard to the Servicing Criteria
applicable to the Trustee during the preceding calendar year.
(f) Not later than, with respect to any calendar year during which the
Issuing Entity's annual report on Form 10K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission, 15
calendar days before the date on which the Issuing Entity's annual report on
Form 10-K with respect to the transactions contemplated by this Agreement is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission (or, in each case, if such day is not a Business
Day, the immediately preceding Business Day), the Trustee shall deliver to the
Depositor and the Servicer, and make available to the Class A Certificate
Insurer, an Accountant's Attestation by a registered public accounting firm that
attests to, and reports on, the Assessment of Compliance pursuant to Section
3.18(e) above.
(g) Not later than, with respect to any calendar year during which the
Issuing Entity's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission, fifteen (15) calendar days before the date on which the Issuing
Entity's annual report on Form 10-K is required to be filed in accordance with
the Exchange Act and the rules and regulations of the Commission (or, in each
case, if such day is not a Business Day, the
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immediately preceding Business Day), the Depositor shall cause each custodian,
if any, to deliver to the Depositor, the Servicer, the Trustee and the Class A
Certificate Insurer, an Assessment of Compliance with regard to the Servicing
Criteria applicable to such custodian during the preceding calendar year.
(h) Not later than March 12, (or, in each case, if such day is not a
Business Day, the immediately succeeding Business Day), of any calendar year
(other than the calendar year during which the Closing Date occurs) during which
the Issuing Entity's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission, the Depositor shall cause each custodian, if any, to deliver to the
Depositor, the Servicer, the Trustee and the Class A Certificate Insurer, an
Accountant's Attestation by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance pursuant to Section 3.18(g) above.
(i) [Reserved].
(j) [Reserved].
(k) The Trustee agrees to require any custodian appointed by it to
indemnify and hold harmless the Trustee, the Depositor and the Servicer and each
Person, if any, who "controls" the Trustee, the Depositor or the Servicer within
the meaning of the Securities Act and its officers, directors and Affiliates
from and against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses that such Person may sustain arising out of third party claims based on
(i) the failure of the custodian, if any, to deliver when required any
information required of it pursuant to Section 3.18 or 3.20 or (ii) any material
misstatement or omission contained in any information provided on its behalf
pursuant to Section 3.18 or 3.20.
(l) Any statement, report and information, including the Assessments
of Compliance and Accountant's Attestations, delivered to the Trustee pursuant
to Sections 3.17 or 3.18 shall be delivered in Xxxxx-compatible form (which may
be Word or Excel documents easily convertible to Xxxxx format) or in such other
form as agreed upon by the Trustee and the party delivering such statement,
report or other information. Copies of such Assessments of Compliance and
Accountant's Attestations shall be available on the Trustee's website
xxx.xxxxxxxx.xxx to any Certificateholder, provided such statement is delivered
to the Trustee. The initial Assessments of Compliance and Accountant's
Attestations required pursuant to this Section 3.18 shall be delivered to the
Trustee, and the Depositor, as applicable, by each party no later than March 12,
2008.
(m) Each of the parties hereto acknowledges and agrees that the
purpose of this Section 3.18 is to facilitate compliance by the Sponsor and the
Depositor with the provisions of Regulation AB, as such may be amended or
clarified from time to time. Therefore, each of the parties agrees that the
parties' obligations hereunder will be supplemented and modified as necessary to
be consistent with any such amendments, interpretive advice or guidance,
convention or consensus among active participants in the asset-backed securities
markets, advice of counsel, or otherwise in respect of the requirements of
Regulation AB and the parties shall comply with requests made by the Sponsor or
the Depositor for delivery of additional or different information as the Sponsor
or the Depositor may determine in good faith is necessary to comply with the
provisions of Regulation AB, provided that such information is available to such
party without unreasonable effort or expense and within such timeframe as may be
reasonably requested. Any such supplementation or modification shall be made in
accordance with Section 10.01 without the consent of the Certificateholders but
with the consent of the Class A
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Certificate Insurer (which consent shall not be unreasonably withheld), and may
result in a change in the reports filed by the Trustee on behalf of the Issuing
Entity under the Exchange Act.
SECTION 3.19. Subordination of Liens.
In connection with any governmental program under which a Mortgagor may
obtain a benefit in the event the related Mortgaged Property is subject to a
disaster provided that the Mortgagor files a covenant or other lien against the
Mortgaged Property and is required to obtain the subordination thereto of the
Mortgage, the Servicer may cause such subordination to be executed and filed
provided that either (i) the related Mortgage Loan is in default or, in the
Servicer's best judgment, default with respect to such Mortgage Loan is imminent
or (ii) such subordination and participation in such governmental program will
not result in a change in payment expectations with respect to such Mortgage
Loan. For purposes of the preceding sentence, a change in payment expectations
occurs if, as a result of such subordination and participation in such
governmental program, (1) there is a substantial enhancement of the Mortgagor's
capacity to meet the payment obligations under the Mortgage Loan and that
capacity was primarily speculative prior to such subordination and participation
in such governmental program and is adequate after such subordination and
participation in such governmental program or (2) there is a substantial
impairment of the Mortgagor's capacity to meet the payment obligations under the
Mortgage Loan and that capacity was adequate prior to such subordination and
participation in such governmental program and is primarily speculative after
such subordination and participation in such governmental program. The preceding
sentence and clause (ii) of the second preceding sentence are intended to comply
with Treasury Regulations Section 1.1001-3(e)(4) and shall be interpreted in
accordance therewith.
SECTION 3.20. Periodic Filings
As set forth on Schedule X hereto, for so long as the Issuing Entity is
subject to the Exchange Act reporting requirements, no later than the end of
business on the 2nd Business Day after the occurrence of an event requiring
disclosure on Form 8K (a "reportable event") (i) the Depositor, the Sponsor or
the Servicer shall have timely notified the Trustee of an item reportable on a
Form 8-K (unless such item is specific to the Trustee, in which case the Trustee
will be deemed to have notice), (ii) shall have delivered to the Trustee, all
information, data, and exhibits required to be provided or filed with such Form
8-K in a Word format (or other Xxxxx-compatible form) agreed upon by the Trustee
and Depositor, Sponsor or Servicer and (iii) the Depositor or the Trustee, to
the extent the reportable item pertains to such party, shall notify the Servicer
thereof by telephone. The Trustee shall not be responsible for determining what
information is required to be filed on a Form 8-K in connection with the
transactions contemplated by this Agreement (unless such information is specific
to the Trustee, in which case the Trustee will be responsible for consulting
with the Depositor or Servicer in making such a determination) or what events
shall cause a Form 8-K to be required to be filed (unless such event is specific
to the Trustee, in which case the Trustee will be responsible for consulting
with the Depositor or Servicer before causing such Form 8-K to be filed) and
shall not be liable for any late filing of a Form 8-K in the event that it does
not receive all information, data and exhibits required to be provided or filed
on or prior to the second Business Day prior to the applicable filing deadline
and with respect to signatures, by noon, New York City time, on the fourth
Business Day after the reportable event. After preparing the Form 8-K on behalf
of the Depositor, the Trustee shall, if required, forward electronically a draft
copy of the Form 8-K to the Depositor and the Servicer for review. No later than
one and one-half Business Days after receiving a final copy of the Form 8-K from
the Trustee, unless the Servicer has received from the Depositor a notice to the
contrary, a duly authorized representative of the Servicer shall sign the Form
8-K and return an electronic or fax copy of such signed Form 8-K (with an
original executed hard copy to follow by
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overnight mail) to the Trustee and the Trustee shall file such Form 8-K;
provided that the Depositor has notified the Trustee that it approves of the
form and substance of such Form 8-K. If a Form 8-K cannot be filed on time or if
a previously filed Form 8-K needs to be amended, the Trustee will follow the
procedures set forth in this Agreement. After filing with the Commission, the
Trustee will, pursuant to this Agreement, make available on its internet website
a final executed copy of each Form 8-K. The Trustee will have no obligation to
prepare, execute or file such Form 8-K or any liability with respect to any
failure to properly prepare, execute or file such Form 8-K resulting from the
Trustee's inability or failure to obtain or receive any information needed to
prepare, arrange for execution or file such Form 8-K within the time frames
required by this paragraph, not resulting from its own negligence, bad faith or
willful misconduct.
Within fifteen (15) days after each Distribution Date, the Trustee shall,
on behalf of the Issuing Entity and in accordance with industry standards, file
with the Commission via the Electronic Data Gathering and Retrieval System
(XXXXX), a Form 10-D with a copy of the report to the Certificateholders for
such Distribution Date as an exhibit thereto. Any other information provided to
the Trustee by the Servicer or Depositor to be included in Form 10-D shall be
determined and prepared by and at the direction of the Depositor pursuant to the
following paragraph and the Trustee will have no duty or liability for any
failure hereunder to determine or prepare any additional information on Form
10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph.
As set forth in Schedule Y hereto, within five (5) calendar days after the
related Distribution Date (i) the parties hereto, as applicable, will be
required to provide to the Depositor and the Servicer, to the extent known to
such party, any Additional Form 10-D Disclosure (including any breaches of pool
asset representations and warranties or transaction covenants of which the party
has written notice and which has not been included on the monthly distribution
report for the period), if applicable, and (ii) the Depositor, to the extent it
deems necessary, forward to the Trustee in XXXXX-compatible form (or such other
word processing format that is XXXXX-compatible) (with a copy to the Servicer),
or in such other form as otherwise agreed upon by the Trustee and the Depositor,
the form and substance of the Additional Form 10-D Disclosure by the eighth
(8th) calendar day after the related Distribution Date. The Depositor will be
responsible for any reasonable fees and expenses incurred by the Trustee in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
After preparing the Form 10-D at the direction of the Depositor, the
Trustee will forward electronically a draft copy of the Form 10-D to the
Depositor and the Servicer for review by the 9th calendar day after the
Distribution Date. No later than two (2) Business Days after receipt of a final
copy after the related Distribution Date, unless the Servicer receives a notice
from the Trustee as described below or a notice from the Depositor that it has
discovered a material deficiency or irregularity with respect to such Form 10-D,
a duly authorized representative of the Servicer shall sign the Form 10-D and
return an electronic or fax copy of such Form 10-D (with an original executed
hard copy to follow by overnight mail) to the Trustee and the Trustee shall file
such Form 10-D within two business days. Unless the Servicer shall have received
notice from the Trustee to the contrary, the Trustee will be deemed to have
represented to the Servicer that the monthly statement has been properly
prepared by the Trustee and the Servicer may rely upon the accuracy thereof in
it execution of the Form 10-D. If a Form 10-D cannot be filed on time (because
of notice from the Trustee per the previous sentence or otherwise) or if a
previously filed Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in this Agreement. After filing with the Commission, the
Trustee will make available on its internet website a final executed copy of
each Form 10-D. The Trustee will have no liability with respect to any failure
to properly prepare, execute or file such Form 10-D resulting from the Trustee's
inability or failure
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to obtain or receive any information needed to prepare, arrange for execution or
file such Form 10-D on a timely basis.
Prior to Xxxxx 00, 0000 (xxx, if applicable, prior to the ninetieth (90th)
calendar day after the end of the fiscal year for the Issuing Entity), the
Trustee shall, on behalf of the Issuing Entity and in accordance with industry
standards, prepare and file with the Commission via XXXXX a Form 10 -K with
respect to the Issuing Entity. Such Form 10-K shall include the following items,
in each case to the extent they have been delivered to the Trustee within the
applicable time frames set forth in this Agreement, (i) an annual compliance
statement for the Servicer and each Subservicer, as described in Section 3.17 of
the Agreement, (ii)(A) the annual reports on Assessment of Compliance with
Servicing Criteria for each Servicer, Subservicer and Subcontractor (unless the
Depositor has determined that such compliance statement is not required by
Regulation AB), as described in Section 3.18 of the Agreement, and (B) if any
Reporting Servicer's report on Assessment of Compliance with Servicing Criteria
described in Section 3.18 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any report on
assessment of compliance with servicing criteria described in Section 3.18 of
the Agreement is not included as an exhibit to such Form 10-K, disclosure that
such report is not included and an explanation why such report is not included,
(iii)(A) the registered public accounting firm attestation report for the
Servicer and each Subservicer, as described in Section 3.18 of the Agreement,
and (B) if any registered public accounting firm attestation report described in
the Section 3.18 of the Agreement identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if any
such registered public accounting firm attestation report is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included, and (iv) a Xxxxxxxx-Xxxxx
Certification in the form attached hereto as Exhibit T, executed by the senior
officer in charge of securitizations of the Servicer. Any disclosure or
information in addition to (i) through (iv) above that is required to be
included on Form 10-K ("Additional Form 10-K Disclosure") shall be determined
and prepared by and at the direction of the Depositor pursuant to the following
paragraph and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure, except as
set forth in the next paragraph.
As set forth in Schedule Z hereto, no later than March 12 of each year that
the Issuing Entity is subject to the Exchange Act reporting requirements,
commencing in 2008, (i) certain parties to the transaction shall be required to
provide to the Depositor and the Servicer, to the extent known, any Additional
Form 10-K Disclosure, if applicable, and (ii) the Depositor shall, to the extent
it deems necessary, forward to the Trustee in XXXXX-compatible form (or such
other word processing format that is XXXXX-compatible), or in such other form as
otherwise agreed upon by the Trustee and the Depositor, the form and substance
of the Additional Form 10-K Disclosure by March 15. The Depositor will be
responsible for any reasonable fees and expenses incurred by the Trustee in
connection with including any Additional Form 10-K Disclosure on Form 10-K
pursuant to this paragraph.
After preparing the Form 10-K, the Trustee shall forward electronically a
draft copy of the Form 10-K to the Depositor and the Servicer for review. Upon
the request of the Servicer, the Depositor shall confirm that it has reviewed
the Form 10-K, that it has been properly prepared and that the Servicer may rely
on the accuracy thereof (other than with respect to any portion of the Form 10-K
or any exhibit thereto provided by the Servicer (other than any portion thereof
with respect to which the Servicer has relied on the Trustee)). No later than
5:00 p.m. ET on the 3rd Business Day following receipt of a final copy of the
Form 10-K and if requested, the above-described confirmation from the Depositor,
a senior officer of the Servicer shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Trustee and the Trustee
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shall file such Form 10-K by March 30th. If a Form 10-K cannot be filed on time
or if a previously filed Form 10-K needs to be amended, the Trustee will follow
the procedures set forth in the Agreement. After filing with the Commission, the
Trustee will, pursuant to the Agreement, make available on its internet website
a final executed copy of each Form 10-K. The Trustee shall have no liability
with respect to any failure to properly prepare, execute or file such Form 10-K
resulting from the Trustee's inability or failure to obtain or receive any
information needed to prepare, arrange for execution or file such Form 10-K on a
timely basis.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification") which shall be in the form attached hereto as Exhibit T. The
Servicer will cause its senior officer in charge of securitization to execute
the Xxxxxxxx-Xxxxx Certification required pursuant to Rule 13a -14 under the
Securities Exchange Act of 1934, as amended, and to deliver the original
executed Xxxxxxxx-Xxxxx Certification to the Trustee by March 12 of each year in
which the Issuing Entity is subject to the reporting requirements of the
Exchange Act. In connection therewith, each of the Trustee and the Servicer
shall sign a certification (in the form attached hereto as Exhibit K and Exhibit
L, respectively) for the benefit of the Servicer and its officers, directors and
Affiliates regarding certain aspects of the Xxxxxxxx-Xxxxx Certification. To the
extent any information or exhibits required to be included in the Form 10 -K are
not timely received by the Trustee prior to March 30, the Trustee shall, on
behalf of the Trust, file a Form 12B-25 and one or more amended Form 10-Ks, to
the extent such amendments are accepted pursuant to the Exchange Act, to include
such missing information or exhibits promptly after receipt thereof by the
Trustee.
On or before January 30, 2008, the Trustee shall, if legally permissible
under applicable regulations and interpretations of the Commission, on behalf of
the Issuing Entity and in accordance with industry standards, file with the
Commission via XXXXX a Form 15 Suspension Notification with respect to the
Issuing Entity, if applicable.
The Servicer agrees to furnish to the Trustee promptly, from time to time
upon request, such further information, reports, and financial statements (each
in Xxxxx-compatible format) within its control related to this Agreement and the
Mortgage Loans as is reasonably necessary to prepare and file all necessary
reports with the Commission. The Trustee shall have no responsibility to file
any items with the Commission other than those specified in this section and the
Servicer shall execute any and all Form 8-Ks, Form 10-Ds and Form 10-Ks required
hereunder.
The Trustee shall not have any responsibility to file any items (other than
those generated by it) that have not been received in a format suitable (or
readily convertible into a format suitable) for electronic filing via the XXXXX
system and shall not have any responsibility to convert any such items to such
format (other than those items generated by it or that are readily convertible
to such format).
If the Commission issues additional interpretative guidance or promulgates
additional rules or regulations with respect to Regulation AB or otherwise, or
if other changes in applicable law occur, that would require the reporting
arrangements, or the allocation of responsibilities with respect thereto,
described in this Section 3.20, to be conducted differently than as described,
the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend
the provisions of this Section 3.20 in order to comply with such amended
reporting requirements and such amendment of this Section 3.20. Any such
amendment shall be made in accordance with Section 10.01 without the consent of
the Certificateholders but with the consent of the Class A Certificate Insurer
(which consent shall not be unreasonably withheld), and may result in a change
in the reports filed by the Trustee on behalf of the Issuing Entity
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under the Exchange Act. Notwithstanding the foregoing, the Depositor, the
Servicer, and the Trustee shall not be obligated to enter into any amendment
pursuant to this Section 3.20 that adversely affects its obligations and
immunities under this Agreement.
The Depositor, the Servicer and the Trustee agree to use their good faith
efforts to cooperate in complying with the requirements of this Section 3.20.
SECTION 3.21. Indemnification by Trustee
The Trustee shall indemnify and hold harmless the Depositor, the Servicer
and their respective officers, directors, agents and Affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach by the Trustee or any of its officers, directors, agents or
Affiliates of its obligations under Sections 3.18 and 3.20, any material
misstatement or omission in any documents prepared thereunder (to the extent the
Trustee is responsible for providing information or calculating amounts included
in such information), the failure of the Trustee to deliver when required any
Assessment of Compliance or Accountant's Attestation required of it pursuant to
Section 3.18, or any material misstatement or omission contained in any
Assessment of Compliance or Accountant's Attestation provided on its behalf
pursuant to Section 3.18, or the negligence, bad faith or willful misconduct of
the Trustee in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the indemnified parties, then
the Trustee agrees that it shall contribute to the amount paid or payable by the
indemnified parties as a result of the losses, claims, damages or liabilities of
the indemnified parties in such proportion as is appropriate to reflect the
relative fault of the Trustee on the one hand and of the indemnified parties on
the other.
SECTION 3.22. Indemnification by Servicer
The Servicer shall indemnify and hold harmless the Trustee and the
Depositor and their respective officers, directors, agents and Affiliates from
and against any losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Servicer or any of its officers, directors, agents or
Affiliates of its obligations under Sections 3.17, 3.18 and 3.20, any material
misstatement or omission in any documents prepared thereunder (to the extent the
Servicer is responsible for providing information or calculating amounts
included in such information), the failure of such Servicer or any related
Sub-Servicer or Subcontractor to deliver or cause to be delivered when required
any Assessment of Compliance or Accountant's Attestation required of it pursuant
to Section 3.18 or Annual Statement of Compliance required pursuant to Section
3.17, as applicable, or any material misstatement or omission contained in any
Assessment of Compliance, Accountant's Attestation or Annual Statement as to
Compliance provided on its behalf pursuant to Section 3.18 or 3.17, as
applicable, or the negligence, bad faith or willful misconduct of the Servicer
in connection therewith. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the indemnified parties, then the
Servicer agrees that it shall contribute to the amount paid or payable by the
indemnified parties as a result of the losses, claims, damages or liabilities of
the indemnified parties in such proportion as is appropriate to reflect the
relative fault of the Servicer on the one hand and the indemnified parties on
the other.
Notwithstanding the foregoing, the Servicer shall be entitled to rely
conclusively on the accuracy of the information or data provided to the Servicer
in the respective Assessment of Compliance regarding the Servicing Criteria
applicable to the Trustee under Sections 3.18(e) and 3.18(f) or the Depositor
under
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Sections 3.18(g) and 3.18(h) in connection with the Servicer's document
preparation under Sections 3.17, 3.18 and 3.20, and the Servicer shall be
entitled to rely conclusively upon and shall have no liability for any errors in
such information.
SECTION 3.23. Prepayment Charge Reporting Requirements
Promptly before or after each Distribution Date, the Servicer shall provide
to the Depositor and the Trustee the following information with regard to each
Mortgage Loan that has prepaid during the related Prepayment Period:
(i) loan number;
(ii) current Mortgage Rate;
(iii) current principal balance;
(iv) original principal balance;
(v) Prepayment Charge amount due; and
(vi) Prepayment Charge amount collected.
SECTION 3.24. Information to the Trustee
Two Business Days after the 15th day of each month, but not later than the
18th day of each month, the Servicer shall furnish to the Trustee in electronic
format (1) the Remittance Report pursuant to Section 4.04(j) and (ii) a
delinquency report in the form attached hereto as Exhibit V for the period
ending on the last Business Day of the preceding month (and with respect to
prepayments in full, for the period ending on the 14th day of the month in which
such report is to be furnished); provided, however, that in the event the 18th
day is not a Business Day, the aforementioned reports shall be furnished by the
Servicer to the Trustee on the next Business Day; and provided, further, that in
the event there are three non-Business Days preceding the 18th day, the Servicer
will (a) furnish to the Trustee, on or before the 18th day of the month, the
aforementioned reports, which will not include information arising from the
related Prepayment Period, and (b) furnish to the Trustee, by 3:00 P.M., ET on
the next succeeding Business Day after the 18th day, a cumulative version of the
aforementioned reports which includes such information arising from the related
Prepayment Period.
SECTION 3.25. Indemnification
The Servicer shall indemnify the Sponsor, the Issuing Entity, the Trustee
(in its individual capacity and in its capacity as trustee), the Depositor, the
Class A Certificate Insurer and their officers, directors, employees and agents
and hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that any of such
parties may sustain in any way related to the failure of the Servicer to perform
its duties and service the Mortgage Loans in compliance with the terms of this
Agreement by reason of negligence, willful misfeasance or bad faith in the
performance of its duties or by reason of reckless disregard of obligations and
duties hereunder. The Servicer immediately shall notify the Sponsor, the
Trustee, the Depositor and the Class A Certificate Insurer or any other
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relevant party if a claim is made by a third party with respect to such party
and this Agreement or the Mortgage Loans and, if subject to this indemnification
obligation, assume (with the prior written consent of the indemnified party,
which consent shall not be unreasonably withheld or delayed) the defense of any
such claim and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or any of such parties in respect of such claim. The Servicer
shall follow any reasonable written instructions received from the Trustee in
connection with such claim, it being understood that the Trustee shall have no
duty to monitor or give instructions with respect to such claims, and the
Servicer will not have any liability for following such instructions. The
Servicer shall provide the Depositor and the Trustee with a written report of
all expenses and advances incurred by the Servicer pursuant to this Section
3.25(a), and the Servicer shall promptly reimburse itself from the assets of the
Trust Fund in the Collection Account for all amounts advanced by it pursuant to
the preceding sentence except when the claim in any way relates to the gross
negligence, bad faith or willful misconduct of the Servicer. The provisions of
this paragraph shall survive the termination of this Agreement and the payment
of the outstanding Certificates.
SECTION 3.26. Solicitation
The Servicer may solicit or refer to a mortgage originator, who may or may
not be an affiliate of the Depositor or the Servicer, any Mortgagor for
refinancing or otherwise take action to encourage refinancing.
SECTION 3.27. High Cost Mortgage Loans
In the event that the Servicer reasonably determines that a Mortgage Loan
may be a "high cost mortgage loan", "high cost home", "covered", "high cost",
"high risk home", "predatory" or similarly classified loan under any applicable
state, federal or local law, the Servicer may notify the Depositor, the related
Seller and the Trustee thereof; the Servicer may terminate its servicing
thereof; and such determination shall be deemed to materially and adversely
affect the interests of the Certificateholders and the Class A Certificate
Insurer in such Mortgage Loan and the related Seller will repurchase the
Mortgage Loan within a 30 day period from the date of the notice in the manner
described in Section 2.03.
SECTION 3.28. Rights of the NIMs Insurer
Each of the rights of the NIMs Insurer set forth in this agreement shall
exist so long as NIM Notes have been issued pursuant to the Indenture remain
outstanding that are insured by a NIMs Insurer or the NIMs Insurer is owed
amounts in respect of its guarantee of payment on such NIM notes.
ARTICLE IV
DISTRIBUTIONS
SECTION 4.01. Advances
(a) Subject to the conditions of this Article IV, the Servicer, as
required below, shall make an Advance and deposit such Advance in the Collection
Account. The Servicer shall use commercially reasonable efforts to remit each
such Advance no later than 2:30 p.m. ET, but in any case no later than 4:00 p.m.
ET, on the Servicer Remittance Date in immediately available funds. The Servicer
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shall be obligated to make any such Advance only to the extent that such advance
would not be a Non-Recoverable Advance. If the Servicer shall have determined
that it has made a Non-Recoverable Advance or that a proposed Advance or a
lesser portion of such Advance would constitute a Non-Recoverable Advance, the
Servicer shall deliver (i) to the Trustee for the benefit of the
Certificateholders and the Class A Certificate Insurer, funds constituting the
remaining portion of such Advance, if applicable, and (ii) to the NIMs Insurer,
the Class A Certificate Insurer and the Trustee an Officer's Certificate setting
forth the basis for such determination. The Servicer may, in its sole
discretion, make an Advance with respect to the principal portion of the final
Scheduled Payment on a Balloon Loan, but the Servicer is under no obligation to
do so; provided, however, that nothing in this sentence shall affect the
Servicer's obligation under this Section 4.01 to Advance the interest portion of
the final Scheduled Payment with respect to a Balloon Loan as if such Balloon
Loan were a fully amortizing Mortgage Loan. If a Mortgagor does not pay its
final Scheduled Payment on a Balloon Loan when due, the Servicer shall Advance
(unless it determines in its good faith judgment that such amounts would
constitute a Non-Recoverable Advance) a full month of interest (net of the
Servicing Fee) on the Stated Principal Balance thereof each month until its
Stated Principal Balance is reduced to zero.
In lieu of making all or a portion of such Advance from its own funds, the
Servicer may (i) cause to be made an appropriate entry in its records relating
to the Collection Account that any amount held for future distribution has been
used by the Servicer in discharge of its obligation to make any such Advance and
(ii) transfer such funds from the Collection Account to the Certificate Account.
In addition, the Servicer shall have the right to reimburse itself for any such
Advance from amounts held from time to time in the Collection Account to the
extent such amounts are not then required to be distributed. Any funds so
applied and transferred pursuant to the previous two sentences shall be replaced
by the Servicer by deposit in the Collection Account no later than the close of
business on the Servicer Remittance Date on which such funds are required to be
distributed pursuant to this Agreement. The Servicer shall be entitled to be
reimbursed from the Collection Account for all Advances of its own funds made
pursuant to this Section as provided in Section 3.08. The obligation to make
Advances with respect to any Mortgage Loan shall continue until the earlier of
(i) such Mortgage Loan is paid in full, (ii) the related Mortgaged Property or
related REO Property has been liquidated or until the purchase or repurchase
thereof (or substitution therefor) from the Issuing Entity pursuant to any
applicable provision of this Agreement, except as otherwise provided in this
Section 4.01, (iii) the Servicer determines in its good faith judgment that such
amounts would constitute a Non-Recoverable Advance as provided in the preceding
paragraph or (iv) the date on which such Mortgage Loan becomes 150 days
delinquent as set forth below.
(b) Notwithstanding anything in this Agreement to the contrary
(including, but not limited to, Sections 3.01 and 4.01(a) hereof), no Advance or
Servicing Advance shall be required to be made hereunder by the Servicer
(including for the avoidance of doubt, the Trustee as successor servicer) if
such Advance or Servicing Advance would, if made, constitute a Non-Recoverable
Advance or a Non-Recoverable Servicing Advance. The determination by the
Servicer that it has made a Non-Recoverable Advance or a Non-Recoverable
Servicing Advance or that any proposed Advance or Servicing Advance, if made,
would constitute a Non-Recoverable Advance or a Non-Recoverable Servicing
Advance, respectively, shall be evidenced by an Officer's Certificate of the
Servicer delivered to the Depositor and the Trustee. In addition, the Servicer
shall not be required to advance any Relief Act Shortfalls.
(c) Notwithstanding the foregoing, the Servicer shall not be required
to make any Advances for any Mortgage Loan after such Mortgage Loan becomes 150
days delinquent. The Servicer shall identify such delinquent Mortgage Loans in
the Servicer Statement referenced in Section 3.24. In
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addition, the Servicer shall provide the Trustee with an Officer's Certificate
listing such delinquent Mortgage Loans and certifying that such loans are 150
days or more delinquent.
SECTION 4.02. Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls
In the event that any Mortgage Loan is the subject of a Prepayment Interest
Shortfall, the Servicer shall, from amounts in respect of the Servicing Fee for
such Distribution Date, deposit into the Collection Account, as a reduction of
the Servicing Fee for such Distribution Date, no later than the Servicer
Remittance Date immediately preceding such Distribution Date, an amount up to
the Prepayment Interest Shortfall; provided that the amount so deposited shall
not exceed the Compensating Interest for such Distribution Date. In case of such
deposit, the Servicer shall not be entitled to any recovery or reimbursement
from the Depositor, the Trustee, the Issuing Entity or the Certificateholders.
With respect to any Distribution Date, to the extent that the Prepayment
Interest Shortfall exceeds Compensating Interest (such excess, a "Non-Supported
Interest Shortfall"), such Non-Supported Interest Shortfall shall reduce the
Current Interest with respect to each Class of Certificates, pro rata based upon
the amount of interest each such Class would otherwise be entitled to receive on
such Distribution Date. Notwithstanding the foregoing, there shall be no
reduction of the Servicing Fee in connection with Prepayment Interest Shortfalls
related to the Relief Act or bankruptcy proceedings and the Servicer shall not
be obligated to pay Compensating Interest with respect to Prepayment Interest
Shortfalls related to the Relief Act or bankruptcy proceedings.
SECTION 4.03. Distributions on the REMIC Interests
On each Distribution Date, amounts on deposit in the Certificate Account
shall be treated for federal income tax purposes as applied to distributions on
the interests in the Lower Tier REMIC in an amount sufficient to make the
distributions on the respective Certificates on such Distribution Date in
accordance with the provisions of Section 4.04.
SECTION 4.04. Distributions
(a) [Reserved].
(b) On each Distribution Date, the Trustee shall, to the extent of
funds then available, make the following distributions from funds then available
in the Certificate Account, of an amount equal to the Interest Funds, in the
following order of priority:
(i) to the Class P Certificates, an amount equal to any Prepayment
Charges received with respect to the Mortgage Loans and all amounts paid by
the Servicer, the Sponsor or FFFC in respect of Prepayment Charges pursuant
to this Agreement, and all amounts received in respect of any
indemnification paid as a result of a Prepayment Charge being unenforceable
in breach of the representations and warranties set forth in the FFFC
Purchase Agreement or the MLML Purchase Agreement for the related
Prepayment Period;
(ii) to the Class A Certificate Insurer, the Class A Certificate
Guarantee Insurance Policy Premium;
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(iii) concurrently, to each class of the Class A Certificates, the
Current Interest and any Interest Carry Forward Amount with respect to each
such class; provided, however, that if Interest Funds are insufficient to
make a full distribution of the aggregate Current Interest and the
aggregate Interest Carry Forward Amount to the Class A Certificates,
Interest Funds will be distributed pro rata among each Class of the Class A
Certificates based upon the ratio of (x) the Current Interest and Interest
Carry Forward Amount for each class of the Class A Certificates to (y) the
total amount of Current Interest and any Interest Carry Forward Amount for
the Class A and Class R Certificates in the aggregate;
(iv) to the Class A Certificate Insurer, any Reimbursement Amounts (as
such term is defined in the Insurance Agreement) for claims paid under the
Class A Certificate Guaranty Insurance Policy;
(v) to the Class M-1 Certificates, the Current Interest for such class
and any Interest Carry Forward Amount with respect to such Class;
(vi) to the Class M-2 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such Class;
(vii) to the Class M-3 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such Class;
(viii) to the Class M-4 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such Class;
(ix) to the Class B-1 Certificates, the Current Interest for each such
class and any Interest Carry Forward Amount with respect to each such
Class;
(x) to the Class B-2 Certificates, the Current Interest for each such
class and any Interest Carry Forward Amount with respect to each such
Class;
(xi) to the Class B-3 Certificates, the Current Interest for each such
class and any Interest Carry Forward Amount with respect to each such
Class;
(xii) to the Class B-4 Certificates, the Current Interest for each
such class and any Interest Carry Forward Amount with respect to each such
Class;
(xiii) any remainder pursuant to Section 4.04(f) hereof.
On each Distribution Date, subject to the proviso in (iii) above, Interest
Funds received on the Group One Mortgage Loans will be deemed to be distributed
to the Class R and Class A-1 Certificates and Interest Funds received on the
Group Two Mortgage Loans will be deemed to be distributed to the Class A-2
Certificates, in each case, until the related Current Interest and Interest
Carry Forward Amount of each such Class of Certificates for such Distribution
Date has been paid in full. Thereafter, Interest Funds not required for such
distributions are available to be applied to if necessary, to the Class or
Classes of Certificates that are not related to such group of Mortgage Loans.
(c) [Reserved].
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(d) On each Distribution Date, the Trustee shall, to the extent of
funds then available, make the following distributions from the Certificate
Account of an amount equal to the Principal Distribution Amount in the following
order of priority, and each such distribution shall be made only after all
distributions pursuant to Section 4.04(b) above shall have been made until such
amount shall have been fully distributed for such Distribution Date:
(i) to the Class A Certificates, the Class A Principal Distribution
Amount shall be distributed as follows:
(1) the Group One Principal Distribution Amount will be
distributed sequentially to the Class R and Class A-1 Certificates, in that
order, until the Certificate Principal Balance of each such class has been
reduced to zero; and
(2) the Group Two Principal Distribution Amount will be
distributed as follows: (i) sequentially, to the Class A-2A Certificates until
the Certificate Principal Balance of such class has been reduced to zero, then
to the Class A-2B Certificates until the Certificate Principal Balance of such
class has been reduced to zero; provided, however, that on and after the
Distribution Date on which the aggregate Certificate Principal Balance of the
Class M, Class B and Class C Certificates has been reduced to zero, any
principal distributions allocated to the Class A-2A and Class A-2B Certificates
are required to be allocated pro rata, among such classes, based on their
respective Certificate Principal Balances, until their Certificate Principal
Balances have been reduced to zero;;
(ii) to the Class A Certificate Insurer, any amounts remaining after
distributions pursuant to Section 4.04(b)(iv) above and any other amounts
owed to the Class A Certificate Insurer pursuant to this Agreement and the
Insurance Agreement;
(iii) to the Class M-1 Certificates, the Class M-1 Principal
Distribution Amount;
(iv) to the Class M-2 Certificates, the Class M-2 Principal
Distribution Amount;
(v) to the Class M-3 Certificates, the Class M-3 Principal
Distribution Amount;
(vi) to the Class M-4 Certificates, the Class M-4 Principal
Distribution Amount;
(vii) to the Class B-1 Certificates, the Class B-1 Principal
Distribution Amount;
(viii) to the Class B-2 Certificates, the Class B-2 Principal
Distribution Amount;
(ix) to the Class B-3 Certificates, the Class B-3 Principal
Distribution Amount;
(x) to the Class B-4 Certificates, the Class B-4 Principal
Distribution Amount; and
(xi) any remainder pursuant to Section 4.04(f) hereof.
(e) [Reserved].
(f) On each Distribution Date, the Trustee shall, to the extent of
funds then available, make the following distributions up to the following
amounts from the Certificate Account of the remainders pursuant to Section
4.04(b)(xiii) and (d)(xi) hereof and each such distribution shall be made
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only after all distributions pursuant to Sections 4.04(b) and (d) above shall
have been made until such remainders shall have been fully distributed for such
Distribution Date:
(i) to the Class A Certificates, any funds owed, in the same manner
and in the same order of priority, as set forth in accordance with Section
4.04(b)(iii), to the extent not paid pursuant to Section 4.04(b)(iii);
(ii) to the Class M-1 Certificates, any funds owed as set forth in
accordance with Section 4.04(b)(v), to the extent not paid pursuant to
Section 4.04(b)(v);
(iii) to the Class M-2 Certificates, any funds owed as set forth in
accordance with Section 4.04(b)(vi), to the extent not paid pursuant to
Section 4.04(b)(vi);
(iv) to the Class M-3 Certificates, any funds owed as set forth in
accordance with Section 4.04(b)(vii), to the extent not paid pursuant to
Section 4.04(b)(vii);
(v) to the Class M-4 Certificates, any funds owed as set forth in
accordance with Section 4.04(b)(viii), to the extent not paid pursuant to
Section 4.04(b)(viii);
(vi) to the Class B-1 Certificates, any funds owed as set forth in
accordance with Section 4.04(b)(ix), to the extent not paid pursuant to
Section 4.04(b)(ix);
(vii) to the Class B-2 Certificates, any funds owed as set forth in
accordance with Section 4.04(b)(x), to the extent not paid pursuant to
Section 4.04(b)(x);
(viii) to the Class B-3 Certificates, any funds owed as set forth in
accordance with Section 4.04(b)(xi), to the extent not paid pursuant to
Section 4.04(b)(xi);
(ix) to the Class B-4 Certificates, any funds owed as set forth in
accordance with Section 4.04(b)(xii), to the extent not paid pursuant to
Section 4.04(b)(xii);
(x) for distribution as part of the Principal Distribution Amount, the
Extra Principal Distribution Amount;
(xi) to the Class M-1 Certificates, any Unpaid Realized Loss Amount
for such class;
(xii) to the Class M-2 Certificates, any Unpaid Realized Loss Amount
for such class;
(xiii) to the Class M-3 Certificates, any Unpaid Realized Loss Amount
for such class;
(xiv) to the Class M-4 Certificates, any Unpaid Realized Loss Amount
for such class;
(xv) to the Class B-1 Certificates, any Unpaid Realized Loss Amount
for such class;
(xvi) to the Class B-2 Certificates, any Unpaid Realized Loss Amount
for such class;
(xvii) to the Class B-3 Certificates, any Unpaid Realized Loss Amount
for such class;
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(xviii) to the Class B-4 Certificates, any Unpaid Realized Loss Amount
for such class; and
(xix) the remainder pursuant to Section 4.04(g) hereof.
(g) on each Distribution Date, the Trustee shall allocate the
remainders pursuant to Section 4.04(f)(xix) as follows:
(i) to the Class C Certificates in the following order of priority,
(I) the Class C Current Interest, (II) the Class C Interest Carry Forward
Amount, (III) as principal on the Class C Certificate until the Certificate
Principal Balance of the Class C Certificates has been reduced to zero and
(IV) the Class C Unpaid Realized Loss Amount; and
(ii) the remainder pursuant to Section 4.04(h) hereof.
(h) On each Distribution Date, the Trustee shall allocate the
remainder pursuant to Section 4.04(g)(ii) hereof (i) to the Trustee to reimburse
amounts or pay indemnification amounts owing to the Trustee from the Issuing
Entity pursuant to Section 8.06 and (ii) to the Class R Certificate and such
distributions shall be made only after all preceding distributions shall have
been made until such remainder shall have been fully distributed.
(i) On each Distribution Date, after giving effect to distributions on
such Distribution Date, the Trustee shall allocate the Applied Realized Loss
Amount for the Certificates to reduce the Certificate Principal Balances of the
Class C Certificates and the Subordinate Certificates in the following order of
priority:
(i) to the Class C Certificates, until the Class C Certificate
Principal Balance is reduced to zero;
(ii) to the Class B-4 Certificates until the Class B-4 Certificate
Principal Balance is reduced to zero;
(iii) to the Class B-3 Certificates until the Class B-3 Certificate
Principal Balance is reduced to zero;
(iv) to the Class B-2 Certificates until the Class B-2 Certificate
Principal Balance is reduced to zero;
(v) to the Class B-1 Certificates until the Class B-1 Certificate
Principal Balance is reduced to zero;
(vi) to the Class M-4 Certificates until the Class M-4 Certificate
Principal Balance is reduced to zero;
(vii) to the Class M-3 Certificates until the Class M-3 Certificate
Principal Balance is reduced to zero;
(viii) to the Class M-2 Certificates until the Class M-2 Certificate
Principal Balance is reduced to zero; and
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(ix) to the Class M-1 Certificates until the Class M-1 Certificate
Principal Balance is reduced to zero.
(j) Subject to Section 9.02 hereof respecting the final distribution,
on each Distribution Date the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either by wire transfer
in immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if such Holder has so notified
the Trustee at least five (5) Business Days prior to the related Record Date or,
if not, by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register. Notwithstanding
the foregoing, but subject to Section 9.02 hereof respecting the final
distribution, distributions with respect to Certificates registered in the name
of a Depository shall be made to such Depository in immediately available funds.
In accordance with this Agreement, the Servicer shall prepare and deliver
an electronic report (the "Remittance Report") to the Trustee (or by such other
means as the Servicer and the Trustee may agree from time to time) containing
such data and information as to permit the Trustee to prepare the Monthly
Statement to Certificateholders and make the required distributions for the
related Distribution Date. The Trustee will prepare the Monthly Report based
solely upon the information received from the Servicer.
SECTION 4.05. Monthly Statements to Certificateholders
(a) Not later than each Distribution Date, the Trustee shall prepare
and make available on its website located at xxx.xxxxxxxx.xxx to each Holder of
a Class of Certificates of the Issuing Entity, the Servicer, the Trustee, the
Rating Agencies, the Depositor and the Class A Certificate Insurer a statement
setting forth for the Certificates the following information; provided, however,
that with respect to any calendar year during which an annual report on Form
10-K is not required to be filed with the Commission on behalf of the Issuing
Entity, the information set forth in Items (xxiv) through (xxxii) below are not
required to be included in such statement during any calendar year:
(i) the amount of the related distribution to Holders of each Class
allocable to principal, separately identifying (A) the aggregate amount of
any Principal Prepayments included therein, (B) the aggregate of all
scheduled payments of principal included therein, (C) the Extra Principal
Distribution Amount, if any, and (D) the aggregate amount of Prepayment
Charges, if any;
(ii) the amount of such distribution to Holders of each Class
allocable to interest, together with any Non-Supported Interest Shortfalls
allocated to each Class;
(iii) any interest Carryforward Amount for each Class of the Class A,
Class M and Class B Certificates;
(iv) the Class Certificate Principal Balance of each Class after
giving effect (i) to all distributions allocable to principal on such
Distribution Date and (ii) the allocation of any Applied Realized Loss
Amounts for such Distribution Date;
(v) the Pool Stated Principal Balance for such Distribution Date;
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(vi) the amount of the Servicing Fee paid to or retained by the
Servicer and any amounts constituting reimbursement or indemnification of
the Servicer or Trustee;
(vii) the Pass-Through Rate for each Class of Certificates for such
Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date or reimbursed during the period;
(ix) the cumulative amount of (A) Realized Losses and (B) Applied
Realized Loss Amounts to date, in the aggregate and with respect to the
Group One Mortgage Loans and Group Two Mortgage Loans;
(x) the amount of (A) Realized Losses and (B) Applied Realized Loss
Amounts with respect to such Distribution Date, in the aggregate and with
respect to the Group One Mortgage Loans and Group Two Mortgage Loans;
(xi) the number and aggregate principal amounts of Mortgage Loans (A)
Delinquent (exclusive of Mortgage Loans in foreclosure) (1) 31 to 60 days,
(2) 61 to 90 days and (3) 91 or more days, and (B) in foreclosure and
Delinquent (1) 31 to 60 days, (2) 61 to 90 days and (3) 91 or more days, in
each case as of the close of business on the last day of the calendar month
preceding such Distribution Date, in the aggregate and with respect to the
Group One Mortgage Loans and Group Two Mortgage Loans, in accordance with
the OTS methodology for reporting delinquencies;
(xii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the last day
of the calendar month preceding such Distribution Date, in the aggregate
and with respect to the Group One Mortgage Loans and Group Two Mortgage
Loans;
(xiii) the total number and principal balance of any REO Properties as
of the close of business on the last day of the calendar month preceding
such Distribution Date, in the aggregate and with respect to the Group One
Mortgage Loans and Group Two Mortgage Loans;
(xiv) the aggregate Stated Principal Balance of all loans that became
Liquidated Loans as of such Distribution Date calculated as of the
preceding Distribution Date, in the aggregate and with respect to the Group
One Mortgage Loans and Group Two Mortgage Loans;
(xv) whether a Stepdown Trigger Event has occurred and is in effect;
(xvi) with respect to each Class of Certificates, any Interest Carry
Forward Amount with respect to such Distribution Date for each such Class,
any Interest Carry Forward Amount paid for each such Class and any
remaining Interest Carry Forward Amount for each such Class;
(xvii) the number and Stated Principal Balance (as of the preceding
Distribution Date) of any Mortgage Loans which were purchased or
repurchased during the preceding Prepayment Period and since the Cut-off
Date;
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(xviii) the number of Mortgage Loans prepaid in full for which
Prepayment Charges were received during the related Prepayment Period and,
for each such Mortgage Loan, the amount of Prepayment Charges received
during the related Prepayment Period and in the aggregate of such amounts
for all such Mortgage Loans since the Cut-off Date, and for partial
Principal Prepayments, the amount received during the preceding calendar
month;
(xix) the amount and purpose of any withdrawal from the Collection
Account pursuant to Section 3.08(a)(viii);
(xx) the amount of any payments to each Class of Certificates that are
treated as payments received in respect of a REMIC "regular interest" or
REMIC "residual interest" and the amount of any payments to each Class of
Certificates that are not treated as payments received in respect of a
REMIC "regular interest" or REMIC "residual interest";
(xxi) the number of Mortgage Loans with respect to which (i) a
reduction in the Mortgage Rate has occurred or (ii) the related borrower's
obligation to repay interest on a monthly basis has been suspended or
reduced pursuant to the Relief Act or similar state laws, as amended; and
the amount of interest not required to be paid with respect to any such
Mortgage Loans during the related Due Period as a result of such reductions
in the aggregate and with respect to the Group One Mortgage Loans and the
Group Two Mortgage Loans;
(xxii) with respect to each Class of Certificates, the amount of any
Non-Supported Interest Shortfalls on such Distribution Date;
(xxiii) the number and amount of pool assets at the beginning and
ending of each period, and updated pool composition information;
(xxiv) any material changes to methodology regarding calculations of
delinquencies and charge-offs;
(xxv) information on the amount of Servicing Advances made or
reimbursed during the period;
(xxvi) any material modifications, extensions or waivers to pool asset
terms, fees, penalties or payments during the distribution period or that
have cumulatively become material over time;
(xxvii) material breaches of pool asset representations or warranties
or transaction covenants;
(xxviii) information on ratio, coverage or other tests used for
determining any early amortization, liquidation or other performance
trigger and whether the trigger was met; and
(xxix) information regarding any pool asset changes (other than in
connection with a pool asset converting into cash in accordance with its
terms), such as pool asset substitutions and repurchases (and purchase
rates, if applicable), and cash flows available for future purchases, such
as the balances of any prefunding or revolving accounts, if applicable.
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(b) The Trustee will make the Monthly Statement (and, at its option,
any additional files containing the same information in an alternative format)
available each month to Certificateholders, other parties to this Agreement and
any other interested parties via the Trustee's Internet website. The Trustee's
Internet website shall initially be located at "xxx.xxxxxxxx.xxx". Assistance in
using the website can be obtained by calling the Trustee at (000) 000-0000.
Parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk and
indicating such. The Trustee shall have the right to change the way the monthly
statements to Certificateholders are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and the
Trustee shall provide timely and adequate notification to all above parties
regarding any such changes.
The foregoing information and reports shall be prepared and determined by
the Trustee based on Mortgage Loan data and other information provided to the
Trustee by the Servicer or any other third party required to deliver information
hereunder. In preparing or furnishing the foregoing information, the Trustee
shall be entitled to rely conclusively on the accuracy of the information or
data provided to the Trustee by the Servicer or any other third party required
to deliver information and shall have no liability for any errors in any such
information.
As a condition to access the Trustee's internet website, the Trustee may
require registration and the acceptance of a disclaimer. The Trustee will not be
liable for the dissemination of information in accordance with this Agreement.
(c) If so requested in writing within a reasonable period of time
after the end of each calendar year, the Trustee shall make available on its
website or cause to be furnished to each Person who at any time during the
calendar year was a Certificateholder of record, the NIMs Insurer (upon request)
and the Class A Certificate Insurer, a statement containing the information set
forth in clauses (a)(i) and (a)(ii) of this Section 4.05 aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as are from
time to time in effect.
(d) Upon filing with the Internal Revenue Service, the Trustee shall
furnish to the Holders of the Class R Certificate each Form 1066Q and shall
respond promptly to written requests made not more frequently than quarterly by
any Holder of Class R Certificate with respect to the following matters:
(i) The original projected principal and interest cash flows on the
Closing Date on each Class of regular and residual interests created
hereunder and on the Mortgage Loans, based on the Prepayment Assumption;
(ii) The projected remaining principal and interest cash flows as of
the end of any calendar quarter with respect to each Class of regular and
residual interests created hereunder and the Mortgage Loans, based on the
Prepayment Assumption;
(iii) The Prepayment Assumption and any interest rate assumptions used
in determining the projected principal and interest cash flows described
above;
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(iv) The original issue discount (or, in the case of the Mortgage
Loans, market discount) or premium accrued or amortized through the end of
such calendar quarter with respect to each Class of regular or residual
interests created hereunder and to the Mortgage Loans, together with each
constant yield to maturity used in computing the same;
(v) The treatment of losses realized with respect to the Mortgage
Loans or the regular interests created hereunder, including the timing and
amount of any cancellation of indebtedness income of the REMICs with
respect to such regular interests or bad debt deductions claimed with
respect to the Mortgage Loans;
(vi) The amount and timing of any non-interest expenses of the REMICs;
and
(vii) Any taxes (including penalties and interest) imposed on the
REMICs, including, without limitation, taxes on "prohibited transactions,"
"contributions" or "net income from foreclosure property" or state or local
income or franchise taxes.
The information pursuant to clauses (i), (ii), (iii) and (iv) above shall
be provided by the Depositor pursuant to Section 8.12.
SECTION 4.06. Class A Certificate Guaranty Insurance Policy Matters
(a) As soon as possible, and in no event later than 11:00 a.m. New
York time, on the second Business Day immediately preceding each Distribution
Date, the Trustee shall determine the amount of funds available for distribution
pursuant to Section 4.04 hereof for such Distribution Date.
(b) If for any Distribution Date, the Trustee determines that there
will be a Deficiency Amount (as defined in the Class A Certificate Guaranty
Insurance Policy) with respect to such Distribution Date, the Trustee shall
determine the amount of any such Deficiency Amount and shall give Notice (as
defined in the Class A Certificate Guaranty Insurance Policy)to the Class A
Certificate Insurer and the Fiscal Agent (as defined in the Class A Certificate
Guaranty Insurance Policy), if any, by 12:00 noon, New York City time, on such
second Business Day.
(c) The Trustee shall receive as attorney-in-fact of each Holder of a
Class A Certificate any Insured Payments from the Class A Certificate Insurer
and disburse the same to each Holder of a Class A Certificate as applicable, in
accordance with the provisions of this Section 4.06. Insured Payments disbursed
by the Trustee from proceeds of the Class A Certificate Guaranty Insurance
Policy shall not (other than for purposes of the REMIC provisions) be considered
payment by the Issuing Entity nor shall such payments discharge the obligation
of the Issuing Entity with respect to such Class A Certificates, and the Class A
Certificate Insurer shall become the owner of such unpaid amounts due from the
Issuing Entity in respect of such regular payment(s) as the deemed assignee of
such Holder. In addition, the Class A Certificate Insurer shall be entitled to
receive the Reimbursement Amounts (as such term is defined in the Insurance
Agreement) pursuant to Section 4.04. The Trustee hereby agrees on behalf of each
Holder of a Class A Certificate for the benefit of the Class A Certificate
Insurer that it recognizes that to the extent that the Class A Certificate
Insurer makes a distribution, either directly or indirectly (as by paying
through the Trustee), to the Class A Certificateholders, the Class A Certificate
Insurer will be entitled to receive the Reimbursement Amounts pursuant to
Section 4.04.
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(d) In the event the Trustee receives a certified copy of an order of
the appropriate court that any payment of principal or interest on a Class A
Certificate has been voided in whole or in part as a preference payment under
applicable bankruptcy law, the Trustee shall (i) promptly notify the Class A
Certificate Insurer and (ii) comply with the provisions of the Class A
Certificate Guaranty Insurance Policy to obtain payment by the Class A
Certificate Insurer of such voided payment. In addition, the Trustee shall mail
notice to all Holders of the Class A Certificates so affected that, in the event
that any such Holder's scheduled payment is so recovered by order of a
bankruptcy court, such Holder will be entitled to payment pursuant to the terms
of the Class A Certificate Guaranty Insurance Policy, a copy of which shall be
made available to such Holders by the Trustee. The Trustee shall furnish to the
Class A Certificate Insurer and the Fiscal Agent, if any, its records listing
the payments on the affected Class A Certificates, if any, that have been made
by the Trustee and subsequently recovered by order of a bankruptcy court from
the affected Holders, and the dates on which such payments were made by the
Trustee.
(e) At the time of the execution hereof, and for the purposes hereof,
the Trustee shall establish a separate special purpose trust account in the name
of the Trustee for the benefit of Holders of the Class A Certificates and the
Class A Certificate Insurer (the "Certificate Insurer Account") over which the
Trustee shall have exclusive control and sole right of withdrawal. The
Certificate Insurer Account shall be an Eligible Account. The Trustee shall
deposit any amount paid under the Class A Certificate Guaranty Insurance Policy
into the Certificate Insurer Account and distribute such amount only for the
purposes of making the payments to Holders of the Class A Certificates in
respect of the regular payment for which the related claim was made under the
Class A Certificate Guaranty Insurance Policy. Such amounts shall be allocated
by the Trustee to Holders of Class A Certificates affected by such shortfalls in
the same manner as principal and interest payments are to be allocated with
respect to such Certificates pursuant to Section 4.04. It shall not be necessary
for such payments to be made by checks or wire transfers separated from the
checks or wire transfers used to make regular payments hereunder with funds
withdrawn from the Certificate Account. However, any payments made on the Class
A Certificates from funds in the Certificate Insurer Account shall be noted as
provided in subsection (g) below. Funds held in the Certificate Insurer Account
shall not be invested by the Trustee.
(f) Any funds received from the Class A Certificate Insurer for
deposit into the Certificate Insurer Account pursuant to the Class A Certificate
Guaranty Insurance Policy in respect of a Distribution Date or otherwise as a
result of any claim under the Class A Certificate Guaranty Insurance Policy
shall be applied by the Trustee, directly to the payment in full (i) of the
regular payments due on such Distribution Date on the Class A Certificates, or
(ii) of other amounts payable under the Class A Certificate Guaranty Insurance
Policy. Funds received by the Trustee, as a result of any claim under the Class
A Certificate Guaranty Insurance Policy shall be used solely for payment to the
Holders of the Class A Certificates and may not be applied for any other
purpose, including, without limitation, satisfaction of any costs, expenses or
liabilities of the Trustee, Servicer or the Issuing Entity. Any funds remaining
in the Certificate Insurer Account on the first Business Day after each
Distribution Date shall be remitted promptly to the Class A Certificate Insurer
pursuant to the written instruction of the Class A Certificate Insurer.
(g) The Trustee, shall keep complete and accurate records in respect
of (i) all funds remitted to it by the Class A Certificate Insurer and deposited
into the Certificate Insurer Account and (ii) the allocation of such funds to
payments of interest on and principal in respect of any Class A Certificates.
The Class A Certificate Insurer shall have the right to inspect such records at
reasonable times during normal business hours upon three Business Days' prior
notice to the Trustee.
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(h) The Trustee acknowledges, and each Holder of a Class A Certificate
by its acceptance of the Class A Certificate agrees, that, without the need for
any further action on the part of the Class A Certificate Insurer or the
Trustee, to the extent the Class A Certificate Insurer makes payments, directly
or indirectly, on account of principal of or interest on any Class A
Certificates, the Class A Certificate Insurer will be fully subrogated to the
rights of the Holders of such Class A Certificates to receive such principal and
interest from the Issuing Entity. The Holders of the Class A Certificates, by
acceptance of the Class A Certificates, assign their rights as Holders of the
Class A Certificates, as applicable, to the extent of the Class A Certificate
Insurer's interest with respect to amounts paid under the Class A Certificate
Guaranty Insurance Policy. Anything herein to the contrary notwithstanding,
solely for purposes of determining the Class A Certificate Insurer's rights, as
applicable, as subrogee for payments distributable pursuant to Section 4.04, any
payment with respect to distributions to the Class A Certificates that is made
with funds received pursuant to the terms of the Class A Certificate Guaranty
Insurance Policy, shall not be considered payment of the Class A Certificates,
as applicable, from the Issuing Entity and shall not result in the distribution
or the provision for the distribution in reduction of the Certificate Principal
Balance of the Class A Certificates, as applicable, except to the extent such
payment has been reimbursed to the Class A Certificate Insurer pursuant to the
terms hereof.
(i) Upon a Responsible Officer of the Trustee becoming aware of the
occurrence of an Event of Default, the Trustee shall promptly notify the Class A
Certificate Insurer of such Event of Default.
(j) The Trustee shall promptly notify the Class A Certificate Insurer
of either of the following as to which a Responsible Officer of the Trustee has
actual knowledge: (A) the commencement of any proceeding by or against the
Depositor commenced under the United States bankruptcy code or any other
applicable bankruptcy, insolvency, receivership, rehabilitation or similar law
(an "Insolvency Proceeding") and (B) the making of any claim in connection with
any Insolvency Proceeding seeking the avoidance as a preferential transfer (a
"Preference Claim") of any distribution made with respect to a Class A
Certificate as to which it has actual knowledge. Each Holder of a Class A
Certificate, by its purchase of Class A Certificates, and the Trustee hereby
agree that the Class A Certificate Insurer (so long as no Class A Certificate
Insurer Default exists) may at any time during the continuation of any
proceeding relating to a Preference Claim direct all matters relating to such
Preference Claim, including, without limitation, (i) the direction of any appeal
of any order relating to any Preference Claim and (ii) the posting of any
surety, supersedes or performance bond pending any such appeal. In addition and
without limitation of the foregoing, the Class A Certificate Insurer shall be
subrogated to the rights of the Trustee and each Holder of a Class A
Certificate, as applicable, in the conduct of any Preference Claim, including,
without limitation, all rights of any party to an adversary proceeding action
with respect to any court order issued in connection with any such Preference
Claim.
(k) The Trustee shall provide reasonable access to information
regarding the Mortgage Loans to the Class A Certificate Insurer upon the
reasonable request of the Class A Certificate Insurer.
(l) The Trustee shall promptly surrender the Class A Certificate
Guaranty Insurance Policy to the Class A Certificate Insurer for cancellation
upon the reduction of the Certificate Principal Balance of the Class A
Certificates to zero.
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(m) All notices, statements, reports, certificates or opinions
required by this Agreement to be sent to the Trustee, the Rating Agencies or the
Holders of the Class A Certificates, including the statements prepared pursuant
to Section 4.05, shall also be sent, at the same time such reports are otherwise
sent, by overnight delivery, telecopy or email to the Class A Certificate
Insurer.
(n) If Notice given under the Class A Certificate Guaranty Insurance
Policy by the Trustee, is not in proper form or is not properly completed,
executed or delivered, it shall be deemed not to have been received. The Class A
Certificate Insurer shall promptly so advise the Trustee and the Trustee may
submit an amended or corrected notice.
(o) The Class A Certificate Insurer shall be an express third party
beneficiary of this Agreement for the purpose of enforcing the provisions hereof
to the extent of the Class A Certificate Insurer's rights explicitly specified
herein as if a party hereto.
(p) All references herein to the ratings assigned to the Certificates
and to the interests of any Certificateholders shall be without regard to the
Class A Certificate Guaranty Insurance Policy.
(q) For so long as there is no continuing Class A Certificate Insurer
Default, each Holder of a Class A Certificate agrees that the Class A
Certificate Insurer shall be treated by the Depositor, the Sponsor, the Servicer
and the Trustee as if the Class A Certificate Insurer were the Holder of all of
the Class A Certificates for the purpose (and solely for the purpose) of the
giving of any consent, the making of any direction or the exercise of any voting
or other control rights otherwise given to the Holders of the Class A
Certificates hereunder.
(r) Insured Payments shall not include, nor shall coverage be provided
under the Class A Certificate Guaranty Insurance Policy in respect of, any
Prepayment Interest Shortfalls, shortfalls resulting from the application of the
Servicemember's Civil Relief Act, any amount in respect of the reduction in the
amount of the interest payable on the Class A Certificates as a result of the
application of the related Available Funds Cap, taxes, withholding or other
charge imposed by any government authority due in connection with any payment of
any regular payment to a Class A Certificateholder.
(s) All notices, statements, reports, certificates, lists or opinions
required by this Agreement to be sent to the parties hereto, the Rating Agencies
or the Class A Certificateholders shall also be sent at such time to the Class A
Certificate Insurer at the notice address set forth in Section 10.05; provided,
however, the Class A Certificate Insurer shall only be entitled to receive all
such notices, statements, reports, certificates, lists or opinions so long as
the Class A Certificate Guaranty Insurance Policy is in effect or any amounts
owed to the Class A Certificate Insurer under this Agreement or the Insurance
Agreement are still outstanding.
(t) The Trustee hereby agrees to provide to the Class A Certificate
Insurer prompt written notice of any action, proceeding or investigation of
which it has actual knowledge that names the Issuing Entity or the Trustee as a
party or that could adversely affect the interests of the Class A Certificates
or the Class A Certificate Insurer.
(u) Each Holder of a Certificate, by acceptance of its Certificate,
and the Trustee agree that the Class A Certificate Insurer shall have such
rights as set forth in this Section, which are in addition to any rights of the
Class A Certificate Insurer pursuant to the other provisions of this Agreement,
the MLML Purchase Agreement, the FFFC Purchase Agreement and the Insurance
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Agreement, that the rights set forth in this Section may be exercised by the
Class A Certificate Insurer, in its sole discretion, without the need for the
consent or approval of any Certificateholder or the Trustee, notwithstanding any
other provision contained herein or in any of the MLML Purchase Agreement, the
FFFC Purchase Agreement and the Insurance Agreement, and that nothing contained
in this Section shall be deemed to be an obligation of the Certificate Insurer
to exercise any of the rights provided for herein.
SECTION 4.07. Effect of Payments by the Class A Certificate Insurer
Anything herein to the contrary notwithstanding, any payment with respect
to principal of or interest on the Class A Certificates which is made with
moneys received pursuant to the terms of the Class A Certificate Insurance
Policy shall not (other than for purposes of the REMIC provisions) be considered
payment of the Class A Certificates from the Issuing Entity. The Trustee
acknowledges, and each Holder by its acceptance of a Class A Certificate agrees,
that without the need for any further action on the part of the Class A
Certificate Insurer or the Trustee (a) to the extent the Class A Certificate
Insurer makes payments, directly or indirectly, on account of principal of or
interest on the Class A Certificates to the Holders of such Class A
Certificates, the Class A Certificate Insurer will be fully subrogated to, and
each Class A Certificateholder and the Trustee hereby delegate and assign to the
Class A Certificate Insurer, to the fullest extent permitted by law, the rights
of such Holders to receive such principal and interest from the Issuing Entity,
including, without limitation, any amounts due to the Class A Certificateholders
in respect of securities law violations arising from the offer and sale of the
Class A Certificates, and (b) the Class A Certificate Insurer shall be paid such
amounts from the sources and in the manner provided herein for the payment of
such amounts and as provided in the Class A Certificate Guarantee Insurance
Policy and the Insurance Agreement. The Trustee and the Servicer shall cooperate
in all respects with any reasonable request by the Class A Certificate Insurer
for action to preserve or enforce the Class A Certificate Insurer's rights or
interests under this Agreement without limiting the rights or affecting the
interests of the Holders as otherwise set forth herein.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
dollar denominations, integral dollar multiples in excess thereof (except that
one Certificate of each Class may be issued in a different amount which must be
in excess of the applicable minimum dollar denomination) and aggregate dollar
denominations as set forth in the following table:
Integral
Multiples in
Minimum Excess of Original Certificate
Class Denomination Minimum Principal Balance
----- ------------ ------------ --------------------
A-1 $25,000.00 $1.00 $ 88,352,000
A-2A $25,000.00 $1.00 $420,421,000
A-2B $25,000.00 $1.00 $107,954,000
M-1 $25,000.00 $1.00 $ 8,559,000
M-2 $25,000.00 $1.00 $ 21,400,000
M-3 $25,000.00 $1.00 $ 20,971,000
M-4 $25,000.00 $1.00 $ 19,687,000
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Integral
Multiples in
Minimum Excess of Original Certificate
Class Denomination Minimum Principal Balance
----- ------------ ------------ --------------------
B-1 $25,000.00 $1.00 $21,827,000
B-2 $25,000.00 $1.00 $17,548,000
B-3 $25,000.00 $1.00 $17,975,000
B-4 $25,000.00 $1.00 $19,259,000
R $ 100.00 N/A $ 100.00
C (1) (1) 100%
P (2) (2) (2)
----------
(1) The Class C Certificates shall not have minimum dollar denominations as the
Certificate Principal Balance thereof shall vary over time as described
herein and shall be issued in a minimum percentage interest of 25% and an
aggregate percentage interest of 100%.
(2) The Class P Certificates shall not have minimum dollar denominations or
Certificate Principal Balances and shall be issued in a minimum percentage
interest of 100%.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Issuing Entity, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such authentication and
delivery. No Certificate shall be entitled to any benefit under this Agreement,
or be valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form set forth as attached
hereto executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication. On the Closing Date, the Authenticating Agent shall authenticate
the Certificates to be issued at the written direction of the Depositor, or any
Affiliate thereof.
The Certificates sold in offshore transactions in reliance on Regulation S
shall be issued initially in the form of one or more permanent global
certificates in definitive, fully registered form without interest coupons with
the applicable legends set forth in Exhibit A hereto added to the form of each
such Certificate (each, a "Regulation S Book-Entry Certificate"), which shall be
deposited on behalf of the Holders of such Certificates represented thereby with
the Trustee, as custodian for DTC and registered in the name of a nominee of
DTC, duly executed and authenticated by the Trustee and the Authenticating Agent
as hereinafter provided. The aggregate principal amounts of the Regulation S
Book-Entry Certificates may from time to time be increased or decreased by
adjustments made on the records of the Trustee or DTC or its nominee, as the
case may be, as hereinafter provided.
The Certificates sold in reliance on Rule 144A shall be issued initially in
the form of one or more permanent global certificates in definitive, fully
registered form without interest coupons with the applicable legends set forth
in Exhibit A hereto added to the form of each such Certificate (each, a "Rule
144A Book-Entry Certificate"), which shall be deposited on behalf of the Holders
of such Certificates represented thereby with the Trustee, as custodian for DTC
and registered in the name of a nominee of DTC, duly executed and authenticated
by the Trustee and the Authenticating Agent as hereinafter provided. The
aggregate principal amounts of the Rule 144A Book-Entry Certificates may from
time to
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time be increased or decreased by adjustments made on the records of the Trustee
or DTC or its nominee, as the case may be, as hereinafter provided.
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.09 hereof, a Certificate Register
for the Issuing Entity in which, subject to the provisions of subsections (b)
and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of Transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
Transfer of any Certificate, the Authenticating Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute and the Authenticating
Agent shall authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by a
written instrument of Transfer in form satisfactory to the Trustee duly executed
by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required. All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by a Trustee in accordance with such
Trustee's customary procedures.
No Transfer of a Class B-4, Class C or Class P Certificate shall be made
unless such Transfer is made pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws or is exempt
from the registration requirements under the Securities Act and such state
securities laws. In the event that a Transfer is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such Transfer and such Certificateholder's prospective transferee shall (except
with respect to the initial transfer of a Class B-4, Class C or Class P
Certificate by Xxxxxxx Xxxxx & Co. or, in connection with a transfer of a Class
C or Class P Certificate to the indenture trustee under an Indenture pursuant to
which NIM Notes are issued whether or not such notes are guaranteed by the NIMs
Insurer) each certify to the Trustee in writing the facts surrounding the
Transfer in substantially the form set forth in Exhibit F (the "Transferor
Certificate") and (i) deliver a letter in substantially the form of either
Exhibit G (the "Investment Letter") or Exhibit H (the "Rule 144A Letter") or
(ii) there shall be delivered to the Trustee an Opinion of Counsel that such
Transfer may be made pursuant to an exemption from the Securities Act, which
Opinion of Counsel shall not be an expense of the Depositor or the Trustee. The
Depositor shall provide to any Holder of a Class B-4, Class C or Class P
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for Transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee shall cooperate with the Depositor
in providing the Rule 144A information referenced in the preceding
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sentence, including providing to the Depositor such information in the
possession of the Trustee regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Class B-4,
Class C or Class P Certificate desiring to effect such Transfer shall, and does
hereby agree to, indemnify the Depositor and the Trustee against any liability
that may result if the Transfer is not so exempt or is not made in accordance
with such federal and state laws.
By acceptance of a Regulation S Global Security, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate acknowledges
the restrictions on the transfer of such Certificate set forth thereon and
agrees that it will only transfer such a Certificate as provided herein. In
addition, each Holder of a Regulation S Global Security shall be deemed to have
represented and warranted to the Depositor, the Trustee and any of their
respective successors that: (i) such Person is not a "U.S. person" within the
meaning of Regulation S and was, at the time the buy order was originated,
outside the United States and (ii) such Person understands that such
Certificates have not been registered under the Securities Act and that (x)
until the expiration of the 40-day distribution compliance period (within the
meaning of Regulation S), no offer, sale, pledge or other transfer of such
Certificates or any interest therein shall be made in the United States or to or
for the account or benefit of a U.S. person (each as defined in Regulation S),
(y) if in the future it decides to offer, resell, pledge or otherwise transfer
such Certificates, such Certificates may be offered, resold, pledged or
otherwise transferred only (A) to a person which the seller reasonably believes
is a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act, that is purchasing such Certificates for its own account or for
the account of a qualified institutional buyer to which notice is given that the
transfer is being made in reliance on Rule 144A or (B) in an offshore
transaction (as defined in Regulation S) in compliance with the provisions of
Regulation S, in each case in compliance with the requirements of this
Agreement; and it will notify such transferee of the transfer restrictions
specified in this Section.
No transfer of an ERISA Restricted Certificate or a Class R Certificate
shall be registered unless the Trustee has received (A) a representation to the
effect that such transferee is not an employee benefit plan subject to Title I
of ERISA, a plan subject to Section 4975 of the Code or a plan subject to any
state, local, federal, non-U.S. or other law substantively similar to the
foregoing provisions of ERISA or the Code ("Similar Law"), and is not directly
or indirectly acquiring the ERISA Restricted Certificate or the Class R
Certificate by, on behalf of, or with any assets of any such plan (collectively,
"Plan"), or (B) solely in the case of ERISA Restricted Certificates, (I) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation to the effect that such transferee is an insurance company that
is acquiring the Certificate with assets of an "insurance company general
account," as defined in Section V(e) of Prohibited Transaction Class Exemption
("PTCE") 95-60, and the acquisition and holding of the Certificate are covered
and exempt under Sections I and III of PTCE 95-60, or (II) solely in the case of
an ERISA Restricted Certificate that is a Definitive Certificate, an Opinion of
Counsel satisfactory to the Trustee, and upon which the Trustee, the Class A
Certificate Insurer and the NIMs Insurer shall be entitled to rely, to the
effect that the acquisition and holding of such Certificate will not constitute
or result in a nonexempt prohibited transaction under Title I of ERISA or
Section 4975 of the Code, or a violation of Similar Law, and will not subject
the Trustee, the Servicer, the NIMs Insurer or the Depositor to any obligation
in addition to those expressly undertaken in this Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Servicer, the NIMs Insurer,
the Class A Certificate Insurer or the Depositor.
Except in the case of a Definitive Certificate, the representations set
forth in the immediately preceding paragraph of this Subsection 5.02(a), other
than clause (B)(II) in the immediately preceding
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paragraph, shall be deemed to have been made to the Trustee by the transferee's
acceptance of a Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any Class of ERISA Restricted Certificates or Class R
Certificate).
Notwithstanding any other provision herein to the contrary, any purported
transfer of a ERISA Restricted Certificate or Class R Certificate to or on
behalf of a Plan without the delivery to the Trustee of a representation or an
Opinion of Counsel satisfactory to the Trustee as described above shall be void
and of no effect. The Trustee shall not be under any liability to any Person for
any registration or transfer of any ERISA Restricted Certificate or Class R
Certificate that is in fact not permitted by this Section 5.02(a), nor shall the
Trustee be under any liability for making any payments due on such ERISA
Restricted Certificate or Class R Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of this
Agreement so long as the transfer was registered by the Trustee in accordance
with the foregoing requirements. The Trustee shall be entitled, but not
obligated, to recover from any Holder of any ERISA Restricted Certificate or
Class R Certificate that was in fact a Plan and that held such ERISA Restricted
Certificate or Class R Certificate in violation of this Section 5.02(a) all
payments made on such ERISA Restricted Certificate or Class R Certificate at and
after the time it commenced such holding. Any such payments so recovered shall
be paid and delivered to the last preceding Holder of such ERISA Restricted
Certificate or Class R Certificate that is not a Plan.
(b) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Class R Certificate may be purchased,
transferred or sold, directly or indirectly, except in accordance with the
provisions hereof. No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Class R Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (a) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit E-1 and an affidavit of
the proposed transferor in the form attached hereto as Exhibit E-2. In the
absence of a contrary instruction from the transferor of a Class R
Certificate, declaration (11) in Appendix A of the Transfer Affidavit may
be left blank. If the transferor requests by written notice to the Trustee
prior to the date of the proposed transfer that one of the two other forms
of declaration (11) in Appendix A of the Transfer Affidavit be used, then
the requirements of this Section 5.02(b)(ii) shall not have been satisfied
unless the Transfer Affidavit includes such other form of declaration.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R
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Certificate to any other Person if it has actual knowledge that such Person
is not a Permitted Transferee. Further, no transfer, sale or other
disposition of any Ownership Interest in a Class R Certificate may be made
to a person who is not a U.S. Person (within the meaning of section 7701 of
the Code) unless such person furnishes the transferor and the Trustee with
a duly completed and effective Internal Revenue Service Form W-8ECI (or any
successor thereto) and the Trustee consents to such transfer, sale or other
disposition in writing.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class R Certificate in violation of the provisions of this Section
5.02(b) shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(b), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by Section 5.02(a) and this
Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit. The Trustee shall be
entitled but not obligated to recover from any Holder of a Class R
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Class R Certificate at and
after either such time. Any such payments so recovered by the Trustee shall
be paid and delivered by the Trustee to the last preceding Permitted
Transferee of such Certificate.
(v) At the option of the Holder of the Class R Certificate, the Class
LTR Interest and the residual interest in the Upper Tier REMIC may be
severed and represented by separate certificates (with the separate
certificate that represents the Residual Interest also representing all
rights of the Class R Certificate to distributions attributable to an
interest rate on the Class R Certificate in excess of the REMIC
Pass-Through Rate); provided, however, that such separate certification may
not occur until the Trustee receives an Opinion of Counsel to the effect
that separate certification in the form and manner proposed would not
result in the imposition of federal tax upon the Issuing Entity or any of
the REMICs provided for herein or cause any of the REMICs provided for
herein to fail to qualify as a REMIC; and provided further, that the
provisions of Sections 5.02(a) and (b) will apply to each such separate
certificate as if the separate certificate were a Class R Certificate. If,
as evidenced by an Opinion of Counsel, it is necessary to preserve the
REMIC status of any of the REMICs provided for herein, the Class LTR
Interest and the residual interest in the Upper Tier REMIC shall be severed
and represented by separate certificates (with the separate certificate
that represents the Residual Interest also representing all rights of the
Class R Certificate to distributions attributable to an interest rate on
the Class R Certificate in excess of the REMIC Pass-Through Rate).
The restrictions on Transfers of a Class R Certificate set forth in this
Section 5.02(b) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Issuing Entity, the Trustee or the Depositor, to
the effect that the elimination of such restrictions will not cause any of the
REMICs provided for herein to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the
Issuing Entity, any REMIC provided for herein, a Certificateholder or another
Person. Each Person
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holding or acquiring any Ownership Interest in a Class R Certificate hereby
consents to any amendment of this Agreement that, based on an Opinion of Counsel
furnished to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Class R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Class R
Certificate that is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(c) The transferor of the Class R Certificate shall notify the Trustee
in writing upon the transfer of the Class R Certificate.
(d) [Reserved].
(e) The preparation and delivery of all certificates, opinions and
other writings referred to above in this Section 5.02 shall not be an expense of
the Issuing Entity, the Depositor or the Trustee.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates
If (a) any mutilated Certificate is surrendered to the Trustee or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and of the ownership thereof and (b) there is delivered to
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee and its counsel) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time. All
Certificates surrendered to the Trustee under the terms of this Section 5.03
shall be canceled and destroyed by the Trustee in accordance with its standard
procedures without liability on its part.
SECTION 5.04. Persons Deemed Owners
The Class A Certificate Insurer, the Trustee and any agent of the Class A
Certificate Insurer or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Class A Certificate Insurer nor the Trustee, nor any
agent of the Class A Certificate Insurer or the Trustee, shall be affected by
any notice to the contrary.
SECTION 5.05. Access to List of Certificateholders' Names and Addresses
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, and (c) provide a copy of the communication that such
Certificateholders propose to transmit or if the NIMs Insurer, the Class A
Certificate Insurer or the Depositor shall request such information in writing
from the Trustee, then the Trustee shall, within ten
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Business Days after the receipt of such request, provide the NIMs Insurer, the
Class A Certificate Insurer or the Depositor or such Certificateholders at such
recipients' expense the most recent list of the Certificateholders of the
Issuing Entity held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06. Book-Entry Certificates
The Regular Certificates, upon original issuance, shall be issued in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the Depository by or on behalf of the
Depositor. The Class C, Class P and Class R Certificates shall be definitive
certificates. The Book-Entry Certificates shall initially be registered on the
Certificate Register in the name of the Depository or its nominee, and no
Certificate Owner of a Book-Entry Certificate will receive a definitive
certificate representing such Certificate Owner's interest in such Certificates,
except as provided in Section 5.08. Unless and until definitive, fully
registered Certificates ("Definitive Certificates") have been issued to the
Certificate Owners of the Book-Entry Certificates pursuant to Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the NIMs Insurer and the Trustee may deal with the
Depository and the Depository Participants for all purposes (including the
making of distributions) as the authorized representative of the respective
Certificate Owners of the Book-Entry Certificates;
(c) registration of the Book-Entry Certificates may not be transferred
by the Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of the Book-Entry Certificates and the Depository and/or the
Depository Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository will
make book-entry transfers among the Depository Participants and receive and
transmit distributions of principal and interest on the related Certificates to
such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants; and
(g) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Certificates, such direction or consent may be given by Certificate
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Owners (acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
In the event that Definitive Certificates are issued pursuant to Section
5.08, clauses (a) through (g) of this Section 5.06 shall continue to be
applicable with respect to all remaining Book-Entry Certificates.
SECTION 5.07. Notices to Depository
Whenever any notice or other communication is required to be given to
Certificateholders of the Class with respect to which Book-Entry Certificates
have been issued, unless and until Definitive Certificates shall have been
issued to the related Certificate Owners, the Trustee shall give all such
notices and communications to the Depository.
SECTION 5.08. Definitive Certificates
If, after Book-Entry Certificates have been issued with respect to any
Certificates, (a) the Depository or the Depositor advises the Trustee that the
Depository is no longer willing, qualified or able to discharge properly its
responsibilities under the Depository Agreement with respect to such
Certificates and the Trustee or the Depositor is unable to locate a qualified
successor, (b) the Depositor notifies the Trustee and the Depository of its
intent to terminate the book-entry system through the Depository and, upon
receipt of notice of such intent from the Depository, the Certificate Owners of
the Book-Entry Certificates agree to initiate such termination or (c) after the
occurrence and continuation of an Event of Default, Certificate Owners of such
Book-Entry Certificates having not less than 51% of the Voting Rights evidenced
by any Class of Book-Entry Certificates advise the Trustee and the Depository in
writing through the Depository Participants that the continuation of a
book-entry system with respect to Certificates of such Class through the
Depository (or its successor) is no longer in the best interests of the
Certificate Owners of such Class, then the Trustee shall notify all Certificate
Owners of such Book-Entry Certificates, the NIMs Insurer and the Class A
Certificate Insurer of the occurrence of any such event and of the availability
of Definitive Certificates to Certificate Owners and the Class A Certificate
Insurer of such Class requesting the same. The Depositor shall provide the
Trustee with an adequate inventory of certificates to facilitate the issuance
and transfer of Definitive Certificates. Upon surrender to the Trustee of any
such Certificates by the Depository, accompanied by registration instructions
from the Depository for registration, the Authenticating Agent shall
authenticate and the Trustee shall deliver such Definitive Certificates. Neither
the Depositor nor the Trustee shall be liable for any delay in delivery of such
instructions and each may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of such Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of such Definitive
Certificates as Certificateholders hereunder.
SECTION 5.09. Maintenance of Office or Agency
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange. The Trustee initially designates its
offices at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: FFML 2007-FFC as offices for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
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SECTION 5.10. Authenticating Agents
(a) One or more Authenticating Agents (each, an "Authenticating
Agent") may be appointed hereunder each of which shall be authorized to act on
behalf of the Trustee in authenticating the Certificates. Wherever reference is
made in this Agreement to the authentication of Certificates by the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be an entity organized and
doing business under the laws of the United States of America or any state
thereof, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to operate a trust business and subject to
supervision or examination by federal or state authorities. If the
Authenticating Agent is a party other than the Trustee, the Trustee shall have
no liability in connection with the performance or failure of performance of the
Authenticating Agent. LaSalle Bank National Association is hereby appointed as
the initial Authenticating Agent. The Trustee shall be the Authenticating Agent
during any such time as no other Authenticating Agent has been appointed and has
not resigned.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
Except with respect to the initial Authenticating Agent, LaSalle Bank National
Association, which shall be the Authenticating Agent for so long as it is the
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance within the provisions of this Section 5.10, the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 5.10. No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Servicer
The Depositor and the Servicer shall each be liable in accordance herewith
only to the extent of the obligations specifically and respectively imposed upon
and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the Servicer
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Except as provided in the next paragraph, the Depositor and the Servicer
will each keep in full effect its existence, rights and franchises as a
corporation or banking association under the laws of the United States or under
the laws of one of the States thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any Person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding (except for the
execution of an assumption agreement where such succession is not effected by
operation of law); provided, however, that the successor or surviving Person to
the Servicer shall be qualified to sell mortgage loans to, and to service
mortgage loans on behalf of, Xxxxxx Xxx or Xxxxxxx Mac.
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer and
Others
None of the Depositor, the Servicer nor any of the directors, officers,
employees or agents of the Depositor or the Servicer shall be under any
liability to the Issuing Entity or the Certificateholders for any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Servicer or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor, the Servicer or any such Person from any liability that would
otherwise be imposed by reasons of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Depositor or the Servicer and any director, officer,
employee or agent of the Depositor or the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor or the Servicer and any
director, officer, employee or agent of the Depositor or the Servicer shall be
indemnified by the Issuing Entity and held harmless against any loss, liability
or expense, incurred in connection with the performance of their duties under
this Agreement or incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense (i) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder or (ii) which does not constitute
an "unanticipated expense" within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii). Neither the Depositor nor the Servicer shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and that in its opinion may
involve it in any expense or liability; provided, however, that either of the
Depositor or the Servicer in its discretion may undertake any such action that
it may deem necessary or desirable in respect of this Agreement and the rights
and duties of the parties hereto and the interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be, expenses, costs and
liabilities of the Issuing Entity, and the Depositor and the Servicer shall be
entitled to be reimbursed therefor out of the Collection Account as provided by
Section 3.08 hereof.
Notwithstanding anything herein to the contrary, in preparing or furnishing
any reports or certifications pursuant to this Agreement, the Servicer shall be
entitled to rely conclusively on the
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accuracy of the information or data provided to it by any other party to the
Agreement and shall have no liability for any errors therein.
SECTION 6.04. Limitation on Resignation of Servicer
Subject to the provisions of Section 7.01, the second paragraph of Section
7.02, the second paragraph of Section 6.02 and the following paragraph of this
Section 6.04, the Servicer shall not resign from the obligations and duties
hereby imposed on it except upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee, the NIMs Insurer and the Class A Certificate
Insurer. No such resignation shall become effective until the Trustee or a
successor servicer reasonably acceptable to the Trustee, the Class A Certificate
Insurer and the NIMs Insurer is appointed and has assumed the Servicer's
responsibilities, duties, liabilities and obligations hereunder. Any such
resignation shall not relieve the Servicer of any of the obligations specified
in Section 7.01 and 7.02 as obligations that survive the resignation or
termination of the Servicer.
Notwithstanding anything to the contrary in the previous paragraph of this
Section 6.04, the Trustee, the Depositor and the NIMs Insurer hereby
specifically (i) consent to the pledge and assignment by the Servicer of all the
Servicer's right, title and interest in, to and under this Agreement to the
Servicing Rights Pledgee, if any, for the benefit of certain lenders, and (ii)
agree that upon delivery to the Trustee by the Servicing Rights Pledgee of a
letter signed by the Servicer whereby the Servicer shall resign as Servicer
under this Agreement, notwithstanding anything to the contrary which may be set
forth in Section 3.04 above, the Trustee shall, subject to the Class A
Certificate Insurer's prior written consent in its sole discretion, appoint the
Servicing Rights Pledgee or its designee as successor servicer, provided that
the Servicer's resignation will not be effective unless, at the time of such
appointment, the Servicing Rights Pledgee or its designee (i) meets the
requirements of a successor servicer under Section 7.03 of this Agreement
(including being acceptable to the Rating Agencies), provided, that the consent
and approval of the Trustee and the Depositor shall be deemed to have been given
to the Servicing Rights Pledgee or its designee, and the Servicing Rights
Pledgee and its designee are hereby agreed to be acceptable to the Trustee and
the Depositor and (ii) agrees to be subject to the terms of this Agreement. If,
pursuant to any provision hereof, the duties of the Servicer are transferred to
a successor servicer, the entire amount of the Servicing Fee and other
compensation payable to the Servicer pursuant hereto shall thereafter be payable
to such successor servicer. Any attempt to transfer servicing without the prior
written consent of the Class A Certificate Insurer will be void ab initio.
SECTION 6.05. Errors and Omissions Insurance; Fidelity Bonds
The Servicer shall, for so long as it acts as servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of insurance
covering errors and omissions in the performance of its obligations as servicer
hereunder, and (b) a fidelity bond in respect of its officers, employees and
agents. Each such policy or policies and bond shall, together, comply with the
requirements from time to time of Xxxxxx Xxx or Xxxxxxx Mac for Persons
performing servicing for mortgage loans purchased by Xxxxxx Mae or Xxxxxxx Mac.
The Servicer shall provide the Trustee, upon request and reasonable notice, with
copies of such policies and fidelity bond or a certification from the insurance
provider evidencing such policies and fidelity bond. The Servicer may be deemed
to have complied with this provision if an Affiliate of the Servicer has such
errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. In the event that any such policy or bond ceases to be in effect,
the Servicer shall use its reasonable best efforts
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to obtain a comparable replacement policy or bond from an insurer or issuer
meeting the requirements set forth above as of the date of such replacement. Any
such policy or fidelity bond shall by its terms not be cancelable without thirty
days' prior written notice to the Trustee.
ARTICLE VII
DEFAULT; TERMINATION OF SERVICER
SECTION 7.01. Events of Default
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by the Servicer to make any Advance, to deposit in the
Collection Account or the Certificate Account or remit to the Trustee any
payment (excluding a payment required to be made under Section 4.01 hereof)
required to be made under the terms of this Agreement, which failure shall
continue unremedied for three Business Days and, with respect to a payment
required to be made under Section 4.01 hereof, for one Business Day, after
the date on which written notice of such failure shall have been given to
the Servicer by the Trustee or the Depositor, or to the Trustee, the
Depositor and the Servicer by the NIMs Insurer, the Class A Certificate
Insurer or the Holders of Certificates evidencing greater than 50% of the
Voting Rights evidenced by the Certificates; or
(ii) any failure by the Servicer to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Servicer contained in this Agreement or any representation or warranty
shall prove to be untrue, which failure or breach shall continue unremedied
for a period of sixty (60) days after the date on which written notice of
such failure shall have been given to the Servicer, the Trustee, the
Depositor and the Class A Certificate Insurer by the Trustee or the
Depositor, the Class A Certificate Insurer or to the Servicer, the Trustee,
the Depositor and the Class A Certificate Insurer by the Holders of
Certificates evidencing greater than 50% of the Voting Rights evidenced by
the Certificates; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of sixty (60)
consecutive days; or
(iv) consent by the Servicer to the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings of or relating to the Servicer or
all or substantially all of the property of the Servicer; or
(v) admission by the Servicer in writing of its inability to pay its
debts generally as they become due, file a petition to take advantage of,
or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) any failure by the Servicer to duly perform, within the required
time period, its obligations under Sections 3.17, 3.18 and 3.20 of this
Agreement, which failure continues
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unremedied for a period of ten (10) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Servicer by the Trustee or any other party to this Agreement
or the Class A Certificate Insurer.
If an Event of Default shall occur with respect to the Servicer, then, and
in each and every such case, so long as such Event of Default shall not have
been remedied within the applicable grace period, the Trustee (i) may, in its
discretion but with prior written consent of the Class A Certificate Insurer
(such consent shall not be unreasonably withheld), (ii) shall, at the direction
of the NIMS Insurer, if any, with prior written consent of the Class A
Certificate Insurer, (iii) shall, at the direction of the Class A Certificate
Insurer, or (iv) shall, at the direction of the Holders of Certificates
evidencing greater than 50% of the Voting Rights evidenced by the Certificates
(with prior written consent of the Class A Certificate Insurer), by notice in
writing to the Servicer (with a copy to each Rating Agency), terminate all of
the rights and obligations of the Servicer under this Agreement and in and to
the related Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer hereunder, whether with
respect to the related Mortgage Loans or otherwise, shall pass to and be vested
in the Trustee. To the extent the Event of Default resulted from the failure of
the Servicer to make a required Advance, the Trustee shall thereupon make any
Advance described in Section 4.01 hereof subject to Section 3.04 hereof. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Servicer to pay
amounts owed pursuant to Article VIII. The Servicer agrees to cooperate with the
Trustee in effecting the termination of the Servicer's responsibilities and
rights hereunder, including, without limitation, the transfer to the Trustee of
all cash amounts which shall at the time be credited to the Collection Account,
or thereafter be received with respect to the Mortgage Loans. The Servicer and
the Trustee shall promptly notify the Rating Agencies of the occurrence of an
Event of Default, such notice to be provided in any event within two Business
Days of such occurrence.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall be entitled to receive, out of any late collection
of a Scheduled Payment on a Mortgage Loan that was due prior to the notice
terminating the Servicer's rights and obligations as Servicer hereunder and
received after such notice, that portion thereof to which the Servicer would
have been entitled pursuant to Section 3.08(a), and any other amounts payable to
the Servicer hereunder the entitlement to which arose prior to the termination
of its activities hereunder. Notwithstanding anything herein to the contrary,
upon termination of the Servicer hereunder, any liabilities of the Servicer
which accrued prior to such termination shall survive such termination.
SECTION 7.02. Trustee to Act; Appointment of Successor
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01 hereof, the Trustee shall, to the extent provided in
Section 3.04, be the successor to the Servicer in its capacity as servicer under
this Agreement and the transactions set forth or provided for herein and shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof and applicable law
including the obligation to make advances pursuant to Section 4.01. As
compensation therefor, subject to the last paragraph of Section 7.01, the
Trustee shall be entitled to all fees, compensation and reimbursement for costs
and expenses that the Servicer would have
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been entitled to hereunder if the Servicer had continued to act hereunder.
Notwithstanding the foregoing, if the Trustee has become the successor to the
Servicer in accordance with Section 7.01 hereof, the Trustee may, if it shall be
unwilling to so act, or shall, if it is prohibited by applicable law from making
Advances pursuant to Section 4.01 hereof or if it is otherwise unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution and does not adversely affect
the then current rating of the Certificates by each Rating Agency as the
successor to the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Any successor
Servicer shall be an institution that is acceptable to the NIMs Insurer and the
Class A Certificate Insurer and is a Xxxxxx Xxx and Xxxxxxx Mac approved
seller/servicer in good standing, that has a net worth of at least $15,000,000,
and that is willing to service the Mortgage Loans and executes and delivers to
the Depositor and the Trustee an agreement accepting such delegation and
assignment, that contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer (other
than liabilities of the Servicer under Section 6.03 hereof incurred prior to
termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; and provided further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation. No appointment of a
successor to the Servicer hereunder shall be effective until the Trustee shall
have consented thereto, prior written consent of the NIMs Insurer and the Class
A Certificate Insurer is obtained and written notice of such proposed
appointment shall have been provided by the Trustee to each Certificateholder.
Any purported appointment of a successor servicer without the prior written
consent of the Class A Certificate Insurer shall be void ab initio. The Trustee
shall not resign as servicer until a successor servicer has been appointed and
has accepted such appointment. Pending appointment of a successor to the
Servicer hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.04 hereof, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
Servicer hereunder. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Trustee nor any other successor servicer shall be deemed
to be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the Servicer to deliver or provide, or
any delay in delivering or providing, any cash, information, documents or
records to it.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its service
as servicer maintain in force the policy or policies that the Servicer is
required to maintain pursuant to Section 6.05.
SECTION 7.03. Notification to Certificateholders
(a) Upon any termination of or appointment of a successor to the
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders, the Class A Certificate Insurer, the Depositor and to each
Rating Agency.
(b) Within sixty (60) days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all Certificateholders, the Class
A Certificate Insurer and the Rating Agencies
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notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of the Trustee
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs. In case an Event of Default or other default by the
Servicer or the Depositor hereunder shall occur and be continuing, the Trustee
shall, at the written direction of the majority of the Certificateholders (with
prior written consent of the Class A Certificate Insurer), the Class A
Certificate Insurer or the NIMs Insurer (with the prior written consent of the
Class A Certificate Insurer), or may, proceed to protect and enforce its rights
and the rights of the Certificateholders, the Class A Certificate Insurer or the
NIMs Insurer under this Agreement by a suit, action or proceeding in equity or
at law or otherwise, whether for the specific performance of any covenant or
agreement contained in this agreement or in aid of the execution of any power
granted in this Agreement or for the enforcement of any other legal, equitable
or other remedy, as the Trustee, being advised by counsel and subject to the
foregoing, shall deem most effectual to protect and enforce any of the rights of
the Trustee, the NIMs Insurer, the Class A Certificate Insurer and the
Certificateholders.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement, shall examine them to determine whether they conform on their
face to the requirements of this Agreement. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall notify the person providing such Agreement of such
non-conformance, and if the instrument is not corrected to the its satisfaction,
the Trustee will provide notice thereof to the Certificateholders, the Class A
Certificate Insurer and the NIMs Insurer and take such further action as
directed by the Certificateholders (with the prior written consent of the Class
A Certificate Insurer), the Class A Certificate Insurer and the NIMs Insurer
(with the prior written consent of the Class A Certificate Insurer).
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own misconduct, its negligent failure to perform its obligations in
compliance with this Agreement, or any liability that would be imposed by reason
of its willful misfeasance or bad faith; provided, however, that:
(i) prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable, individually
or as Trustee, except for the performance of such duties and obligations as
are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, the
Trustee may conclusively rely, as to the truth of the
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statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement that it reasonably believed in good faith to
be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Trustee shall not, individually or as Trustee, be liable for
an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee unless the Trustee was negligent or
acted in bad faith or with willful misfeasance;
(iii) the Trustee shall not be liable, individually or as Trustee,
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the NIMs Insurer, the Class
A Certificate Insurer or the Holders in accordance with this Agreement
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Agreement; and
(iv) the Trustee shall not be responsible for the acts or omissions of
any Servicer or any Subservicer, it being understood that this Agreement
shall not be construed to render any of them agents of one another.
SECTION 8.02. Certain Matters Affecting the Trustee
(a) Except as otherwise provided in Section 8.01:
(i) the Trustee may request and conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel of its choice and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by the NIMs
Insurer, the Class A Certificate Insurer or the Holders of each Class of
Certificates evidencing not less than 25% of the Voting Rights of such
Class;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
custodians, accountants or attorneys or
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independent contractors and the Trustee will not be responsible for any
misconduct or negligence on the part of any other agent, custodian,
accountant, attorney or independent contractor appointed with due care by
it hereunder;
(vi) the Trustee shall not be required to expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is not
assured to it;
(vii) the Trustee shall not be liable, individually or as Trustee, for
any loss on any investment of funds pursuant to this Agreement (other than
as issuer of the investment security) (except as provided in section
3.05(f) hereof);
(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof;
(ix) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the NIMs Insurer, the Class A Certificate Insurer or
the Certificateholders, pursuant to the provisions of this Agreement,
unless the NIMs Insurer, the Class A Certificate Insurer or the
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
that may be incurred therein or thereby;
(x) if requested by the Servicer, the Trustee shall appoint the
Servicer as the Trustee's attorney-in-fact in order to carry out and
perform certain activities that are necessary or appropriate for the
servicing and administration of the Mortgage Loans pursuant to this
Agreement. Such appointment shall be evidenced by a power of attorney in
such form as may be agreed to by the Trustee and the Servicer. The Trustee
shall have no liability for any action or inaction of the Servicer in
connection with such power of attorney and the Trustee shall be indemnified
by the Servicer for all liabilities, costs and expenses incurred by the
Trustee in connection with the Servicer's use or misuse of such powers of
attorney; and
(xi) in order to comply with its duties under the U.S.A. Patriot Act,
the Trustee shall obtain and verify certain information and documentation
from the other parties hereto, including but not limited to, such party's
name, address and other identifying information.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by the Trustee without
the possession of any of the Certificates, or the production thereof at the
trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of the Certificates and the Class A Certificate
Insurer, subject to the provisions of this Agreement. The Trustee shall have no
duty (A) to see to any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
rerecording, refiling or redepositing, as applicable, thereof, (B) to see to any
insurance or (C) to see to the payment or discharge of any tax,
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assessment, or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part of the Trust Fund.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or sufficiency of this Agreement, of any Mortgage Loan, or any
related document other than with respect to the execution and authentication of
the Certificates, if it so executed or authorized the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Servicer of any funds paid to the Depositor or the Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Collection Account or the
Certificate Account by the Depositor or the Servicer.
SECTION 8.04. Trustee May Own Certificates
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights as it would have if it was not the
Trustee.
SECTION 8.05. Trustee's Fees and Expenses
The Trustee and any custodian shall be entitled to, such compensation as
shall be agreed to in writing by the Trustee and the Depositor (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee.
SECTION 8.06. Indemnification and Expenses of Trustee
(a) LaSalle Bank National Association (as Trustee and in its
individual corporate capacity) and its directors, officers, employees and agents
shall be entitled to indemnification from the Issuing Entity for any loss,
liability or expense incurred in connection with (i) any audit, controversy or
judicial proceeding relating to a governmental authority or any legal proceeding
incurred without negligence or willful misconduct on their part, arising out of,
or in connection with the acceptance or administration of the trusts created
hereunder and (ii) the performance of their duties hereunder, including any
applicable fees and expenses payable hereunder, and the costs and expenses of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall have given the
Depositor written notice thereof promptly after the Trustee shall have
knowledge thereof; provided that failure to so notify shall not relieve the
Issuing Entity of the obligation to indemnify the Trustee; however, any
reasonable delay by the Trustee to provide written notice to the Depositor,
the Class A Certificate Insurer and the Holders promptly after the Trustee
shall have obtained knowledge of a claim shall not relieve the Issuing
Entity of the obligation to indemnify the Trustee under this Section 8.06;
(ii) while maintaining control over its own defense, the Trustee shall
reasonably cooperate and consult with the Depositor in preparing such
defense;
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(iii) notwithstanding anything to the contrary in this Section 8.06,
the Issuing Entity shall not be liable for settlement of any such claim by
the Trustee entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld or delayed; and
(iv) indemnification therefor would constitute "unanticipated
expenses" within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii).
Any indemnification payments to the Trustee (or a custodian) pursuant to
this Section 8.06(a) shall be allocated first to principal and then, to the
extent remaining, to interest.
The provisions of this Section 8.06 shall survive any termination of this
Agreement and the resignation or removal of the Trustee and shall be construed
to include, but not be limited to any loss, liability or expense under any
environmental law.
(b) The Trustee shall be entitled to reimbursement by the Trust Fund
of all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with this Agreement (including fees and expenses of its
counsel and all persons not regularly in its employment), except any such
expenses, disbursements and advances that either (i) arise from its negligence,
bad faith or willful misconduct or (ii) do not constitute "unanticipated
expenses" within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii).
(c) The Trustee's right to indemnification and reimbursement shall be
subject to a cap of $400,000 in the aggregate in any calendar year, excluding
(i) any Servicing Transfer Costs and (ii) any costs, damages or expenses
incurred by the Trustee or the Servicer in connection with any "high cost" home
loans or any predatory or abusive lending laws, which amounts shall in no case
be subject to any such limitation; provided, however, that such cap shall apply
only if (a) the Class A Certificates remain outstanding and insured by the Class
A Certificate Insurer or (b) NIM Notes have been issued and there is a NIMs
Insurer with respect to such NIM Notes, and shall cease to apply after the date
on which any NIM Notes or Class A Certificates are paid in full or if there is
no NIMs Insurer or Class A Insurer; provided further, however, that amounts
incurred by the Trustee in excess of such annual limit in any calendar year
shall be payable to the Trustee in succeeding calendar years, subject to such
annual limit for each applicable calendar year. Any amounts reimbursable
hereunder not in excess of this cap may be withdrawn by the Trustee from the
Certificate Account at any time.
(d) Any custodian appointed by the Trustee as herein provided shall be
entitled to indemnification and reimbursement of expenses to the same extent as
the Trustee is entitled to such amounts pursuant to subsection (a) and (b) of
this Section 8.06, without regard to subsection (c) of this Section 8.06.
SECTION 8.07. Eligibility Requirements for Trustee
The Trustee hereunder shall, at all times, be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating that would
not cause any of the Rating Agencies to reduce their respective ratings of any
Class of Certificates below the ratings issued on the Closing Date (or having
provided such security from time to time as is sufficient to avoid such
reduction). If such corporation or association publishes reports of condition at
least annually,
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pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.07 the combined capital and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.07, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.08 hereof.
The corporation or national banking association serving as Trustee may have
normal banking and trust relationships with the Depositor, the NIMs Insurer and
their respective Affiliates; provided, however, that such corporation cannot be
an Affiliate of the Servicer.
SECTION 8.08. Resignation and Removal of Trustee
The Trustee may at any time resign and be discharged from the trusts hereby
created by (1) giving written notice of resignation to the Depositor and the
Class A Certificate Insurer by mailing notice of resignation by first class
mail, postage prepaid, to the Certificateholders at their addresses appearing on
the Certificate Register and each Rating Agency, not less than sixty (60) days
before the date specified in such notice when, subject to Section 8.09, such
resignation is to take effect, and (2) acceptance of appointment by a successor
trustee acceptable to the NIMs Insurer and the Class A Certificate Insurer in
accordance with Section 8.09 and meeting the qualifications set forth in Section
8.07. If no successor trustee shall have been so appointed and have accepted
appointment within thirty (30) days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.07 hereof and shall fail to resign after
written request thereto by the Depositor, the NIMs Insurer or the Class A
Certificate Insurer or (ii) the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor may remove the
Trustee and shall promptly appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee and
one copy of which shall be delivered to the successor trustee.
The Holders evidencing at least 51% of the Voting Rights of all Classes of
Certificates, with the consent of the NIMs Insurer and the Class A Certificate
Insurer, may at any time remove the Trustee and the Depositor shall appoint a
successor trustee (acceptable to the Class A Certificate Insurer) by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized (or by the NIMs Insurer or the Class A
Certificate Insurer), one complete set of which instruments shall be delivered
by the successor trustee to the Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed. Notice of any
removal of the Trustee shall be given to the NIMs Insurer, the Class A
Certificate Insurer and to each Rating Agency by the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.08 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.09 hereof.
SECTION 8.09. Successor Trustee
Any successor trustee appointed as provided in Section 8.08 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee, the NIMs Insuer, the Class A Certificate
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Insurer and the Servicer an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein.
No successor trustee shall accept appointment as provided in this Section
8.09 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.07 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.09, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates and the Class A Certificate Insurer. If
the Depositor fails to mail such notice within ten (10) days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Depositor.
SECTION 8.10. Merger or Consolidation of Trustee
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
8.07 hereof without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding (except for the execution of an assumption agreement where such
succession is not effected by operation of law).
SECTION 8.11. Appointment of Co-Trustee or Separate Trustee
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee, the NIMs Insurer and the Class A Certificate Insurer to
act as co-trustee or co-trustees jointly with the Trustee, or separate trustee
or separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.11, such
powers, duties, obligations, rights and trusts as the Servicer and the Trustee
may consider necessary or desirable. Any such co-trustee or separate trustee
shall be compensated by the Trust Fund and subject to the written approval of
the Servicer, the NIMs Insurer and the Class A Certificate Insurer. The Trustee
shall not be liable for the actions of any co-trustee appointed with due care;
provided that the appointment of a co-trustee shall not relieve the Trustee of
its obligations hereunder. If the Servicer, the NIMs Insurer and the Class A
Certificate Insurer shall not have joined in such appointment within fifteen
(15) days after the receipt by it of a request to do so, or in the case an Event
of Default shall have occurred and be continuing, the Trustee alone shall have
the power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.07 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.09.
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Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) The Trustee, with the consent of the NIMs Insurer and the Class
A Certificate Insurer, may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
NIMs Insurer, the Class A Certificate Insurer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.12. Tax Matters
(a) It is intended that each of the REMICs provided for herein shall
constitute, and that the affairs of the Trust Fund shall be conducted so as to
allow each such REMIC to qualify as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. It is also intended
that each of the grantor trusts provided for in Section 2.07 hereof shall
constitute, and that the affairs of the Trust Fund shall be conducted so as to
allow each such grantor trust to qualify as, a grantor trust under the
provisions of Subpart E, Part I of Subchapter J of the Code. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of each of the REMICs
provided for herein and that in such capacity it shall: (a) prepare and file, or
cause to be prepared and filed, in a timely manner, a U.S. Real Estate Mortgage
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Investment Conduit Income Tax Return (Form 1066 or any successor form adopted by
the Internal Revenue Service) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to each of the REMICs and grantor trusts provided for herein, containing such
information and at the times and in the manner as may be required by the Code or
state or local tax laws, regulations, or rules, and furnish or cause to be
furnished to Certificateholders the schedules, statements or information at such
times and in such manner as may be required thereby; (b) within thirty (30) days
of the Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code for each of
the REMICs provided for herein; (c) make or cause to be made elections, on
behalf of each of the REMICs provided for herein to be treated as a REMIC on the
federal tax return of such REMICs for their first taxable years (and, if
necessary, under applicable state law); (d) prepare and forward, or cause to be
prepared and forwarded, to the Certificateholders and to the Internal Revenue
Service and, if necessary, state tax authorities, all information returns and
reports as and when required to be provided to them in accordance with the REMIC
Provisions or other applicable law, including without limitation, the
calculation of any original issue discount using the Prepayment Assumption; (e)
provide information necessary for the computation of tax imposed on the transfer
of a Class R Certificate to a Person that is not a Permitted Transferee, or an
agent (including a broker, nominee or other middleman) of a Person that is not a
Permitted Transferee, or a pass through entity in which a Person that is not a
Permitted Transferee is the record holder of an interest (the reasonable cost of
computing and furnishing such information may be charged to the Person liable
for such tax); (f) to the extent that they are under its control conduct the
affairs of each of the REMICs and grantor trusts provided for herein at all
times that any Certificates are outstanding so as to maintain the status of each
of the REMICs provided for herein as a REMIC under the REMIC Provisions and the
status of each of the grantor trusts provided for herein as a grantor trust
under Subpart E, Part I of Subchapter J of the Code; (g) not knowingly or
intentionally take any action or omit to take any action that would cause the
termination of the REMIC status of any of the REMICs provided for herein or
result in the imposition of tax upon any such REMIC; (h) not knowingly or
intentionally take any action or omit to take any action that would cause the
termination of the grantor trust status under Subpart E, Part I of Subchapter J
of the Code of any of the grantor trusts provided for herein or result in the
imposition of tax upon any such grantor trust; (i) pay, from the sources
specified in the last paragraph of this Section 8.12(a), the amount of any
federal, state and local taxes, including prohibited transaction taxes as
described below, imposed on each of the REMICs provided for herein prior to the
termination of the Trust Fund when and as the same shall be due and payable (but
such obligation shall not prevent the Trustee or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Trustee from withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings); (j) sign or cause to be signed federal, state
or local income tax or information returns; (k) maintain records relating to
each of the REMICs provided for herein, including but not limited to the income,
expenses, assets and liabilities of each of the REMICs and grantor trusts
provided for herein; and (l) as and when necessary and appropriate, represent
each of the REMICs provided for herein in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of any of
the REMICs provided for herein, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any of the REMICs provided for herein, and otherwise act on behalf
of each of the REMICs provided for herein in relation to any tax matter
involving any of such REMICs or any controversy involving the Trust Fund.
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In order to enable the Trustee to perform its duties as set forth herein,
the Depositor shall provide, or cause to be provided, to the Trustee within ten
(10) days after the Closing Date all information or data that the Trustee
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, request in order to
enable the Trustee to perform its duties as set forth herein. The Depositor
hereby agrees to indemnify the Trustee for any losses, liabilities, damages,
claims or expenses of the Trustee arising from any errors or miscalculations of
the Trustee that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of any of
the REMICs provided for herein as defined in Section 860F(a)(2) of the Code, on
the "net income from foreclosure property" of any of such REMICs as defined in
Section 860G(c) of the Code, on any contribution to the Trust Fund after the
Startup Day pursuant to Section 860G(d) of the Code, or any other tax is
imposed, if not paid as otherwise provided for herein, such tax shall be paid by
(i) the Trustee, if any such other tax arises out of or results from a breach by
the Trustee of any of its obligations under this Agreement or as a result of the
location of the Trustee, (ii) any party hereto (other than the Trustee) to the
extent any such other tax arises out of or results from a breach by such other
party of any of its obligations under this Agreement or as a result of the
location of such other party or (iii) in all other cases, or in the event that
any liable party here fails to honor its obligations under the preceding clauses
(i) or (ii), any such tax will be paid first with amounts otherwise to be
distributed to the Class R Certificateholders (pro rata) pursuant to Section
4.04, and second with amounts otherwise to be distributed to all other
Certificateholders in the following order of priority: first, to the Class C
Certificates (pro rata), second, to the Class B-4 Certificates (pro rata),
third, to the Class B-3 Certificates (pro rata), fourth, to the Class B-2
Certificates (pro rata), fifth, to the Class B-1 Certificates (pro rata), sixth,
to the Class M-4 Certificates (pro rata), seventh, to the Class M-3 Certificates
(pro rata), eighth, to the Class M-2 Certificates (pro rata), ninth, to the
Class M-1 Certificates (pro rata) and tenth, to the Class A Certificates (pro
rata). Notwithstanding anything to the contrary contained herein, to the extent
that such tax is payable by the Class R Certificate, the Trustee is hereby
authorized pursuant to such instruction to retain on any Distribution Date, from
the Holders of the Class R Certificate (and, if necessary, from the Holders of
all other Certificates in the priority specified in the preceding sentence),
funds otherwise distributable to such Holders in an amount sufficient to pay
such tax. The Trustee agrees to promptly notify in writing the party liable for
any such tax of the amount thereof and the due date for the payment thereof.
(b) Each of the Depositor, the Servicer and the Trustee agrees not to
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of any of the REMICs provided for
herein or result in the imposition of a tax upon any of the REMICs provided for
herein.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Repurchase of all Mortgage
Loans
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(a) Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) an Optional Termination and
(b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
and the Class A Certificate Insurer of all amounts required to be distributed to
them pursuant to this Agreement, as applicable. In no event shall the trusts
created hereby continue beyond the earlier of (i) the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date.
(b) On or before the Determination Date following the Initial Optional
Termination Date, the Trustee shall attempt to terminate the Trust Fund by
conducting an auction of all of the Mortgage Loans and REO Properties via a
solicitation of bids from at least three (3) bidders, each of which shall be a
nationally recognized participant in mortgage finance, and which may include an
owner of the Class C Certificates (the "Auction"). The Depositor and the Trustee
agree to work in good faith to develop bid procedures in advance of the Initial
Optional Termination Date to govern the operation of the Auction. The Trustee
shall be entitled to retain an investment banking firm and/or other agents in
connection with the Auction, the cost of which shall be included in the Optional
Termination Price (unless an Optional Termination does not occur in which case
such costs shall be an expense of the Trust Fund). The Trustee shall accept the
highest bid received at the Auction; provided that the amount of such bid equals
or exceeds the Optional Termination Price. The Trustee shall determine the
Optional Termination Price based upon information provided by (a) the Servicer
with respect to the amounts described in clauses (i) and (ii) of the definition
of "Optional Termination Price" and (b) the Depositor with respect to the
information described in clauses (iii) and (iv) of the definition of "Optional
Termination Price." The Trustee may conclusively rely upon the information
provided to it in accordance with the immediately preceding sentence and shall
not have any liability for the failure of any party to provide such information.
If no sale under Section 9.01(b) occurs the NIMs Insurer may, at its
option, terminate the Trust Fund on any Distribution Date by purchasing all of
the Mortgage Loans and REO Properties at the price equal to the Optional
Termination Price. If an Optional Termination does not occur as a result of the
Auction's failure to achieve the Optional Termination Price, and the NIMs
Insurer fails to exercise its option to purchase all of the Mortgage Loans, the
Servicer (or an affiliate of the Servicer) may, on any Distribution Date
following such Auction, at its option, terminate the Trust Fund by purchasing
all of the Mortgage Loans and REO Properties at a price equal to the Optional
Termination Price. In connection with such termination, the Optional Termination
Price shall be delivered to the Trustee no later than two Business Days
immediately preceding the related Distribution Date. Notwithstanding anything to
the contrary herein, the Optional Termination Amount paid to the Trustee by the
winning bidder at the Auction or by the Servicer (or an affiliate of the
Servicer or the NIMs Insurer) shall be deposited by the Trustee directly into
the Certificate Account immediately upon receipt. Upon any termination as a
result of an Auction, the Trustee shall, out of the Optional Termination Amount
deposited into the Certificate Account, (x) reimburse the Trustee for its costs
and expenses necessary to conduct the Auction and any other unreimbursed amounts
owing to it and (y) pay to the Servicer, the aggregate amount of any
unreimbursed out-of-pocket costs and expenses owed to the Servicer and any
unpaid or unreimbursed Servicing Fees, Advances and Servicing Advances.
(c) Notwithstanding anything to the contrary in clause (b) above, it
shall be a condition precedent to any purchase of the Mortgage Loans by either
the NIMs Insurer or the Servicer
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that the Class A Certificate Insurer shall have consented to such termination,
unless such purchase price shall include an amount sufficient to prevent any
additional draws under the Class A Certificate Guaranty Insurance Policy and
equal to all amounts owed to the Class A Certificate Insurer.
(d) Notwithstanding anything to the contrary in clause (b) above, in
the event that the Trustee receives the written opinion of a nationally
recognized participant in mortgage finance acceptable to the Sponsor that the
Mortgage Loans and REO Properties to be included in the Auction will not be
saleable at a price sufficient to achieve the Optional Termination Price, the
Trustee need not conduct the Auction. In such event, the Servicer shall have the
option to purchase the Mortgage Loans and REO Properties at the Optional
Termination Price as of the Initial Optional Termination Date.
SECTION 9.02. Final Distribution on the Certificates
If on any Determination Date, (i) the Trustee determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Collection Account, the Trustee shall send a final
distribution notice promptly to each Certificateholder or (ii) the Trustee
determines that a Class of Certificates shall be retired after a final
distribution on such Class, the Trustee shall notify the Certificateholders as
soon as practicable after such Determination Date that the final distribution in
retirement of such Class of Certificates is scheduled to be made on the
immediately following Distribution Date. Any final distribution made pursuant to
the immediately preceding sentence will be made only upon presentation and
surrender of the Certificates at the office of the Trustee specified in such
notice.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the Trustee
by letter to Certificateholders mailed as soon as practicable after a
determination is made pursuant to the preceding paragraph (or with respect to an
Auction, mailed no later than one Business Day following completion of such
Auction). Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the location of
the office or agency at which such presentation and surrender must be made, and
(c) that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such notice
to the Class A Certificate Insurer and to each Rating Agency at the time such
notice is given to Certificateholders.
In the event such notice is given, the Servicer shall remit all funds in
the Collection Account to the Trustee for deposit in the Certificate Account on
the Servicer Remittance Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit and the receipt by the
Trustee of a Request for Release therefor, the Trustee shall promptly release to
the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to Certificateholders of each Class the amounts
allocable to such Certificates held in the Certificate Account in the order and
priority set forth in Section 4.04 hereof on the final Distribution Date and in
proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a
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second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that remain a part of the Trust Fund. If within one year after the second
notice all Certificates shall not have been surrendered for cancellation, the
Class R Certificateholders shall be entitled to all unclaimed funds and other
assets of the Trust Fund that remain subject hereto. Upon payment to the Class R
Certificateholders of such funds and assets, the Trustee shall not have any
further duties or obligations with respect thereto.
SECTION 9.03. Additional Termination Requirements
(a) In the event the Trustee or the Servicer completes an Optional
Termination as provided in Section 9.01, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee has
been supplied with an Opinion of Counsel, at the expense of the Servicer, as
applicable, to the effect that the failure of the Issuing Entity to comply with
the requirements of this Section 9.03 will not (i) result in the imposition of
taxes on "prohibited transactions" of any of the REMICs provided for herein as
defined in Section 860F of the Code, or (ii) cause any of the REMICs provided
for herein to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) The Depositor shall establish a 90-day liquidation period and
notify the Trustee thereof, and the Trustee shall in turn specify the first
day of such period in a statement attached to the final tax returns of each
of the REMICs provided for herein pursuant to Treasury Regulation Section
1.860F-1. The Depositor shall satisfy all the requirements of a qualified
liquidation under Section 860F of the Code and any regulations thereunder,
as evidenced by an Opinion of Counsel obtained at the expense of the
Servicer;
(ii) During such 90-day liquidation period, and at or prior to the
time of making the final payment on the Certificates, the Depositor as
agent of the Trustee shall sell all of the assets of the Trust Fund for
cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Class R Certificateholders all cash on hand
(other than cash retained to meet outstanding claims), and the Trust Fund
shall terminate at that time, whereupon the Trustee shall have no further
duties or obligations with respect to sums distributed or credited to the
Class R Certificateholders.
(b) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Depositor to specify the 90-day liquidation period for the
Trust Fund, which authorization shall be binding upon all successor
Certificateholders.
(c) The Trustee as agent for each REMIC hereby agrees to adopt and
sign such a plan of complete liquidation prepared and delivered to it by the
Depositor upon the written request of the Depositor, and the receipt of the
Opinion of Counsel referred to in Section 9.03(a) and to take such other action
in connection therewith as may be reasonably requested by the Depositor.
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(d) Notwithstanding any other terms of this Agreement, prior to any
termination of the Trust Fund, the Servicer may prepare a reconciliation of all
Advances and Servicing Advances made by it for which it has not been reimbursed
and a reasonable estimate of all additional Servicing Advances and other costs
for which it would be entitled to be reimbursed if the Trust Fund were not being
terminated, including without limitation, any Servicing Advances and other costs
arising under Section 6.03 (Limitation on Liability of the Depositor, the
Servicer and Others), and the Servicer may recover these Advances, Servicing
Advances and estimated Servicing Advances and other costs from the Collection
Account (to the extent that such recovery of Servicing Advances, estimated
Servicing Advances and other costs constitutes "unanticipated expenses" within
the meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii)).
(e) Notwithstanding any other terms of this Agreement, unless the
Servicer previously has notified the Trustee that it has entered into a
servicing agreement for the servicing after the termination date of the Trust
Fund assets, at least twenty (20) days prior to any termination of the Trust
Fund, the Trustee or the Depositor shall notify the Servicer in writing to
transfer the assets of the Trust Fund as of the termination date to the person
specified in the notice, or if such person is not then known, to continue
servicing the assets until the date that is twenty (20) days after the
termination date and on the termination date, the Trustee or the Depositor shall
notify the Servicer of the person to whom the assets should be transferred on
that date. In the latter event the Servicer shall be entitled to recover its
servicing fee and any advances made for the interim servicing period from the
collections on the assets which have been purchased from the Trust Fund and the
new owner of the assets, and the agreements for the new owner to obtain
ownership of the assets of the Trust Fund shall so provide.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer and the Class A
Certificate Insurer (such consents shall not be unreasonably withheld) and
without the consent of any of the Certificateholders,
(i) to cure any ambiguity or correct any mistake,
(ii) to correct, modify or supplement any provision herein which may
be inconsistent with the Prospectus Supplement or any other provision
herein,
(iii) to add any other provisions with respect to matters or questions
arising under this Agreement, or
(iv) to modify, alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement, provided, however, that, in the
case of clauses (iii) and (iv), such amendment will not, as evidenced by an
Opinion of Counsel to such effect, adversely affect in any material respect
the interests of any Holder; provided, further, however, that such
amendment will be deemed to not adversely affect in any material respect
the interest of any Holder if the Person requesting such amendment obtains
a letter from each Rating Agency stating that such amendment will not
result in a reduction or withdrawal of its rating of any Class of the
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Certificates, it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating.
In addition, this Agreement may be amended from time to time by the
Depositor, the Servicer and the Trustee without the consent of any of the
Certificateholders but with the prior written consent of the Class A Certificate
Insurer (which consent will not be unreasonably withheld) and without delivery
of an Opinion of Counsel (as referenced in (iv) above) to comply with the
provisions of Regulation AB.
Notwithstanding the foregoing, without the consent of the
Certificateholders but with the prior written consent of the Class A Certificate
Insurer, the Depositor, the Servicer and the Trustee may at any time and from
time to time amend this Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary or appropriate to maintain the
qualification of any of the REMICs provided for herein as REMICs under the Code
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or any of the REMICs provided for herein pursuant to the Code that would be a
claim against the Trust Fund at any time prior to the final redemption of the
Certificates, provided that the Trustee, the Class A Certificate Insurer and the
NIMs Insurer shall have been provided an Opinion of Counsel, which opinion shall
be an expense of the party requesting such amendment but in any case shall not
be an expense of the Trustee, the Class A Certificate Insurer or the NIMs
Insurer, to the effect that such action is necessary or appropriate to maintain
such qualification or to avoid or minimize the risk of the imposition of such a
tax.
This Agreement may also be amended from time to time by the Depositor, the
Trustee, the Servicer, the Trustee and the Holders of the Certificates affected
thereby evidencing not less than 66 2/3% of the Voting Rights, with the consent
of the NIMs Insurer and the Class A Certificate Insurer, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i),
without the consent of the Holders of Certificates of such Class evidencing 66
2/3% or more of the Voting Rights of such Class or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment without the consent of the Holders of all such Certificates then
outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall be an expense of the party
requesting such amendment but in any case shall not be an expense of the
Trustee, to the effect that such amendment will not cause the imposition of any
tax on the Trust Fund, any of the REMICs provided for herein or the
Certificateholders or cause any of the REMICs provided for herein to fail to
qualify as a REMIC at any time that any Certificates are outstanding. A copy of
such Opinion of Counsel shall be provided to the NIMs Insurer and the Class A
Certificate Insurer.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
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It shall not be necessary for the consent of Certificateholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee or the Servicer to
enter into an amendment without receiving an Opinion of Counsel, satisfactory to
the Trustee or the Servicer that (i) such amendment is permitted and is not
prohibited by this Agreement and that all requirements for amending this
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any Certificateholder
or (B) the conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01. A copy of such Opinion of
Counsel shall be provided to the NIMs Insurer and the Class A Certificate
Insurer.
The Trustee may, but shall not be obligated to, enter into any supplement,
modification or waiver which affects its rights, duties or obligations
hereunder.
Notwithstanding anything to the contrary in this Section 10.01, the Trustee
and the Servicer shall reasonably cooperate with the Depositor and its counsel
to enter into such amendments or modifications to this Agreement as may be
necessary to comply with Regulation AB and any interpretation thereof by the
Securities and Exchange Commission.
SECTION 10.02. Counterparts
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
SECTION 10.03. Governing Law
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
SECTION 10.04. Intention of Parties
It is the express intent of the parties hereto that the conveyance of the
Mortgage Notes, Mortgages, assignments of Mortgages, title insurance policies
and any modifications, extensions and/or assumption agreements and private
mortgage insurance policies relating to the Mortgage Loans by the Depositor to
the Trustee be, and be construed as, an absolute sale thereof to the Trustee. It
is, further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Depositor to the Trustee. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in such assets, then (i) this Agreement
shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of New York and (ii) the conveyance provided
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for in this Agreement shall be deemed to be an assignment and a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders and the
Class A Certificate Insurer, of a security interest in all of the assets that
constitute the Trust Fund, whether now owned or hereafter acquired.
The Depositor for the benefit of the Certificateholders and the Class A
Certificate Insurer shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the assets of the Trust Fund, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of the
Agreement. The Depositor shall arrange for filing any Uniform Commercial Code
continuation statements in connection with any security interest granted or
assigned to the Trustee for the benefit of the Certificateholders and the Class
A Certificate Insurer.
SECTION 10.05. Notices
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency, the NIMs Insurer and the Class A Certificate Insurer with
respect to each of the following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of the Trustee or the Servicer
and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.02 and 2.03;
(v) The final payment to Certificateholders; and
(vi) Any change in the location of the Certificate Account.
(b) The Trustee shall promptly furnish or make available to each
Rating Agency copies of the following:
(i) Each report to Certificateholders described in Section 4.05;
(ii) Each annual statement as to compliance described in Section 3.17;
and
(iii) Each annual independent public accountants' servicing report
described in Section 3.18.
All directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to (a) in the case of the
Depositor, Xxxxxxx Xxxxx Mortgage Investors, Inc. 000 Xxxxx Xxxxxx, 4 World
Financial Center, 10th Floor, New York, New York 10080, Attention: Asset-Backed
Finance; (b) in the case of the Rating Agencies, (i) Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000xxx (ii) Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; (c) in the case of the Servicer, Home Loan
Services, Inc., 000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
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Attention: VP Investor Reporting; (d) in the case of the Trustee, LaSalle Bank
National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000 Attention: Global Securities and Trust Services--FFML 2007-FFC; (e) in the
case of the Class A Certificate Insurer, Ambac Assurance Corporation, Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Surveillance, First Franklin
2007-FFC and in the case of any of the foregoing persons, such other addresses
as may hereafter be furnished by any such persons to the other parties to this
Agreement. Notices to Certificateholders shall be deemed given when mailed,
first class postage prepaid, to their respective addresses appearing in the
Certificate Register.
SECTION 10.06. Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Assignment; Sales; Advance Facilities
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Section 6.02, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee, Depositor and the
Class A Certificate Insurer; provided, however, with the prior written consent
of the Class A Certificate Insurer, the Servicer is hereby authorized to enter
into an Advance Facility under which (l) the Servicer sells, assigns or pledges
to an Advancing Person the Servicer's rights under this Agreement to be
reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person
agrees to fund some or all Advances or Servicing Advances required to be made by
the Servicer pursuant to this Agreement. No consent of the Trustee,
Certificateholders or any other party is required before the Servicer may enter
into an Advance Facility. Notwithstanding the existence of any Advance Facility
under which an Advancing Person agrees to fund Advances and/or Servicing
Advances on the Servicer's behalf, the Servicer shall remain obligated pursuant
to this Agreement to make Advances and Servicing Advances pursuant to and as
required by this Agreement, and shall not be relieved of such obligations by
virtue of such Advance Facility.
Reimbursement amounts shall consist solely of amounts in respect of
Advances and/or Servicing Advances made with respect to the Mortgage Loans for
which the Servicer would be permitted to reimburse itself in accordance with
this Agreement, assuming the Servicer had made the related Advance(s) and/or
Servicing Advance(s).
The Servicer shall maintain and provide to any successor Servicer a
detailed accounting on a loan by loan basis as to amounts advanced by, pledged
or assigned to, and reimbursed to any Advancing Person. The successor Servicer
shall be entitled to rely on any such information provided by the predecessor
Servicer, and the successor Servicer shall not be liable for any errors in such
information.
An Advancing Person who purchases or receives an assignment or pledge of
the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose
obligations hereunder are limited to the funding of Advances and/or Servicing
Advances shall not be required to meet the criteria for qualification of a
Subservicer set forth in this Agreement.
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The documentation establishing any Advance Facility shall require that such
reimbursement amounts distributed with respect to each Mortgage Loan be
allocated to outstanding unreimbursed Advances or Servicing Advances (as the
case may be) made with respect to that Mortgage Loan on a "first in, first out"
(FIFO) basis. Such documentation shall also require the Servicer to provide to
the related Advancing Person or its designee loan by loan information with
respect to each such reimbursement amount distributed to such Advancing Person
or Advance Facility trustee on each Distribution Date, to enable the Advancing
Person or Advance Facility trustee to make the FIFO allocation of each such
reimbursement amount with respect to each Mortgage Loan. The Servicer shall
remain entitled to be reimbursed by the Advancing Person or Advance Facility
trustee for all Advances and Servicing Advances funded by the Servicer to the
extent the related rights to be reimbursed therefor have not been sold, assigned
or pledged to an Advancing Person.
Any amendment to this Section 10.07 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an Advance
Facility as described generally in this Section 10.07, including amendments to
add provisions relating to a successor Servicer, may be entered into by the
Trustee and the Servicer, without the consent of any Certificateholder but with
the prior written consent of the Class A Certificate Insurer notwithstanding
anything to the contrary in this Agreement, upon receipt by the Trustee of an
Opinion of Counsel that such amendment has no material adverse effect on the
Certificateholders or written confirmation from the Rating Agencies that such
amendment will not adversely affect the ratings on the Certificates. Prior to
entering into an Advance Facility, the Servicer shall notify the lender under
such facility in writing that: (a) the Advances financed by and/or pledged to
the lender are obligations owed to the Servicer on a non recourse basis payable
only from the cash flows and proceeds received under this Agreement for
reimbursement of Advances only to the extent provided herein, and the Trustee
and the Trust Fund are not otherwise obligated or liable to repay any Advances
financed by the lender; (b) the Servicer will be responsible for remitting to
the lender the applicable amounts collected by it as reimbursement for Advances
funded by the lender, subject to the restrictions and priorities created in this
Agreement; and (c) the Trustee shall not have any responsibility to track or
monitor the administration of the financing arrangement between the Servicer and
the lender.
SECTION 10.08. Limitation on Rights of Certificateholders
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
Fund, or otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, the Holders
of Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates shall also have made
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written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee
(individually and as trustee) such indemnity satisfactory to it as it may
require against the costs, expenses, and liabilities to be incurred therein or
thereby, and the Trustee, for sixty (60) days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates and/or the NIMs
Insurer or the Class A Certificate Insurer, or to obtain or seek to obtain
priority over or preference to any other such Holder and/or the NIMs Insurer or
the Class A Certificate Insurer or to enforce any right under this Agreement,
except in the manner herein provided and for the common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 10.08, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 10.09. Inspection and Audit Rights
The Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Depositor, the Trustee or the Class A Certificate Insurer
during the Servicer's normal business hours, to examine all the books of
account, records, reports and other papers of the Servicer relating to the
Mortgage Loans to make copies and extracts therefrom, to cause such books to be
audited by independent certified public accountants selected by the Depositor,
the Trustee or the Class A Certificate Insurer and to discuss its affairs,
finances and accounts relating to the Mortgage Loans with its officers,
employees, agents, counsel and independent public accountants (and by this
provision the Servicer hereby authorizes such accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by the Depositor, the Trustee or the Class A
Certificate Insurer of any right under this Section 10.09 shall be borne by the
party requesting such inspection (except in the case of the Trustee in which
case such expenses shall be borne by the requesting Certificateholder(s)); all
other such expenses shall be borne by the Servicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Issuing Entity, that the interests in
the Issuing Entity represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Authenticating Agent pursuant to this Agreement, are and shall be
deemed fully paid.
SECTION 10.11. Compliance with Regulation AB
Each of the parties hereto acknowledges and agrees that the purpose of
Sections 3.17, 3.18 and 3.20 of this Agreement is to facilitate compliance by
the Depositor with the provisions of Regulation AB, as such may be amended or
clarified from time to time. Therefore, each of the parties agrees that (a) the
obligations of the parties hereunder shall be interpreted in such a manner as to
accomplish compliance with Regulation AB, (b) the parties' obligations hereunder
will be supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, or convention or consensus among
active participants in the asset-backed securities markets in respect of the
requirements
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of Regulation AB and (c) the parties shall comply with reasonable requests made
by the Depositor for delivery of that or different information as is necessary
to comply with the provisions of Regulation AB.
SECTION 10.12. Third Party Rights
The Class A Certificate Insurer and the NIMs Insurer shall be deemed third
party beneficiaries of this Agreement so long as the Class A Certificate
Guaranty Insurance Policy or the NIM Notes, as applicable, remains in effect
and, in the case of the Class A Certificate Insurer, so long as any
Reimbursement Amounts (as such term is defined in the Insurance Agreement) owed
to the Class A Certificate Insurer remain unpaid.
SECTION 10.13. Additional Rights of the NIMs Insurer
Provided that a party to this Agreement has been provided with the contact
information of the NIMs Insurer, such party, any agent thereof and any successor
thereto shall furnish to the NIMs Insurer a copy of any notice, direction,
demand, opinion, schedule, list, certificate, report or filing required to be
provided under this Agreement and provided by it or on its behalf to any other
Person pursuant to this Agreement at the same time, in the same form and in the
same manner as such communication is so provided and shall address or cause such
communication to be addressed to the NIMs Insurer in addition to any other
addressee thereof. The Servicer shall cause the NIMs Insurer to be an addressee
of any report furnished pursuant to this Agreement. With respect to the Trustee,
such obligation shall be satisfied with the provision of access to the NIMs
Insurer to the Trustee's website.
Unless there exists a continuance of any failure by the NIMs Insurer to
make a required payment under the policy insuring the NIM Notes (such event, a
"NIMs Insurer Default"), wherever in this Agreement there shall be a requirement
that any Person or any communication, object or other matter be acceptable or
satisfactory to or otherwise receive the consent or other approval of any other
Person (whether as a condition to the eligibility of such Person to act in any
capacity, as a condition to any circumstance or state of affairs related to such
matter, or otherwise), there also shall be deemed to be a requirement that such
Person or matter be approved in writing by the NIMs Insurer, which approval
shall not be unreasonably withheld or delayed.
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IN WITNESS WHEREOF, the Depositor, the Trustee and the Servicer have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name: Xxxx Park
Title: Authorized Signatory
LASALLE BANK NATIONAL ASSOCIATION
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HOME LOAN SERVICES, INC.,
as Servicer
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED TO
with respect to its repurchase
obligations under Sections 2.02,
2.03, 2.05 and 3.27 hereof only as of
the day and year first above written.
FIRST FRANKLIN FINANCIAL CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT A
FORMS OF CERTIFICATES
FORM OF CLASS A CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED AND (II) AN INTEREST IN NOTIONAL PRINCIPAL
CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE OR THE SERVICER REFERRED TO BELOW OR ANY OF THEIR
AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR INTEREST REPRESENTED
HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE
DEPOSITOR, THE TRUSTEE, THE SERVICER OR BY ANY OF THEIR AFFILIATES OR BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
CLASS A-[_____] CERTIFICATE
Number: 07-FFC-A-[_____]-[_____] Original Denomination: $[_____]
Cut-off Date: May 1, 2007 Last Scheduled Distribution Date:
June 25, 2027
First Distribution Date: June 25, 2007 Aggregate Initial Certificate Balance
of all Class A-[_____] Certificates: $[_____]
Pass-Through Rate: Variable(1) CUSIP: [_____]
----------
(1) Subject to a cap as described in the Agreement.
A-2
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
evidencing an ownership interest in distributions allocable to the Class
A-[_____] Certificates with respect to a pool of conventional, sub-prime
mortgage loans formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Initial
Certificate Balance of all Class A-[_____] Certificates) in certain
distributions with respect to a pool of conventional, sub-prime mortgage loans
(the "Mortgage Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Home Loan Services, Inc. (the "Servicer") and are
secured by second lien mortgages on the Mortgaged Properties. The Trust Fund was
created pursuant to a pooling and servicing agreement (the "Agreement"), dated
as of May 1, 2007, among the Depositor, the Servicer and LaSalle Bank National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, Class A-[_____] (the "Class A-[_____] Certificates")
and is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of
the acceptance hereof assents and by which Agreement such Holder is bound.
The Class A Certificates, the Class M Certificates, the Class B
Certificates, the Class P Certificates and the Class C Certificates are
collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in June 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered on the Record Date.
Distributions on this Certificate will be made either by wire transfer in
immediately available funds to the account of such certificateholder at a bank
or other depository institution having appropriate wire transfer facilities or,
in the case of any certificateholder that has so notified the Trustee in writing
in
A-3
accordance with the Agreement, by check mailed to the address of the person
entitled to distributions as it appears on the Certificate Register; provided,
however, that the final distribution in retirement of the certificates will be
made only upon presentation and surrender of this Certificate at the office of
the Trustee or such other address designated in writing by the Trustee. On each
Distribution Date, a holder of this Certificate will receive such holder's
Percentage Interest of the amounts required to be distributed with respect to
the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [____] LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-5
REVERSE OF CERTIFICATE
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, issued in one or more Classes of Class A
Certificates, Class M Certificates, Class B Certificates, Class P Certificates
and Class C Certificates, each evidencing an interest in certain distributions
with respect to a pool of conventional, sub-prime Mortgage Loans formed and sold
by the Depositor and certain other property conveyed by the Depositor to the
Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein which may be inconsistent with the
other provisions therein, to ensure continuing treatment of each REMIC included
in the Trust Fund as a REMIC, or to make any other provisions with respect to
matters or questions arising under the Agreement which are not materially
inconsistent with the provisions of the Agreement, provided that such action
does not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
with the consent of the Holders of Certificates evidencing in the
A-6
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that any such amendment will comply with the
requirements set forth in the Agreement.
The Class A (other than the Class R Certificates), Class M, and Class B
Certificates are issuable only in registerable form, in minimum denominations of
$25,000 in initial Certificate Principal Amount and in integral multiples of $1
in excess thereof, registered in the name of the nominee of the clearing agency,
which shall maintain such Certificates through its book-entry facilities. The
Class R Certificates are issuable in minimum denominations of $100 and shall be
maintained in physical, fully registered form. The Class P Certificates are
issuable in minimum denominations of 100% and shall be maintained in physical,
fully registered form. The Class C Certificates are issuable in minimum
denominations of 25% and shall be maintained in physical, fully registered form.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC"). The REMIC Regular
Interests will represent "regular interests" in one of the REMICs included in
the Trust Fund. The Class R Certificate will represent the sole class of
"residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) an Optional
Termination and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created under the
Agreement continue beyond the earlier of (i) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (ii) the Latest Possible Maturity Date.
A-7
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
________________________________________________________________________________
(Please Print or Type Name and Address of Assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_________________________________________ Attorney to transfer the within
Certificate on the books kept for the registration thereof, with full power of
substitution in the premises.
Dated:
------------------------------ NOTICE: The signature to this assignment
(Signature guaranty) must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(* This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-8
FORM OF CLASS M CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED AND (II) AN INTEREST IN NOTIONAL PRINCIPAL
CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE OR THE SERVICER REFERRED TO BELOW OR ANY OF THEIR
AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR INTEREST REPRESENTED
HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE
DEPOSITOR, THE TRUSTEE, THE SERVICER OR BY ANY OF THEIR AFFILIATES OR BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
A-9
CLASS M-[_____] CERTIFICATE
Number: 07-FFC-M-[______]-[______] Original Denomination: $[____]
Cut-off Date: May 1, 2007 Last Scheduled Distribution Date:
June 25, 2027
First Distribution Date: June 25, 2007 Aggregate Initial Certificate Balance
of all Class M-[______] Certificates: $[_____]
Pass-Through Rate: Variable(2) CUSIP: [____]
----------
(2) Subject to a cap as described in the Agreement.
A-10
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
evidencing an ownership interest in distributions allocable to the Class
M-[_____] Certificates with respect to a pool of conventional, sub-prime
mortgage loans formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Initial
Certificate Balance of all Class M-[_____] Certificates) in certain
distributions with respect to a pool of conventional, sub-prime mortgage loans
(the "Mortgage Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Home Loan Services, Inc. (the "Servicer") and are
secured by second lien mortgages on the Mortgaged Properties. The Trust Fund was
created pursuant to a pooling and servicing agreement (the "Agreement"), dated
as of May 1, 2007, among the Depositor, the Servicer and LaSalle Bank National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, Class M-[_____] (the "Class M-[_____] Certificates")
and is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of
the acceptance hereof assents and by which Agreement such Holder is bound.
The Class A Certificates, the Class M Certificates, the Class B
Certificates, the Class P Certificates and the Class C Certificates are
collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in June 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered on the Record Date.
Distributions on this Certificate will be made either by wire transfer in
immediately available funds to the account of such certificateholder at a bank
or other depository institution having appropriate wire transfer facilities or,
in the case of any certificateholder that has so notified the Trustee in writing
in
A-11
accordance with the Agreement, by check mailed to the address of the person
entitled to distributions as it appears on the Certificate Register; provided,
however, that the final distribution in retirement of the certificates will be
made only upon presentation and surrender of this Certificate at the office of
the Trustee or such other address designated in writing by the Trustee. On each
Distribution Date, a holder of this Certificate will receive such holder's
Percentage Interest of the amounts required to be distributed with respect to
the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-12
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [__________] LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-13
REVERSE OF CERTIFICATE
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, issued in one or more Classes of Class A
Certificates, Class M Certificates, Class B Certificates, Class P Certificates
and Class C Certificates, each evidencing an interest in certain distributions
with respect to a pool of conventional, sub-prime Mortgage Loans formed and sold
by the Depositor and certain other property conveyed by the Depositor to the
Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein which may be inconsistent with the
other provisions therein, to ensure continuing treatment of each REMIC included
in the Trust Fund as a REMIC, or to make any other provisions with respect to
matters or questions arising under the Agreement which are not materially
inconsistent with the provisions of the Agreement, provided that such action
does not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
with the consent of the Holders of Certificates evidencing in the
A-14
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that any such amendment will comply with the
requirements set forth in the Agreement.
The Class A (other than the Class R Certificates), Class M, and Class B
Certificates are issuable only in registerable form, in minimum denominations of
$25,000 in initial Certificate Principal Amount and in integral multiples of $1
in excess thereof, registered in the name of the nominee of the clearing agency,
which shall maintain such Certificates through its book-entry facilities. The
Class R Certificates are issuable in minimum denominations of $100 and shall be
maintained in physical, fully registered form. The Class P Certificates are
issuable in minimum denominations of 100% and shall be maintained in physical,
fully registered form. The Class C Certificates are issuable in minimum
denominations of 25% and shall be maintained in physical, fully registered form.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC"). The REMIC Regular
Interests will represent "regular interests" in one of the REMICs included in
the Trust Fund. The Class R Certificate will represent the sole class of
"residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) an Optional
Termination and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created under the
Agreement continue beyond the earlier of (i) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (ii) the Latest Possible Maturity Date.
A-15
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
________________________________________________________________________________
(Please Print or Type Name and Address of Assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_________________________________________ Attorney to transfer the within
Certificate on the books kept for the registration thereof, with full power of
substitution in the premises.
Dated:
------------------------------ NOTICE: The signature to this assignment
(Signature guaranty) must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(* This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-16
FORM OF CLASS B-1, B-2 AND B-3 CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED AND (II) AN INTEREST IN NOTIONAL PRINCIPAL
CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC. ("MLMI"), THE TRUSTEE, OR ANY SERVICER REFERRED
TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR
INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY MLMI, THE TRUSTEE, ANY SERVICER OR BY ANY OF THEIR AFFILIATES OR BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
A-17
CLASS B-[_____] CERTIFICATE
Number: 07-FFC-B-[_____]-[_____] Original Denomination: $[_____]
Cut-off Date: May 1, 2007 Last Scheduled Distribution Date:
June 25, 2027
First Distribution Date: June 25, 2007 Aggregate Initial Certificate Balance
of all Class B-[_____] Certificates: $[_____]
Pass-Through Rate: 7.50%(3) CUSIP: [_____]
----------
(3) Subject to a cap as described in the Agreement.
A-18
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
evidencing an ownership interest in distributions allocable to the Class
B-[_____] Certificates with respect to a pool of conventional, sub-prime
mortgage loans formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Initial
Certificate Balance of all Class B-[_____] Certificates) in certain
distributions with respect to a pool of conventional, sub-prime mortgage loans
(the "Mortgage Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Home Loan Services, Inc. (the "Servicer") and are
secured by second lien mortgages on Mortgaged Properties. The Trust Fund was
created pursuant to a pooling and servicing agreement (the "Agreement"), dated
as of May 1, 2007, between the Depositor, the Servicer and LaSalle Bank National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, Class B-[_____] (the "Class B-[_____] Certificates")
and is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of
the acceptance hereof assents and by which Agreement such Holder is bound.
The Class A Certificates, the Class M Certificates, the Class B
Certificates, the Class P Certificates and the Class C Certificates are
collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in June 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered on the Record Date.
A-19
Distributions on this Certificate will be made either by wire transfer in
immediately available funds to the account of such certificateholder at a bank
or other depository institution having appropriate wire transfer facilities or,
in the case of any certificateholder that has so notified the Trustee in writing
in accordance with the Agreement, by check mailed to the address of the person
entitled to distributions as it appears on the Certificate Register; provided,
however, that the final distribution in retirement of the certificates will be
made only upon presentation and surrender of this Certificate at the office of
the Trustee or such other address designated in writing by the Trustee. On each
Distribution Date, a holder of this Certificate will receive such holder's
Percentage Interest of the amounts required to be distributed with respect to
the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-20
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [__________] LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-21
REVERSE OF CERTIFICATE
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, issued in one or more Classes of Class A
Certificates, Class M Certificates, Class B Certificates, Class P Certificates
and Class C Certificates, each evidencing an interest in certain distributions
with respect to a pool of conventional, sub-prime Mortgage Loans formed and sold
by the Depositor and certain other property conveyed by the Depositor to the
Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein which may be inconsistent with the
other provisions therein, to ensure continuing treatment of each REMIC included
in the Trust Fund as a REMIC, or to make any other provisions with respect to
matters or questions arising under the Agreement which are not materially
inconsistent with the provisions of the Agreement, provided that such action
does not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
A-22
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
with the consent of the Holders of Certificates evidencing in the aggregate not
less than 66 2/3% of the Percentage Interests of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Agreement or of modifying in
any manner the rights of the Holders of Certificates of such Class; provided,
however, that any such amendment will comply with the terms of the Agreement.
The Class A (other than the Class R Certificates), Class M, and Class B
Certificates are issuable only in registerable form, in minimum denominations of
$25,000 in initial Certificate Principal Amount and in integral multiples of $1
in excess thereof, registered in the name of the nominee of the clearing agency,
which shall maintain such Certificates through its book-entry facilities. The
Class R Certificates are issuable in minimum denominations of $100 and shall be
maintained in physical, fully registered form. The Class P Certificates are
issuable in minimum denominations of 100% and shall be maintained in physical,
fully registered form. The Class C Certificates are issuable in minimum
denominations of 25% and shall be maintained in physical, fully registered form.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC") in a tiered REMIC
structure. The REMIC Regular Interests will represent "regular interests" in one
of the REMICs included in the Trust Fund. The Class R Certificate will represent
the sole class of "residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) an Optional
Termination and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created under the
Agreement's continue beyond the earlier of (i) the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (ii) the Latest Possible Maturity Date.
A-23
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
________________________________________________________________________________
(Please Print or Type Name and Address of Assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_____________________________________________ Attorney to transfer the within
Certificate on the books kept for the registration thereof, with full power of
substitution in the premises.
Dated:
------------------------------ NOTICE: The signature to this assignment
(Signature guaranty) must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(* This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-24
FORM OF CLASS B (144A) CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED AND (II) AN INTEREST IN NOTIONAL PRINCIPAL
CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE OR THE SERVICER REFERRED TO BELOW OR ANY OF THEIR
AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR INTEREST REPRESENTED
HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE
DEPOSITOR, THE TRUSTEE, THE SERVICER OR BY ANY OF THEIR AFFILIATES OR BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "1940
ACT") OR ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND MAY NOT, DIRECTLY OR
INDIRECTLY, BE SOLD OR OTHERWISE TRANSFERRED, OR OFFERED FOR SALE, UNLESS SUCH
TRANSFER IS NOT SUBJECT TO REGISTRATION UNDER THE ACT, THE 1940 ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND SUCH TRANSFER ALSO COMPLIES WITH THE
CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT. IF THE CERTIFICATE IS A
DEFINITIVE CERTIFICATE, NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE
TRUSTEE SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE
(A) AN INVESTMENT LETTER FROM THE PROSPECTIVE INVESTOR; AND (B) REPRESENTATIONS
FROM THE TRANSFEROR REGARDING THE OFFERING AND SALE OF THE CERTIFICATES.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE AND THE DEPOSITOR WITH (A) A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY STATE, LOCAL,
FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS
OF ERISA OR THE CODE ("SIMILAR LAW"), AND IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH
PLAN, (B) IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, A REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT
IS ACQUIRING THE CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL
ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THE CERTIFICATE ARE
A-25
COVERED AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE
CASE OF A DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE, AND UPON WHICH THE TRUSTEE SHALL BE ENTITLED TO RELY, TO THE EFFECT
THAT THE ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE
TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION
UNDER ERISA OR THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE
NIMS INSURER, THE TRUSTEE, THE SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE AGREEMENT, WHICH OPINION OF
COUNSEL SHALL NOT BE AN EXPENSE OF THE NIMS INSURER, THE TRUSTEE, THE SERVICER
OR THE DEPOSITOR.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR
AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) XX XXXXXXXXXX X, XX (X) XXXXXXX
XXX XXXXXX XXXXXX TO A PERSON WHO IS NOT A U.S. PERSON (AS DEFINED BY REGULATION
S OF THE 1933 ACT ("REGULATION S")) IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S, AND IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE UNITED STATES AND SUBJECT TO THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING IN THE AGREEMENT.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
A-26
CLASS B-[_____] CERTIFICATE
(RULE 144A)
Number: 07-FFC-B-[_____]-[_____] Original Denomination: $[_____]
Cut-off Date: May 1, 2007 Last Scheduled Distribution Date: June 25, 2027
First Distribution Date: June 25, 2007 Aggregate Initial Certificate Balance
of all Class B-[_____] Certificates: $[______]
Pass-Through Rate: 7.50%(4) CUSIP: [_____]
----------
(4) Subject to a cap as described in the Agreement.
A-27
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
evidencing an ownership interest in distributions allocable to the Class
B-[_____] Certificates with respect to a pool of conventional, sub-prime
mortgage loans formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Initial
Certificate Balance of all Class B-[_____] Certificates) in certain
distributions with respect to a pool of conventional, sub-prime mortgage loans
(the "Mortgage Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Home Loan Services, Inc. (the "Servicer") and are
secured by second lien mortgages on the Mortgaged Properties. The Trust Fund was
created pursuant to a pooling and servicing agreement (the "Agreement"), dated
as of May 1, 2007, among the Depositor, the Servicer and LaSalle Bank National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, Class B-[_____] (the "Class B-[_____] Certificates")
and is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of
the acceptance hereof assents and by which Agreement such Holder is bound.
The Class A Certificates, the Class M Certificates, the Class B
Certificates, the Class P Certificates and the Class C Certificates are
collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in June 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered on the Record Date.
Distributions on this Certificate will be made either by wire transfer in
immediately available funds to the account of such certificateholder at a bank
or other depository institution having appropriate
A-28
wire transfer facilities or, in the case of any certificateholder that has so
notified the Trustee in writing in accordance with the Agreement, by check
mailed to the address of the person entitled to distributions as it appears on
the Certificate Register; provided, however, that the final distribution in
retirement of the certificates will be made only upon presentation and surrender
of this Certificate at the office of the Trustee or such other address
designated in writing by the Trustee. On each Distribution Date, a holder of
this Certificate will receive such holder's Percentage Interest of the amounts
required to be distributed with respect to the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-29
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [__________] LASALLE BANK NATIONAL ASSOCIATION.,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-30
REVERSE OF CERTIFICATE
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, issued in one or more Classes of Class A
Certificates, Class M Certificates, Class B Certificates, Class P Certificates
and Class C Certificates, each evidencing an interest in certain distributions
with respect to a pool of conventional, sub-prime Mortgage Loans formed and sold
by the Depositor and certain other property conveyed by the Depositor to the
Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein which may be inconsistent with the
other provisions therein, to ensure continuing treatment of each REMIC included
in the Trust Fund as a REMIC, or to make any other provisions with respect to
matters or questions arising under the Agreement which are not materially
inconsistent with the provisions of the Agreement, provided that such action
does not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
with the consent of the Holders of Certificates evidencing in the
A-31
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that any such amendment will comply with the
requirements set forth in the Agreement.
The Class A (other than the Class R Certificates), Class M, and Class B
Certificates are issuable only in registerable form, in minimum denominations of
$25,000 in initial Certificate Principal Amount and in integral multiples of $1
in excess thereof, registered in the name of the nominee of the clearing agency,
which shall maintain such Certificates through its book-entry facilities. The
Class R Certificates are issuable in minimum denominations of $100 and shall be
maintained in physical, fully registered form. The Class P Certificates are
issuable in minimum denominations of 100% and shall be maintained in physical,
fully registered form. The Class C Certificates are issuable in minimum
denominations of 25% and shall be maintained in physical, fully registered form.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC"). The REMIC Regular
Interests will represent "regular interests" in one of the REMICs included in
the Trust Fund. The Class R Certificate will represent the sole class of
"residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) an Optional
Termination and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created under the
Agreement continue beyond the earlier of (i) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (ii) the Latest Possible Maturity Date.
A-32
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
________________________________________________________________________________
(Please Print or Type Name and Address of Assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_________________________________________ Attorney to transfer the within
Certificate on the books kept for the registration thereof, with full power of
substitution in the premises.
Dated:
------------------------------ NOTICE: The signature to this assignment
(Signature guaranty) must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(* This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-33
FORM OF CLASS B (REG S) CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED AND (II) AN INTEREST IN NOTIONAL PRINCIPAL
CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC. ("MLMI"), THE TRUSTEE, OR ANY SERVICER REFERRED
TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR
INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY MLMI, THE TRUSTEE, ANY SERVICER OR BY ANY OF THEIR AFFILIATES OR BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "1940
ACT") OR ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND MAY NOT, DIRECTLY OR
INDIRECTLY, BE SOLD OR OTHERWISE TRANSFERRED, OR OFFERED FOR SALE, UNLESS SUCH
TRANSFER IS NOT SUBJECT TO REGISTRATION UNDER THE ACT, THE 1940 ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND SUCH TRANSFER ALSO COMPLIES WITH THE
CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT. IF THE CERTIFICATE IS A
DEFINITIVE CERTIFICATE, NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE
TRUSTEE SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE
(A) AN INVESTMENT LETTER FROM THE PROSPECTIVE INVESTOR; AND (B) REPRESENTATIONS
FROM THE TRANSFEROR REGARDING THE OFFERING AND SALE OF THE CERTIFICATES.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE AND THE DEPOSITOR WITH (A) A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY STATE, LOCAL,
FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS
OF ERISA OR THE CODE ("SIMILAR LAW"), AND IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH
PLAN, (B) IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, A REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT
IS ACQUIRING THE CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL
ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION
A-34
("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THE CERTIFICATE ARE COVERED
AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE CASE OF A
DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, AND
UPON WHICH THE TRUSTEE SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL
NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR
THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE NIMS INSURER,
THE TRUSTEE, THE SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO
THOSE UNDERTAKEN BY SUCH ENTITIES IN THE AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE NIMS INSURER, THE TRUSTEE, THE SERVICER OR THE
DEPOSITOR.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES (A) THAT, UNTIL
THE EXPIRATION OF THE APPLICABLE "DISTRIBUTION COMPLIANCE PERIOD" WITHIN THE
MEANING OF REGULATION S, ANY OFFER, SALE, PLEDGE OR OTHER TRANSFER OF THIS
CERTIFICATE SHALL NOT BE MADE IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY U.S. PERSON (EACH AS DEFINED IN REGULATION S) AND (B) TO OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS CERTIFICATE WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (EACH AS DEFINED IN
REGULATION S) ONLY (1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE 1933 ACT OR (2) TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE 1933 ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, SUBJECT TO THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING IN THE AGREEMENT.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
A-35
CLASS B-[_____] CERTIFICATE
(REGULATION S)
Number: 07-FFC-B-[_____]-[_____] Original Denomination: $[____]
Cut-off Date: May 1, 2007 Last Scheduled Distribution Date:
June 25, 2027
First Distribution Date: June 25, 2007 Aggregate Initial Certificate Balance
of all Class B-[_____] Certificates: $[_____]
Pass-Through Rate: 7.50%(5) CUSIP: [____]
----------
(5) Subject to a cap as described in the Agreement.
A-36
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
evidencing an ownership interest in distributions allocable to the Class
B-[_____] Certificates with respect to a pool of conventional, sub-prime
mortgage loans formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Initial
Certificate Balance of all Class B-[_____] Certificates) in certain
distributions with respect to a pool of conventional, sub-prime mortgage loans
(the "Mortgage Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Home Loan Services, Inc. (the "Servicer") and are
secured by second lien mortgages on Mortgaged Properties. The Trust Fund was
created pursuant to a pooling and servicing agreement (the "Agreement"), dated
as of May 1, 2007, between the Depositor, the Servicer and LaSalle Bank National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, Class B-[_____] (the "Class B-[_____] Certificates")
and is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of
the acceptance hereof assents and by which Agreement such Holder is bound.
The Class A Certificates, the Class M Certificates, the Class B
Certificates, the Class P Certificates, the Class C Certificates, and the Class
R Certificate are collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the
A-37
"Distribution Date"), commencing in June 2007. Such distributions will be made
to the Person in whose name this Certificate is registered on the Record Date.
Distributions on this Certificate will be made either by wire transfer in
immediately available funds to the account of such certificateholder at a bank
or other depository institution having appropriate wire transfer facilities or,
in the case of any certificateholder that has so notified the Trustee in writing
in accordance with the Agreement, by check mailed to the address of the person
entitled to distributions as it appears on the Certificate Register; provided,
however, that the final distribution in retirement of the certificates will be
made only upon presentation and surrender of this Certificate at the office of
the Trustee or such other address designated in writing by the Trustee. On each
Distribution Date, a holder of this Certificate will receive such holder's
Percentage Interest of the amounts required to be distributed with respect to
the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-38
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [__________] LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-39
REVERSE OF CERTIFICATE
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, issued in one or more Classes of Class A
Certificates, Class M, Class B Certificates, Class P Certificates and Class C
Certificates, each evidencing an interest in certain distributions with respect
to a pool of conventional, sub-prime Mortgage Loans formed and sold by the
Depositor and certain other property conveyed by the Depositor to the Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein which may be inconsistent with the
other provisions therein, to ensure continuing treatment of each REMIC included
in the Trust Fund as a REMIC, or to make any other provisions with respect to
matters or questions arising under the Agreement which are not materially
inconsistent with the provisions of the Agreement, provided that such action
does not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
A-40
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
with the consent of the Holders of Certificates evidencing in the aggregate not
less than 66 2/3% of the Percentage Interests of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Agreement or of modifying in
any manner the rights of the Holders of Certificates of such Class; provided,
however, that any such amendment will comply with the requirements set forth in
the Agreement.
The Class A (other than the Class R Certificates), Class M, and Class B
Certificates are issuable only in registerable form, in minimum denominations of
$25,000 in initial Certificate Principal Amount and in integral multiples of $1
in excess thereof, registered in the name of the nominee of the clearing agency,
which shall maintain such Certificates through its book-entry facilities. The
Class R Certificates are issuable in minimum denominations of $100 and shall be
maintained in physical, fully registered form. The Class P Certificates are
issuable in minimum denominations of 100% and shall be maintained in physical,
fully registered form. The Class C Certificates are issuable in minimum
denominations of 25% and shall be maintained in physical, fully registered form.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC") in a tiered REMIC
structure. The REMIC Regular Interests will represent "regular interests" in one
of the REMICs included in the Trust Fund. The Class R Certificate will represent
the sole class of "residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) an Optional
Termination and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date hereof and
(ii) the Latest Possible Maturity Date.
A-41
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
________________________________________________________________________________
(Please Print or Type Name and Address of Assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
__________________________________ Attorney to transfer the within Certificate
on the books kept for the registration thereof, with full power of substitution
in the premises.
Dated:
------------------------------ NOTICE: The signature to this assignment
(Signature guaranty) must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(* This information, which is voluntary, is being requested to ensure that
the assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-42
FORM OF CLASS C CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN A GRANTOR TRUST THAT HOLDS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND IS
TREATED AS HAVING ENTERED INTO CERTAIN NOTIONAL PRINCIPAL CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE OR THE SERVICER REFERRED TO BELOW OR ANY OF THEIR
AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR INTEREST REPRESENTED
HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE
DEPOSITOR, THE TRUSTEE, THE SERVICER OR BY ANY OF THEIR AFFILIATES OR BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CLASS C CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS SOLD OR TRANSFERRED IN TRANSACTIONS
WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT OR UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE CERTIFICATE TRANSFER RESTRICTIONS IN
THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE AND THE DEPOSITOR WITH (A) A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY STATE, LOCAL,
FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS
OF ERISA OR THE CODE ("SIMILAR LAW"), AND IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH
PLAN, (B) IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, A REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT
IS ACQUIRING THE CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL
ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THE CERTIFICATE ARE COVERED
AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE CASE OF A
DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, AND
UPON WHICH THE TRUSTEE SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL
NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR
THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE NIMS INSURER,
THE TRUSTEE, THE SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO
THOSE UNDERTAKEN BY SUCH ENTITIES IN THE AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE NIMS INSURER, THE TRUSTEE, THE SERVICER OR THE
DEPOSITOR.
A-43
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
A-44
CLASS C CERTIFICATE
Number: 07-FFC-C-[_____] Percentage Interest: 100%
Cut-off Date: May 1, 2007
First Distribution Date: June 25, 2007
Pass-Through Rate: Variable CUSIP: [____]
A-45
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
evidencing an ownership interest in distributions allocable to the Class C
Certificates with respect to a pool of conventional, sub-prime mortgage loans
formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
This certifies that XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, as
nominee for Xxxxxxx Xxxxx Funding Corp, is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Initial
Certificate Balance of all Class C Certificates) in certain distributions with
respect to a pool of conventional, sub-prime mortgage loans (the "Mortgage
Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter
called the "Depositor"), and certain other property held in trust for the
benefit of Certificateholders (collectively, the "Trust Fund"). The Mortgage
Loans are serviced by Home Loan Services, Inc. (the "Servicer") and are secured
by second lien mortgages on the Mortgaged Properties. The Trust Fund was created
pursuant to a pooling and servicing agreement (the "Agreement"), dated as of May
1, 2007, among the Depositor, the Servicer and Lasalle Bank National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, Class C (the "Class C Certificates") and is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which Agreement such Holder is bound.
The Class A Certificates, the Class M Certificates, the Class B
Certificates, the Class P Certificates and the Class C Certificates are
collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in May 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered on the Record Date.
Distributions on this Certificate will be made either by wire transfer in
immediately available funds to the account of such certificateholder at a bank
or other depository institution having appropriate wire transfer facilities or,
in the case of any certificateholder that has so notified the Trustee in writing
in accordance with the Agreement, by check mailed to the address of the person
entitled to distributions as it appears on the Certificate Register; provided,
however, that the final distribution in retirement of the certificates will be
made only upon presentation and surrender of this Certificate at the office of
the Trustee or such other address designated in writing by the Trustee. On each
Distribution Date, a holder of this Certificate will receive such holder's
Percentage Interest of the amounts required to be distributed with respect to
the applicable Class of Certificates.
A-46
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-47
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [_____] LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-48
REVERSE OF CERTIFICATE
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates issued in one or more Classes of Class A Certificates,
Class M Certificates, Class B Certificates, Class P Certificates and Class C
Certificates, each evidencing an interest in certain distributions with respect
to a pool of conventional, sub-prime Mortgage Loans formed and sold by the
Depositor and certain other property conveyed by the Depositor to the Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein which may be inconsistent with the
other provisions therein, to ensure continuing treatment of each REMIC included
in the Trust Fund as a REMIC, or to make any other provisions with respect to
matters or questions arising under the Agreement which are not materially
inconsistent with the provisions of the Agreement, provided that such action
does not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
with the consent of the Holders of Certificates evidencing in the aggregate not
less than 66 2/3% of the Percentage Interests of each Class of Certificates
affected thereby,
A-49
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
any such amendment will comply with the requirements set forth in the Agreement.
The Class A (other than the Class R Certificates), Class M, and Class B
Certificates are issuable only in registerable form, in minimum denominations of
$25,000 in initial Certificate Principal Amount and in integral multiples of $1
in excess thereof, registered in the name of the nominee of the Clearing Agency,
which shall maintain such Certificates through its book-entry facilities. The
Class R Certificates are issuable in minimum denominations of $100 and shall be
maintained in physical, fully registered form. The Class P Certificates are
issuable in minimum denominations of 100% and shall be maintained in physical,
fully registered form. The Class C Certificates are issuable in minimum
denominations of 25% and shall be maintained in physical, fully registered form.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC"). The REMIC Regular
Interests will represent "regular interests" in one of the REMICs included in
the Trust Fund. The Class R Certificate will represent the sole class of
"residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) an Optional
Termination; and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created under the
Agreement continue beyond the earlier of (i) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (ii) the Latest Possible Maturity Date.
A-50
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF
ASSIGNEE)
(Please Print or Type Name and Address of Assignee)
________________________________________________________________________________
________________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
_______________________________________ Attorney to transfer the within
Certificate on the books kept for the registration thereof, with full power of
substitution in the premises.
Dated: ------------------------------ NOTICE: The signature to this assignment
(Signature guaranty) must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(*This information, which is voluntary, is being requested to ensure that
the assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-51
FORM OF CLASS P CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE OR THE SERVICER REFERRED TO BELOW OR ANY OF THEIR
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE SERVICER OR BY ANY OF
THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CLASS P CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS SOLD OR TRANSFERRED IN TRANSACTIONS
WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT OR UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE CERTIFICATE TRANSFER RESTRICTIONS IN
THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE AND THE DEPOSITOR WITH (A) A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY STATE, LOCAL,
FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS
OF ERISA OR THE CODE ("SIMILAR LAW"), AND IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH
PLAN, (B) IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, A REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT
IS ACQUIRING THE CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL
ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THE CERTIFICATE ARE COVERED
AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE CASE OF A
DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, AND
UPON WHICH THE TRUSTEE SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL
NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR
THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE NIMS INSURER,
THE TRUSTEE, THE SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO
THOSE UNDERTAKEN BY SUCH ENTITIES IN THE AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE NIMS INSURER, THE TRUSTEE, THE SERVICER OR THE
DEPOSITOR.
A-52
CLASS P CERTIFICATE
Number: 07-FFC-P-[ ] Percentage Interest: 100%
Cut-off Date: May 1, 2007
First Distribution Date: June 25, 2007 CUSIP: [_____]
A-53
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
evidencing an ownership interest in distributions allocable to the Class P
Certificates with respect to a pool of conventional, sub-prime mortgage loans
formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
This certifies that XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, as
nominee for Xxxxxxx Xxxxx Funding Corp, is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Initial
Certificate Balance of all Class P Certificates) in certain distributions with
respect to a pool of conventional, sub-prime mortgage loans (the "Mortgage
Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter
called the "Depositor"), and certain other property held in trust for the
benefit of Certificateholders (collectively, the "Trust Fund"). The Mortgage
Loans are serviced by Home Loan Services, Inc. (the "Servicer") and are secured
by lien mortgages on the Mortgaged Properties. The Trust Fund was created
pursuant to a pooling and servicing agreement (the "Agreement"), dated as of May
1, 2007, among the Depositor, the Servicer and LaSalle Bank National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, Class P (the "Class P Certificates") and is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which Agreement such Holder is bound.
The Class A Certificates, the Class M Certificates, the Class B
Certificates, the Class P Certificates, the Class C Certificates and the Class R
Certificate are collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in June 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered on the Record Date.
Distributions on this Certificate will be made either by wire transfer in
immediately available funds to the account of such certificateholder at a bank
or other depository institution having appropriate wire transfer facilities or,
in the case of any certificateholder that has so notified the Trustee in writing
in accordance with the Agreement, by check mailed to the address of the person
entitled to distributions as it appears on the Certificate Register; provided,
however, that the final distribution in retirement of the certificates will be
made only upon presentation and surrender of this Certificate at the office of
the Trustee or such other address designated in writing by the Trustee. On each
Distribution Date, a holder of this Certificate will receive such holder's
Percentage Interest of the amounts required to be distributed with respect to
the applicable Class of Certificates.
A-54
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-55
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [_____] LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-56
REVERSE OF CERTIFICATE
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, issued in one or more Classes of Class A
Certificates, Class M Certificates, Class B Certificates, Class P Certificates
and Class C Certificates, each evidencing an interest in certain distributions
with respect to a pool of conventional, sub-prime Mortgage Loans formed and sold
by the Depositor and certain other property conveyed by the Depositor to the
Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein which may be inconsistent with the
other provisions therein, to ensure continuing treatment of each REMIC included
in the Trust Fund as a REMIC, or to make any other provisions with respect to
matters or questions arising under the Agreement which are not materially
inconsistent with the provisions of the Agreement, provided that such action
does not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
with the consent of the Holders of Certificates evidencing in the aggregate not
less than 66 2/3% of the Percentage Interests of each Class of Certificates
affected thereby, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Agreement or of modifying in
any manner the rights of the Holders of Certificates of
A-57
such Class; provided, however, that any such amendment will comply with the
requirements set forth in the Agreement.
The Class A (other than the Class R Certificates), Class M, and Class B
Certificates are issuable only in registerable form, in minimum denominations of
$25,000 in initial Certificate Principal Amount and in integral multiples of $1
in excess thereof, registered in the name of the nominee of the clearing agency,
which shall maintain such Certificates through its book-entry facilities. The
Class R Certificates are issuable in minimum denominations of $100 and shall be
maintained in physical, fully registered form. The Class P Certificates are
issuable in minimum denominations of 100% and shall be maintained in physical,
fully registered form. The Class C Certificates are issuable in minimum
denominations of 25% and shall be maintained in physical, fully registered form.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC"). The REMIC Regular
Interests will represent "regular interests" in one of the REMICs included in
the Trust Fund. The Class R Certificate will represent the sole class of
"residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) an Optional
Termination and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created under the
Agreement continue beyond the earlier of (i) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (ii) the Latest Possible Maturity Date.
A-58
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF
ASSIGNEE)
________________________________________________________________________________
(Please Print or Type Name and Address of Assignee)
________________________________________________________________________________
________________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
____________________________________, Attorney to transfer the within
Certificate on the books kept for the registration thereof, with full power of
substitution in the premises.
Dated:
------------------------------ NOTICE: The signature to this assignment
(Signature guaranty) must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(*This information, which is voluntary, is being requested to ensure that
the assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-59
FORM OF CLASS R CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A
"RESIDUAL INTEREST" IN ONE OR MORE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS",
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND (II) AN INTEREST IN
NOTIONAL PRINCIPAL CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE OR THE SERVICER REFERRED TO BELOW OR ANY OF THEIR
AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC RESIDUAL INTERESTS REPRESENTED
HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE
DEPOSITOR, THE TRUSTEE, THE SERVICER OR BY ANY OF THEIR AFFILIATES OR BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE AND THE DEPOSITOR WITH A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY FEDERAL, STATE,
LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE, AND IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH
PLAN.
CLASS R CERTIFICATE
Number: 07-FFC-R Principal Balance: $[_____]
Cut-off Date: May 1, 2007 Pass-Through Rate: Variable(6)
First Distribution Date: June 25, 2007 CUSIP: [_____]
----------
(6) Subject to a cap as described in the Agreement.
A-60
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
evidencing an ownership interest in distributions allocable to the Class R
Certificates with respect to a pool of conventional, sub-prime mortgage loans
formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
This certifies that XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, as
nominee for Xxxxxxx Xxxxx Funding Corporation, is the registered owner of the
ownership interest (the "Ownership Interest") evidenced by this Certificate
(obtained by dividing the Original Denomination of this Certificate by the
aggregate Initial Certificate Balance of all Class R Certificates) in certain
distributions with respect to a pool of conventional, sub-prime mortgage loans
(the "Mortgage Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor"), and certain other property held in trust
for the benefit of Certificateholders (collectively, the "Trust Fund"). The
Mortgage Loans are serviced by Home Loan Services, Inc. (the "Servicer") and are
secured by second lien mortgages on the Mortgaged Properties. The Trust Fund was
created pursuant to a pooling and servicing agreement (the "Agreement"), dated
as of May 1, 2007, among the Depositor, the Servicer and LaSalle Bank National
Association ("LB"), as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, Class R (the "Class R Certificate") and is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which Agreement such Holder is bound.
The Class A Certificates, the Class M Certificates, the Class B
Certificates, the Class P Certificates and the Class C Certificates are
collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in June 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered on the Record Date.
Distributions on this Certificate will be made either by wire transfer in
immediately available funds to the account of such certificateholder at a bank
or other depository institution having appropriate wire transfer facilities or,
in the case of any certificateholder that has so notified the Trustee in writing
in accordance with the Agreement, by check mailed to the address of the person
entitled to distributions as it appears on the Certificate Register; provided,
however, that the final distribution in retirement of the
A-61
certificates will be made only upon presentation and surrender of this
Certificate at the office of the Trustee or such other address designated in
writing by the Trustee. On each Distribution Date, a holder of this Certificate
will receive such holder's Percentage Interest of the amounts required to be
distributed with respect to the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-62
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [_____] LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates
referred to in the within-mentioned
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-63
REVERSE OF CERTIFICATE
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC
MORTGAGE LOAN ASSET-BACKED CERTIFICATES
This Certificate is one of a duly authorized issue of Certificates,
designated as First Franklin Mortgage Loan Trust, Series 2007-FFC Mortgage Loan
Asset-Backed Certificates, issued in one or more Classes of Class A
Certificates, Class M Certificates, Class B Certificates, Class P Certificates
and Class C Certificates, each evidencing an interest in certain distributions
with respect to a pool of conventional, sub-prime Mortgage Loans formed and sold
by the Depositor and certain other property conveyed by the Depositor to the
Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein which may be inconsistent with the
other provisions therein, to ensure continuing treatment of each REMIC included
in the Trust Fund as a REMIC, or to make any other provisions with respect to
matters or questions arising under the Agreement which are not materially
inconsistent with the provisions of the Agreement, provided that such action
does not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and the
Class A Certificate Insurer (such consents not to be unreasonably withheld) and
with the consent of the Holders of Certificates evidencing in the
A-64
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that any such amendment will comply with the
requirements set forth in the Agreement.
The Class A (other than the Class R Certificates), Class M, and Class B
Certificates are issuable only in registerable form, in minimum denominations of
$25,000 in initial Certificate Principal Amount and in integral multiples of $1
in excess thereof, registered in the name of the nominee of the clearing agency,
which shall maintain such Certificates through its book-entry facilities. The
Class R Certificates are issuable in minimum denominations of $100 and shall be
maintained in physical, fully registered form. The Class P Certificates are
issuable in minimum denominations of 100% and shall be maintained in physical,
fully registered form. The Class C Certificates are issuable in minimum
denominations of 25% and shall be maintained in physical, fully registered form.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC"). The REMIC Regular
Interests will represent "regular interests" in one of the REMICs included in
the Trust Fund. The Class R Certificate will represent the sole class of
"residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) an Optional
Termination and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created under the
Agreement continue beyond the earlier of (i) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (ii) the Latest Possible Maturity Date.
A-65
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
________________________________________________________________________________
(Please Print or Type Name and Address of Assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
__________________________________________Attorney to transfer the within
Certificate on the books kept for the registration thereof, with full power of
substitution in the premises.
Dated:
------------------------------ NOTICE: The signature to this assignment
(Signature guaranty) must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(*This information, which is voluntary, is being requested to ensure that the
assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-66
EXHIBIT B
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
A-67
EXHIBIT C
[RESERVED]
EXHIBIT D
FORM OF TRUSTEE CERTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Home Loan Services, Inc.
000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates,
Series 2007-FFC
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing Agreement,
dated as of May 1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor, LaSalle Bank National Association, as trustee, Home Loan Services,
Inc., as servicer (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that [, except as set forth in Schedule A hereto,] as
to each Mortgage Loan listed in the Mortgage Loan Schedule attached hereto
(other than any Mortgage Loan paid in full or listed on the attachment hereto)
it has reviewed the Mortgage File and the Mortgage Loan Schedule and has
determined that:
(i) All documents in the Mortgage File required to be delivered to the
Trustee pursuant to Section 2.01 (A)-(B), (C) (if applicable), (D) and (E)
and the documents if actually received by it under Section 2.01(F) of the
Pooling and Servicing Agreement are in its possession;
(ii) In connection with each Mortgage Loan or Assignment thereof as to
which documentary evidence of recording was not received on the Closing
Date, it has received evidence of such recording; and
(iii) Such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond confirming (i) that the Mortgage Loan number, the
name of the Mortgagor, the street address
(excluding zip code), the mortgage interest rate at origination, the gross
margin (if applicable), the lifetime rate cap (if applicable), the periodic rate
cap (if applicable), the original principal balance, the first payment due date
and the original maturity date in each Mortgage File conform to the respective
Mortgage Loan number and name listed on the Mortgage Loan Schedule and (ii) the
existence in each Mortgage File of each of the documents listed in subparagraphs
(i)(A) through (E), as applicable, inclusive, of Section 2.01 in the Agreement.
The Trustee makes no representations or warranties as to the validity, legality,
recordability, sufficiency, enforceability, due authorization or genuineness of
any of the documents contained in each Mortgage Loan or the collectability,
insurability, effectiveness, priority, perfection or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-referenced Pooling and Servicing
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-2
EXHIBIT E-1
FORM OF TRANSFEREE'S LETTER AND AFFIDAVIT
[DATE]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - First Franklin Mortgage Loan
Trust, Series 2007-FFC
Ladies and Gentlemen:
We propose to purchase First Franklin Mortgage Loan Trust, Mortgage Loan
Asset-Backed Certificates, Series 2007-FFC, Class R, described in the Prospectus
Supplement, dated May 25, 2007, and the Prospectus, dated May 15, 2007.
1. We certify that (a) we are not a disqualified organization and (b) we
are not purchasing such Class R Certificate on behalf of a disqualified
organization; for this purpose the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code. We
understand that any breach by us of this certification may cause us to be liable
for an excise tax imposed upon transfers to disqualified organizations.
2. We certify that (a) we have historically paid our debts as they became
due, (b) we intend, and believe that we will be able, to continue to pay our
debts as they become due in the future, (c) we understand that, as beneficial
owner of the Class R Certificate, we may incur tax liabilities in excess of any
cash flows generated by the Class R Certificate, and (d) we intend to pay any
taxes associated with holding the Class R Certificate as they become due and (e)
we will not cause income from the Class R Certificate to be attributable to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of ours or another U.S. taxpayer.
3. We acknowledge that we will be the beneficial owner of the Class R
Certificate and:(7)
___________ The Class R Certificate will be registered in our name.
___________ The Class R Certificate will be held in the name of our
nominee, _________________, which is not a disqualified
organization.
4. We certify that we are not an employee benefit plan subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), a
plan subject to Section 4975 of the Code or a plan subject to federal, state,
local, non-U.S. or other law substantively similar to the foregoing provisions
of ERISA or the Code (each, a "Plan"), and are not directly or indirectly
acquiring the Class R Certificate on behalf of or with any assets of a Plan.
5. We certify that (i) we are a U.S. person or (ii) we will hold the Class
R Certificate in connection with the conduct of a trade or business within the
United States and have furnished the transferor and the Trustee with a duly
completed and effective Internal Revenue Service Form W-8ECI or successor form
at the time and in the manner required by the Code; for this purpose the term
"U.S. person" means a citizen or resident of the United States, a corporation,
or partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any State thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of the source of its income, 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 such U.S. persons have the authority to control all substantial
decisions of the trust (or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons). We agree that any breach by us of this
certification shall render the transfer of any interest in the Class R
Certificate to us absolutely null and void and shall cause no rights in the
Class R Certificate to vest in us.
6. We agree that in the event that at some future time we wish to transfer
any interest in the Class R Certificate, we will transfer such interest in the
Class R Certificate only (a) to a transferee that (i) is not a disqualified
organization and is not purchasing such interest in the Class R Certificate on
behalf of a disqualified organization, (ii) is a U.S. person or will hold the
Class R Certificate in connection with the conduct of a trade or business within
the United States and will furnish us and the Trustee with a duly completed and
effective Internal Revenue Service Form W-8ECI or successor form at the time and
in the manner required by the Code and (iii) has delivered to the Trustee a
letter in the form of this letter (including the affidavit appended hereto) and,
we will provide the Trustee a written statement substantially in the form of
Exhibit E-2 to the Pooling and Servicing Agreement.
7. We hereby designate _______________________ as our fiduciary to act as
the tax matters person for each of the REMICs provided for in the Pooling and
Servicing Agreement.
----------
(7) Check appropriate box and if necessary fill in the name of the Transferee's
nominee.
E-1-2
Very truly yours,
[PURCHASER]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Accepted as of __________ __, 200__
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
E-1-3
APPENDIX A
Affidavit pursuant to (i) Section
860E(e)(4) of the Internal Revenue Code
of 1986, as amended, and (ii) certain
provisions of the Pooling and Servicing
Agreement
Under penalties of perjury, the undersigned declares that the following is true:
1. He or she is an officer of _________________________ (the "Transferee"),
2. the Transferee's Employer Identification number is __________,
3. the Transferee is not a "disqualified organization" (as defined below),
has no plan or intention of becoming a disqualified organization, and is not
acquiring any of its interest in the First Franklin Mortgage Loan Trust,
Mortgage Loan Asset-Backed Certificates, Series 2007-FFC, Class R Certificate on
behalf of a disqualified organization or any other entity,
4. unless Xxxxxxx Xxxxx Mortgage Investors, Inc.("MLMI") has consented to
the transfer to the Transferee by executing the form of Consent affixed as
Appendix B to the Transferee's Letter to which this Certificate is affixed as
Appendix A, the Transferee is a "U.S. person" (as defined below),
5. that no purpose of the transfer is to avoid or impede the assessment or
collection of tax,
6. the Transferee has historically paid its debts as they became due,
7. the Transferee intends, and believes that it will be able, to continue
to pay its debts as they become due in the future,
8. the Transferee understands that, as beneficial owner of the Class R
Certificate, it may incur tax liabilities in excess of any cash flows generated
by the Class R Certificate,
9. the Transferee intends to pay any taxes associated with holding the
Class R Certificate as they become due,
10. the Transferee consents to any amendment of the Pooling and Servicing
Agreement that shall be deemed necessary by Xxxxxxx Xxxxx Mortgage Investors,
Inc. (upon advice of counsel) to constitute a reasonable arrangement to ensure
that the Class R Certificate will not be owned directly or indirectly by a
disqualified organization, and
11. IF BRACKETED, THE FOLLOWING CERTIFICATIONS ARE INAPPLICABLE [the
transfer is not a direct or indirect transfer of the Class R Certificate to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of the Transferee, and as to each of the residual
interests represented by the Class R Certificate, the present value of the
anticipated tax liabilities associated with holding such residual interest does
not exceed the sum of:
A. the present value of any consideration given to the Transferee to
acquire such residual interest;
E-1-4
B. the present value of the expected future distributions on such residual
interest; and
C. the present value of the anticipated tax savings associated with holding
such residual interest as the related REMIC generates losses.
For purposes of this declaration, (i) the Transferee is assumed to pay tax at a
rate equal to the highest rate of tax specified in Section 11(b)(1) of the Code,
but the tax rate specified in Section 55(b)(1)(B) of the Code may be used in
lieu of the highest rate specified in Section 11(b)(1) of the Code if the
Transferee has been subject to the alternative minimum tax under Section 55 of
the Code in the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate, and (ii) present
values are computed using a discount rate equal to the Federal short-term rate
prescribed by Section 1274(d) of the Code for the month of the transfer and the
compounding period used by the Transferee;]
[11. (A) at the time of the transfer, and at the close of each of the
Transferee's two fiscal years preceding the Transferee's fiscal year of
transfer, the Transferee's gross assets for financial reporting purposes
exceed $100 million and its net assets for financial reporting purposes
exceed $10 million; and
(B) the Transferee is an eligible corporation as defined in Treasury
regulations Section 1.860E-1(c)(6)(i) and has agreed in writing that
any subsequent transfer of the Class R Certificate will be to another
eligible corporation in a transaction that satisfies Treasury
regulation Sections 1.860E-1(c)(4)(i), 1.860E-1(c)(4)(ii),
1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) and such transfer will not be a
direct or indirect transfer to a foreign permanent establishment
(within the meaning of an applicable income tax treaty) of a domestic
corporation.
For purposes of this declaration, the gross and net assets of the Transferee do
not include any obligation of any related person as defined in Treasury
regulation Section 1.860E-1(c)(6)(ii) or any other asset if a principal purpose
for holding or acquiring the other asset is to permit the Transferee to make
this declaration or to satisfy the requirements of Treasury regulation Section
1.860E-1(c)(5)(i).]
12. The Transferee will not cause income from the Class R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
For purpose of this affidavit, the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code and the term
"U.S. Person" means a citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to Unites States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary
E-1-5
supervision over the administration of such trust, and one or more such U.S.
Persons have the authority to control all substantial decisions of such trust,
(or, to the extent provided in applicable Treasury regulations, certain trusts
in existence on August 20, 1996 which are eligible to elect to be treated as
U.S. Persons).
-------------------------------------
By:
---------------------------------
Address of Investor for receipt of distribution:
________________________________________________
Address of Investor for receipt of tax information:
___________________________________________________
(Corporate Seal)
Attest:
________________________________
________________________________, Secretary
E-1-6
Personally appeared before me the above-named ______________, known or proved to
me to be the same person who executed the foregoing instrument and to be the
_______ of the Investor, and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this
day of ___________, 200_.
_____________________________________
Notary Public
County of ___________________________
State of ____________________________
My commission expires the ________ day of ______________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
E-1-7
EXHIBIT E-2
FORM OF TRANSFEROR'S AFFIDAVIT
[DATE]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - First Franklin Mortgage Loan
Trust, Series 2007-FFC
Re: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates,
Series 2007-FFC
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true, and has no reason to believe that the
Transferee has the intention to impede the assessment or collection of any
federal, state or local taxes legally required to be paid with respect to the
Class R Certificate referred to in the attached affidavit. In addition, the
Transferor has conducted a reasonable investigation at the time of the transfer
and found that the Transferee had historically paid its debts as they came due
and found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due.
Very truly yours,
----------------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE
[DATE]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - First Franklin Mortgage Loan
Trust, Series 2007-FFC
RE: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC
Ladies and Gentlemen:
In connection with our disposition of the Class [____] Certificate, we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act and (b) we have not offered or sold any Certificates to, or solicited offers
to buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action that would result in, a violation of Section 5 of the Act. All
capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement, dated as of May 1,
2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, LaSalle Bank
National Association, as trustee, and Home Loan Services, Inc., as servicer.
Very truly yours,
Name of Transferor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT G
FORM OF INVESTMENT LETTER
(ACCREDITED INVESTOR)
[DATE]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - First Franklin Mortgage Loan
Trust, Series 2007-FFC
Re: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from ________________
(the "Transferor") $_______ by original principal balance (the "Transferred
Certificates") of First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC, Class [____] (the "Certificates"), issued
pursuant to a Pooling and Servicing Agreement, dated as of May 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor (the "Depositor"), LaSalle Bank National Association, as
trustee (the "Trustee"), Home Loan Services, Inc., as servicer (the "Servicer").
[The Purchaser intends to register the Transferred Certificate in the name of
____________________, as nominee for _________________.] All terms used and not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Purchaser certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
1. The Purchaser understands that (a) the Certificates have not been
registered or qualified under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state, (b) neither the
Depositor nor the Trustee is required, and neither of them intends, to so
register or qualify the Certificates, (c) the Certificates cannot be resold
unless (i) they are registered and qualified under the Securities Act and the
applicable state securities laws or (ii) an exemption from registration and
qualification is available and (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates.
2. [Reserved]
3. The Certificates (other than the Class R Certificate) will bear a legend
to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED (THE "1940 ACT") OR ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND
MAY NOT, DIRECTLY OR INDIRECTLY, BE SOLD OR OTHERWISE TRANSFERRED, OR
OFFERED FOR SALE, UNLESS SUCH TRANSFER IS NOT SUBJECT TO REGISTRATION UNDER
THE ACT, THE 1940 ACT AND ANY APPLICABLE STATE SECURITIES LAWS AND SUCH
TRANSFER ALSO COMPLIES WITH THE OTHER PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT. IF THE CERTIFICATE IS A DEFINITIVE
CERTIFICATE, NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE
TRUSTEE SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE (A) AN INVESTMENT LETTER FROM THE PROSPECTIVE INVESTOR; AND (B)
REPRESENTATIONS FROM THE TRANSFEROR REGARDING THE OFFERING AND SALE OF THE
CERTIFICATES.
4. The ERISA Restricted Certificates will bear a legend to the following
effect:
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE HAS
RECEIVED (A) A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A PLAN SUBJECT
ANY TO STATE, LOCAL, FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY SIMILAR
TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS
CERTIFICATE BY, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH PLAN, (B) IF
THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS
ACQUIRING THE CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL
ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THE CERTIFICATE
ARE COVERED AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60, OR (C)
SOLELY IN THE EVENT THE CERTIFICATE IS A DEFINITIVE CERTIFICATE, AN OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE, AND UPON WHICH THE TRUSTEE AND THE
NIMS INSURER SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE ACQUISITION
AND HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF
ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF SIMILAR LAW AND WILL
NOT SUBJECT THE TRUSTEE, THE SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE POOLING AND SERVICING
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE,
THE SERVICER, THE NIMS INSURER OR THE DEPOSITOR. IF THE CERTIFICATE IS NOT
A DEFINITIVE CERTIFICATE, THE TRANSFEREE IS DEEMED TO HAVE MADE THE
REPRESENTATION IN (A) OR (B) ABOVE.
5. The Class R Certificate will bear a legend to the following effect:
THIS CLASS R CERTIFICATE MAY NOT BE TRANSFERRED, EXCEPT IN ACCORDANCE WITH
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
G-2
AND THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE ONLY IN ACCORDANCE WITH
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS
CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED, IN FORM
AND SUBSTANCE SATISFACTORY TO THE TRUSTEE (A) A TRANSFER AFFIDAVIT FROM THE
PROSPECTIVE INVESTOR; AND (B) AN AFFIDAVIT FROM THE TRANSFEROR REGARDING
THE OFFERING AND SALE OF THE CERTIFICATE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE WITH A REPRESENTATION THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO STATE, LOCAL,
FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW"), AND IS NOT DIRECTLY OR
INDIRECTLY ACQUIRING THIS CERTIFICATE BY, ON BEHALF OF, OR WITH ANY ASSETS
OF ANY SUCH PLAN.
6. The Purchaser is acquiring the Transferred Certificates for its own
account [FOR INVESTMENT ONLY] * and not with a view to or for sale or other
transfer in connection with any distribution of the Transferred Certificates in
any manner that would violate the Securities Act or any applicable state
securities laws, subject, nevertheless, to the understanding that disposition of
the Purchaser's property shall at all times be and remain within its control.
7. The Purchaser (a) is a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters, and in
particular in such matters related to securities similar to the Certificates,
such that it is capable of evaluating the merits and risks of investment in the
Certificates, (b) is able to bear the economic risks of such an investment and
(c) is an "accredited investor" within the meaning of Rule 501(a) promulgated
pursuant to the Securities Act.
8. The Purchaser will not nor has it authorized nor will it authorize any
person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security to
any person in any manner, (b) solicit any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest in
any Certificate or any other similar security with any person in any manner, (d)
make any general solicitation by means of general advertising or in any other
manner, or (e) take any other action, that would constitute a distribution of
any Certificate under the Securities Act or the Investment Company Act of 1940,
as amended (the "1940 Act"), that would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law, or that would require registration or qualification pursuant
thereto. Neither the Purchaser nor anyone acting on its behalf has offered the
Certificates for sale or made any general solicitation by means of general
advertising or in any other manner with respect to the Certificates. The
Purchaser will not sell or otherwise transfer any of the Certificates, except in
compliance with the provisions of the Pooling and Servicing Agreement.
----------
* Not required of a broker/dealer purchaser.
G-3
9. The Purchaser of an ERISA Restricted Certificate (A) is not an employee
benefit plan subject to Title I of ERISA, a plan subject to Section 4975 of the
Code, a plan subject to any state, local, federal, non-U.S. or other law
substantively similar to the foregoing provisions of ERISA or the Code ("Similar
Law") and is not directly or indirectly acquiring such Certificates by, on
behalf of, or with any assets of any such plan, or (B) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, is an insurance company
that is acquiring the Certificate with assets of an "insurance company general
account," as defined in Section V(e) of Prohibited Transaction Class Exemption
("PTCE") 95-60, and the acquisition and holding of the Certificate are covered
and exempt under Sections I and III of PTCE 95-60, or (C) solely in the event
the Certificate is a Definitive Certificate, herewith delivers an Opinion of
Counsel satisfactory to the Trustee, and upon which the Trustee and the NIMS
Insurer shall be entitled to rely, to the effect that the acquisition and
holding of the Certificate will not constitute or result in a nonexempt
prohibited transaction under Title I of ERISA or Section 4975 of the Code, or a
violation of Similar Law, and will not subject the Trustee, the Servicer, the
NIMs Insurer or the Depositor to any obligation in addition to those expressly
undertaken in the Pooling and Servicing Agreement, which Opinion of Counsel
shall not be an expense of the Trustee, the Servicer or the Depositor.
10. The Purchaser of a Class R Certificate is not an employee benefit plan
subject to Title I of ERISA, a plan subject to Section 4975 of the Code, a plan
subject to any state, local, federal, non-U.S. or other law substantively
similar to the foregoing provisions of ERISA or the Code ("Similar Law"), or a
Person directly or indirectly acquiring such Certificate by, on behalf of, or
with any assets of any such plan.
11. Prior to the sale or transfer by the Purchaser of any of the
Certificates, the Purchaser will obtain from any subsequent purchaser
substantially the same certifications, representations, warranties and covenants
contained in the foregoing paragraphs and in this letter or a letter
substantially in the form of Exhibit H to the Pooling and Servicing Agreement.
G-4
13. The Purchaser agrees to indemnify the Trustee, the Servicer and the
Depositor against any liability that may result from any misrepresentation made
herein.
Very truly yours,
[PURCHASER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-5
EXHIBIT H
FORM OF RULE 144A INVESTMENT LETTER
(Qualified Institutional Buyer)
[DATE]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - First Franklin Mortgage Loan
Trust, Series 2007-FFC
Re: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from ________________
(the "Transferor") $_______ by original principal balance (the "Transferred
Certificates") of First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC, Class [____] (the "Certificates"), issued
pursuant to a Pooling and Servicing Agreement, dated as of May 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor (the "Depositor"), LaSalle Bank National Association, as
trustee (the "Trustee"), Home Loan Services, Inc., as servicer (the "Servicer").
[THE PURCHASER INTENDS TO REGISTER THE TRANSFERRED CERTIFICATE IN THE NAME OF
____________________, AS NOMINEE FOR _________________.] All terms used and not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Purchaser certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
In connection with our acquisition of the above Transferred Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Transferred Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Transferred Certificates, (d) solely with respect to
ERISA Restricted Certificates, (A) we are not an employee benefit plan subject
to Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code"), a plan subject to any state, local, federal, non-U.S.
or other law substantively similar to the foregoing provisions of ERISA or the
Code ("Similar Law"), or Persons directly or indirectly acting on behalf of or
using any assets of any such plan, or (B), if the Certificate has been the
subject of an ERISA-Qualifying Underwriting, we are an insurance
company that is acquiring the Certificate with assets of an "insurance company
general account," as defined in Section V(e) of Prohibited Transaction Class
Exemption ("PTCE") 95-60, and the acquisition and holding of the Certificate are
covered and exempt under Sections I and III of PTCE 95-60, or (C) solely in the
event the Certificate is a Definitive Certificate, we will herewith deliver an
Opinion of Counsel satisfactory to the Trustee, and upon which the Trustee and
the NIMs Insrurer shall be entitled to rely, to the effect that the acquisition
and holding of the Certificate will not constitute or result in a nonexempt
prohibited transaction under Title I of ERISA or Section 4975 of the Code, or a
violation of Similar Law, and will not subject the Trustee, the Servicer, the
NIMs Insurer or the Depositor to any obligation in addition to those expressly
undertaken in the Pooling and Servicing Agreement, which Opinion of Counsel
shall not be an expense of the Trustee, the Servicer or the Depositor, (e) we
have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise disposed of the Certificates, any interest in the Certificates
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, and (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed one of the forms of certification to that effect attached
hereto as Annex 1 or Annex 2. We are aware that the sale of the Transferred
Certificates to us is being made in reliance on Rule 144A. We are acquiring the
Transferred Certificates for our own account or for resale pursuant to Rule 144A
and further understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed by us, based upon
certifications of such purchaser or information we have in our possession, to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
H-2
We agree to indemnify the Trustee, the Servicer and the Depositor against
any liability that may result from any misrepresentation made herein.
Very truly yours,
[PURCHASER]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
X-0
XXXXX 0
XXXXXXXXX XXXXXXXXXXXXX BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with the purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $____________ * in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
_______ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
_______ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by Federal, State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
_______ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over such institution or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
_______ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of
----------
* Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least $10,000,000
in securities.
H-4
the Securities Exchange Act of 1934, as amended.
_______ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of the State,
territory or the District of Columbia.
_______ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
_______ ERISA Plan. The Buyer is an employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974,
as amended.
_______ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940, as amended.
_______ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958, as amended.
_______ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940, as amended.
3. The term "securities" as used for purposes of the calculation of the
dollar amount in paragraph 2 excludes: (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iv) bank
deposit notes and certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
H-5
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
X-0
XXXXX 0
XXXXXXXXX XXXXXXXXXXXXX BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A"), because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
_________ The Buyer owned $___________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
_______ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $__________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
H-7
5. The Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
Print Name of Buyer
Date:
----------------------------------
H-8
EXHIBIT I
FORM OF REQUEST FOR RELEASE
[DATE]
To: LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Account Manager--FFML 2007-FFC
Re: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC
In connection with the administration of the Mortgage Loans held by you, as
Trustee, pursuant to the Pooling and Servicing Agreement, dated as of May 1,
2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, LaSalle Bank
National Association, as Trustee, Home Loan Services, Inc., as servicer (the
"Pooling and Servicing Agreement"), we request the release, and hereby
acknowledge receipt, of the Mortgage File for the Mortgage Loan described below,
for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
_________ 1. Mortgage Paid in Full
_________ 2. Foreclosure
_________ 3. Substitution
_________ 4. Other Liquidation (Repurchases, etc.)
_________ 5. Nonliquidation
_________ 6. Other Reason:
Address to which the Trustee should deliver the Mortgage File:
By:
------------------------------------
(authorized signer)
Address:
-------------------------------
Date:
----------------------------------
If box 1 or 2 above is checked, and if all or part of the Mortgage File was
previously released to us, please release to us our previous receipt on file
with you, as well as any additional documents in your possession relating to the
above specified Mortgage Loan.
If box 3, 4, 5 or 6 above is checked, upon our return of all of the above
documents to you as Trustee, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
Please acknowledge the execution of the above request by your signature and date
below:
LASALLE BANK NATIONAL ASSOCIATION
as Trustee
By:
---------------------------------
Signature Date
--------------------------- -----------------------
Documents returned to Trustee:
By:
---------------------------------
Signature Date
--------------------------- -----------------------
I-2
EXHIBIT J
[RESERVED]
J-1
EXHIBIT K
FORM OF BACK-UP CERTIFICATION OF TRUSTEE
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Home Loan Services, Inc.
000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of May 1, 2007,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Home Loan
Services, Inc., as servicer, and LaSalle Bank National Association, as
trustee, relating to First Franklin Mortgage Loan Trust, Mortgage Loan
Asset-Backed Certificates, Series 2007-FFC
The Trustee hereby certifies to the Depositor, the Servicer and their
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
(1) I have reviewed the annual report on Form 10-K for the fiscal year
[2007] (the "Annual Report"), and all reports on Form 8-K (if any) and on Form
10-D required to be filed in respect of the period covered by the Annual Report
(collectively with the Annual Report, the "Reports"), of the Issuing Entity;
(2) To the best of my knowledge, and assuming the accuracy of the
statements required to be made or data required to be delivered by the Servicer
and Depositor (to the extent that such statements or data were received by the
Trustee and are relevant to the statements made by the Trustee in this Back-Up
Certification), the information in the Reports relating to the trustee, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by the Annual Report;
(3) To the best of my knowledge, and assuming the accuracy of the
statements required to be made or data required to be delivered by the Servicer
and Depositor (to the extent that such statements or data were received by the
Trustee and are relevant to the statements made by the Trustee in this Back-Up
Certification), the distribution and any other information required to be
provided by the Trustee (other than information provided by or on behalf of the
Servicer, the Depositor or other third party) to the Depositor and each Servicer
under the Pooling and Servicing Agreement for inclusion in the Reports is
included in the Reports; and
(4) The report on assessment of compliance with servicing criteria for
asset-backed securities of the Trustee and its related attestation report on
assessment of compliance with servicing criteria required to be included in the
Annual Report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 has been included as an exhibit to the
Annual Report. Any material instances of non-compliance are described in such
report and have been disclosed in the Annual Report.
LaSalle Bank National Association,
as Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
K-2
EXHIBIT L
FORM OF OFFICER'S CERTIFICATE OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC
Home Loan Services, Inc. (the "Servicer") certifies to the Depositor and
the Trustee, and their officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
(1) I am responsible for reviewing the activities performed by the Servicer
under the Pooling and Servicing Agreement and I have reviewed, or persons under
my supervision have reviewed, the servicer compliance statement of the Servicer
and the compliance statements of each Sub-Servicer, if any, engaged by the
Servicer provided to the Depositor and the Trustee for the Issuing Entity's
fiscal year [___] in accordance with Item 1123 of Regulation AB (each a
"Compliance Statement"), the report on assessment of the Servicer's compliance
with the servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria") and reports on assessment of compliance with servicing
criteria for asset-backed securities of the Servicer and of each Sub-Servicer
[or Subcontractor], if any, engaged or utilized by the Servicer provided to the
Depositor and the Trustee for the Issuing Entity's fiscal year [___] in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (each a
"Servicing Assessment"), the registered public accounting firm's attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB related to each Servicing Assessment
(each a "Attestation Report"), and all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans by the
Servicer during 200[_] that were delivered or caused to be delivered by the
Servicer pursuant to the Agreement (collectively, the "Servicing Information");
(2) Based on my knowledge, and assuming the accuracy of the information
provided to the Servicer by third parties in connection with the performance of
the Servicer's duties under the Pooling and Servicing Agreement, the Servicing
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in the light of the circumstances under which such statements were made,
not misleading with respect to the period of time covered by the Servicing
Information;
(3) Based on my knowledge, the servicing information required to be
provided to the Trustee by the Servicer pursuant to the Pooling and Servicing
Agreement has been provided to the Trustee;
(4) Based on my knowledge and the compliance review conducted in preparing
each Compliance Statement of the Servicer and, if applicable, reviewing each
Compliance Statement of each Sub-Servicer, if any, engaged by the Servicer, and
except as disclosed in such Compliance Statement[(s)],
the Servicer [(directly and through its Sub-Servicers, if any)] has fulfilled
its obligations under the Pooling and Servicing Agreement in all material
respects.
(5) Each Servicing Assessment of the Servicer and of each Sub-Servicer [or
Subcontractor], if any, engaged or utilized by the Servicer and its related
Attestation Report required to be included in the Annual Report in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has
been provided to the Depositor and the Trustee. Any material instances of
non-compliance are described in any such Servicing Assessment or Attestation
Report.
Date:
-------------------
Home Loan Services, Inc.,
as Servicer
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
L-2
EXHIBIT M
[RESERVED]
EXHIBIT N
[RESERVED]
EXHIBIT O
FORM OF TRANSFEROR REPRESENTATION LETTER
FOR TRANSFER TO REGULATION S BOOK-ENTRY CERTIFICATE
FROM A HOLDER OF A RULE 144A BOOK-ENTRY CERTIFICATE OR DEFINITIVE CERTIFICATE
[DATE]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - First Franklin Mortgage Loan
Trust, Series 2007-FFC
RE: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC
Ladies and Gentlemen:
In connection with our disposition of the Class ___ Certificates which
are held in the form of Definitive Certificates or in the form of a beneficial
interest in a Rule 144A Book-Entry Certificate and to effect the transfer
pursuant to Regulation S under the Securities Act of 1933, as amended
("Regulation S") of the above Certificates in exchange for an equivalent
beneficial interest in a Regulation S Book-Entry Certificate, we hereby certify
that such transfer has been effected in accordance with (i) the transfer
restrictions set forth in the Pooling and Servicing Agreement, dated as of May
1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, LaSalle
Bank National Association, as Trustee, Home Loan Services, Inc., as Servicer,
and in the Certificates and (ii) in accordance with Regulation S, and that:
a. the offer of the Certificates was not made to a person in the
United States;
b. at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
c. no directed selling efforts have been made in contravention of the
requirements of Rule 903 or 904 of Regulation S, as applicable;
d. the transaction is not part of a plan or scheme to evade the
registration requirements of the United States Securities Act of 1933, as
amended; and
e. the transferee is not a U.S. Person (as defined by Regulation S).
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal Proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
Print Name of Transferor
By
----------------------------------
Authorized Officer
O-2
EXHIBIT P
FORM OF TRANSFEROR REPRESENTATION LETTER
FOR TRANSFER PURSUANT TO RULE 144A FROM A HOLDER OF
A REGULATION S BOOK-ENTRY CERTIFICATE OR DEFINITIVE CERTIFICATE
[DATE]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - First Franklin Mortgage Loan
Trust, Series 2007-FFC
RE: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC
Ladies and Gentlemen:
In connection with our disposition of the Class __ Certificates which
are held in the form of Definitive Certificates or in the form of a beneficial
interest in a Regulation S Book-Entry Certificate and to effect the transfer
pursuant to Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
of the above Certificates in exchange for an equivalent beneficial interest in a
Rule 144A Book-Entry Certificate or a Definitive Note, we hereby certify that
such Certificates are being transferred in accordance with (i) the transfer
restrictions set forth in the Pooling and Servicing Agreement, dated as of May
1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, La Salle
Bank National Association, as Trustee, Home Loan Services, Inc., as Servicer,
and in the Certificates and (ii) Rule 144A under the Securities Act of 1933, as
amended, to a transferee that we reasonably believe is purchasing the
Certificates for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a "qualified institutional buyer" within the meaning of Rule 144A, in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal Proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
Print Name of Transferor
By:
---------------------------------
Authorized Officer
EXHIBIT Q
[RESERVED]
EXHIBIT R
FORM OF ASSESSMENT OF COMPLIANCE
1. [Name of Servicing Entity] ("XYZ") is responsible for assessing compliance
with the servicing criteria applicable to it under paragraph (d) of Item
1122 of Regulation AB, as of and for the 12-month period ending [December
31, _____] (the "Reporting Period"), as set forth in Appendix ____ hereto.
The transactions covered by this report are attached hereto as Appendix B
and include asset-backed securities transactions for which the undersigned
servicing entity has acted as a servicer involving residential mortgage
loans (the "Platform").The transactions covered by this report include
asset-backed securities transactions [for which XYZ acted as [master
servicer, servicer, trustee, securities administrator, custodian] (the
"Platform");
2. XYZ has engaged certain vendors (the "Vendors") to perform specific,
limited or scripted activities, and XYZ elects to take responsibility for
assessing compliance with the servicing criteria or portion of the
servicing criteria applicable to such Vendors' activities as set forth in
Appendix ___ hereto;
3. Except as set forth in paragraph 4 below, XYZ used the criteria set forth
in paragraph (d) of Item 1122 of Regulation AB to assess the compliance
with the applicable servicing criteria;
4. The criteria referred to as "inapplicable servicing criteria" on Appendix
___ hereto are inapplicable to XYZ based on the activities it performs,
directly or through its Vendors, with respect to the Platform;
5. XYZ has complied, in all material respects, with the applicable servicing
criteria as of [December 31, _____] and for the Reporting Period with
respect to the Platform taken as a whole[, except as described on Appendix
B hereto];
6. XYZ has not identified and is not aware of any material instance of
noncompliance by the Vendors with the applicable servicing criteria as of
[December 31, _____] and for the Reporting Period with respect to the
Platform taken as a whole [, except as described on Appendix ____ hereto];
7. XYZ has not identified any material deficiency in its policies and
procedures to monitor the compliance by the Vendors with the applicable
servicing criteria as of [December 31, ______] and for the Reporting Period
with respect to the Platform taken as a whole [, except as described on
Appendix B hereto]; and
8. [_____________], a registered public accounting firm, has issued an
attestation report on XYZ's assessment of compliance with the applicable
servicing criteria for the Reporting Period.
[Date of Certification] [Name of Servicing Entity]
BY:
------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
EXHIBIT S
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS unless otherwise noted)
DEFINITIONS KEY:
PRIMARY SERVICER - transaction party having borrower contact X - obligation
TRUSTEE - fiduciary of the transaction and safe keeper of certain pool assets
CUSTODIAN - safe keeper of certain pool assets
WHERE THERE ARE MULTIPLE CHECKS FOR CRITERIA THE ATTESTING PARTY WILL IDENTIFY
IN THEIR MANAGEMENT ASSERTION THAT THEY ARE ATTESTING ONLY TO THE PORTION OF THE
DISTRIBUTION CHAIN THEY ARE RESPONSIBLE FOR IN THE RELATED TRANSACTION
AGREEMENTS.
HOME LOAN
SERVICES, LASALLE
REGULATION AB INC. BANK ADDITIONAL
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) INFORMATION
------------- ---------------------------------- ------------- ----------- ---------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are X X Servicer and
instituted to monitor any Trustee each
performance or other triggers and responsible only to
events of default in accordance the extent that
with the transaction agreements. each party, as
applicable, has
actual knowledge or
written notice with
respect to parties
other than itself.
1122(d)(1)(ii) If any material servicing IF APPLICABLE IF
activities are outsourced to third FOR A APPLICABLE
parties, policies and procedures TRANSACTION FOR A
are instituted to monitor the PARTICIPANT TRANSACTION
third party's performance and PARTICIPANT
compliance with such servicing
activities.
1122(d)(1)(iii) Any requirements in the N/A N/A
transaction agreements to maintain
a back-up servicer for the Pool
Assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and X
omissions policy is in effect on
the party participating in the
servicing function throughout the
reporting period in the amount of
coverage required by and otherwise
in accordance with the terms of
the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are X X Servicer and
deposited into the appropriate Trustee each
custodial bank accounts and responsible only
related bank clearing accounts no for deposits into
more than two business the accounts held
by it.
HOME LOAN
SERVICES, LASALLE
REGULATION AB INC. BANK ADDITIONAL
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) INFORMATION
------------- ---------------------------------- ------------- ----------- ---------------------
days following receipt, or such
other number of days specified in
the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire X X Servicer disburses
transfer on behalf of an obligor funds to trustee.
or to an investor are made only by Trustee disburses
authorized personnel. funds to
certificateholders.
1122(d)(2)(iii) Advances of funds or guarantees X
regarding collections, cash flows
or distributions, and any interest
or other fees charged for such
advances, are made, reviewed and
approved as specified in the
transaction agreements.
1122(d)(2)(iv) The related accounts for the X X Servicer needs to
transaction, such as cash reserve provide only if it
accounts or accounts established is deemed that the
as a form of over related Collection
collateralization, are separately Account is subject
maintained (e.g., with respect to to this criteria.
commingling of cash) as set forth
in the transaction agreements.
1122(d)(2)(v) Each custodial account is X X
maintained at a federally insured
depository institution as set
forth in the transaction
agreements. For purposes of this
criterion, "federally insured
depository institution" with
respect to a foreign financial
institution means a foreign
financial institution that meets
the requirements of Rule
13k-1(b)(1) of the Securities
Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so X X
as to prevent unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a X X
monthly basis for all asset-backed
securities related bank accounts,
including custodial accounts and
related bank clearing accounts.
These reconciliations are (A)
mathematically accurate; (B)
prepared within 30 calendar days
after the bank statement cutoff
date, or such other number of days
specified in the transaction
agreements; (C) reviewed and
approved by someone other than the
person who prepared the
reconciliation; and (D) contain
explanations for reconciling
items. These reconciling items are
resolved within 90 calendar days
of their original identification,
or such other number of days
specified in the transaction
agreements.
INVESTOR REMITTANCES AND REPORTING
S-2
HOME LOAN
SERVICES, LASALLE
REGULATION AB INC. BANK ADDITIONAL
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) INFORMATION
------------- ---------------------------------- ------------- ----------- ---------------------
1122(d)(3)(i) Reports to investors, including (A), (B) & X
those to be filed with the (D) ONLY
Commission, are maintained in
accordance with the transaction
agreements and applicable
Commission requirements.
Specifically, such reports (A) are
prepared in accordance with
timeframes and other terms set
forth in the transaction
agreements; (B) provide
information calculated in
accordance with the terms
specified in the transaction
agreements; (C) are filed with the
Commission as required by its
rules and regulations; and (D)
agree with investors' or the
trustee's records as to the total
unpaid principal balance and
number of Pool Assets serviced by
the Servicer.
1122(d)(3)(ii) Amounts due to investors are X X Servicer remits
allocated and remitted in cash and loan level
accordance with timeframes, data to Trustee
distribution priority and other based on timelines
terms set forth in the transaction established in the
agreements. Pooling and
Servicing Agreement.
The Trustee is
responsible for the
allocation of funds
to Certificateholders
using the appropriate
distribution priority
as established by the
Pooling and Servicing
Agreement.
1122(d)(3)(iii) Disbursements made to an investor X X Trustee disburses
are posted within two business funds to
days to the Servicer's investor Certificateholders.
records, or such other number of
days specified in the transaction
agreements.
1122(d)(3)(iv) Amounts remitted to investors per X X Servicer remits
the investor reports agree with funds and provides
cancelled checks, or other form of certain investor
payment, or custodial bank reports to Trustee
statements. within guidelines
and timeframes
established in
Pooling and Servicing
Agreement. Trustee
disburses funds to
certificateholders.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool X X Servicer shall not
assets is maintained as required attest to the
by the transaction agreements or performance of
related pool
S-3
HOME LOAN
SERVICES, LASALLE
REGULATION AB INC. BANK ADDITIONAL
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) INFORMATION
------------- ---------------------------------- ------------- ----------- ---------------------
asset documents. obligations of the
Custodian under the
transaction
agreement.
1122(d)(4)(ii) Pool assets and related documents X X Custodian
are safeguarded as required by the responsibility with
transaction agreements. respect to the
Mortgage Files
1122(d)(4)(iii) Any additions, removals or X X Trustee shall only
substitutions to the asset pool review, not
are made, reviewed and approved in approve, such
accordance with any conditions or additions, removals
requirements in the transaction or substitutions in
agreements. accordance with the
transaction
agreements.
1122(d)(4)(iv) Payments on pool assets, including X
any payoffs, made in accordance
with the related pool asset
documents are posted to the
Servicer's obligor records
maintained no more than two
business days after receipt, or
such other number of days
specified in the transaction
agreements, and allocated to
principal, interest or other items
(e.g., escrow) in accordance with
the related pool asset documents.
1122(d)(4)(v) The Servicer's records regarding X
the pool assets agree with the
Servicer's records with respect to
an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms X
or status of an obligor's pool
assets (e.g., loan modifications
or re-agings) are made, reviewed
and approved by authorized
personnel in accordance with the
transaction agreements and related
pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery X
actions (e.g., forbearance plans,
modifications and deeds in lieu of
foreclosure, foreclosures and
repossessions, as applicable) are
initiated, conducted and concluded
in accordance with the timeframes
or other requirements established
by the transaction agreements.
1122(d)(4)(viii) Records documenting collection X
efforts are maintained during the
period a pool asset is delinquent
in accordance with the transaction
agreements. Such records are
S-4
HOME LOAN
SERVICES, LASALLE
REGULATION AB INC. BANK ADDITIONAL
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) INFORMATION
------------- ---------------------------------- ------------- ----------- ---------------------
maintained on at least a monthly
basis, or such other period
specified in the transaction
agreements, and describe the
entity's activities in monitoring
delinquent pool assets including,
for example, phone calls, letters
and payment rescheduling plans in
cases where delinquency is deemed
temporary (e.g., illness or
unemployment).
1122(d)(4)(ix) Adjustments to interest rates or X
rates of return for pool assets
with variable rates are computed
based on the related pool asset
documents.
1122(d)(4)(x) Regarding any funds held in trust X
for an obligor (such as escrow
accounts): (A) such funds are
analyzed, in accordance with the
obligor's pool asset documents, on
at least an annual basis, or such
other period specified in the
transaction agreements; (B)
interest on such funds is paid, or
credited, to obligors in
accordance with applicable pool
asset documents and state laws;
and (C) such funds are returned to
the obligor within 30 calendar
days of full repayment of the
related pool assets, or such other
number of days specified in the
transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an X Servicing function
obligor (such as tax or insurance participant
payments) are made on or before reponsibility
the related penalty or expiration
dates, as indicated on the
appropriate bills or notices for
such payments, provided that such
support has been received by the
servicer at least 30 calendar days
prior to these dates, or such
other number of days specified in
the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in X Servicing function
connection with any payment to be participant
made on behalf of an obligor are reponsibility
paid from the Servicer's funds and
not charged to the obligor, unless
the late payment was due to the
obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an X
obligor are posted within two
business days to the obligor's
records maintained by the
servicer, or such other number of
days specified in the transaction
agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and X
uncollectible accounts are
recognized
S-5
HOME LOAN
SERVICES, LASALLE
REGULATION AB INC. BANK ADDITIONAL
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) INFORMATION
------------- ---------------------------------- ------------- ----------- ---------------------
and recorded in accordance with
the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other X
support, identified in Item
1114(a)(1) through (3) or Item
1115 of Regulation AB, is
maintained as set forth in the
transaction agreements.
S-6
EXHIBIT T
FORM OF XXXXXXXX-XXXXX CERTIFICATIONS
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Home Loan Services, Inc.
000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Re: First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K of
[identify the issuing entity] (the "Exchange Act periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the servicer(s)
and based on my knowledge and the compliance review(s) conducted in preparing
the servicer compliance statement(s) required in this report under Item 1123 of
Regulation AB, and except as disclosed in the Exchange Act periodic reports, the
servicer(s) [has/have] fulfilled [its/their] obligations under the servicing
agreement(s); and]
5. All of the reports on assessment of compliance with servicing criteria for
ABS and their related attestation reports on assessment of compliance with
servicing criteria for asset-backed securities required to be included in this
report in accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form 10-K.
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, sub-servicer, co-servicer, depositor or trustee].]
Date:
-------------------------------
-------------------------------------
[Signature]
[Title]
-----------------------------
T-2
EXHIBIT U
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - First Franklin Mortgage
Loan Trust, Series 2007-FFC
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of May 1, 2007,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Home Loan
Services, Inc., as servicer, and LaSalle Bank National Association, as
trustee, relating to First Franklin Mortgage Loan Trust, Mortgage Loan
Asset-Backed Certificates, Series 2007-FFC
I, [identify name of certifying individual], [title of certifying individual] of
Home Loan Services, Inc. (the "Servicer"), hereby certify that:
(1) A review of the activities of the Servicer during the preceding
calendar year and of the performance of the Servicer under the Agreement has
been made under my supervision; and
(2) To the best of my knowledge, based on such review, the Servicer has
fulfilled all its obligations under the Agreement in all material respects
throughout such year or a portion thereof[, or, if there has been a failure to
fulfill any such obligation in any material respect, I have specified below each
such failure known to me and the nature and status thereof].
Date:
-------------------------------
Home Loan Services, Inc.,
as Servicer
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
U-1
EXHIBIT V
FORM OF DELINQUENCY REPORT
STANDARD FILE LAYOUT - DELINQUENCY REPORTING
FORMAT
COLUMN/HEADER NAME DESCRIPTION DECIMAL COMMENT
------------------ ----------- ------- ----------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the
originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of loans in
their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due MM/DD/YYYY
to the servicer at the end of processing cycle, as
reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been MM/DD/YYYY
approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a Motion
For Relief Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan
Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To MM/DD/YYYY
End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer MM/DD/YYYY
with instructions to begin foreclosure
proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure
Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected MM/DD/YYYY
to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the MM/DD/YYYY
property from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or dollar
signs ($)
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or dollar
signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by MM/DD/YYYY
the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is scheduled MM/DD/YYYY
to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the
property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on 2
brokers price opinion or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop
paying on a loan. Code indicates the reason why
the loan is in default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With MM/DD/YYYY
Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or dollar
signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or dollar
signs
V-2
($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By MM/DD/YYYY
The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or dollar
signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or dollar
signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or dollar
signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or dollar
signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or dollar
signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or dollar
signs ($)
V-3
STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
ASUM - Approved Assumption
BAP - Borrower Assistance Program
CO - Charge Off
DIL - Deed-in-Lieu
FFA - Formal Forbearance Agreement
MOD - Loan Modification
PRE - Pre-Sale
SS - Short Sale
MISC - Anything else approved by the PMI or Pool Insurer
NOTE: LaSalle Bank National Association will accept alternative Loss Mitigation
Types to those above, provided that they are consistent with industry standards.
If Loss Mitigation Types other than those above are used, the Servicer must
supply LaSalle Bank National Association with a description of each of the Loss
Mitigation Types prior to sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
Mortgagor
Tenant
Unknown
Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
Damaged
Excellent
Fair
Gone
Good
Poor
Special Hazard
Unknown
V-4
EXHIBIT W-1
FORM OF CLASS A CERTIFICATE GUARANTY INSURANCE POLICY
CERTIFICATE GUARANTY INSURANCE POLICY ENDORSEMENT
Attached to and forming Effective Date of Endorsement:
part of Policy No. AB1082BE May 29, 2007
issued to:
LaSalle Bank National Association, as Trustee on behalf of, and for the
benefit of the Holders of, the First Franklin Mortgage Loan Trust, Series
2007-FFC, Mortgage Loan Asset-Backed Certificates, Class A-1 and Class A-2
Certificates
For all purposes of this Policy, the following terms shall have the
following meanings:
"Agreement" shall mean the Pooling and Servicing Agreement, dated as of May
1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Home Loan
Services, Inc., as Servicer, and LaSalle Bank National Association, as Trustee,
as such Agreement may be amended, modified or supplemented from time to time as
set forth in the Agreement.
"Class A Certificates" shall mean, together, the Class A-1 Certificates and
the Class A-2 Certificates.
"Deficiency Amount" shall, as applied to the Class A Certificates mean (A)
with respect to each Distribution Date prior to the Final Scheduled Distribution
Date, an amount equal to the sum of (i) the excess, if any, of (a) the aggregate
amount of the Current Interest on the Class A Certificates for that Distribution
Date over (b) the funds available to make payment thereof pursuant to Section
4.04 of the Agreement for that Distribution Date and (ii) the aggregate amount,
if any, by which the aggregate Certificate Principal Balance of the Class A
Certificates (after giving effect to all distributions of funds available
therefor on such Distribution Date) exceeds the aggregate Stated Principal
Balance of the Mortgage Loans on the last day of the related Due Period; and (B)
with respect to the Final Scheduled Distribution Date and the Class A
Certificates, an amount equal to the sum of (i) the excess, if any, of (a) the
amount of the Current Interest on the Class A Certificates for the Final
Scheduled Distribution Date over (b) the funds available to make payment thereof
pursuant to Section 4.04 of the Agreement for the Final Scheduled Distribution
Date and (ii) the outstanding Certificate Principal Balance of the Class A
Certificates due on the Final Scheduled Distribution Date to the extent not paid
from funds available therefor on the Final Scheduled Distribution Date. Any
Deficiency Amount shall not include any Prepayment Interest Shortfalls, any
Relief Act Shortfalls, or any amount in
W-2-1
respect of the reduction in the amount of interest payable on the Class A
Certificates as a result of the application of the related Available Funds Cap.
"Distribution Date" shall mean the 25th day of each month (or if such 25th
day is not a Business Day, the first Business Day immediately following)
beginning with the First Distribution Date.
"Due for Payment" shall mean, with respect to any Insured Amounts, such
amount that is due and payable under the Agreement for such Distribution Date.
"Final Scheduled Distribution Date" shall mean, with respect to the Class A
Certificates, the Distribution Date in June 2027.
"First Distribution Date" shall mean June 25, 2007.
"Holder" shall mean any person who is the registered owner or beneficial
owner of any of the Class A Certificates, other than the Servicer, the Sponsor,
the Originator, the Depositor, the Trustee or any of their Affiliates, or any
person whose obligations constitute the underlying security or source of payment
for the Class A Certificates who, at the time of Nonpayment, is the owner of a
Class A Certificate or of a coupon relating to a Class A Certificate.
"Insurance Agreement" shall mean that certain Insurance and Indemnity
Agreement, dated as of May 29, 2007, among the Insurer, Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor, Home Loan Services, Inc., as Servicer, Xxxxxxx
Xxxxx Mortgage Lending, Inc., as Sponsor, and the Trustee, in regard to the
Class A Certificates, as such agreement may be amended, modified or supplemented
from time to time.
"Insurance Policy" or "Policy" shall mean this Certificate Guaranty
Insurance Policy together with each and every endorsement hereto.
"Insured Amounts" (1) shall mean, with respect to any Distribution Date,
any Deficiency Amount plus any Preference Amount and (2) shall mean, with
respect to the Final Scheduled Distribution Date, the Deficiency Amount for the
Final Scheduled Distribution Date.
"Insured Obligations" shall mean the Class A Certificates as issued
pursuant to the Agreement.
"Insured Payments" shall mean, with respect to any Distribution Date, the
aggregate amount actually paid by the Insurer to, or at the direction of, the
Trustee in respect of Insured Amounts for such Distribution Date.
"Insurer" shall mean Ambac Assurance Corporation, or any successor thereto,
as issuer of the Insurance Policy.
W-1-2
"Late Payment Rate" shall mean the lesser of (a) the greater of (i) the per
annum rate of interest publicly announced from time to time by Citibank, N.A. as
its prime or base lending rate plus two (2) percent per annum (any change in
such rate of interest to be effective on the date such change is announced by
Citibank, N.A.), and (ii) the then applicable highest rate of interest on the
Class A Certificates, and (b) the maximum rate permissible under applicable
usury or similar laws limiting interest rates. The Late Payment Rate shall be
computed on the basis of the actual number of days elapsed over a year of 360
days for any Distribution Date.
"Maximum Insured Amount" shall mean $616,727,000 in respect of principal,
plus interest thereon calculated at the applicable Pass-Through Rate for the
Class A Certificates.
"Nonpayment" shall mean, with respect to any Distribution Date, an Insured
Amount which is Due for Payment but has not and will not be paid in respect of
such Distribution Date pursuant to the Agreement.
"Notice" shall mean the telephonic or telegraphic notice, promptly
confirmed in writing by telecopy substantially in the form of Exhibit A to the
Policy, the original of which is subsequently delivered by overnight, registered
or certified mail, from the Trustee specifying the Insured Amount which shall be
due and owing on the applicable Distribution Date.
"Preference Amount" shall mean any amount previously distributed to a Class
A Certificateholder, by or on behalf of the Trust Estate that is recoverable and
sought to be recovered as a voidable preference by a trustee in bankruptcy
pursuant to the United States Bankruptcy Code (11 U.S.C.), as amended from time
to time, in accordance with a final nonappealable order of a court having
competent jurisdiction.
"Premium" shall mean the premium amount payable to the Insurer on each
Distribution Date in accordance with this Policy and the Insurance Agreement.
"Premium Percentage" shall have the meaning set forth in the Insurance
Agreement.
"Reimbursement Amount" shall mean, as of any Distribution Date, the sum of
(x) (i) all Insured Payments paid by the Insurer, but for which the Insurer has
not been reimbursed prior to such Distribution Date pursuant to Section 4.04 of
the Agreement, plus (ii) interest accrued thereon, calculated at the Late
Payment Rate from the date the Trustee received the Insured Payments to the date
reimbursed to the Insurer, and (y) (i) any other amounts then due and owing to
the Insurer under this Policy, the Insurance and Indemnity Agreement or the
Agreement but for which the Insurer has not been reimbursed prior to such
Distribution Date pursuant to Section 4.04 of the Agreement plus (ii) interest
on such amounts calculated at the Late Payment Rate from the date such amounts
are due to the date reimbursed to the Insurer.
"Term of the Policy" shall mean the period from and including the date of
issuance of the Policy to and including the date on which (i) the Certificate
Principal Balance of the Class A Certificates is reduced to zero, (ii) any
period during which any payment of the Class A Certificates could have been
avoided in whole or in part as a preference payment under
W-1-3
applicable bankruptcy, insolvency, receivership or similar law has expired, and
(iii) if any proceedings requisite to avoidance as a preference payment have
been commenced prior to the occurrence of (i) and (ii), a final and
nonappealable order in resolution of each such proceeding has been entered.
"Trustee" shall mean LaSalle Bank National Association, or any successor
thereto under the Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Agreement.
The Insurer hereby agrees that if, as of any Distribution Date, it has
become subrogated to the rights of Holders by virtue of a previous payment under
this Policy, no recovery of such payment will occur unless the full amount of
the Holders' allocable distributions for such Distribution Date can be made. In
so doing, the Insurer does not waive its rights to seek full payment of all
Reimbursement Amounts owed to it under the Agreement and this Policy.
As provided by the Policy, the Insurer will pay any amount payable
hereunder, other than Preference Amounts, no later than 12:00 noon, New York
City time, on the later of the Distribution Date on which the Deficiency Amount
is due or the second Business Day following actual receipt in New York, New York
on a Business Day by the Insurer of a Notice; provided that, if such Notice is
received after 12:00 noon, New York City time, on such Business Day, it shall be
deemed to be received on the following Business Day. Any Notice received by the
Insurer after 12:00 noon, New York City time, on a given Business Day shall be
deemed to have been received by the Insurer on the following Business Day. If
any such Notice is not in proper form or is otherwise insufficient for the
purpose of making a claim under the Policy, it shall be deemed not to have been
received for purposes of this paragraph, and the Insurer shall promptly so
advise the Trustee and the Trustee may submit an amended or corrected Notice.
The Insurer shall pay any Preference Amount when due to be paid pursuant to
the Order referred to below, but in any event no earlier than the third Business
Day following actual receipt by the Insurer of (i) a certified copy of a final,
non-appealable order of a court or other body exercising jurisdiction in such
insolvency proceeding to the effect that the Trustee or the Holder, as
applicable, is required to return such Preference Amount paid during the term of
this Policy because such payments were avoided as a preferential transfer or
otherwise rescinded or required to be restored by the Trustee or the Holder, as
applicable (the "Order"), (ii) an opinion of counsel satisfactory to the
Insurer, stating that such Order has been entered and is final and not subject
to any stay, (iii) an assignment, in form and substance satisfactory to the
Insurer, duly executed and delivered by the Trustee or the Holder, as
applicable, irrevocably assigning to the Insurer all rights and claims of the
Trustee or the Holder, as applicable, relating to or arising under the Agreement
or otherwise with respect to such Preference Amount, (iv) appropriate
instruments in form satisfactory to the Insurer to effect the appointment of the
Insurer as agent for the Trustee or the Holder, as applicable, in any legal
proceeding relating to such Preference Amount and (v) a Notice of Nonpayment
(attached hereto as Exhibit A) appropriately completed and executed by the
Trustee; provided that if such documents are received by the Insurer after 12:00
noon (New
W-1-4
York City time) on such Business Day, they will be deemed to be received on the
following Business Day.
Such payment shall be disbursed to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the Order, and not to the
Trustee or the Holder, as applicable, directly, unless the Trustee or the
Holder, as applicable, has made a payment of the Preference Amount to the court
or such receiver, conservator, debtor-in-possession or trustee in bankruptcy
named in the Order, in which case the Insurer will pay the Trustee on behalf of
the Holder, to the extent of the payment of the Preference Amounts, subject to
the delivery of (a) the items referred to in clauses (i), (ii), (iii), (iv) and
(v) above to the Insurer and (b) evidence satisfactory to the Insurer that
payment has been made to such court or receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the Order.
Notwithstanding the foregoing two sentences, the Insurer shall not be obligated
to pay any Preference Amount in respect of principal prior to the time the
Insurer would have been required to make a payment in respect of such principal
pursuant to the first paragraph of the face of the Policy. Any Preference Amount
that constitutes interest will be limited to the amount of interest on the
Outstanding Principal Amount of the Class A Certificates (calculated at the
related Pass-Through Rate) accrued as of the last day of the applicable Accrual
Period and will not, in any event, include any interest on the Class A
Certificates, accrued after such date or any interest on such interest amount.
Notwithstanding anything to the contrary contained herein, the aggregate
Deficiency Amount described above which may be paid under the Policy shall not
exceed the Maximum Insured Amount.
The Insurer's obligations under the Policy with respect to Insured Amounts
will be discharged to the extent funds are transferred to the Trustee as
provided in the Policy, whether or not the funds are properly applied by the
Trustee.
The terms and provisions of the Agreement constitute the instrument of
assignment referred to in the second paragraph of the face of the Policy.
A Premium will be payable on this Policy on each Distribution Date as
provided in Section 4.04 of the Agreement and the Insurance Agreement. The
Premium on the Policy is not refundable for any reason, including the lack of
any payment under the Policy or any other circumstances relating to the Class A
Certificates, or provision for the Class A Certificates being paid prior to
maturity.
Payments due under the Policy with respect to the Class A Certificates may
not, except with the consent of the Insurer, be accelerated by the Depositor,
the Trustee or any paying agent for the Class A Certificates.
The Policy to which this Endorsement is attached and of which it forms a
part is hereby amended to provide that there shall be no acceleration payment
due under the Policy unless such acceleration is at the sole option of the
Insurer. The Policy does not cover:
W-1-5
- Prepayment Interest Shortfalls, Relief Act Shortfalls or default
interest, nor does the Policy guarantee to the Holders any particular
rate of principal payment;
- any amount in respect of the reduction in the amount of interest
payable on the Class A Certificates as a result of the application of
the related Available Funds Cap;
- premiums, if any, payable in respect of the Class A Certificates;
- shortfalls, if any, attributable to the liability of the Trust Fund,
any REMIC or the Trustee for withholding taxes, if any (including
penalties and interest in respect of any such liability); or
- any risk other than Nonpayment, including the failure of the Trustee
to apply, disburse, transfer or direct policy payments or available
funds or other amounts in accordance with the Agreement to Holders or
to any other party.
Upon any payment under the Policy, in furtherance and not in limitation of
the Insurer's equitable right of subrogation and the Insurer's rights under the
Insurance Agreement, the Insurer will, to the extent of such payment by the
Insurer under the Policy, be subrogated to the rights of any Holder, to receive
any and all amounts due in respect of such Class A Certificates as to which such
payment under the Policy was made, to the extent of any payment by the Insurer
under the Policy.
Nothing herein contained shall be held to vary, alter, waive or extend any
of the terms, conditions, provisions, agreements or limitations of the above
mentioned Policy other than as above stated. Notwithstanding the foregoing
sentence, if there is any conflict or inconsistency between the Policy and this
Endorsement, the terms of this Endorsement shall control.
No waiver of any rights or powers of the Insurer, the Holders or the
Trustee or consent by any of them shall be valid unless signed by an authorized
officer or agent thereof.
On and after the completion of the Term of the Policy, the Policy shall be
void and of no force and effect whatsoever.
This Policy is issued under and pursuant to, and shall be construed under,
the laws of the State of New York (without giving effect to the conflict of laws
provisions thereof).
THE INSURANCE PROVIDED BY THE POLICY IS NOT COVERED BY THE
PROPERTY/CASUALTY INSURANCE SECURITY FUND SPECIFIED IN ARTICLE 76 OF THE NEW
YORK INSURANCE LAW.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
W-1-6
IN WITNESS WHEREOF, the Insurer has caused this Endorsement to the Policy
to be signed by its duly authorized officers.
First Vice President Assistant Secretary
W-1-7
EXHIBIT A
TO THE CERTIFICATE GUARANTY INSURANCE POLICY
Policy No. AB1082BE
NOTICE OF NONPAYMENT AND DEMAND
FOR PAYMENT OF INSURED AMOUNTS
Date: [__________]
AMBAC ASSURANCE CORPORATION
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Reference is made to Certificate Guaranty Insurance Policy No.
AB1082BE (the "Policy") issued by Ambac Assurance Corporation ("Ambac"). Terms
capitalized herein and not otherwise defined shall have the meanings specified
in the Policy and the Pooling and Servicing Agreement, dated as of May 1, 2007,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Home Loan Services,
Inc., as Servicer, and LaSalle Bank National Association, as Trustee (as such
Agreement may be amended, modified or supplemented from time to time as set
forth in the Agreement) (the "Agreement"), as the case may be, unless the
context otherwise requires.
The Trustee hereby certifies as follows:
1. The Trustee is the Trustee under the Agreement for the
Certificateholders.
2. The relevant Distribution Date or Final Scheduled Distribution
Date is [date].
3. Payment on the Class A Certificates in respect of the
Distribution Date is due to be received on
____________________________ under the Agreement, in an amount
equal to $_____________________.
[3. The amount to be received on ____________________ from the sale,
liquidation or other disposition of the assets of the Trust
Estate is $__________.]
[3. The amount to be paid to the Holders of the Class A Certificates
on the Final Scheduled Distribution Date is $__________.]
W-1-8
4. There is a Deficiency Amount and/or a Preference Amount of
$______________ due in respect of the Class A Certificates, which
amount is an Insured Amount pursuant to the terms of the
Agreement.
5. The sum of $__________________ is the Insured Amount that is Due
For Payment.
6. The Trustee has not heretofore made a demand for the Insured
Amount in respect of the Distribution Date.
7. The Trustee hereby requests the payment of the Insured Amount
that is Due for Payment be made by Ambac under the Policy and
directs that payment under the Policy be made to the following
account by bank wire transfer of federal or other immediately
available funds in accordance with the terms of the Policy to:
____________________________________ Trustee's account number.
8. The Trustee hereby agrees that, following receipt of the Insured
Amount from Ambac, it shall (a) hold such amounts in trust and
apply the same directly to the distribution of payment on the
Class A Certificates when due; (b) not apply such funds for any
other purpose; (c) deposit such funds to the Insurance Account
and not commingle such funds with other funds held by the Trustee
and (d) maintain an accurate record of such payments with respect
to the Class A Certificates and the corresponding claim on the
Policy and proceeds thereof.
By: Trustee
------------------------------------
Title
----------------------------------
(Officer)
W-1-9
EXHIBIT W-2
FORM OF INSURANCE AGREEMENT
W-2-1
AMBAC ASSURANCE CORPORATION,
as Insurer,
XXXXXXX XXXXX MORTGAGE LENDING, INC.,
as Sponsor,
HOME LOAN SERVICES, INC.,
as Servicer
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Depositor
FIRST FRANKLIN FINANCIAL CORPORATION,
as Originator
and
LASALLE BANK, NATIONAL ASSOCIATION,
as Trustee
INSURANCE AND INDEMNITY AGREEMENT
FIRST FRANKLIN MORTGAGE LOAN TRUST, SERIES 2007-FFC, MORTGAGE
LOAN ASSET-BACKED CERTIFICATES, CLASS A
Dated as of May 29, 2007
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only and shall not be
deemed to be part of this Agreement. All capitalized terms used in this
Agreement and not otherwise defined shall have the meanings set forth in Article
I of this Agreement.)
Page
----
ARTICLE I DEFINITIONS................................................... 2
Section 1.01. Defined Terms........................................... 2
Section 1.02. Other Definitional Provisions........................... 4
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS.................... 5
Section 2.01. Representations and Warranties of the Sponsor, the
Servicer, the Originator, and the Depositor.......... 5
Section 2.02. Affirmative Covenants of the Sponsor, the Servicer, the
Originator and the Depositor......................... 9
Section 2.03. Negative Covenants of the Sponsor, the Servicer, the
Originator and the Depositor......................... 16
Section 2.04. Representations, Warranties and Covenants of the
Insurer.............................................. 17
ARTICLE III THE POLICY; REIMBURSEMENT................................... 19
Section 3.01. Issuance of the Policy.................................. 19
Section 3.02. Payment of Fees and Premium............................. 21
Section 3.03. Reimbursement Obligation................................ 22
Section 3.04. Indemnification......................................... 23
Section 3.05. Payment Procedure....................................... 26
Section 3.06. Joint and Several Liability............................. 27
ARTICLE IV FURTHER AGREEMENTS........................................... 27
Section 4.01. Effective Date; Term of the Insurance Agreement......... 27
Section 4.02. Further Assurances and Corrective Instruments........... 27
Section 4.03. Obligations Absolute.................................... 27
Section 4.04. Assignments; Reinsurance; Third-Party Rights............ 29
Section 4.05. Liability of the Insurer................................ 30
Section 4.06. Annual Servicing Audit and Certification................ 30
Section 4.07. Insolvency Proceedings as to Issuing Entity............. 30
Section 4.08. Regulation AB Matters................................... 30
ARTICLE V DEFAULTS AND REMEDIES......................................... 32
Section 5.01. Defaults................................................ 32
Section 5.02. Remedies; No Remedy Exclusive........................... 33
i
Section 5.03. Waivers................................................. 34
ARTICLE VI MISCELLANEOUS................................................ 34
Section 6.01. Amendments, Etc......................................... 34
Section 6.02. Notices................................................. 34
Section 6.03. Severability............................................ 36
Section 6.04. Governing Law........................................... 36
Section 6.05. Consent to Jurisdiction................................. 36
Section 6.06. Consent of the Insurer.................................. 37
Section 6.07. Counterparts............................................ 37
Section 6.08. Headings................................................ 38
Section 6.09. Trial by Jury Waived.................................... 38
Section 6.10. Limited Liability....................................... 38
Section 6.11. Entire Agreement........................................ 38
ii
INSURANCE AND INDEMNITY AGREEMENT (as may be amended, modified or
supplemented from time to time, this "Insurance Agreement"), dated as of May 29,
2007, by and among AMBAC ASSURANCE CORPORATION, as Insurer, XXXXXXX XXXXX
MORTGAGE LENDING, INC., as Sponsor (the "Sponsor"), HOME LOAN SERVICES, INC., as
Servicer (the "Servicer"), XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as Depositor
(the "Depositor"), FIRST FRANKLIN FINANCIAL CORPORATION, as Originator (the
"Originator") and LASALLE BANK, N.A., not in its individual capacity, but solely
as Trustee.
WITNESSETH:
WHEREAS, the Originator has originated and acquired certain Mortgage Loans;
it has sold and assigned its entire interest in certain of these Mortgage Loans
to the Sponsor and it has sold and assigned its entire interest in the rest of
such Mortgage Loans to the Depositor; the Sponsor has sold and assigned its
entire interest in the Mortgage Loans sold to it by the Originator, in turn, to
the Depositor, and the Depositor has accepted from the Originator and the
Sponsor, as applicable, the sale and assignment of such interest, in the
Mortgage Loans pursuant to the Mortgage Loan Purchase Agreement, dated May 1,
2007, between the Originator and the Depositor ("FFFC Purchase Agreement") and
the Mortgage Loan Purchase Agreement, dated May 1, 2007, between the Depositor
and the Sponsor ("MLML Purchase Agreement");
WHEREAS, the Trustee, the Servicer and the Depositor have entered a Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), which provides for, among other things, the creation of the First
Franklin Mortgage Loan Trust, Series 2007-FFC (the "Issuing Entity"), the
issuance of First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-FFC (the "Certificates") representing undivided
ownership interests in the Issuing Entity, the servicing of the Mortgage Loans
and for certain rights of the Insurer thereunder;
WHEREAS, the Certificates will represent all of the Issuing Entity's right,
title and interest in the Mortgage Loans;
WHEREAS, the Insurer has issued the Policy, pursuant to which it has agreed
to pay in favor of the Trustee on behalf of the Issuing Entity and for the
benefit of the Holders of the Class A Certificates certain payments in respect
of such certificates as specified herein;
WHEREAS, the Insurer shall be paid the Premium as set forth herein; and
WHEREAS, each of the Sponsor, the Servicer, Originator and the Depositor,
have undertaken certain obligations in consideration for the Insurer's issuance
of its Policy;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Unless the context clearly requires otherwise,
all capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Policy described below or, if not defined
therein, in the Pooling and Servicing Agreement. For purposes of this Insurance
Agreement, the following terms shall have the following meanings:
"Certificates" means the First Franklin Mortgage Loan Trust, Series
2007-FFC, Mortgage Loan Asset-Backed Certificates, issued pursuant to the
Pooling and Servicing Agreement.
"Class A Certificates" means, together, the Class A-1 and Class A-2
Certificates.
"Closing Date" means May 29, 2007.
"Commission" means the Securities and Exchange Commission.
"Default" means any event which results, or which with the giving of notice
or the lapse of time or both would result, in an Event of Default.
"Depositor" has the meaning given such term in the recitals.
"Documents" has the meaning given such term in Section 2.01(j).
"Event of Default" means any event of default specified in Section 5.01 of
this Insurance Agreement.
"FFFC Purchase Agreement" has the meaning given such term in the recitals.
"Financial Statements" means, with respect to the Sponsor, the Servicer and
the Originator, (i) the consolidated balance sheets of the Parent as of December
31, 2006 and December 31, 2005 and the consolidated statements of operations,
changes in stockholders' equity and cash flows of the Parent for each of the
years in the three-year period ended December 31, 2006 and the notes thereto and
(ii) the unaudited three month consolidated statements of financial condition of
the Parent as of March 31, 2007.
"Holder" has the meaning given such term in the Policy.
"Insurance Agreement" has the meaning given such term in the initial
paragraph hereof.
"Insurer" means Ambac Assurance Corporation, or any successor thereto, as
issuer of the Policy.
"Insurer Information" has the meaning given such term in Section
3.04(a)(v).
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"Investment Company Act" means the Investment Company Act of 1940,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"Issuing Entity" means the First Franklin Mortgage Loan Trust, Series
2007-FFC created pursuant to the Pooling and Servicing Agreement.
"Late Payment Rate" means the lesser of (a) the greater of (i) the per
annum rate of interest publicly announced from time to time by Citibank, N.A. as
its prime or base lending rate plus two per centum (2%) per annum (any change in
such rate of interest to be effective on the date such change is announced by
Citibank, N.A.), and (ii) the then applicable highest rate of interest on the
Class A Certificates and (b) the maximum rate permissible under applicable usury
or similar laws limiting interest rates. The Late Payment Rate shall be computed
on the basis of the actual number of days elapsed over a year of 360 days.
"Material Adverse Change" means, in respect of any Person, a material
adverse change in the ability of such Person to perform its obligations under
any of the Operative Documents to which it is a party, including any material
adverse change in the business, financial condition, results of operations or
properties of such Person on a consolidated basis with its subsidiaries which
might have such effect.
"MLML Purchase Agreement" has the meaning given such term in the recitals.
"Moody's" means Xxxxx'x Investors Service, Inc., and any successor thereto.
"Offering Document" means the Prospectus, dated May 15, 2007, the Free
Writing Prospectus and related Supplement, dated May 18, 2007, and the
Prospectus Supplement, dated May 25, 2007, in respect of the Certificates and
any amendment or supplement thereto, and any other offering document in respect
of the Certificates prepared by or on behalf of the Sponsor that makes reference
to the Policy.
"Operative Documents" means this Insurance Agreement, the Certificates, the
Pooling and Servicing Agreement, the FFFC Purchase Agreement and the MLMC
Purchase Agreement.
"Originator" has the meaning given to such term in the Recitals.
"Parent" means Xxxxxxx Xxxxx & Co. Inc., and any successor thereto.
"Person" means an individual, joint stock company, trust, unincorporated
association, joint venture, corporation, business or owner trust, partnership,
limited liability company or other organization or entity (whether governmental
or private).
"Policy" means the Certificate Guaranty Insurance Policy No. AB1082BE,
together with all endorsements thereto, issued by the Insurer in favor of the
Trustee, for the benefit of the Holders of the Class A Certificates.
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"Pooling and Servicing Agreement" has the meaning given such term in the
recitals.
"Premium" means the premium payable in accordance with the Policy and this
Insurance Agreement.
"Premium Percentage" means 0.25% per annum with respect to the Class A
Certificates.
"Registration Statement" means the registration statement on Form S-3 (No.
333-140436), including the prospectus, relating to the Certificates, at the time
it became effective.
"Securities Act" means the Securities Act of 1933, including, unless the
context otherwise requires, the rules and regulations thereunder, as amended
from time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"Servicer" has the meaning given to such term in the Recitals.
"Sponsor" has the meaning given to such term in the Recitals.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor thereto.
"Transaction" means the transactions contemplated by the Operative
Documents, including the transactions described in the Offering Document.
"Trustee" means LaSalle Bank, N.A., a United States national banking
association, as trustee under the Pooling and Servicing Agreement, and any
successor thereto under the Pooling and Servicing Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, including,
unless the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
"Underwriter" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
"Underwriting Agreement" means the Master Underwriting Agreement, dated
February 28, 2003, between the Underwriter and the Depositor, as such may be
amended, modified or supplemented from time to time.
SECTION 1.02. Other Definitional Provisions. The words "hereof," "herein"
and "hereunder" and words of similar import when used in this Insurance
Agreement shall refer to this Insurance Agreement as a whole and not to any
particular provision of this
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Insurance Agreement, and Section, subsection, Schedule and Exhibit references
are to this Insurance Agreement unless otherwise specified. The meanings given
to terms defined herein shall be equally applicable to both the singular and
plural forms of such terms. The words "include" and "including" shall be deemed
to be followed by the phrase "without limitation."
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 2.01. Representations and Warranties of the Sponsor, the Servicer,
the Originator, and the Depositor. Each of the Sponsor, the Servicer, the
Originator and the Depositor makes the following representations and warranties
as of the Closing Date, as such representation and warranty applies to itself
and not to any other party, as follows:
(a) Due Organization and Qualification. Each of the Sponsor, the
Servicer, the Originator and the Depositor is a corporation, duly
organized, validly existing and in good standing under the laws of Delaware
and the Originator is an operating subsidiary of Xxxxxxx Xxxxx Bank & Trust
Co. Each of the Sponsor, the Servicer, the Originator and the Depositor is,
or shall become, duly qualified to do business, is, or shall be, in good
standing and has obtained, or shall obtain, all necessary licenses,
permits, charters, registrations and approvals (together, "approvals")
necessary for the conduct of its business as currently conducted and as
described in the Offering Document and the performance of its obligations
under the Operative Documents to which it is a party in each jurisdiction
in which the failure to be so qualified or to obtain such approvals would
render any Operative Document unenforceable in any respect or would have a
material adverse effect upon the Transaction.
(b) Power and Authority. Each of the Sponsor, the Servicer, the
Originator and the Depositor have all necessary power and authority to
conduct its business as currently conducted and as described in the
Offering Document, to execute, deliver and perform its obligations under
the Operative Documents to which it is a party and to consummate the
Transaction.
(c) Due Authorization. The execution, delivery and performance of the
Operative Documents by each of the Sponsor, the Servicer, the Originator
and the Depositor have been duly authorized by all necessary action and do
not require any additional approvals or consents, or other action by or any
notice to or filing with any Person, including any governmental entity or
any of the stockholders or beneficial owners, as applicable, of the
Sponsor, the Servicer, the Originator or the Depositor, which have not
previously been obtained or given by the Sponsor, the Servicer, the
Originator or the Depositor.
(d) Noncontravention. The execution and delivery by each of the
Sponsor, the Servicer, the Originator or the Depositor of the Operative
Documents to which it is a party, the consummation of the Transaction and
the
5
satisfaction of the terms and conditions of the Operative Documents do not
and will not:
(i) conflict with or result in any breach or violation of any
provision of the applicable organizational documents of the Sponsor,
the Servicer, the Originator or the Depositor or any law, rule,
regulation, order, writ, judgment, injunction, decree, determination
or award currently in effect having applicability to the Sponsor, the
Servicer, the Originator or the Depositor or any of their respective
material properties, including regulations issued by any
administrative agency or other governmental authority having
supervisory powers over the Sponsor, the Servicer, the Originator or
the Depositor, which conflict, breach or violation reasonably could
result in a Material Adverse Change;
(ii) constitute a default by the Sponsor, the Servicer, the
Originator or the Depositor under, result in the acceleration of any
obligation under, or breach any provision of any loan agreement,
mortgage, indenture or other agreement or instrument to which the
Sponsor, the Servicer, the Originator or the Depositor is a party or
by which any of their respective properties is or may be bound or
affected, which default, acceleration or breach reasonably could
result in a Material Adverse Change; or
(iii) result in or require the creation of any lien upon or in
respect of any assets of the Sponsor, the Servicer, the Originator or
the Depositor, which lien reasonably could result in a Material
Adverse Change.
(e) Legal Proceedings. There is no action, proceeding or investigation
by or before any court, governmental or administrative agency or arbitrator
against or affecting the Sponsor, the Servicer, the Originator or the
Depositor or any of their respective subsidiaries, any properties or rights
of the Sponsor, the Servicer, the Originator or the Depositor or any of
their respective subsidiaries or any of the Mortgage Loans pending or, to
the Sponsor's, the Servicer's, the Originator's or the Depositor's
knowledge after reasonable inquiry, threatened, which, in any case, if
decided adversely to the Sponsor, the Servicer, the Originator or the
Depositor or any such subsidiary could result in a Material Adverse Change
with respect to the Sponsor, the Servicer, the Originator or the Depositor.
(f) Valid and Binding Obligations. The Operative Documents (other than
the Certificates), to which it is a party, when executed and delivered by
the Sponsor, the Servicer, the Originator or the Depositor, will constitute
the legal, valid and binding obligations of the Sponsor, the Servicer, the
Originator and the Depositor, as applicable, enforceable in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights
6
generally and general equitable principles and public policy considerations
as to rights of indemnification for violations of federal securities laws.
The Class A Certificates, when executed, authenticated and delivered in
accordance with the Pooling and Servicing Agreement, will be validly issued
and outstanding and entitled to the benefits of the Pooling and Servicing
Agreement. Each of the Sponsor, the Servicer, the Originator and the
Depositor will not at any time in the future deny that the Operative
Documents to which it is a party constitute the legal, valid and binding
obligations of the Sponsor, the Servicer, the Originator and the Depositor,
as applicable.
(g) Financial Statements. The Financial Statements of the Parent,
copies of which have been furnished to the Insurer, (i) are, as of the
dates and for the periods referred to therein, complete and correct in all
material respects, (ii) present fairly the financial condition and results
of operations of the Parent as of the dates and for the periods indicated
and (iii) have been prepared in accordance with generally accepted
accounting principles consistently applied, except as noted therein
(subject as to interim statements to normal year-end adjustments). Since
the date of the most recent Financial Statements, there has been no
Material Adverse Change in respect of the Sponsor, the Servicer, the
Originator or the Depositor. Except as disclosed in the Financial
Statements, none of the Sponsor, the Servicer, the Originator or the
Depositor is subject to any contingent liabilities or commitments that,
individually or in the aggregate, have a material possibility of causing a
Material Adverse Change in respect of the Sponsor, the Servicer, the
Originator or the Depositor.
(h) Compliance with Law, Etc. No practice, procedure or policy
employed, by the Sponsor, the Servicer, the Originator or the Depositor in
the conduct of its business violates any law, regulation, judgment,
agreement, order or decree applicable to the Sponsor, the Servicer, the
Originator or the Depositor that, if enforced, could result in a Material
Adverse Change with respect to the Sponsor, the Servicer, the Originator or
the Depositor.
(i) Taxes. Each of the Sponsor, the Servicer, the Originator and the
Depositor has filed prior to the date hereof all federal and state tax
returns that are required to be filed and has paid all taxes, including any
assessments received by it that are not being contested in good faith, to
the extent that such taxes have become due, except with respect to any
failures to file or pay that individually or in the aggregate, would not
result in a Material Adverse Change. Any taxes, fees and other governmental
charges payable by the Sponsor, the Servicer, the Originator or the
Depositor in connection with the Transaction, the execution and delivery of
the Operative Documents and the issuance of the Certificates have been paid
or shall have been paid at or prior to the Closing Date if such taxes, fees
or other governmental changes were due on or prior to the Closing Date.
(j) Accuracy of Information. Neither the Operative Documents nor other
material information relating to the Mortgage Loans, the operations of the
Sponsor, the Servicer, the Originator or the Depositor or the financial
condition of
7
the Sponsor, the Servicer, the Originator or the Depositor (collectively,
the "Documents"), as amended, supplemented or superseded, furnished or to
be furnished to the Insurer in writing or in electronic form by the
Sponsor, the Servicer, the Originator or the Depositor in connection with
the Transaction contains or will contain any statement of a material fact
which was untrue or misleading in any material respect when made. Each of
the Sponsor, the Servicer, the Originator and the Depositor has no
knowledge of any circumstances that could reasonably be expected to cause a
Material Adverse Change with respect to the Sponsor, the Servicer, the
Originator or the Depositor. Since the furnishing of the Documents, there
has been no change nor any development or event involving a prospective
change known to the Sponsor, the Servicer, the Originator or the Depositor
that would render any of the Documents untrue or misleading in any material
respect.
(k) Compliance With Securities Laws. Each of the Sponsor and the
Depositor represents and warrants as follows:
(i) The offer of the Certificates complies or shall comply in all
material respects with all requirements of law, including all
registration requirements of applicable securities laws. Without
limiting the foregoing, as of the date thereof, respectively, and as
of the Closing Date, the Offering Document does not contain any untrue
statement of a material fact and does not omit to state a material
fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that no representation is made with respect to the
information in the Offering Document regarding the Insurer set forth
under the captions "THE CLASS A CERTIFICATE INSURER" and "DESCRIPTION
OF THE CERTIFICATES - The Class A Certificate Guaranty Insurance
Policy" or the financial statements of the Insurer incorporated by
reference into the Offering Document.
(ii) The offer of the Certificates has not been and will not be in
violation of the Securities Act or any other federal or state
securities laws.
(iii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act and neither the Depositor nor
the Trust Estate is required to be registered as or controlled by an
"investment company" under the Investment Company Act.
Each of the Sponsor, the Servicer, the Originator and the Depositor will
satisfy, or cause to be satisfied, in all material respects any of the
information reporting requirements of the Securities Exchange Act arising
out of the Transaction to which each above-listed entity is subject, if
applicable.
8
(l) Operative Documents. Each of the representations and warranties of
the Sponsor, the Servicer, the Originator and the Depositor contained in
the applicable Operative Documents and the Underwriting Agreement is true
and correct in all material respects and each of the Sponsor, the Servicer,
the Originator and the Depositor hereby makes each such representation and
warranty to, and for the benefit of, the Insurer as if the same were set
forth in full herein; provided, however, that the remedy for any breach of
a representation and warranty of (i) the Sponsor in Section 7 of the MLML
Purchase Agreement, (ii) the Originator in Section 7 of the FFFC Purchase
Agreement, (iii) the Depositor in Section 2.03 of the Pooling and Servicing
Agreement and (iv) the Servicer in Section 2.04 of the Pooling and
Servicing Agreement, and the remedy with respect to any defective Mortgage
Loans under Section 7 of the MLML Purchase Agreement and FFFC Purchase
Agreement, respectively, shall be limited to the remedies specified in the
MLML Purchase Agreement, the FFFC Purchase Agreement and the Pooling and
Servicing Agreement.
(m) Solvency; Fraudulent Conveyance. Each of the Sponsor, the
Servicer, the Originator and the Depositor is solvent and shall not be
rendered insolvent by the Transaction and, after giving effect to the
Transaction, the Sponsor, the Servicer, the Originator and the Depositor
shall not be left with an unreasonably small amount of capital with which
to engage in the ordinary course of its business, and each of the Sponsor,
the Servicer, the Originator and the Depositor does not intend to incur, or
believe that it has incurred, debts beyond its ability to pay as they
mature. Each of the Sponsor, the Servicer, the Originator and the Depositor
does not contemplate the commencement of insolvency, liquidation or
consolidation proceedings or the appointment of a receiver, liquidator,
conservator, trustee or similar official in respect of the Sponsor, the
Servicer, the Originator and the Depositor or any of their respective
assets. Each of the Sponsor and the Depositor represent and warrant that
the amount of consideration being received by the Originator, the Depositor
and the Sponsor upon the transfer of the related Mortgage Loans to the
Sponsor, to the Depositor and to the Issuing Entity constitutes, in each
case (as it relates to each such transfer), reasonably equivalent value and
fair consideration for the ownership interest evidenced by the Mortgage
Loans. The amount of consideration being received by the Depositor upon the
sale and/or transfer of the Certificates constitutes reasonably equivalent
value and fair consideration for the ownership interest evidenced by the
Certificates. None of the Originator, the Sponsor nor the Depositor is
transferring the Mortgage Loans and the Depositor is not selling the
Certificates, as provided in the Operative Documents, with any intent to
hinder, delay or defraud any of their respective creditors.
(n) Jurisdiction of Formation. The jurisdiction of formation of the
Sponsor, the Servicer and the Originator is Delaware.
SECTION 2.02. Affirmative Covenants of the Sponsor, the Servicer, the
Originator and the Depositor. Each of the Sponsor, the Servicer, the Originator
and the Depositor (except as where specified below) hereby agrees that during
the term of this Insurance Agreement, unless the Insurer shall otherwise
expressly consent in writing:
9
(a) Compliance With Agreements and Applicable Laws. Each of the
Sponsor, the Servicer, the Originator and the Depositor shall comply in all
material respects with the terms and conditions of and perform its
obligations under the Operative Documents to which it is a party in all
cases in which failure to so comply or perform would result in a default
thereunder and shall comply with all requirements of any law, rule or
regulation applicable to it in all circumstances where non-compliance
reasonably could result in a Material Adverse Change.
(b) Corporate Existence. Each of the Sponsor, the Servicer, the
Originator and the Depositor and their respective successors and permitted
assigns shall maintain its corporate existence, and shall at all times
continue to be duly organized under the laws of their formation and duly
qualified and duly authorized (as described in subsections 2.01(a), (b) and
(c) hereof) and shall conduct its business in accordance with the terms of
its applicable organizational documents.
(c) Financial Statements; Accountants' Reports; Other Information.
Each of the Sponsor, the Servicer, the Originator and the Depositor shall
keep or cause to be kept in reasonable detail books and records of account
of its assets and business relating to the Transaction, and shall, as
applicable, clearly reflect therein the sale of the Mortgage Loans by the
Sponsor to the Depositor, by the Originator to the Sponsor and to the
Depositor and by the Depositor to the Issuing Entity and the sale of the
Certificates, respectively, as sale of the Mortgage Loans by the Sponsor to
the Depositor, and by the Originator to the Sponsor and to the Depositor, a
sale of the Mortgage Loans by the Depositor to the Issuing Entity and a
sale of the equity interests in the Issuing Entity to the Holders of the
Certificates. The Sponsor, the Servicer, the Originator and the Depositor
shall furnish or cause to be furnished to the Insurer:
(i) Annual Financial Statements. As soon as available, and in any
event within 120 days after the close of each fiscal year of the
Parent, the audited consolidated balance sheet of the Parent and its
subsidiaries as of the end of such fiscal year and the related audited
consolidated statements of operations, changes in stockholders' equity
and cash flows for such fiscal year, all in reasonable detail and
stating in comparative form the respective figures for the
corresponding date and period in the preceding fiscal year, prepared
in accordance with generally accepted accounting principles,
consistently applied, and accompanied by the audit opinion of the
Parent's independent accountants (which shall be a nationally
recognized independent public accounting firm or otherwise acceptable
to the Insurer) and by the certificate specified in Section 2.02(d).
(ii) Quarterly Financial Statements. Upon the reasonable request
of the Insurer, the unaudited consolidated balance sheet of the Parent
and its subsidiaries as of the end of the first three quarters of each
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fiscal year of the Parent and the related unaudited consolidated
statements of operations, changes in stockholders' equity and cash
flows for the portion of the fiscal year then ended, all in reasonable
detail and stating in comparative form the respective figures for the
corresponding date and period in the preceding fiscal year, prepared
in accordance with generally accepted accounting principles
consistently applied (subject to normal year-end adjustments); each
delivery of quarterly financial statements shall be accompanied by a
certificate of one (or more) corporate officers stating that the
quarterly financial statements are correct in all material respects
and present fairly the financial condition and results of operations
of the Parent and its consolidated subsidiaries as of the dates and
for the periods indicated, in accordance with generally accepted
accounting principles consistently applied (subject to normal year-end
adjustments).
(iii) Initial Report. On or before the Closing Date, a copy of
the magnetic tape or Mortgage Loan Schedule to be delivered to the
Trustee and/or the Custodian on the Closing Date setting forth, as to
each Initial Mortgage Loan, the information required by the definition
of "Mortgage Loan Schedule" in Article I of the Pooling and Servicing
Agreement.
(iv) Certain Information. Upon the reasonable request of the
Insurer, copies of any requested proxy statements, financial
statements, reports and registration statements that the Sponsor or
the Depositor files with, or delivers to, the Commission or any
national exchange.
(v) Other Information. (A) Promptly upon receipt thereof, copies
of all schedules, financial statements or other similar reports
delivered to or by the Sponsor, the Servicer, the Originator the
Depositor or the Trustee pursuant to the terms of any of the Operative
Documents, including all reports provided to either the Trustee or any
Certificateholder pursuant to the Pooling and Servicing Agreement, (B)
promptly upon request, such other data as the Insurer may reasonably
request and (C) all information required to be furnished to the
Trustee, or the Certificateholders simultaneously with the furnishing
thereof to the Trustee, the Certificateholders, as the case may be.
All financial statements specified in clauses (i) and (ii) of this
subsection (c) shall be furnished in consolidated form for the Sponsor, the
Servicer, the Originator and the Depositor and all its subsidiaries in the event
that the Sponsor, the Servicer, the Originator and the Depositor shall
consolidate its financial statements with its subsidiaries.
(d) Compliance Certificate. Each of the Servicer and the Depositor
shall deliver to the Insurer, on or before March 31 of each year beginning
with March 31, 2008, certificates of one (or more) of its officers stating
that:
11
(i) a review of the performance of the Servicer or the Depositor,
as applicable, under the Operative Documents to which it is a party
during the preceding calendar year has been made under such officer's
supervision;
(ii) to the best of such officer's knowledge following reasonable
inquiry, no Default or Event of Default has occurred, or if a Default
or Event of Default has occurred, specifying the nature thereof and,
if the Servicer or the Depositor has a right to cure pursuant to
Section 5.01, stating in reasonable detail (including, if applicable,
any supporting calculations) the steps, if any, being taken by the
Servicer or the Depositor to cure such Default or Event of Default or
to otherwise comply with the terms of the agreement to which such
Default or Event of Default relates; and
(iii) The Servicer has in full force and effect a fidelity
Certificate (or direct surety Certificate) and an errors and omissions
policy in accordance with the terms and requirements of Section 3.18
of the Pooling and Servicing Agreement.
(e) Access to Records; Discussions with Officers and Accountants. On
an annual basis, or upon the occurrence of a Material Adverse Change, the
Sponsor, the Servicer, the Originator and the Depositor shall, upon the
reasonable request of the Insurer, upon reasonable notice, permit the
Insurer or its authorized agents:
(i) to inspect the books and records of the Sponsor, the
Servicer, the Originator and the Depositor as they may relate to the
Certificates, the obligations of the Sponsor, the Servicer, the
Originator and the Depositor under the Operative Documents to which it
is a party and the Transaction;
(ii) to discuss the affairs, finances and accounts of the
Sponsor, the Servicer, the Originator and the Depositor with the Chief
Operating Officer and the Chief Financial Officer of the Sponsor, the
Servicer, the Originator and the Depositor; and
(iii) if the Insurer reasonably believes that a Material Adverse
Change may have occurred and with the Sponsor's, the Servicer's and
the Originator's consent, which consent shall not be unreasonably
withheld or delayed, to discuss the affairs, finances and accounts of
the Sponsor, the Servicer and the Originator with the Sponsor's, the
Servicer's and the Originator's independent accountants; provided,
however, that an officer of the Sponsor, the Servicer and the
Originator shall have the right to be present during such discussions.
12
Such inspections and discussions shall be conducted during normal business
hours and shall not unreasonably disrupt the business of the Sponsor, the
Servicer, the Originator or the Depositor. The books and records of the Sponsor,
the Servicer, the Originator and the Depositor shall be maintained at the
address of the Sponsor, the Servicer and the Originator designated herein for
receipt of notices, unless the Sponsor, the Servicer and the Originator shall
otherwise advise the parties hereto in writing.
(f) Notice of Material Events. The Sponsor, the Servicer, the
Originator and the Depositor shall be obligated promptly to inform the
Insurer in writing of the occurrence of any of the following:
(i) the submission of any claim or the initiation or threat of
any legal process, litigation or administrative or judicial
investigation, or rule making or disciplinary proceeding by or against
the Sponsor, the Servicer, the Originator or the Depositor that (A)
would be required to be disclosed to the Commission or the Sponsor's,
the Servicer's and the Originator's shareholders or (B) could result
in a Material Adverse Change with respect to the Sponsor, the
Servicer, the Originator or the Depositor, or in the event that the
Sponsor, the Servicer, the Originator, or the Depositor has actual
knowledge thereof, the promulgation of any proceeding or any proposed
or final rule which would likely result in a Material Adverse Change
with respect to the Sponsor, the Servicer, the Originator and the
Depositor or any of their respective subsidiaries;
(ii) any change in the location of the jurisdiction of formation
of the Sponsor, the Servicer, the Originator or the Depositor or any
of their respective subsidiaries;
(iii) the occurrence of any Default or Event of Default or any
Material Adverse Change in respect of the Sponsor, the Servicer, the
Originator or the Depositor;
(iv) the commencement of any proceedings by or against the
Sponsor, the Servicer, the Originator or the Depositor under any
applicable bankruptcy, reorganization, liquidation, rehabilitation,
insolvency or other similar law now or hereafter in effect or of any
proceeding in which a receiver, liquidator, conservator, trustee or
similar official shall have been, or may be, appointed or requested
for the Sponsor, the Servicer, the Originator or the Depositor or any
of their respective assets; or
(v) the receipt of notice that (A) the Sponsor, the Servicer, the
Originator or the Depositor is being placed under regulatory
supervision, (B) any license, permit, charter, registration or
approval necessary for the conduct of the Sponsor's, the Servicer's,
the Originator's or the Depositor's business is to be, or may be,
suspended or revoked or (C) the Sponsor, the Servicer, the Originator
or the Depositor is to cease and desist any
13
practice, procedure or policy employed by the Sponsor, the Servicer,
the Originator or the Depositor in the conduct of their respective
business, and such suspension, revocation or cessation may reasonably
be expected to result in a Material Adverse Change with respect to the
Sponsor, the Servicer, the Originator or the Depositor.
(g) Financing Statements and Further Assurances. The Sponsor, the
Originator and the Depositor shall cause to be filed all necessary
financing statements or other instruments, and any amendments or
continuation statements relating thereto, necessary to be kept and filed in
such manner and in such places as may be required by law to preserve and
protect fully the interest of the Trustee in the Trust Estate. Each of the
Sponsor, the Servicer, the Originator and the Depositor shall, upon the
reasonable request of the Insurer, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, within
ten days of such request, such amendments hereto and such further
instruments and take such further action as may be reasonably necessary to
effectuate the intention, performance and provisions of the Operative
Documents, as determined by each such party in their reasonable
discretions. In addition, each of the Sponsor, the Servicer, the Originator
and the Depositor agrees to cooperate with S&P and Xxxxx'x in connection
with any review of the Transaction that may be undertaken by S&P and
Xxxxx'x after the date hereof.
(h) Maintenance of Licenses. Each of the Sponsor, the Servicer, the
Originator and the Depositor, and any successors thereof, shall maintain
all licenses, permits, charters and registrations the loss or suspension of
which could result in a Material Adverse Change.
(i) Retirement of Class A Certificates. The Depositor shall instruct
the Trustee, upon a retirement or other payment of all of the Class A
Certificates to surrender the Policy to the Insurer for cancellation.
(j) Disclosure Documents. Each of the Sponsor, the Originator and the
Depositor shall ensure that any Offering Document delivered with respect to
any of the Class A Certificates shall clearly disclose that the Policy is
not covered by the property/casualty insurance security fund specified in
Article 76 of the New York Insurance Law.
(k) Third-Party Beneficiary. Each of the Sponsor, the Servicer, the
Originator and the Depositor agrees that the Insurer shall have all rights
provided to the Insurer in the Operative Documents and that the Insurer
shall constitute a third-party beneficiary with respect to such rights in
respect of the Operative Documents and hereby incorporates and restates its
representations, warranties and covenants as set forth therein for the
benefit of the Insurer; provided, however, that the remedy for any breach
of a representation and warranty of (i) the Sponsor in Section 7 of the
MLML Purchase Agreement, (ii) the Originator in Section 7 of the FFFC
Purchase Agreement, (iii) the Depositor in Section 2.03 of the Pooling and
Servicing Agreement and (iv) the Servicer in Section 2.04 of the Pooling
and Servicing Agreement, and the remedy with respect to any defective
14
Mortgage Loans under Section 7 of the MLML Purchase Agreement and FFFC
Purchase Agreement, respectively, shall be limited to the remedies
specified in the MLML Purchase Agreement, the FFFC Purchase Agreement and
the Pooling and Servicing Agreement.
(l) Servicing of Mortgage Loans. All Mortgage Loans will be serviced
in all material respects in compliance with the Pooling and Servicing
Agreement.
(m) Closing Documents. The Sponsor, the Servicer, the Originator and
the Depositor shall provide or cause to be provided to the Insurer an
executed original copy of each document executed in connection with the
Transaction within 45 days after the Closing Date.
(n) Collection Account. Monies on deposit in the Collection Account
shall either (i) be invested in Permitted Investments maturing as provided
in the Pooling and Servicing Agreement, or (ii) be held uninvested in the
Collection Account.
(o) Corporate Formalities. Each of the Sponsor, the Servicer, the
Originator and the Depositor shall observe all the formalities necessary to
preserve its corporate or trust existence, as applicable, under the laws of
the State of its formation, including, as applicable, (i) the obligation to
hold annual meetings of its beneficial owners, shareholders or its board of
directors and (ii) the obligation to prepare and file annual income,
franchise and other tax returns.
(p) Due Diligence. The Insurer shall have the right, so long as any of
the Class A Certificates remains outstanding, with reasonable notice and
without disruption of the Servicer's business, to conduct an ongoing review
of the Servicer's practices through reviews of the Mortgage Loans,
reappraisals of Mortgaged Properties and reviews of servicing practices.
Such ongoing due diligence shall be conducted at the expense of the Insurer
(unless an Event of Default shall have occurred under the Pooling and
Servicing Agreement, in which case it will be at the expense of the
Servicer and the Trust Fund) and in a reasonable manner convenient to both
the Servicer and the Insurer.
(q) Special Purpose Entity. In addition, the Depositor shall:
(i) ensure that its capital is adequate for the business and
undertakings of the Depositor;
(ii) other than activities in connection with the Transaction, be
restricted from undertaking any activities other than those permitted
by its charter documents;
(iii) have at least one director, manager or member that is a
person who is not, and will not be, a director, officer, employee or
holder of any equity securities of the Seller or any of its affiliates
or subsidiaries;
15
(iv) not commingle its funds and assets with the funds of any
other person; and
(v) maintain (A) correct and complete minute books and records of
account, and (B) minutes of the meetings and other proceedings of its
board of managers, as provided in its articles of incorporation.
SECTION 2.03. Negative Covenants of the Sponsor, the Servicer, the
Originator and the Depositor. Each of the Sponsor, the Servicer, the Originator
and the Depositor hereby agrees that during the term of this Insurance
Agreement, unless the Insurer shall otherwise expressly consent in writing:
(a) Impairment of Rights. Neither the Sponsor, the Servicer, the
Originator or the Depositor shall take any action, or fail to take any
action, if such action or failure to take action may result in a Material
Adverse Change with respect to the Sponsor, the Servicer, the Originator or
the Depositor, nor interfere in any material respect with the enforcement
of any rights of the Insurer under or with respect to any of the Operative
Documents or the Policy. The Sponsor, the Servicer, the Originator and the
Depositor shall give the Insurer written notice of any such action or, to
the best of the knowledge of any of the Sponsor, the Servicer, the
Originator or the Depositor, any such failure to act on the earlier of: (i)
the date upon which any publicly available filing or release is made with
respect to such action or failure to act and (ii) promptly prior to the
date of consummation of such action or failure to act. Each of the Sponsor,
the Servicer, the Originator and the Depositor shall furnish to the Insurer
all information reasonably requested by the Insurer that is necessary to
determine compliance with this paragraph.
(b) Waiver, Amendments, Etc. Neither the Sponsor, the Servicer, the
Originator nor the Depositor shall modify, waive or amend, or consent to
any modification, waiver or amendment of, any of the terms, provisions or
conditions of the Operative Documents to which it is a party (other than
any amendment to the Offering Document required by law) without the prior
written consent of the Insurer thereto.
(c) Limitation on Mergers, Etc. The Depositor shall not consolidate
with or merge with or into any Person or transfer all or substantially all
of its assets to any Person or liquidate or dissolve except as provided in
the Operative Documents or as permitted hereby. The Sponsor, the Servicer
and the Originator shall not consolidate with or merge with or into any
Person unless the successor or surviving entity will assume the obligations
of such party as provided in the Operative Documents. The Sponsor, the
Servicer and the Originator shall not transfer all or substantially all of
their assets to any Person or liquidate or dissolve except as provided in
the Operative Documents. The Sponsor, the Servicer, the Originator and the
Depositor shall furnish to the Insurer all information requested by the
Insurer that is reasonably necessary to determine compliance with this
paragraph.
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(d) Successors. Neither the Sponsor, the Servicer, the Originator nor
the Depositor shall terminate or designate, or consent to the termination
or designation of, any successor, Servicer, Custodian, Paying Agent, or
Trustee without the prior written approval of the Insurer, which approval
shall not be unreasonably withheld, conditioned or delayed.
SECTION 2.04. Representations, Warranties and Covenants of the Insurer. The
Insurer represents and warrants, as of the Closing Date (or the other date
specified below), and covenants to the Sponsor, the Servicer, the Originator and
the Depositor as follows:
(a) Organization and Licensing. The Insurer is a duly organized and
validly existing Wisconsin stock insurance corporation duly qualified to
conduct an insurance business in the State of California and in any other
jurisdiction where qualification may be necessary to accomplish the
Transaction.
(b) Corporate Power. The Insurer has the corporate power and authority
to issue the Policy and execute and deliver this Insurance Agreement and to
perform all of its obligations hereunder and thereunder.
(c) Authorization; Approvals. Proceedings legally required for the
issuance and execution of the Policy and the execution, delivery and
performance of this Insurance Agreement have been taken and licenses,
orders, consents or other authorizations or approvals of any governmental
boards or bodies legally required for the enforceability of the Policy and
the conduct by the Insurer of the business and activities contemplated by
the Transaction have been obtained; any proceedings not taken and any
licenses, authorizations or approvals not obtained are not material to the
enforceability of the Policy.
(d) Enforceability. The Policy, when issued, and this Insurance
Agreement will each constitute a legal, valid and binding obligation of the
Insurer, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, receivership and other similar laws
affecting creditors' rights generally and to general principles of equity
and subject to principles of public policy limiting the right to enforce
the indemnification provisions contained therein and herein, insofar as
such provisions relate to indemnification for liabilities arising under
federal securities laws.
(e) Financial Information. The consolidated financial statements of
the Insurer and subsidiaries as of December 31, 2006 and 2005 and for each
of the years in the three-year period ended December 31, 2006, prepared in
accordance with U. S. generally accepted accounting principles, included in
the Annual Report on Form 10-K of Ambac Financial Group, Inc. (which was
filed with the Securities and Exchange Commission (the "Commission") on
March 1, 2007; Commission File No. 1-10777), the Current Report on Form 8-K
filed with the Commission on April 25, 2007, and the Quarterly Report on
Form 10-Q for the three-month period ended March 31, 2007, and filed on May
10, 2007, as they
17
relate to the Insurer, fairly present in all material respects the
financial condition of the Insurer as of such dates and for the periods
covered by such statements in accordance with accounting principles
generally accepted in the United States of America. Since March 31, 2007,
there has been no material change in such financial condition of the
Insurer that would materially and adversely affect its ability to perform
its obligations under the Policy.
(f) Insurer Information. As of the date of the Offering Document,
respectively, and as of the Closing Date, the Insurer Information is true
and correct in all material respects and does not contain any untrue
statement of a material fact.
(g) No Litigation. There are no actions, suits, proceedings or
investigations pending or, to the best of the Insurer's knowledge,
threatened against it at law or in equity or before or by any court,
governmental agency, board or commission or any arbitrator which, if
decided adversely, would materially and adversely affect its ability to
perform its obligations under the Policy or this Insurance Agreement.
(h) Confidential Information. The Insurer agrees that it and its
shareholders, directors, agents, accountants and attorneys shall keep
confidential any matter of which it becomes aware during the inspections
conducted or discussions had pursuant to Section 2.02(e), unless such
information is readily available from public sources or except as may be
otherwise required by regulation, law or court order or requested by
appropriate governmental authorities or as necessary to preserve its rights
or security under or to enforce the Operative Documents or the Policy;
provided, however, that the foregoing shall not limit the right of the
Insurer to make such information available to its regulators, securities
rating agencies, reinsurers, credit and liquidity providers, counsel and
accountants. If the Insurer is requested or required (by oral questions,
interrogatories, requests for information or documents subpoena, civil
investigative demand or similar process) to disclose any information of
which it becomes aware through such inspections or discussions, the Insurer
will promptly notify the Sponsor, the Servicer, the Originator and the
Depositor of such request(s) so that the Sponsor, the Servicer, the
Originator and the Depositor may seek an appropriate protective order
and/or waive the Insurer's compliance with the provisions of this Insurance
Agreement. If, in the absence of a protective order or the receipt of a
waiver hereunder, the Insurer is, nonetheless, in the opinion of its
counsel, compelled to disclose such information to any tribunal or else
stand liable for contempt or suffer other censure or significant penalty,
the Insurer may disclose such information to such tribunal that the Insurer
is compelled to disclose; provided, however, that a copy of all information
disclosed is provided to the Sponsor, the Servicer, the Originator and the
Depositor promptly upon such disclosure.
(i) Compliance with Law, Etc. No practice, procedure or policy
employed, or proposed to be employed, by the Insurer in the conduct of its
18
business violates any law, regulation, judgment, agreement, order or decree
applicable to the Insurer that, if enforced, could result in a Material
Adverse Change with respect to the Insurer.
(j) No Conflicts or Violations. To the best of the Insurer's
knowledge, neither the execution nor delivery by the Insurer of the Policy
or this Insurance Agreement, nor the performance by the Insurer of its
obligations hereunder, will violate any judgment, order or decree
applicable to the Insurer of any governmental or regulatory body,
administrative agency, court or arbitrator having jurisdiction over the
Insurer (except that, in the published opinion of the Commission, the
indemnification provisions of this Insurance Agreement, insofar as they
relate to indemnification for liabilities arising under the Securities Act,
are against public policy as expressed in the Securities Act and are
therefore unenforceable).
ARTICLE III
THE POLICY; REIMBURSEMENT
SECTION 3.01. Issuance of the Policy. The Insurer agrees to issue the
Policy on the Closing Date subject to satisfaction of the conditions precedent
set forth below on or prior to the Closing Date:
(a) Payment of Fees and Expenses. The fees and expenses set forth in
Section 3.02(a) shall have been paid;
(b) Operative Documents. The Insurer shall have received a copy of
each of the Operative Documents, in form and substance reasonably
satisfactory to the Insurer, duly authorized, executed and delivered by
each party thereto;
(c) Certified Documents and Resolutions. The Insurer shall have
received (i) a copy of the applicable organizational documents of the
Sponsor, the Servicer, the Originator and the Depositor and (ii) a
certificate of the Secretary or Assistant Secretary of the Sponsor, the
Servicer, the Originator and the Depositor dated the Closing Date stating
that attached thereto is a true, complete and correct copy of resolutions
duly adopted by the Board of Directors or other governing body, as
applicable, of the Sponsor, the Servicer, the Originator and the Depositor
authorizing the issuance of the Certificates, the execution, delivery and
performance by the Sponsor, the Servicer, the Originator and the Depositor
of the Operative Documents to which it is a party and the consummation of
the Transaction and that such applicable organizational documents and
resolutions are in full force and effect without amendment or modification
on the Closing Date;
(d) Incumbency Certificate. The Insurer shall have received a
certificate of the Secretary or an Assistant Secretary of each of the
Sponsor, the Servicer, the Originator the Depositor certifying the names
and signatures of the officers of the Sponsor, the Servicer, the
Originator, and the Depositor authorized
19
to execute and deliver the Operative Documents to which it is a party and
that shareholder, member or beneficial owner consent to the execution and
delivery of such documents is not necessary or has been obtained;
(e) Representations and Warranties. The representations and warranties
of the Sponsor, the Servicer, the Originator and the Depositor dated the
Closing Date set forth or incorporated by reference in this Insurance
Agreement shall be true and correct on and as of the Closing Date as if
made on the Closing Date;
(f) Opinions of Counsel. The Insurer shall have received all opinions
of counsel addressed to any of Moody's, S&P, the Trustee, the Sponsor, the
Servicer, the Originator, the Depositor and the Underwriter, in respect of
the Sponsor, the Servicer, the Originator and the Depositor or any other
parties to the Operative Documents and the Transaction dated the Closing
Date in form and substance reasonably satisfactory to the Insurer,
addressed to the Insurer and addressing such matters as the Insurer may
reasonably request, and the counsel providing each such opinion shall have
been instructed by its client to deliver such opinion to the addressees
thereof;
(g) Approvals, Etc. The Insurer shall have received true and correct
copies of all approvals, licenses and consents, if any, including any
required approval of the shareholders, members or beneficial owners, as
applicable, of the Sponsor, the Servicer, the Originator and the Depositor,
required in connection with the Transaction, and requested by the Insurer;
(h) No Litigation, Etc. No suit, action or other proceeding,
investigation or injunction, or final judgment relating thereto, shall be
pending or threatened before any court, governmental or administrative
agency or arbitrator in which it is sought to restrain or prohibit or to
obtain damages or other relief in connection with any of the Operative
Documents or the consummation of the Transaction;
(i) Legality. No statute, rule, regulation or order shall have been
enacted, entered or deemed applicable by any government or governmental or
administrative agency or court that would make the Transaction illegal or
otherwise prevent the consummation thereof;
(j) Satisfaction of Conditions of the Underwriting Agreement. All
conditions in the Underwriting Agreement relating to the Underwriter's
obligation, if any, to purchase the Certificates shall have been satisfied,
without taking into account any waiver by any of the Underwriter of any
condition unless such waiver has been approved by the Insurer. The Insurer
shall have received copies of each of the documents, and shall be entitled
to rely on each of the documents, required to be delivered to the
Underwriter pursuant to the Underwriting Agreement;
20
(k) Issuance of Ratings. The Insurer shall have received confirmation
that the risk secured by the Policy constitutes at least a "AA" risk by S&P
and a "Aa2" risk by Moody's and that the Class A Certificates when issued,
will be rated "AAA" by S&P and "Aaa" by Moody's;
(l) No Default. No Default or Event of Default shall have occurred;
(m) [RESERVED]; and
(n) Satisfactory Documentation. The Insurer and its counsel shall have
reasonably determined that all documents, certificates and opinions to be
delivered in connection with the Certificates conform to the terms of the
Pooling and Servicing Agreement, the Registration Statement, the Offering
Document and this Insurance Agreement.
SECTION 3.02. Payment of Fees and Premium.
(a) Legal and Accounting Fees and Expenses. The Sponsor and the
Depositor shall pay or cause to be paid, on the Closing Date, legal and
accounting fees, due diligence expenses and miscellaneous expenses in an
amount not to exceed $75,000 incurred by the Insurer in connection with the
issuance of the Policy. Any additional fees of the Insurer's auditors
payable in respect of any amendment or supplement to the Offering Document
incurred after the Closing Date shall be paid by the Sponsor and the
Depositor on demand.
(b) Rating Agency Fees. The Sponsor and the Depositor shall promptly
pay the initial fees of S&P and Moody's with respect to the Certificates
and the Transaction following receipt of a statement with respect thereto.
All periodic and subsequent fees of S&P or Moody's with respect to, and
directly allocable to, the Certificates shall be for the account of, and
shall be billed to, the Sponsor and the Depositor. The fees for any other
rating agency shall be paid by the party requesting such other agency's
rating unless such other agency is a substitute for S&P or Moody's in the
event that S&P or Xxxxx'x is no longer rating the Certificates, in which
case the fees for such agency shall be paid by the Sponsor and the
Depositor.
(c) Premium.
(i) In consideration of the issuance by the Insurer of the
Policy, the Insurer shall be entitled to receive the Premium, as and
when due on each Distribution Date in accordance with and from the
funds specified by Section 4.04 of the Pooling and Servicing
Agreement. The Premium due on each Distribution Date shall be, with
respect to the Class A Certificates, an amount equal to the product of
(i) the applicable Premium Percentage, (ii) the Certificate Principal
Balance of the Class A Certificates immediately prior to such
Distribution Date and (iii) a fraction, the numerator of which is the
number of days in the related Accrual Period and the denominator of
which is 360; provided that on the
21
initial Distribution Date, the Premium will be $115,636.31 for the
Class A Certificates.
(ii) The Premium paid under the Pooling and Servicing Agreement
shall be nonrefundable without regard to whether the Insurer makes any
payment under the Policy or any other circumstances relating to the
Class A Certificates or provision being made for payment of the Class
A Certificates prior to maturity.
SECTION 3.03. Reimbursement Obligation.
(a) As and when due in accordance with and from the funds specified in
Article IV of the Pooling and Servicing Agreement, the Insurer shall be
entitled to reimbursement for any payment made by the Insurer under the
Policy, which reimbursement shall be due and payable on the date that any
amount is paid thereunder, in an amount equal to the amount to be so paid
and all amounts previously paid that remain unreimbursed, together with
interest on any and all such amounts remaining unreimbursed (to the extent
permitted by law, if in respect of any unreimbursed amounts representing
interest) from the date such amounts became due until paid in full (after
as well as before judgment), at a rate of interest equal to the Late
Payment Rate.
(b) Each of the Sponsor, the Servicer, the Originator and the
Depositor agrees to pay to the Insurer as follows: anything in Sections
2.01(l), 2.02(k) and 3.03(a) to the contrary notwithstanding, the Insurer
shall be entitled to reimbursement from the Sponsor and the Originator and
shall have full recourse against the Sponsor and the Originator for (i) any
payment made under the Policy arising as a result of the Sponsor's or the
Originator's failure to substitute for or deposit an amount in respect of
any defective Mortgage Loan as required pursuant to Section 7 of the FFFC
Purchase Agreement and the MLML Purchase Agreement, respectively, together
with interest on any and all such amounts remaining unreimbursed (to the
extent permitted by law, if in respect of any such unreimbursed amounts
representing interest) from the date such amounts became due until paid in
full (after as well as before judgment), at a rate of interest equal to the
Late Payment Rate, and (ii) any payment made under the Policy arising as a
result of the Depositor's, the Sponsor's, the Servicer's or the
Originator's failure to pay or deposit any amount required to be paid or
deposited pursuant to the Operative Documents, together with interest on
any and all such amounts remaining unreimbursed (to the extent permitted by
law, if in respect to any such unreimbursed amounts representing interest)
from the date such amounts became due until paid in full (after as well as
before judgment), at a rate of interest equal to the Late Payment Rate.
(c) The Sponsor, the Originator and the Depositor agrees to pay to the
Insurer any and all charges, fees, costs and expenses that the Insurer may
reasonably pay or incur, including reasonable attorneys' and accountants'
fees and expenses, in connection with (i) the enforcement, defense or
preservation of any
22
rights in respect of any of the Operative Documents, including defending,
monitoring or participating in any litigation or proceeding (including any
insolvency proceeding in respect of any Transaction participant or any
affiliate thereof) relating to any of the Operative Documents, any party to
any of the Operative Documents (in its capacity as such a party) or the
Transaction or (ii) any amendment, waiver or other action with respect to,
or related to, any Operative Document, whether or not executed or
completed. Provided that three Business Days written notice of the intended
payment or incurrence shall have been given to the Sponsor, the Originator
and the Depositor by the Insurer, such reimbursement shall be due on the
dates on which such charges, fees, costs or expenses are paid or incurred
by the Insurer. To the extent that these amounts are not paid by the
Sponsor, the Originator and the Depositor within three (3) Business Days of
any request therefor, the Issuing Entity will be responsible for payment in
accordance with the priorities set forth in Section 4.04 of the Pooling and
Servicing Agreement.
(d) The Sponsor, the Servicer, the Originator and the Depositor agrees
to pay (and the Issuing Entity shall pay to the extent such amount is
payable by it) to the Insurer interest on any and all amounts described in
subsections 3.03(b), 3.03(c) and 3.03(e) and Sections 3.02 and 3.04 from
the date such amounts become due or, in the case of subsections 3.02(b) or
3.03(c) or Section 3.04, are incurred or paid by the Insurer until payment
thereof in full (after as well as before judgment), at the Late Payment
Rate (provided that the Servicer shall only be obligated to pay interest
that accrues on those amounts set forth in subsections 3.03(b)(ii), 3.03(e)
and Section 3.04 hereof).
(e) The Sponsor, the Servicer, the Originator and the Depositor agrees
to pay to the Insurer as follows: any payments made by the Insurer on
behalf of, or advanced to, the Sponsor, the Servicer, the Originator or the
Depositor, other than any payments made by the Insurer pursuant to the
terms of the Policy, on the date any such payment is made or advanced by
the Insurer.
SECTION 3.04. Indemnification.
(a) In addition to any and all of the Insurer's rights of
reimbursement, indemnification, subrogation and to any other rights of the
Insurer pursuant hereto or under law or in equity, the Sponsor, the
Servicer, the Originator and the Depositor agree, jointly and severally, to
pay, and to protect, indemnify and save harmless, the Insurer and its
officers, directors, shareholders, employees, agents and each Person, if
any, who controls the Insurer within the meaning of either Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act, from and
against any and all claims, losses, liabilities (including penalties),
actions, suits, judgments, demands, damages, costs or expenses (including
reasonable fees and expenses of attorneys, consultants and auditors and
reasonable costs of investigations) of any nature arising out of or
relating to the breach by the Sponsor, the Servicer, the Originator or the
Depositor of any of the representations or warranties contained in Section
2.01 or arising out of or
23
relating to the transactions contemplated by the Operative Documents by
reason of:
(i) any omission or action in connection with the offering,
issuance or delivery of the Certificates by the Sponsor, the Servicer,
the Originator, the Depositor, or the Trustee;
(ii) the negligence, bad faith, willful misconduct, misfeasance,
malfeasance or theft committed by any director, officer, employee or
agent of the Sponsor, the Servicer, the Originator, the Depositor or
the Trustee in connection with any Transaction arising from or
relating to the Operative Documents;
(iii) the violations by the Sponsor, the Servicer, the Originator
or the Depositor of any domestic or foreign law, rule or regulation,
or any judgment, order or decree applicable to it, which violation
reasonably could result in a Material Adverse Change;
(iv) the breach by the Sponsor, the Servicer, the Originator, or
the Depositor of any representation, warranty or covenant under any of
the Operative Documents or the occurrence, in respect of the Sponsor,
the Servicer, the Originator or the Depositor, under any of the
Operative Documents of any "event of default" or any event which, with
the giving of notice or the lapse of time or both, would constitute
any "event of default"; or
(v) any untrue statement or alleged untrue statement of a
material fact contained in the Offering Document or the Registration
Statement or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, except insofar as such claims, losses,
liabilities (including penalties), actions, suits, judgments, demands,
damages, costs or expenses (including reasonable fees and expenses of
attorneys, consultants and auditors and reasonable costs of
investigations) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission of a material fact in information included in the Offering
Document or the Registration Statement and furnished by or approved by
the Insurer in writing expressly for use therein (all such information
so furnished being referred to herein as "Insurer Information"), it
being understood that, in respect of the initial Offering Document
which relates to the Certificates and the Registration Statement, the
Insurer Information is limited to the information with respect to the
Insurer included under the captions "THE CLASS A CERTIFICATE INSURER"
and "DESCRIPTION OF THE CERTIFICATES - The Class A Certificate
Guaranty Insurance Policy" and the financial statements of the Insurer
incorporated by reference therein.
24
(b) The Insurer agrees to pay, and to protect, indemnify and save
harmless, the Sponsor, the Servicer, the Originator and the Depositor and
their respective officers, directors, shareholders, employees, agents and
each Person, if any, who controls the Sponsor, the Servicer, the Originator
and the Depositor within the meaning of either Section 15 of the Securities
Act or Section 20 of the Securities Exchange Act, from and against any and
all claims, losses, liabilities (including penalties), actions, suits,
judgments, demands, damages, costs or expenses (including reasonable fees
and expenses of attorneys, consultants and auditors and reasonable costs of
investigations) of any nature arising out of or by reason of (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Insurer Information or any omission or alleged omission to state in the
Insurer Information a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, (ii) any failure by the Insurer
to make a payment required to be made under the Policy, or (iii) a breach
of any of the representations and warranties of the Insurer contained in
Section 2.04.
(c) The Insurer agrees to pay, and to protect, indemnify and hold
harmless the Depositor and each of its officers, directors, shareholders,
employees, agents and each person, if any, who controls the Depositor
within the meaning of either Section 15 of the Securities Act or Section 20
of the Securities Exchange Act against any and all losses, claims,
liabilities (including penalties), actions, suits, judgments, demands,
damages, costs or expenses (including reasonable fees and expenses of
attorneys, consultants and auditors and reasonable costs of investigations)
of any nature arising out of or by reason of any untrue statement of a
material fact or an omission to state a material fact necessary in order to
make the statements therein in light of the circumstances in which they
were made not misleading contained in the consolidated financial statements
of the Insurer incorporated by reference into the Issuing Entity's
Regulation AB periodic reports pursuant to Section 4.08 of this Agreement.
(d) If any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Person
(individually, an "Indemnified Party" and, collectively, the "Indemnified
Parties") in respect of which the indemnity provided in Section 3.04(a),
(b) or (c) may be sought from the Sponsor, the Servicer, the Originator or
the Depositor, on the one hand, or the Insurer, on the other (each, an
"Indemnifying Party") hereunder, each such Indemnified Party shall promptly
notify the Indemnifying Party in writing, and the Indemnifying Party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all expenses. The
Indemnified Party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof at the expense of the
Indemnified Party; provided, however, that the fees and expenses of such
separate counsel shall be at the expense of the Indemnifying Party if (i)
the Indemnifying Party has agreed to pay such fees and expenses, (ii) the
Indemnifying Party shall have failed within a reasonable period of time to
assume the defense of such action or proceeding and employ counsel
reasonably
25
satisfactory to the Indemnified Party in any such action or proceeding or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both the Indemnified Party and the Indemnifying
Party, and the Indemnified Party shall have been advised by counsel that
there may be one or more legal defenses available to it which are different
from or additional to those available to the Indemnifying Party (in which
case, if the Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to
assume the defense of such action or proceeding on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying
Party shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for the Indemnified Parties,
which firm shall be designated in writing by the Indemnified Party and
shall be reasonably satisfactory to the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such
action or proceeding effected without its written consent, which consent
shall not be unreasonably withheld, conditioned or delayed, but, if settled
with its written consent, or if there is a final judgment for the plaintiff
in any such action or proceeding with respect to which the Indemnifying
Party shall have received notice in accordance with this subsection (c),
the Indemnifying Party agrees to indemnify and hold the Indemnified Parties
harmless from and against any loss or liability by reason of such
settlement or judgment.
(e) To provide for just and equitable contribution if the
indemnification provided by the Indemnifying Party is determined to be
unavailable or insufficient to hold harmless any Indemnified Party (other
than due to application of this Section), each Indemnifying Party shall
contribute to the losses incurred by the Indemnified Party on the basis of
the relative fault of the Indemnifying Party, on the one hand, and the
Indemnified Party, on the other hand.
SECTION 3.05. Payment Procedure. In the event of any payment by the
Insurer, the Trustee, the Sponsor, the Servicer, the Originator and the
Depositor agree to accept the voucher or other evidence of payment as prima
facie evidence of the propriety thereof and the liability, if any, described in
Section 3.03 therefor to the Insurer. All payments to be made to the Insurer
under this Insurance Agreement shall be made to the Insurer in lawful currency
of the United States of America in immediately available funds at the notice
address for the Insurer as specified in the Pooling and Servicing Agreement on
the date when due or as the Insurer shall otherwise direct by written notice to
the other parties hereto. In the event that the date of any payment to the
Insurer or the expiration of any time period hereunder occurs on a day that is
not a Business Day, then such payment or expiration of time period shall be made
or occur on the next succeeding Business Day with the same force and effect as
if such payment was made or time period expired on the scheduled date of payment
or expiration date.
26
SECTION 3.06. Joint and Several Liability. The Sponsor, the Servicer, the
Originator and the Depositor shall be jointly and severally liable for all
amounts due and payable to the Insurer hereunder by any such parties. The
payment obligations of the Issuing Entity set forth herein shall be nonrecourse
with respect to the Issuing Entity and shall be payable only from moneys
available for such payment in accordance with the provisions of the Pooling and
Servicing Agreement.
ARTICLE IV
FURTHER AGREEMENTS
SECTION 4.01. Effective Date; Term of the Insurance Agreement. This
Insurance Agreement shall take effect on the Closing Date and shall remain in
effect until the later of (a) such time as the Insurer is no longer subject to a
claim under the Policy and the Policy shall have been surrendered to the Insurer
for cancellation and (b) all amounts payable to the Insurer by the Sponsor, the
Servicer, the Originator or the Depositor hereunder or from any other source
hereunder or under the Operative Documents or the Policy and all amounts payable
with respect to the Class A Certificates have been paid in full; provided,
however, that the provisions of Sections 3.02, 3.03 and 3.04 hereof shall
survive any termination of this Insurance Agreement.
SECTION 4.02. Further Assurances and Corrective Instruments.
(a) Except at such times as a default in payment under the Policy
shall exist or shall have occurred, none of the Sponsor, the Servicer, the
Originator or the Depositor nor the Trustee shall grant any waiver of
rights under any of the Operative Documents to which any of them is a party
without the prior written consent of the Insurer, which shall not be
unreasonably withheld, conditioned or delayed, and any such waiver without
prior written consent of the Insurer shall be null and void and of no force
or effect.
(b) To the extent permitted by law, each of the Sponsor, the Servicer,
the Originator and the Depositor agrees that it will, from time to time,
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such supplements hereto and such further instruments as the
Insurer may reasonably request and as may be required in the Insurer's
reasonable judgment to effectuate the intention of or facilitate the
performance of this Insurance Agreement.
SECTION 4.03. Obligations Absolute.
(a) The obligations of the Sponsor, the Servicer, the Originator and
the Depositor hereunder shall be absolute and unconditional and shall be
paid or performed strictly in accordance with this Insurance Agreement
under all circumstances irrespective of:
(i) (i) any lack of validity or enforceability of, or any
amendment or other modifications of, or waiver, with respect to any of
the
27
Operative Documents or the Certificates that have not been approved by
the Insurer;
(ii) (ii) any exchange or release of any other obligations
hereunder;
(iii) the existence of any claim, setoff, defense, reduction,
abatement or other right that the Sponsor, the Servicer, the
Originator or the Depositor may have at any time against the Insurer
or any other Person;
(iv) any document presented in connection with the Policy proving
to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) any payment by the Insurer under the Policy against
presentation of a certificate or other document that does not strictly
comply with terms of the Policy;
(vi) any failure of the Sponsor, the Servicer, the Originator or
the Depositor to receive the proceeds from the sale of the
Certificates; and
(vii) any other circumstances, other than payment in full, that
might otherwise constitute a defense available to, or discharge of,
the Sponsor, the Servicer, the Originator or the Depositor in respect
of any Operative Document.
(b) The Sponsor, the Servicer, the Originator and the Depositor and
any and all others who are now or may become liable for all or part of the
obligations of the Sponsor, the Servicer, the Originator or the Depositor
under this Insurance Agreement renounce the right to assert as a defense to
the performance of their respective obligations each of the following: (i)
to the extent permitted by law, any and all redemption and exemption rights
and the benefit of all valuation and appraisement privileges against the
indebtedness and obligations evidenced by any Operative Document or by any
extension or renewal thereof; (ii) presentment and demand for payment,
notices of nonpayment and of dishonor, protest of dishonor and notice of
protest; (iii) all notices in connection with the delivery and acceptance
hereof and all other notices in connection with the performance, default or
enforcement of any payment hereunder, except as required by the Operative
Documents; and (iv) all rights of abatement, diminution, postponement or
deduction, or to any defense other than payment, or to any right of setoff
or recoupment arising out of any breach under any of the Operative
Documents, by any party thereto or any beneficiary thereof, or out of any
obligation at any time owing to the Sponsor, the Servicer, the Originator
or the Depositor.
(c) The Sponsor, the Servicer, the Originator and the Depositor and
any and all others who are now or may become liable for all or part of the
28
obligations of the Sponsor, the Servicer, the Originator or the Depositor
under this Insurance Agreement agree to be bound by this Insurance
Agreement and (i) agree that any consent, waiver or forbearance hereunder
with respect to an event shall operate only for such event and not for any
subsequent event; (ii) consent to any and all extensions of time that may
be granted by the Insurer with respect to any payment hereunder or other
provisions hereof and to the release of any security at any time given for
any payment hereunder, or any part thereof, with or without substitution,
and to the release of any Person or entity liable for any such payment; and
(iii) consent to the addition of any and all other makers, endorsers,
guarantors and other obligors for any payment hereunder, and to the
acceptance of any and all other security for any payment hereunder, and
agree that the addition of any such obligors or security shall not affect
the liability of the parties hereto for any payment hereunder.
(d) Nothing herein shall be construed as prohibiting the Sponsor, the
Servicer, the Originator or the Depositor from pursuing any rights or
remedies it may have against any Person in a separate legal proceeding.
SECTION 4.04. Assignments; Reinsurance; Third-Party Rights.
(a) This Insurance Agreement shall be a continuing obligation of the
parties hereto and shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Each
of the Sponsor, the Servicer, the Originator and the Depositor may not
assign its rights under this Insurance Agreement, or delegate any of its
duties hereunder, without the prior written consent of the Insurer. Any
assignments made in violation of this Insurance Agreement shall be null and
void.
(b) The Insurer shall have the right to give participations in its
rights under this Insurance Agreement and to enter into contracts of
reinsurance with respect to the Policy upon such terms and conditions as
the Insurer may in its discretion determine; provided, however, that no
such participation or reinsurance agreement or arrangement shall relieve
the Insurer of any of its obligations hereunder or under the Policy. None
of such participants and reinsurers will have the right to request meetings
or information from the Sponsor, the Servicer, the Depositor and the
Originator, it being understood that only the Insurer will have such
rights. However, the Insurer may (subject to all applicable laws and
regulations) provide copies of any and all such information, and discuss
such meetings and information with such participants and reinsurers.
(c) Except as provided herein with respect to participants and
reinsurers, nothing in this Insurance Agreement shall confer any right,
remedy or claim, express or implied, upon any Person, including,
particularly, any Holder, other than the Insurer against the Sponsor, the
Servicer, the Originator or the Depositor, or the Sponsor, the Servicer,
the Originator or the Depositor against the Insurer and all the terms,
covenants, conditions, promises and agreements contained herein shall be
for the sole and exclusive benefit of the parties hereto
29
and their successors and permitted assigns. Neither the Trustee nor any
Holder shall have any right to payment from any Premiums paid or payable
hereunder or under the Pooling and Servicing Agreement or from any amounts
paid by the Sponsor, the Servicer, the Originator and the Depositor
pursuant to Sections 3.02 or 3.03.
SECTION 4.05. Liability of the Insurer. Neither the Insurer nor any of its
officers, directors or employees shall be liable or responsible for: (a) the use
that may be made of the Policy by the Trustee or for any acts or omissions of
the Trustee in connection therewith; or (b) the validity, sufficiency, accuracy
or genuineness of documents delivered to the Insurer in connection with any
claim under the Policy, or of any signatures thereon, even if such documents or
signatures should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged (unless the Insurer shall have actual
knowledge thereof). In furtherance and not in limitation of the foregoing, the
Insurer may accept documents that appear on their face to be in order, without
responsibility for further investigation.
SECTION 4.06. Annual Servicing Audit and Certification. Except with respect
to the Trustee, the annual servicing audit required pursuant to Section 3.18 of
the Pooling and Servicing Agreement shall be performed by an independent third
party reasonably acceptable to the Insurer. Any one of the four major nationally
recognized firms of independent public accountants is deemed to be acceptable.
SECTION 4.07. Insolvency Proceedings as to Issuing Entity. So long as this
Insurance Agreement is in effect, and for one year following its termination,
the Insurer (including any assignee or reinsurer pursuant to Section 4.04), the
Sponsor, the Servicer, the Originator the Depositor and the Trustee will not
file any involuntary petition or otherwise institute any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law against the
Depositor or the Issuing Entity.
SECTION 4.08. Regulation AB Matters.
(a) The Insurer hereby represents that Ambac Financial Group, Inc. has
filed all reports and other materials required to be filed by it pursuant
to Section 13(a) or 15(d) of the Exchange Act during the 12 months
preceding the date of the Prospectus Supplement.
(b) The Insurer agrees that all consolidated financial statements of
Ambac Assurance Corporation and subsidiaries included in documents filed by
Ambac Financial Group, Inc. with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, may be incorporated by reference
into any Form 8-K, Form 10-D or Form 10-K filed by the Depositor, solely to
the extent required under Regulation AB. It is understood and agreed that,
to the extent any consent letter of the Insurer's accountants is required
by the Depositor in connection with such filing, the fees and expenses
payable in respect thereof shall
30
be paid by the Sponsor upon demand. The Insurer shall use commercially
reasonable efforts to help obtain such consent letter.
(c) The Insurer hereby represents that it is not an affiliate (as
defined in Subpart 230.405 - Asset Backed Securities (Regulation AB), 17
C.F.R. Sections 230) of the Trustee.
(d) The Insurer shall upon receipt of written request therefor from
the Depositor, provide to the Depositor a description of any affiliation
required to be disclosed under Item 1119 of Regulation AB between the
Insurer and any of the parties listed in Items 1119(a)(1)-(6) of Regulation
AB that develops following the date hereof (other than an affiliation that
the Depositor, the Sponsor or any issuing entity has with any of such
parties listed in Items 1119(a)(1)-(6) of Regulation AB). For purposes of
the foregoing, unless otherwise notified by the Depositor, the Insurer (1)
shall be entitled to assume that the parties are the same as on the most
recent previously delivered written notification (or on the date hereof, if
no such written notification has been delivered), (2) shall not be
obligated to disclose any affiliations that may develop after the date
hereof with any parties not identified to the Insurer pursuant to clause
(1) above, and (3) shall be entitled to rely upon any written
identification of parties provided by the Depositor or the Sponsor.
(e) The Insurer hereby agrees to comply with all reasonable requests
of the Depositor for the delivery of such additional information as may be
necessary for the Depositor to comply with Item 1114 of Regulation AB, so
long as such information is available to the Insurer and not otherwise
available to the Depositor pursuant to commercially reasonable efforts. The
Insurer agrees to respond within five (5) business days to a written
request from the Depositor (made in accordance with Section 4 herein),
which request shall be made no more frequently than once a calendar
quarter, as to whether it or the entity that consolidates it has made the
filings required by Section 13(a) or Section 15(d) of the Exchange Act.
(f) For purposes of this Agreement, the term "Regulation AB" shall
mean Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
Sections 229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as has been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by
the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Defaults. The occurrence of any of the following shall
constitute an Event of Default hereunder:
31
(a) Any representation or warranty made by the Sponsor, the Servicer,
the Originator or the Depositor hereunder or under the Operative Documents,
or in any certificate furnished hereunder or under the Operative Documents,
shall prove to be untrue or incomplete in any material respect, provided
that, if cured within the related time period, such default shall not be an
Event of Default;
(b) (i) The Sponsor, the Servicer, the Originator or the Depositor
shall fail to pay when due any amount payable by the Sponsor, the Servicer,
the Originator or the Depositor hereunder or (ii) a legislative body has
enacted any law that declares or a court of competent jurisdiction shall
find or rule that this Insurance Agreement or any other Operative Document
is not valid and binding on the Sponsor, the Servicer, the Originator or
the Depositor, provided that, with respect to any law or judicial action
within the scope of this clause (ii), the Sponsor, the Servicer, the
Originator and the Depositor shall have 30 days to reinstate the binding
effect of this Insurance Agreement or any other Operative Document; the
Insurer agrees to take such actions as may be reasonably requested of it to
facilitate the reinstatement of such binding effect;
(c) The occurrence and continuance of an "event of default", or any
event which given the lapse of time or notice would constitute an "event of
default", under any Operative Document;
(d) Any failure on the part of the Sponsor, the Servicer, the
Originator or the Depositor duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Sponsor, the Servicer, the Originator the Depositor contained in this
Insurance Agreement which continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Sponsor, the Servicer, the
Originator and the Depositor by the Insurer (with a copy to the Trustee) or
by the Trustee (with a copy to the Insurer); provided, however, that the
Trustee shall not be deemed to have knowledge of any failure described in
this Section 5.01(d) unless a Responsible Officer has actual knowledge
thereof;
(e) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator or other similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Sponsor,
the Servicer, the Originator or the Depositor and such decree or order
shall have remained in force undischarged or unstayed for a period of 90
consecutive days;
(f) The Sponsor, the Servicer, the Originator or the Depositor shall
consent to the appointment of a conservator or receiver or liquidator or
other similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating
to the Sponsor, the
32
Servicer, the Originator or the Depositor or of or relating to all or
substantially all of their respective property;
(g) The Sponsor, the Servicer, the Originator or the Depositor shall
admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of or otherwise voluntarily commence
a case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar statute, make an assignment for the benefit
of its creditors or voluntarily suspend payment of its obligations; or
(h) Either of the Issuing Entity or the Depositor shall become subject
to an entity level tax or to registration as an investment company under
the Investment Company Act.
SECTION 5.02. Remedies; No Remedy Exclusive.
(a) Upon the occurrence of an Event of Default, the Insurer may
exercise any one or more of the rights and remedies set forth below:
(i) declare all indebtedness of every type or description then
owed by the Sponsor, the Servicer, the Originator or the Depositor to
the Insurer to be immediately due and payable, and the same shall
thereupon be immediately due and payable;
(ii) exercise any rights and remedies under the Pooling and
Servicing Agreement in accordance with the terms thereof or direct the
Servicer and/or the Trustee to exercise such remedies in accordance
with the terms of the Agreement; or
(iii) take whatever action at law or in equity as may appear
necessary or desirable in its judgment to collect the amounts, if any,
then due under this Insurance Agreement or any other Operative
Document or to enforce performance and observance of any obligation,
agreement or covenant of the Sponsor, the Servicer, the Originator or
the Depositor under this Insurance Agreement or any other Operative
Documents.
(b) Unless otherwise expressly provided, no remedy herein conferred or
reserved is intended to be exclusive of any other available remedy, but
each remedy shall be cumulative and shall be in addition to other remedies
given under this Insurance Agreement, the Pooling and Servicing Agreement
or existing at law or in equity. No delay or omission to exercise any right
or power accruing under this Insurance Agreement or the Pooling and
Servicing Agreement upon the happening of any event set forth in Section
5.01 shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the
Insurer to exercise any remedy reserved to the Insurer in this Article, it
shall not be necessary to give any notice, other than such notice as may be
required by this Article.
33
SECTION 5.03. Waivers.
(a) No failure by the Insurer to exercise, and no delay by the Insurer
in exercising, any right hereunder shall operate as a waiver thereof. The
exercise by the Insurer of any right hereunder shall not preclude the
exercise of any other right, and the remedies provided herein to the
Insurer are declared in every case to be cumulative and not exclusive of
any remedies provided by law or equity.
(b) The Insurer shall have the right, to be exercised in its complete
discretion, to waive any Event of Default hereunder, by a writing setting
forth the terms, conditions and extent of such waiver signed by the Insurer
and delivered to the Sponsor, the Servicer, the Originator and the
Depositor. Unless such writing expressly provides to the contrary, any
waiver so granted shall extend only to the specific event or occurrence
which gave rise to the Event of Default so waived and not to any other
similar event or occurrence which occurs subsequent to the date of such
waiver.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendments, Etc. This Insurance Agreement may be amended,
modified, supplemented or terminated only by written instrument or written
instruments signed by the parties hereto. Each of the Sponsor, the Servicer, the
Originator and the Depositor agrees to provide a copy of any amendment to this
Insurance Agreement promptly to the rating agencies maintaining a rating on any
of the Certificates. No act or course of dealing shall be deemed to constitute
an amendment, modification, supplement or termination hereof.
SECTION 6.02. Notices. All demands, notices and other communications to be
given hereunder shall be in writing (except as otherwise specifically provided
herein) and shall be mailed by registered mail, over night mail or personally
delivered and telecopied to the recipient as follows:
(a) To the Insurer:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Consumer Asset-Backed
Securities Group
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
(in each case in which notice or other communication to the Insurer
refers to an Event of Default, a claim on the Policy or with respect
to which failure on the part of the Insurer to respond shall be deemed
to constitute consent or acceptance, then a copy of such notice or
other communication
34
should also be sent to the attention of the general counsel of each of
the Insurer, the Sponsor, the Servicer, the Originator the Depositor
and the Trustee and, in all cases, both any original and all copies
shall be marked to indicate "URGENT MATERIAL ENCLOSED.")
(b) To Xxxxxxx Xxxxx Mortgage Lending Inc.:
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
(c) To Xxxxxxx Xxxxx Mortgage Investors Inc.:
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
(d) To Home Loan Services, Inc.:
000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx, 00000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Vice President, Investor Reporting
Facsimile: (000) 000-0000
(e) To First Franklin Financial Corporation
c/o Merrill Xxxxx Bank & Trust Co.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Notice to the Sponsor, the Servicer, the Originator or the Depositor
shall also constitute notice to the Sponsor, the Servicer, the
Originator and the Depositor to the extent the party providing such
notice is required to provide notice to all such parties (in each case
in which notice or other communication to the Sponsor, the Servicer,
the Originator and the Depositor refers to an Event of Default, a
claim against the Sponsor, the
35
Servicer, the Originator and the Depositor or with respect to which
failure on the part of the Sponsor, the Servicer, the Originator or
the Depositor to respond shall be deemed to constitute consent or
acceptance, then a copy of such notice or other communication should
also be sent to the attention of the general counsel of each of the
Insurer and the Trustee and, in all cases, both any original and all
copies shall be marked to indicate "URGENT MATERIAL ENCLOSED.").
(f) To the Trustee:
LaSalle Bank, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx
Attention: Global Securities and Trust Services -
First Franklin Mortgage Loan Trust, Series 2007-FFC
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
A party may specify an additional or different address or addresses by
writing mailed or delivered to the other parties as aforesaid. All such notices
and other communications shall be effective upon receipt.
SECTION 6.03. Severability. In the event that any provision of this
Insurance Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, the parties hereto agree that such holding shall not
invalidate or render unenforceable any other provision hereof. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by any party hereto is unavailable or unenforceable
shall not affect in any way the ability of such party to pursue any other remedy
available to it.
SECTION 6.04. Governing Law. This Insurance Agreement shall be governed by
and construed in accordance with the laws of the State of New York (without
giving effect to the conflict of laws provisions thereof).
SECTION 6.05. Consent to Jurisdiction.
(a) The parties hereto hereby irrevocably submit to the non-exclusive
jurisdiction of the United States District Court for the Southern District
of New York and any court in the State of New York located in the City and
County of New York, and any appellate court from any thereof, in any
action, suit or proceeding brought against it and to or in connection with
any of the Operative Documents, the Policy or the Transaction or for
recognition or enforcement of any judgment, and the parties hereto hereby
irrevocably and unconditionally agree that all claims in respect of any
such action or proceeding may be heard or determined in such New York state
court or, to the extent permitted by law, in
36
such federal court. The parties hereto agree that a final unappealable
judgment in any such action, suit or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. To the extent permitted by applicable law, the
parties hereto hereby waive and agree not to assert by way of motion, as a
defense or otherwise in any such suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of such courts, that the
suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that the related
documents or the subject matter thereof may not be litigated in or by such
courts.
(b) To the extent permitted by applicable law, the parties hereto
shall not seek and hereby waive the right to any review of the judgment of
any such court by any court of any other nation or jurisdiction which may
be called upon to grant an enforcement of such judgment.
(c) Service on the Sponsor, the Servicer, the Originator or the
Depositor may be made by mailing or delivering copies of the summons and
complaint and other process which may be served in any suit, action or
proceeding to such party at the address set forth above. Such address may
be changed by the applicable party or parties by written notice to the
other parties hereto. The provision of notice to change the address set
forth in Section 6.02 shall constitute notice for purposes of the preceding
sentence, unless such notice shall expressly state to the contrary.
(d) Nothing contained in this Insurance Agreement shall limit or
affect any party's right to serve process in any other manner permitted by
law or to start legal proceedings relating to any of the Operative
Documents or the Policy against any other party or its properties in the
courts of any jurisdiction.
SECTION 6.06. Consent of the Insurer. In the event that the consent of the
Insurer is required under any of the Operative Documents, the determination
whether to grant or withhold such consent shall be made by the Insurer in its
sole discretion without any implied duty towards any other Person, except as
otherwise expressly provided therein.
SECTION 6.07. Counterparts. This Insurance Agreement may be executed in
counterparts by the parties hereto, and all such counterparts shall constitute
one and the same instrument.
SECTION 6.08. Headings. The headings of Articles and Sections and the Table
of Contents contained in this Insurance Agreement are provided for convenience
only. They form no part of this Insurance Agreement and shall not affect its
construction or interpretation.
SECTION 6.09. Trial by Jury Waived. Each party hereby waives, to the
fullest extent permitted by law, any right to a trial by jury in respect of any
litigation arising directly or indirectly out of, under or in connection with
any of the Operative Documents
37
or the Policy or any of the transactions contemplated thereunder. Each party
hereto (A) certifies that no representative, agent or attorney of any party
hereto has represented, expressly or otherwise, that it would not, in the event
of litigation, seek to enforce the foregoing waiver and (B) acknowledges that it
has been induced to enter into the Operative Documents to which it is a party
(or, in the case of the Policy, the Insurer so acknowledges) by, among other
things, this waiver.
SECTION 6.10. Limited Liability. No recourse under any Operative Document
or the Underwriting Agreement shall be had against, and no personal liability
shall attach to, any officer, employee, director, affiliate or shareholder of
any party hereto, as such, by the enforcement of any assessment or by any legal
or equitable proceeding, by virtue of any statute or otherwise in respect of any
of the Operative Documents or the Underwriting Agreement, the Certificates or
the Policy, it being expressly agreed and understood that each Operative
Document, the Policy and the Underwriting Agreement is solely a corporate
obligation of each party hereto, and that any and all personal liability, either
at common law or in equity, or by statute or constitution, of every such
officer, employee, director, affiliate or shareholder for breaches of any party
hereto of any obligations under any Operative Document, the Policy or any
Underwriting Agreement is hereby expressly waived as a condition of and in
consideration for the execution and delivery of this Insurance Agreement.
SECTION 6.11. Entire Agreement. This Insurance Agreement and the Policy set
forth the entire agreement between the parties with respect to the subject
matter hereof and thereof, and this Insurance Agreement supersedes and replaces
any agreement or understanding that may have existed between the parties prior
to the date hereof in respect of such subject matter.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
38
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as
of the day and year first above mentioned.
AMBAC ASSURANCE CORPORATION,
as Insurer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE LENDING, INC.,
as Sponsor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HOME LOAN SERVICES, INC.
as Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Insurance and Indemnity Agreement (page 1 of 2)]
39
FIRST FRANKLIN FINANCIAL CORPORATION,
as Originator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LA SALLE BANK, NATIONAL ASSOCIATION
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Insurance and Indemnity Agreement (page 2 of 2)]
40
SCHEDULE X
Item on Form 8-K Party Responsible
----------------- -----------------------------------------
*Item 1.01- Entry into a Material Definitive Agreement All parties
*Item 1.02- Termination of a Material Definitive All parties
Agreement
Item 1.03- Bankruptcy or Receivership Depositor
Item 2.04- Triggering Events that Accelerate or Increase Depositor
a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
*Item 3.03- Material Modification to Rights of Security Trustee
Holders
Item 5.03- Amendments of Articles of Incorporation or Depositor
Bylaws; Change of Fiscal Year
Item 6.01- ABS Informational and Computational Material Depositor
*Item 6.02- Change of Servicer or Trustee Servicer/Trustee
*Item 6.03- Change in Credit Enhancement or External Depositor/Trustee
Support
*Item 6.04- Failure to Make a Required Distribution Trustee
Item 6.05- Securities Act Updating Disclosure Depositor
Item 7.01- Reg FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 Depositor
W-2-1
SCHEDULE Y
Item on Form 10-D Party Responsible
----------------- -----------------------------------------
Item 1: Distribution and Pool Performance Information Trustee and Servicer (with respect to
Plus any information required by 1121 which is NOT underlying Mortgage Loan data)
included on the monthly statement to Certificateholders Servicer and Trustee (to the extent
required by Regulation AB)
Item 2: Legal Proceedings per Item 1117 of Regulation AB All parties to the Pooling and
Servicing Agreement (as to themselves),
the Depositor/Trustee/Servicer (to the
extent known) as to the Issuing
entity, the Sponsor, 1106(b)
originator, any 1100(d)(1) party
Item 3: Sale of Securities and Use of Proceeds Depositor
Item 4: Defaults Upon Senior Securities Trustee
Item 5: Submission of Matters to a Vote of Security Trustee
Holders
Item 6: Significant Obligors of Pool Assets Depositor/Sponsor/Mortgage Loan Seller/
Servicer
Item 7: Significant Enhancement Provider Information Depositor/Sponsor
Item 8: Other Information All parties to the Pooling and
Servicing Agreement (as to themselves)
responsible for disclosure items on
Form 8-K
Item 9: Exhibits Trustee
Y-1
SCHEDULE Z
Item on Form 10-K Party Responsible
----------------- -----------------------------------------
Item 1B: Unresolved Staff Comments Depositor
*Item 9B: Other Information Trustee and any other party responsible
for disclosure items on Form 8-K
*Item 15: Exhibits, Financial Statement Schedules Trustee/Servicer/subservicers/Depositor
*Additional Item: All parties to the Pooling and Servicing
Disclosure per Item 1117 of Regulation AB Agreement (as to themselves), the
Depositor/Trustee/Servicer (to the extent
known) as to the Issuing Entity,
the Sponsor, 1106(b) originator, any
1100(d)(1) party
*Additional Item: All parties to the Pooling and Servicing
Disclosure per Item 1119 of Regulation AB Agreement, the Sponsor, originator,
significant obligor, enhancement or
support provider
Additional Item: Depositor/Sponsor/Mortgage Loan
Disclosure per Item 1112(b) of Regulation AB Seller/Servicer
Additional Item: Depositor/Sponsor
Disclosure per Items 1114(b) and 1115(b) of Regulation AB
Z-1
