<PAGE>
EXHIBIT 4.1
FREMONT MORTGAGE SECURITIES CORPORATION,
as Depositor,
FREMONT INVESTMENT & LOAN,
as Originator and Servicer,
WELLS FARGO BANK, N.A.,
as Master Servicer and Trust Administrator,
and
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2005
-------------------------------------------
FREMONT HOME LOAN TRUST 2005-A
MORTGAGE-BACKED CERTIFICATES,
SERIES 2005-A
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
----
<S>
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ARTICLE I
DEFINITIONS
Section 1.01.
Definitions.................................................................................
5
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage
Loans................................................................
51
Section 2.02. Acceptance by the Trustee or Trust
Administrator of the Mortgage Loans......................
55
Section 2.03. Representations, Warranties and
Covenants of the Originator and the Servicer................
56
Section 2.04. Delivery of Opinion of Counsel in
Connection with Substitution; Non-Qualified Mortgages.....
59
Section 2.05. Execution and Delivery of
Certificates......................................................
60
Section 2.06. Representations and Warranties of
the Depositor.............................................
60
Section 2.07. Representations, Warranties and
Covenants of the Servicer, the Originator and the Master
Servicer....................................................................................
62
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Servicer to Service Mortgage
Loans..........................................................
66
Section 3.02. Subservicing Agreements between
the Servicer and Subservicers...............................
68
Section 3.03. Successor
Subservicers......................................................................
70
Section 3.04. Liability of the
Servicer...................................................................
70
Section 3.05. No Contractual Relationship
between Subservicers and the Trustee, Master Servicer, Trust
Administrator or
Certificateholder..........................................................
70
Section 3.06. Assumption or Termination of
Subservicing Agreements by Trustee or Trust Administrator......
71
Section 3.07. Collection of Certain Mortgage
Loan Payments................................................
71
Section 3.08. Subservicing
Accounts.......................................................................
72
Section 3.09. Collection of Taxes, Assessments
and Similar Items; Escrow Accounts.........................
73
Section 3.10. Collection
Account..........................................................................
74
Section 3.11. Withdrawals from the Collection
Account.....................................................
75
Section 3.12. Investment of Funds in the
Collection Account and the Distribution Account..................
76
Section 3.13. Maintenance of Hazard Insurance,
Errors and Omissions and Fidelity Coverage.................
78
Section 3.14. Enforcement of Due-on-Sale
Clauses; Assumption Agreements...................................
79
Section 3.15. Realization upon Defaulted
Mortgage Loans...................................................
80
Section 3.16. Release of Mortgage
Files...................................................................
82
Section 3.17. Title, Conservation and
Disposition of REO
Property.........................................
83
Section 3.18. Notification of
Adjustments.................................................................
84
</TABLE>
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Section 3.19. Access to Certain Documentation
and Information Regarding the Mortgage Loans................
85
Section 3.20. Documents, Records and Funds in
Possession of the Servicer to Be Held for the Trustee.......
85
Section 3.21. Servicing
Compensation......................................................................
85
Section 3.22. Annual Statement as to
Compliance...........................................................
86
Section 3.23. Annual Independent Public
Accountants' Servicing Statement; Financial Statements............
86
Section 3.24. Master Servicer to Act as
Servicer..........................................................
87
Section 3.25. Compensating
Interest.......................................................................
87
Section 3.26. Credit Reporting;
Gramm-Leach-Bliley
Act....................................................
88
Section 3.27. Net WAC Rate Carryover Reserve
Account; Distribution Account................................
88
Section 3.28. Optional Purchase of Delinquent
Mortgage Loans..............................................
89
Section 3.29. REMIC-Related
Covenants.....................................................................
89
Section 3A.01 Master
Servicer.............................................................................
90
Section 3A.02 REMIC-Related
Covenants.....................................................................
91
Section 3A.03 Monitoring of
Servicer......................................................................
91
Section 3A.04 Fidelity
Bond...............................................................................
92
Section 3A.05 Power to Act;
Procedures....................................................................
92
Section 3A.06 Due-on-Sale Clauses; Assumption
Agreements..................................................
93
Section 3A.07 Documents, Records and Funds in
Possession of Master Servicer To Be Held for Trustee........
93
Section 3A.08
[RESERVED]..................................................................................
93
Section 3A.09 Compensation for the Master
Servicer........................................................
94
Section 3A.10 Annual Officer's Certificate as to
Compliance...............................................
94
Section 3A.11 Annual Independent Accountant's
Servicing Report............................................
94
Section 3A.12 Obligation of the Master Servicer
in Respect of Prepayment Interest Shortfalls..............
95
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01.
Advances....................................................................................
95
Section 4.02. Priorities of
Distribution..................................................................
96
Section 4.03. Monthly Statements to
Certificateholders....................................................
106
Section 4.04. Certain Matters Relating to the
Determination of LIBOR......................................
110
Section 4.05. Allocation of Realized Loss
Amounts.........................................................
111
Section 4.06. Compliance with Withholding
Requirements....................................................
111
Section 4.07. Commission
Reporting........................................................................
111
Section 4.08. REMIC Distributions and Allocation
of Losses................................................
113
ARTICLE V
THE CERTIFICATES
Section 5.01. The
Certificates............................................................................
115
Section 5.02. Certificate Register; Registration
of Transfer and Exchange of Certificates.................
116
Section 5.03. Mutilated, Destroyed, Lost or
Stolen Certificates...........................................
121
Section 5.04. Persons Deemed
Owners.......................................................................
122
</TABLE>
Fremont 2005-A
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Section 5.05. Access to List of
Certificateholders' Names and
Addresses................................... 122
Section 5.06. Maintenance of Office or
Agency.............................................................
122
ARTICLE VI
THE DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER AND THE
SERVICER
Section 6.01. Respective Liabilities of the
Depositor, the Originator, the Master Servicer and the
Servicer....................................................................................
122
Section 6.02. Merger or Consolidation of the
Depositor, the Originator, the Master Servicer or the
Servicer....................................................................................
123
Section 6.03. Limitation on Liability of the
Depositor, the Originator, the Master Servicer, the Trust
Administrator, the Servicer and
Others......................................................
123
Section 6.04. Limitation on Resignation of the
Servicer...................................................
124
Section 6.05. Additional Indemnification by the
Servicer; Third Party Claims..............................
124
Section 6.06. Rights of the Depositor, the
Master Servicer, the Trust Administrator and the Trustee in
Respect of the
Servicer.....................................................................
125
Section 6.07. Limitation on Resignation of the
Master Servicer............................................
126
Section 6.08. Assignment of Master
Servicing..............................................................
126
ARTICLE VII
DEFAULT
Section 7.01. Events of
Default...........................................................................
126
Section 7.02. Master Servicer to Act;
Appointment of
Successor............................................ 132
Section 7.03. Notification to
Certificateholders..........................................................
133
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE TRUST ADMINISTRATOR
Section 8.01. Duties of the
Trustee.......................................................................
134
Section 8.02. Certain Matters Affecting the
Trustee and the Trust Administrator...........................
135
Section 8.03. Neither the Trustee Nor the Trust
Administrator Liable for Certificates or Mortgage Loans...
137
Section 8.04. Trustee and Trust Administrator
May Own Certificates........................................
137
Section 8.05. Fees and Expenses of the Trustee
and Trust Administrator....................................
137
Section 8.06. Eligibility Requirements for the
Trustee and Trust Administrator............................
139
Section 8.07. Resignation and Removal of the
Trustee or Trust Administrator...............................
139
Section 8.08. Successor Trustee or Trust
Administrator....................................................
140
Section 8.09. Merger or Consolidation of the
Trustee or the Trust Administrator...........................
141
Section 8.10. Appointment of Co-Trustee or
Separate Trustee...............................................
141
Section 8.11. Representations and Warranties of
the Trustee and Trust Administrator.......................
142
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Liquidation or
Purchase of the Mortgage Loans..............................
144
</TABLE>
Fremont 2005-A
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<C>
Section 9.02. Final Distribution on the
Certificates......................................................
144
Section 9.03. Additional Termination
Requirements.........................................................
145
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01.
Amendment...................................................................................
146
Section 10.02. Recordation of Agreement;
Counterparts......................................................
148
Section 10.03. Governing
Law...............................................................................
148
Section 10.04. Intention of
Parties........................................................................
148
Section 10.05.
Notices.....................................................................................
149
Section 10.06. Severability of
Provisions..................................................................
150
Section 10.07. Assignment; Sales; Advance
Facilities.......................................................
150
Section 10.08. Limitation on Rights of
Certificateholders..................................................
152
Section 10.09. Inspection and Audit
Rights.................................................................
152
Section 10.10. Certificates Nonassessable
and Fully Paid...................................................
153
Section 10.11. Waiver of Jury
Trial........................................................................
153
ARTICLE XI
REMIC PROVISIONS
Section 11.01. REMIC
Administration........................................................................
153
Section 11.02. Prohibited Transactions and
Activities......................................................
157
Section 11.03.
Indemnification.............................................................................
157
SCHEDULES
Schedule I Mortgage Loan
Schedule
Schedule II Reserved
Schedule III Reserved
Schedule IV Representations and
Warranties of Fremont Investment & Loan as to the Mortgage
Loans
EXHIBITS
Exhibit A Form of Class A
and Class M Certificates
Exhibit B Form of Class P
Certificate
Exhibit C Form of Class R
Certificate
Exhibit D Form of Class C
Certificate
Exhibit E Form of Initial
Certification of Trust Administrator
Exhibit F Form of Document
Certification and Exception Report of Trust Administrator
Exhibit G Form of Residual
Transfer Affidavit and Agreement
</TABLE>
Fremont 2005-A
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<PAGE>
<TABLE>
<S>
<C>
Exhibit H Form of
Transferor Certificate
Exhibit I Form of Rule
144A Letter
Exhibit J Form of Request
for Release
Exhibit K Form of Contents
for Each Mortgage File
Exhibit L Power of
Attorney
Exhibit M Form of Trust
Administrator Certification
Exhibit N Form of Servicer
Certification
Exhibit O Purchase
Agreement
Exhibit P Standard &
Poor's LEVELS(R) Glossary
Exhibit Q Form of
Calculation of Realized Loss
</TABLE>
Fremont 2005-A
Pooling & Servicing Agreement
v
<PAGE>
THIS
POOLING AND SERVICING AGREEMENT, dated as of February 1, 2005,
among
Fremont Mortgage Securities Corporation, as
depositor (the "Depositor"), FREMONT
INVESTMENT & LOAN, as originator and
servicer (the "Originator" and the
"Servicer", as applicable; and together
"Fremont"), and Wells Fargo Bank, N.A.,
as master servicer and trust administrator
(the "Master Servicer" and "Trust
Administrator" in such capacities,
respectively), and HSBC BANK USA, NATIONAL
ASSOCIATION, as trustee (the
"Trustee"),
WITNESSETH:
In
consideration of the mutual agreements herein contained, the
parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Issuer
intends to sell pass-through certificates (collectively, the
"Certificates"), to be issued hereunder in
multiple Classes, which in the
aggregate will evidence the entire
beneficial ownership interest in the Trust
Fund created hereunder. The Certificates
will consist of eighteen Classes of
Certificates, designated as (i) the Class
1-A-1 and Class 1-A-2 Certificates,
(ii) the Class 2-A-1, Class 2-A-2 and Class
2-A-3 Certificates, (iii) the Class
M1, Class M2, Class M3, Class M4, Class M5,
Class M6, Class M7, Class M8, Class
M9 and Class M10 Certificates, (iv) the
Class C Certificates, (v) the Class P
Certificates and (vi) the Class R
Certificate. The descriptions of REMIC I and
REMIC II that follow are part of the
Preliminary Statement. Any inconsistencies
or ambiguities in this Agreement or in the
administration of this Agreement
shall be resolved in a manner that
preserves the validity of such REMIC
elections described below.
REMIC I
As
provided herein, the Trust Administrator will make an election to
treat
the assets of the Trust Fund, other than
the Certificate Cap Agreement, the Net
WAC Rate Carryover Reserve Account and any
Net WAC Rate Carryover Amounts as a
real estate mortgage investment conduit (a
"REMIC") for federal income tax
purposes, and such segregated pool of
assets will be designated as "REMIC I."
The Class R-I Interest will represent the
sole class of "residual interests" in
REMIC I for purposes of the REMIC
Provisions under federal income tax law.
Interest on all Classes of REMIC I Regular
Interests will be calculated on the
basis of a 360-day year consisting of
twelve 30-day months.
The
following table irrevocably sets forth the designation, the
Uncertificated REMIC I Pass-Through Rate,
the initial Uncertificated Principal
Balance, and solely for purposes of
satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC I
Interests.
Fremont 2005-A
Pooling & Servicing Agreement
<PAGE>
<TABLE>
<CAPTION>
UNCERTIFICATED REMIC INITIAL UNCERTIFICATED
LATEST POSSIBLE
DESIGNATION PASS-THROUGH
RATE PRINCIPAL
BALANCE
MATURITY DATE (1)
<S>
<C>
<C>
<C>
LTAA
Variable(2)
$1,185,652,325.25
January 2035
LT1A1
Variable(2)
$
3,482,400.00
January 2035
LT1A2
Variable(2)
$ 870,600.00
January 2035
LT2A1
Variable(2)
$
1,984,000.00
January 2035
LT2A2
Variable(2)
$
2,679,000.00
January 2035
LT2A3
Variable(2)
$ 293,790.00
January
2035
LTM1
Variable(2)
$ 556,530.00
January 2035
LTm2
Variable(2)
$ 556,530.00
January 2035
LTM3
Variable(2)
$ 260,120.00
January 2035
LTM4
Variable(2)
$ 211,720.00
January 2035
LTM5
Variable(2)
$ 199,630.00
January 2035
LTM6
Variable(2)
$ 181,480.00
January 2035
LTM7
Variable(2)
$ 181,480.00
January 2035
LTM8
Variable(2)
$ 145,180.00
January 2035
LTM9
Variable(2)
$ 157,280.00
January 2035
LTM10
Variable(2)
$ 120,980.00
January 2035
LTZZ
Variable(2)
$ 12,316,266.23
January 2035
LTP
Variable(2)
$
100
January 2035
</TABLE>
------------------
(1) Solely for purposes of
Treasury Regulations Section 1.860G-1(a)(4)(iii),
the
Distribution Date in the month following the maturity date for
the
Mortgage
Loan with the latest maturity date has been designated as the
"latest
possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance
with the definition of "Uncertificated REMIC I
Pass-Through Rate" herein.
Fremont 2005-A
Pooling & Servicing Agreement
2
<PAGE>
REMIC II
As
provided herein, the Trust Administrator shall make an election
to
treat the segregated pool of assets
consisting of the REMIC I Regular Interests
as a REMIC for federal income tax purposes,
and such segregated pool of assets
will be designated as "REMIC II." The Class
R-II Interest represents the sole
class of "residual interests" in REMIC II
for purposes of the REMIC Provisions.
Interest on all Regular Certificates will
be calculated on the basis of the
actual number of days in the related
Interest Accrual Period and a 360-day year.
The
following table sets forth (or describes) the Class
designation,
Certificate Interest Rate and original
Class Certificate Balance for each Class
of Certificates comprising the interests in
the Trust Fund created hereunder:
<TABLE>
<CAPTION>
ORIGINAL CLASS
CERTIFICATE
ASSUMED FINAL
CLASS CERTIFICATE BALANCE
INTEREST RATE
MATURITY
DATES (1)
----- -------------------
-------------
------------------
<S> <C>
<C>
<C>
1-A-1 $ 348,240,000
(2)
January 2035
1-A-2
87,060,000
(2)
January 2035
2-A-1
198,400,000
(2)
January 2035
2-A-2
267,900,000
(2)
January 2035
2-A-3
29,379,000
(2)
January 2035
M1
55,653,000
(2)
January 2035
M2
55,653,000
(2)
January 2035
M3
26,012,000
(2)
January 2035
M4
21,172,000
(2)
January 2035
M5
19,963,000
(2)
January 2035
M6
18,148,000
(2)
January 2035
M7
18,148,000
(2)
January 2035
M8
14,518,000
(2)
January 2035
M9
15,728,000
(2)
January 2035
M10
12,098,000
(2)
January 2035
C
(3)
(3)
January 2035
P
$
100
(4)
January 2035
R
N/A
N/A
January 2035
</TABLE>
------------------
(1) Solely for purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date following the maturity date for
the
Mortgage
Loan with the latest maturity date has been designated as the
"latest
possible maturity date" for each Class of Certificates, each of
which
represents one or more of the "regular interests" in REMIC II.
(2) Calculated in accordance
with the definition of "Pass-Through Rate"
herein.
(3) The Class C Certificate will
accrue interest at the Class C Pass-Through
Rate on
the Notional Amount of the Class C Certificates outstanding
from
time to
time which shall equal the aggregate of the Uncertificated
Principal
Balances of the REMIC I Uncertificated Regular Interests. The
Class C
Certificate will have an initial Certificate Balance equal to
the
Initial
Overcollateralization Amount. The Class C Certificate will not
accrue
interest on its Certificate Balance.
(4) The Class P Certificates do
not bear interest. The Class P Certificates
represent
the right to receive payments in respect of Prepayment
Premiums.
Fremont 2005-A
Pooling & Servicing Agreement
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<PAGE>
The
minimum denomination for each Class of the Offered Certificates
will
be $25,000, with integral multiples of $1
in excess thereof except that one
Certificate in each Class may be issued in
a different amount. The minimum
denomination for (a) each of the Class M10
Certificates will be $100,000, with
integral multiples of $1 in excess thereof
except that one Certificate in each
Class may be issued in a different amount,
(b) each of the Class P and Class R
Certificates will be a 100% Percentage
Interest in such Class and (c) the Class
C Certificates will be a 10% Percentage
Interest in such Class.
Set forth
below are designations of Classes of Certificates to the
categories used herein:
<TABLE>
<S>
<C>
Book-Entry
Certificates........................ All
Classes of Certificates other than the Physical
Certificates.
ERISA-Restricted
Certificates.................. Class R
Certificates, Class P Certificates, Class C
Certificates and Class M10 Certificates; and any other
certificate with a rating below the lowest applicable
permitted rating under the Underwriters' Exemption.
LIBOR
Certificates............................. The Senior
Certificates and the Subordinated
Certificates.
Non-Delay
Certificates......................... The
Offered Certificates, the Class M10 and the Class C
Certificates.
Offered
Certificates........................... All
Classes of Certificates other than the Private
Certificates.
Physical
Certificates.......................... Class C,
Class P and Class R Certificates.
Private
Certificates........................... Class M10,
Class C, Class P and Class R Certificates.
Rating
Agencies................................ Moody's
and Standard & Poor's.
Regular
Certificates........................... All
Classes of Certificates other than the Class R
Certificates (exclusive of the right to any Net WAC
Rate Carryover Amounts) each of which represents a
regular interest in REMIC II for purposes of the REMIC
Provisions.
Residual
Certificates.......................... Class R
Certificates.
Senior
Certificates............................ Class
1-A-1, Class 1-A-2, Class 2-A-1, Class 2-A-2 and
Class 2-A-3 Certificates.
Subordinated
Certificates...................... Class M1,
Class M2, Class M3, Class M4, Class M5, Class M6,
Class M7, Class M8, Class M9 and Class M10 Certificates.
</TABLE>
Fremont 2005-A
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<PAGE>
ARTICLE I
DEFINITIONS
Section
1.01.Definitions.
Whenever
used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have
the following meanings:
Accepted
Master Servicing Practices: With respect to any Mortgage Loan,
as
applicable, (1) either (x) those mortgage
master servicing practices of prudent
mortgage lending institutions which master
service mortgage loans of the same
type and quality as such Mortgage Loan in
the jurisdiction where the related
Mortgaged Property is located to the extent
applicable to the Master Servicer
(except in its capacity as successor to the
Servicer), or (y) as provided in
Section 3A.01 hereof, but in no event below
the standard set forth in clause (x)
and (2) in accordance with applicable
local, state and federal laws, rules and
regulations.
Accepted
Servicing Practices: With respect to any Mortgage Loan, as
applicable, (1) either (x) those mortgage
servicing practices of prudent
mortgage lending institutions which service
mortgage loans of the same type and
quality as such Mortgage Loan in the
jurisdiction where the related Mortgaged
Property is located to the extent
applicable to the Servicer, or (y) as provided
in Section 3.01 hereof, but in no event
below the standard set forth in clause
(x) and (2) in accordance with applicable
local, state and federal laws, rules
and regulations.
Account:
Any of the Collection Account, the Distribution Account, any
Escrow Account or the Net WAC Rate
Carryover Reserve Account. Each Account shall
be an Eligible Account.
Adjustable
Rate Mortgage Loan: An adjustable rate Mortgage Loan purchased
pursuant to the Purchase Agreement.
Adjusted
Net Maximum Mortgage Interest Rate: As to each Mortgage Loan
and
at any time, the per annum rate equal to
the Maximum Mortgage Interest Rate less
the Expense Fee Rate.
Adjusted
Net Mortgage Interest Rate: As to each Mortgage Loan and at any
time, the per annum rate equal to the
Mortgage Interest Rate less the Expense
Fee Rate.
Adjustment
Date: As to any Mortgage Loan, the first Due Date on which the
related Mortgage Interest Rate adjusts as
set forth in the related Mortgage Note
and each Due Date thereafter on which the
Mortgage Interest Rate adjusts as set
forth in the related Mortgage Note.
Advance:
Any P&I Advance or Servicing Advance.
Advance
Facility: A financing or other facility as described in Section
10.07.
Advancing
Person: The Person to whom the Servicer's rights under this
Agreement to be reimbursed for any P&I
Advances or Servicing Advances have been
assigned pursuant to Section 10.07.
Fremont 2005-A
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<PAGE>
Adverse
REMIC Event: As defined in Section 11.01(f) hereof.
Affiliate:
With respect to any Person, any other Person controlling,
controlled by or under common control with
such first Person. For the purposes
of this definition, "control" means the
power to direct the management and
policies of such Person, directly or
indirectly, whether through the ownership
of voting securities, by contract or
otherwise; and the terms "controlling" and
"controlled" have meanings correlative to
the foregoing.
Agreement:
This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Applied
Class 2-A Realized Loss Amount: With respect to any
Distribution
Date on or after the date on which the
Certificate Balances of the Subordinated
Certificates have been reduced to zero, the
amount, if any, by which the
aggregate Class Certificate Balance of the
Class 2-A Certificates after
distributions of principal on such
Distribution Date exceeds the aggregate
Stated Principal Balance of the Group 2
Mortgage Loans for such Distribution
Date.
Applied
Realized Loss Amount: With respect to any Distribution Date,
the
amount, if any, by which the aggregate
Class Certificate Balance of the LIBOR
Certificates after distributions of
principal on such Distribution Date exceeds
the aggregate Stated Principal Balance of
the Mortgage Loans for such
Distribution Date.
Appraised
Value: With respect to any Mortgage Loan, the value of the
related Mortgaged Property based upon the
appraisal made for the originator at
the time of origination of such Mortgage
Loan or the sales price of such
Mortgaged Property at such time of
origination, whichever is less; provided,
however, that in the case of a refinanced
Mortgage Loan, such value is based
solely upon the appraisal made at the time
of origination of such refinanced
Mortgage Loan.
Assignment
of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument in recordable form
(other than the assignee's name and
recording information not yet returned from
the recording office), reflecting
the sale of the Mortgage to the
Trustee.
Available
Funds: With respect to any Distribution Date and the Mortgage
Loans to the extent received by the Trust
Administrator (x) the sum of (i) all
scheduled installments of interest (net of
the related Expense Fees) and
principal due on the Due Date on such
Mortgage Loans in the related Due Period
and received on or prior to the related
Determination Date, together with any
P&I Advances in respect thereof; (ii)
all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds during
the related Prepayment Period (in each
case, net of unreimbursed expenses incurred
in connection with a liquidation or
foreclosure and unreimbursed Advances, if
any); (iii) all partial or full
prepayments on the Mortgage Loans received
during the related Prepayment Period
together with all Compensating Interest
thereon and any amounts paid by the
Servicer or Master Servicer in respect of
Prepayment Interest Shortfalls for
such Distribution Date pursuant to Sections
3.25 and 3A.12, respectively
(excluding in each case Prepayment Premiums
and any Prepayment Interest Excess);
(iv) any Subsequent Recoveries, and (v)
amounts received with respect to such
Distribution Date as the Substitution
Adjustment
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<PAGE>
Amount or purchase price in respect of a
Deleted Mortgage Loan or a Mortgage
Loan repurchased by the Originator or the
Depositor as of such Distribution
Date; reduced by (y) amounts in
reimbursement for P&I Advances and Servicing
Advances previously made with respect to
the Mortgage Loans and other amounts to
which the Servicer, the Master Servicer,
the Depositor, the Trust Administrator
or the Trustee (or co-trustee) are entitled
to be paid or reimbursed pursuant to
this Agreement.
Base Rate:
For any Distribution Date and any Class of LIBOR Certificates,
the sum of (i) one-month LIBOR plus (ii)
the related Pass-Through Margin.
Best's:
Best's Key Rating Guide, as the same shall be amended from time
to
time.
Book-Entry
Certificates: As specified in the Preliminary Statement.
Business
Day: Any day other than (i) Saturday or Sunday, or (ii) a day
on
which banking and savings and loan
institutions, in (a) the states of New York,
Maryland, Minnesota and California, (b) the
state in which the Servicer's
servicing operations are located, or (c)
the state in which the Trustee's
operations are located, are authorized or
obligated by law or executive order to
be closed.
Certificate: Any one of the Certificates executed by the Trust
Administrator in substantially the forms
attached hereto as exhibits.
Certificate Balance: With respect to any Class of Certificates,
other than
the Class C or Class R Certificates, at any
date, the maximum dollar amount of
principal to which the Holder thereof is
then entitled hereunder, such amount
being equal to the Denomination thereof
minus all distributions of principal
previously made with respect thereto and in
the case of the Subordinated
Certificates, reduced by any Applied
Realized Loss Amounts applicable to such
Class or in the case of any Class 2-A
Certificates, reduced by any Applied Class
2-A Realized Loss Amounts; provided,
however, that the Certificate Balances of
the Subordinated Certificates then
outstanding will be increased in direct order
of seniority by the amount of any
Subsequent Recoveries distributed to any Class
senior to such Class. With respect to the
Class C Certificate and any
Distribution Date, the excess, if any, of
the then aggregate Uncertificated
Principal Balances of the REMIC I Regular
Interests over the aggregate
Certificate Balance of the LIBOR
Certificates and the Class P Certificate then
outstanding. The Class R Certificates will
not have a Certificate Balance.
Certificate Cap Agreement: The cap agreement, dated as of February
22,
2005, between the Trustee, on behalf of the
Issuer, and the Counterparty, having
an initial notional amount of
$1,191,730,431.23.
Certificate Cap Agreement Payments: The payments made under the
Certificate Cap Agreement.
Certificate Interest Rate: With respect to each Distribution Date
during
the Interest Accrual Period and each Class
of LIBOR Certificates and the Class C
Certificates, the related Pass-Through
Rate.
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<PAGE>
Certificate Owner: With respect to a Book-Entry Certificate, the
Person
who is the beneficial owner of such
Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificate Registrar: The registrar appointed pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in the
name of the Depositor, the Master Servicer
or the Servicer or any affiliate
thereof 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 and the Trust Administrator are
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
the Preliminary Statement.
Class A
Certificates: Any of the Class 1-A Certificates and the Class
2-A
Certificates, as applicable.
Class 1-A
Certificates: Any of the Class 1-A-1 Certificates and the Class
1-A-2 Certificates, as applicable.
Class
1-A-1 Certificates: All Certificates bearing the Class
designation
of "Class 1-A-1 Certificates" representing
the right to distributions as set
forth herein and therein and representing a
regular interest in REMIC II.
Class 1-A-2
Certificates: All Certificates bearing the Class designation
of "Class 1-A-2 Certificates" representing
the right to distributions as set
forth herein and therein and representing a
regular interest in REMIC II.
Class 2-A
Certificates: Any of the Class 2-A-1 Certificates, Class 2-A-2
Certificates and the Class 2-A-3
Certificates, as applicable.
Class
2-A-1 Certificates: All Certificates bearing the Class
designation
of "Class 2-A-1 Certificates" representing
the right to distributions as set
forth herein and therein and representing a
regular interest in REMIC II.
Class
2-A-2 Certificates: All Certificates bearing the Class
designation
of "Class 2-A-2 Certificates" representing
the right to distributions as set
forth herein and therein and representing a
regular interest in REMIC II.
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<PAGE>
Class
2-A-3 Certificates: All Certificates bearing the Class
designation
of "Class 2-A-3 Certificates" representing
the right to distributions as set
forth herein and therein and representing a
regular interest in REMIC II.
Class C
Certificates: All Certificates bearing the Class designation of
"Class C Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class
Certificate Balance: With respect to any Class and as to any date
of
determination, the aggregate of the
Certificate Balances of all Certificates of
such Class as of such date.
Class C
Distributable Amount: On any Distribution Date, the sum of (i)
the
interest accrued on such Class C
Certificate at its Pass-Through Rate calculated
on its Notional Amount less the amount
(without duplication) of any Net WAC Rate
Carryover Payments paid pursuant to Section
4.02(a)(iii) and less the amount
applied as an Extra Principal Distribution
Amount on such Distribution Date,
(ii) any amount of the Certificate Balance
of the Class C Certificate that is
distributable as an Overcollateralization
Release Amount and (iii) the aggregate
of amounts remaining in the Net WAC Rate
Carryover Reserve Accounts after the
distributions in Sections 4.02(a)(iii)(N)
and (O).
Class M1
Certificates: All Certificates bearing the Class designation of
"Class M1 Certificates" representing the
right to distributions as set forth
herein and therein and representing an
interest in REMIC II.
Class M1
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date) and (ii) the aggregate
Certificate Balance of the Class M1
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 63.10 % and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus
$6,049,247.06.
Class M2
Certificates: All Certificates bearing the Class designation of
"Class M2 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M2
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
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<PAGE>
Date) and (iii) the aggregate Certificate
Balance of the Class M2 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 72.30% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) minus $6,049,247.06.
Class M3
Certificates: All Certificates bearing the Class designation of
"Class M3 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M3
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
Date), (iii) the aggregate Certificate
Balance of the Class M2 Certificates
(after taking into account the distribution
of the Class M2 Principal
Distribution Amount on such Distribution
Date) and (iv) the Certificate Balance
of the Class M3 Certificates immediately
prior to such Distribution Date over
(y) the lesser of (A) the product of (i)
76.60% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due
Period (after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) minus $6,049,247.06.
Class M4
Certificates: All Certificates bearing the Class designation of
"Class M4 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M4
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
Date), (iii) the aggregate Certificate
Balance of the Class M2 Certificates
(after taking into account the distribution
of the Class M2 Principal
Distribution Amount on such Distribution
Date), (iv) the aggregate Certificate
Balance of the Class M3 Certificates (after
taking into account the distribution
of the Class M3 Principal Distribution
Amount on such Distribution Date) and (v)
the aggregate Certificate Balance of the
Class M4 Certificates immediately prior
to such Distribution Date over (y) the
lesser of (A) the product of (i) 80.10%
and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the
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<PAGE>
related Due Period (after giving effect to
scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus
$6,049,247.06.
Class M5
Certificates: All Certificates bearing the Class designation of
"Class M5 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M5
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
Date), (iii) the aggregate Certificate
Balance of the Class M2 Certificates
(after taking into account the distribution
of the Class M2 Principal
Distribution Amount on such Distribution
Date), (iv) the aggregate Certificate
Balance of the Class M3 Certificates (after
taking into account the distribution
of the Class M3 Principal Distribution
Amount on such Distribution Date), (v)
the aggregate Certificate Balance of the
Class M4 Certificates (after taking
into account the distribution of the Class
M4 Principal Distribution Amount on
such Distribution Date) and (vi) the
aggregate Certificate Balance of the Class
M5 Certificates immediately prior to such
Distribution Date over (y) the lesser
of (A) the product of (i) 83.40% and (ii)
the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of
the related Due Period (after giving
effect to scheduled payments of principal
due during the related Due Period, to
the extent received or advanced, and
unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due
Period (after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled
collections of principal received during
the related Prepayment Period) minus
$6,049,247.06.
Class M6
Certificates: All Certificates bearing the Class designation of
"Class M6 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M6
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
Date), (iii) the aggregate Certificate
Balance of the Class M2 Certificates
(after taking into account the distribution
of the Class M2 Principal
Distribution Amount on such Distribution
Date), (iv) the aggregate Certificate
Balance of the Class M3 Certificates (after
taking into account the distribution
of the Class M3 Principal Distribution
Amount on such
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<PAGE>
Distribution Date), (v) the aggregate
Certificate Balance of the Class M4
Certificates (after taking into account the
distribution of the Class M4
Principal Distribution Amount on such
Distribution Date), (vi) the aggregate
Certificate Balance of the Class M5
Certificates (after taking into account the
distribution of the Class M5 Principal
Distribution Amount on such Distribution
Date) and (vii) the aggregate Certificate
Balance of the Class M6 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 86.40% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) minus $6,049,247.06.
Class M7
Certificates: All Certificates bearing the Class designation of
"Class M7 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M7
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
Date), (iii) the aggregate Certificate
Balance of the Class M2 Certificates
(after taking into account the distribution
of the Class M2 Principal
Distribution Amount on such Distribution
Date), (iv) the aggregate Certificate
Balance of the Class M3 Certificates (after
taking into account the distribution
of the Class M3 Principal Distribution
Amount on such Distribution Date), (v)
the aggregate Certificate Balance of the
Class M4 Certificates (after taking
into account the distribution of the Class
M4 Principal Distribution Amount on
such Distribution Date), (vi) the aggregate
Certificate Balance of the Class M5
Certificates (after taking into account the
distribution of the Class M5
Principal Distribution Amount on such
Distribution Date), (vii) the aggregate
Certificate Balance of the Class M6
Certificates (after taking into account the
distribution of the Class M6 Principal
Distribution Amount on such Distribution
Date) and (viii) the aggregate Certificate
Balance of the Class M7 Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 89.40% and (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related Due Period (after giving effect
to scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal received
during the related Prepayment Period) and
(B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period
(after giving effect to scheduled payments
of principal due during the related
Due Period, to the extent received or
advanced, and unscheduled collections of
principal received during the related
Prepayment Period) minus $6,049,247.06.
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Class M8
Certificates: All Certificates bearing the Class designation of
"Class M8 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M8
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
Date), (iii) the aggregate Certificate
Balance of the Class M2 Certificates
(after taking into account the distribution
of the Class M2 Principal
Distribution Amount on such Distribution
Date), (iv) the aggregate Certificate
Balance of the Class M3 Certificates (after
taking into account the distribution
of the Class M3 Principal Distribution
Amount on such Distribution Date), (v)
the aggregate Certificate Balance of the
Class M4 Certificates (after taking
into account the distribution of the Class
M4 Principal Distribution Amount on
such Distribution Date), (vi) the aggregate
Certificate Balance of the Class M5
Certificates (after taking into account the
distribution of the Class M5
Principal Distribution Amount on such
Distribution Date), (vii) the aggregate
Certificate Balance of the Class M6
Certificates (after taking into account the
distribution of the Class M6 Principal
Distribution Amount on such Distribution
Date), (viii) the aggregate Certificate
Balance of the Class M7 Certificates
(after taking into account the distribution
of the Class M7 Principal
Distribution Amount on such Distribution
Date) and (ix) the aggregate
Certificate Balance of the Class M8
Certificates immediately prior to such
Distribution Date over (y) the lesser of
(A) the product of (i) 91.80% and (ii)
the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day
of the related Due Period (after giving
effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus
$6,049,247.06.
Class M9
Certificates: All Certificates bearing the Class designation of
"Class M9 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M9
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
Date), (iii) the aggregate Certificate
Balance of the Class M2 Certificates
(after taking into account the distribution
of the Class M2 Principal
Distribution Amount on such Distribution
Date), (iv) the aggregate Certificate
Balance of the Class M3 Certificates (after
taking into account the distribution
of the Class M3 Principal Distribution
Amount on such Distribution Date), (v)
the aggregate Certificate Balance of the
Class M4 Certificates (after taking
into account the distribution of the Class
M4 Principal Distribution Amount on
such
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<PAGE>
Distribution Date), (vi) the aggregate
Certificate Balance of the Class M5
Certificates (after taking into account the
distribution of the Class M5
Principal Distribution Amount on such
Distribution Date), (vii) the aggregate
Certificate Balance of the Class M6
Certificates (after taking into account the
distribution of the Class M6 Principal
Distribution Amount on such Distribution
Date), (viii) the aggregate Certificate
Balance of the Class M7 Certificates
(after taking into account the distribution
of the Class M7 Principal
Distribution Amount on such Distribution
Date), (ix) the aggregate Certificate
Balance of the Class M8 Certificates (after
taking into account the distribution
of the Class M8 Principal Distribution
Amount on such Distribution Date) and (x)
the aggregate Certificate Balance of the
Class M9 Certificates immediately prior
to such Distribution Date over (y) the
lesser of (A) the product of (i) 94.40%
and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period (after
giving effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus
$6,049,247.06.
Class M10
Certificates: All Certificates bearing the Class designation of
"Class M10 Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class M10
Principal Distribution Amount: With respect to any Distribution
Date, the excess of (x) the sum of (i) the
aggregate Certificate Balance of the
Senior Certificates (after taking into
account the distribution of the Senior
Principal Distribution Amount on such
Distribution Date), (ii) the aggregate
Certificate Balance of the Class M1
Certificates (after taking into account the
distribution of the Class M1 Principal
Distribution Amount on such Distribution
Date), (iii) the aggregate Certificate
Balance of the Class M2 Certificates
(after taking into account the distribution
of the Class M2 Principal
Distribution Amount on such Distribution
Date), (iv) the aggregate Certificate
Balance of the Class M3 Certificates (after
taking into account the distribution
of the Class M3 Principal Distribution
Amount on such Distribution Date), (v)
the aggregate Certificate Balance of the
Class M4 Certificates (after taking
into account the distribution of the Class
M4 Principal Distribution Amount on
such Distribution Date), (vi) the aggregate
Certificate Balance of the Class M5
Certificates (after taking into account the
distribution of the Class M5
Principal Distribution Amount on such
Distribution Date), (vii) the aggregate
Certificate Balance of the Class M6
Certificates (after taking into account the
distribution of the Class M6 Principal
Distribution Amount on such Distribution
Date), (viii) the aggregate Certificate
Balance of the Class M7 Certificates
(after taking into account the distribution
of the Class M7 Principal
Distribution Amount on such Distribution
Date), (ix) the aggregate Certificate
Balance of the Class M8 Certificates (after
taking into account the distribution
of the Class M8 Principal Distribution
Amount on such Distribution Date), (x)
the aggregate Certificate Balance of the
Class M9 Certificates (after taking
into account the distribution of the Class
M9 Principal Distribution Amount on
such Distribution Date) and (x) the
aggregate Certificate Balance of the Class
M10 Certificates immediately prior to such
Distribution Date over (y) the lesser
of (A) the product of (i) 96.40% and (ii)
the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of
the
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<PAGE>
related Due Period (after giving effect to
scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal
received during the related Prepayment
Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as
of the last day of the related Due Period
(after giving effect to scheduled
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus
$6,049,247.06.
Class P
Certificates: All Certificates bearing the Class designation of
"Class P Certificates" representing the
right to distributions as set forth
herein and therein and representing a
regular interest in REMIC II.
Class R
Certificates: All Certificates bearing the Class designation of
"Class R Certificates" and evidencing the
ownership of the "residual interest"
in each of REMIC I and REMIC II for
purposes of the REMIC Provisions. The Class
R Certificate represents the ownership of
the Class R-I Interest and the Class
R-II Interest.
Class R-I
Interest: The residual interest in REMIC I .
Class R-II
Interest: The residual interest in REMIC II.
Closing
Date: On or about February 22, 2005.
Code: The
Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection
Account: As defined in Section 3.10.
Compensating Interest: For any Distribution Date, the lesser of (a)
the
Prepayment Interest Shortfall, if any, for
such Distribution Date, with respect
to voluntary Principal Prepayments in full
by the Mortgagor (excluding any
payments made upon liquidation of the
Mortgage Loan), and (b) the amount of the
Servicing Fee payable to the Servicer for
such Distribution Date.
Condemnation Proceeds: All awards, compensation and/or settlements
in
respect of a Mortgaged Property, whether
permanent or temporary, partial or
entire, by exercise of the power of eminent
domain or condemnation.
Corporate
Trust Office. The designated office of the Trustee or the Trust
Administrator, as the case may be, at which
at any particular time its corporate
trust business with respect to this
Agreement is administered, which office at
the date of the execution of this Agreement
is located at (i) with respect to
the Trustee, HSBC Bank USA, National
Association, 452 Fifth Avenue, New York,
New York 10018, or at such other address as
the Trustee may designate from time
to time by notice to the
Certificateholders, the Depositor, the Servicer, the
Master Servicer, the Originator and the
Trust Administrator, or (ii) with
respect to the Trust Administrator, (A) for
certificate transfer purposes, Sixth
Street and Marquette Avenue, Minneapolis,
Minnesota 55479, Attention: Corporate
Trust Services-Fremont 2005-A and (B) for
all other purposes, 9062 Old Annapolis
Road, Columbia, Maryland 21045 Attn: Client
Manager-Fremont 2005-A, facsimile
Fremont 2005-A
Pooling & Servicing Agreement
15
<PAGE>
no. (410) 715-2380 and which is the address
to which notices to and
correspondence with the Trust Administrator
should be directed.
Corresponding Class: The Class of interests in one Trust REMIC
created
under this Agreement that corresponds to
the Class of interests in the other
Trust REMIC or to a Class of Certificates
in the manner set out below:
<TABLE>
<CAPTION>
CORRESPONDING REMIC I CLASSES
CORRESPONDING REMIC II CLASSES
-----------------------------
------------------------------
<S>
<C>
LT1A1
Class 1-A-1 Certificates
LT1A2
Class 1-A-2 Certificates
LT2A1
Class 2-A-1
Certificates
LT2A2
Class 2-A-2 Certificates
LT2A3
Class 2-A-3 Certificates
LTM1
Class M1 Certificates
LTM2
Class M2 Certificates
LTM3
Class M3 Certificates
LTM4
Class M4 Certificates
LTM5
Class M5 Certificates
LTM6
Class M6 Certificates
LTM7
Class M7 Certificates
LTM8
Class M8 Certificates
LTM9
Class M9 Certificates
LTM10
Class M10 Certificates
LTP
Class P Certificates
N/A
Class C Certificate
</TABLE>
Counterparty: Royal Bank of Scotland PLC and its successors in
interest.
Credit
Enhancement Percentage: With respect to any Distribution Date,
the
percentage obtained by dividing (x) the sum
of (i) the aggregate Class
Certificate Balance of the
Fremont 2005-A
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16
<PAGE>
Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case
after taking into account the distributions
of the Principal Distribution Amount
for such Distribution Date) by (y) the
aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution
Date.
Current
Interest: With respect to any Distribution Date for each Class
of
the LIBOR Certificates, the amount of
interest accrued during the related
Interest Accrual Period at the applicable
Pass-Through Rate on the related Class
Certificate Balance immediately prior to
such Distribution Date, as reduced by
such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest
Shortfalls for the related Due Period
allocated to such Class pursuant to
Section 4.02.
Custodial
File: With respect to each Mortgage Loan, the file retained by
the Trust Administrator consisting of items
(a) - (h) as listed on Exhibit K
hereto.
Cut-off
Date: With respect to each Mortgage Loan (other than a
Substitute
Mortgage Loan), February 1, 2005. With
respect to all Substitute Mortgage Loans,
their respective dates of substitution.
References herein to the "Cut-off Date,"
when used with respect to more than one
Mortgage Loan, shall be to the
respective Cut-off Dates for such Mortgage
Loans.
Cut-off
Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the
close of business on the Cut-off Date
(after giving effect to payments of
principal due on that date).
Data Tape
Information: The information provided by the Originator as of
the Cut-off Date to the Depositor setting
forth the following information with
respect to each Mortgage Loan: (1) the
Originator's Mortgage Loan identifying
number; (2) the Mortgagor's name; (3) the
street address of the Mortgaged
Property including the city, state and zip
code; (4) a code indicating whether
the Mortgaged Property is owner-occupied, a
second home or investment property;
(5) the number and type of residential
units constituting the Mortgaged Property
(i.e., a single family residence, a 2-4
family residence, a unit in a
condominium project or a unit in a planned
unit development, manufactured
housing); (6) the original months to
maturity or the remaining months to
maturity from the Cut-off Date, in any case
based on the original amortization
schedule and, if different, the maturity
expressed in the same manner but based
on the actual amortization schedule; (7)
the Loan-to-Value Ratio at origination;
(8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the
Scheduled Payment was due on the Mortgage
Loan and, if such date is not
consistent with the Due Date currently in
effect, such Due Date; (10) the stated
maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date;
(12) the last payment date on which a
Scheduled Payment was actually applied to
pay interest and, if applicable, the
outstanding principal balance; (13) the
original principal amount of the Mortgage
Loan; (14) the principal balance of
the Mortgage Loan as of the close of
business on the Cut-off Date, after
deduction of payments of principal due and
collected on or before the Cut-off
Date; (15) with respect to Adjustable Rate
Mortgage Loans, the Adjustment Date;
(16) with respect to Adjustable Rate
Mortgage Loans, the Gross Margin; (17) with
respect to Adjustable Rate Mortgage Loans,
the Lifetime Rate Cap under the terms
of the Mortgage Note; (18) with respect to
Adjustable Rate Mortgage Loans, a
code indicating the type of Index; (19)
with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate
Cap under the terms of the Mortgage
Note; (20) the type of Mortgage Loan (i.e.,
fixed rate, adjustable
Fremont 2005-A
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17
<PAGE>
rate, first lien); (21) a code indicating
the purpose of the loan (i.e.,
purchase, rate and term refinance, equity
take-out refinance); (22) a code
indicating the documentation style (i.e.,
full documentation, easy documentation
or stated income); (23) the loan credit
classification (as described in the
Underwriting Guidelines); (24) whether such
Mortgage Loan provides for a
Prepayment Premium; (25) the Prepayment
Premium period of such Mortgage Loan, if
applicable; (26) a description of the
Prepayment Premium, if applicable; (27)
the Mortgage Interest Rate as of
origination; (28) the credit risk score at
origination; (29) the date of origination;
(30) the Mortgage Interest Rate
adjustment period; (31)the Mortgage
Interest Rate floor; (32) the Mortgage
Interest Rate calculation method (i.e.,
30/360, simple interest, other); (33) a
code indicating whether the Mortgage Loan
is a High Cost Mortgage Loan; (34) a
code indicating whether the Mortgage Loan
has been modified; (35) the current
Loan-to-Value Ratio; (36) [Reserved]; (37)
the Due Date for the first Scheduled
Payment; (38) the original Scheduled
Payment due; (39) with respect to the
related Mortgagor, the debt-to-income
ratio; (40) the Appraised Value of the
Mortgaged Property; (41) the sales price of
the Mortgaged Property if the
Mortgage Loan was originated in connection
with the purchase of the Mortgaged
Property; (42) the MERS identification
number; and (43) a code indicating if a
Mortgage Loan is a 30-Day Delinquency. With
respect to the Mortgage Loans in the
aggregate: (1) the number of Mortgage
Loans; (2) the current aggregate
outstanding principal balance of the
Mortgage Loans; (3) the weighted average
Mortgage Interest Rate of the Mortgage
Loans; and (4) the weighted average
maturity of the Mortgage Loans.
Debt
Service Reduction: With respect to any Mortgage Loan, a reduction
by
a court of competent jurisdiction in a
proceeding under the United States
Bankruptcy Code in the Scheduled Payment
for such Mortgage Loan which became
final and non-appealable, except for such a
reduction resulting from a Deficient
Valuation or any reduction that results in
a permanent forgiveness of principal.
Deficient
Valuation: With respect to any Mortgage Loan, a valuation of
the
related Mortgaged Property by a court of
competent jurisdiction in an amount
less than the then outstanding principal
balance of the Mortgage Loan, which
valuation results from a proceeding
initiated under the United States Bankruptcy
Code.
Definitive Certificates: Any
Certificate evidenced by a Physical
Certificate and any Certificate issued in
lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted
Mortgage Loan: As defined in Section 2.03(d).
Delinquency Rate: With respect to any month, the quotient
(expressed as a
percentage) of (1) the Stated Principal
Balance of the 60+ Day Delinquent
Mortgage Loans, divided by (2) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the
related month.
Denomination: With respect to each Certificate, the amount set
forth on
the face thereof as the "Initial
Certificate Balance of this Certificate" or the
Percentage Interest appearing on the face
thereof.
Fremont 2005-A
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<PAGE>
Depositor:
Fremont Mortgage Securities Corporation, a Delaware
corporation, and its successors in
interest.
Depository: The initial Depository shall be The Depository Trust
Company,
the nominee of which is CEDE & Co., as
the registered Holder of the Book-Entry
Certificates. The Depository shall at all
times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of
New York.
Depository
Institution: Any depository institution or trust company,
including the Trustee, that (a) is
incorporated under the laws of the United
States of America or any State thereof, (b)
is subject to supervision and
examination by federal or state banking
authorities and (c) has outstanding
unsecured commercial paper or other
short-term unsecured debt obligations that
are rated P-1 by Moody's and A-1 by
Standard & Poor's.
Depository
Participant: A broker, dealer, bank or other financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
Determination Date: With respect to each Distribution Date, the
18th of
the calendar month in which such
Distribution Date occurs or, if such day is not
a Business Day, the immediately preceding
Business Day.
Distribution Account: The separate Eligible Account created and
maintained
by the Trust Administrator pursuant to
Section 3.27(b) in the name of the Trust
Administrator for the benefit of the
Certificateholders and designated "Wells
Fargo Bank, N.A. in trust for registered
holders of Fremont Home Loan Trust
2005-A Mortgage-Backed Certificates, Series
2005-A." Funds in the Distribution
Account shall be held in trust for the
Certificateholders for the uses and
purposes set forth in this Agreement and
may be invested in Permitted
Investments.
Distribution Date: The 25th day of each calendar month after the
initial
issuance of the Certificates, or if such
day is not a Business Day, the next
succeeding Business Day, commencing in
March, 2005.
Document
Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date:
The day of the month on which the Scheduled Payment is due on a
Mortgage Loan, exclusive of any days of
grace.
Due
Period: With respect to any Distribution Date, the period
commencing
on the second day of the calendar month
preceding the month in which the
Distribution Date occurs and ending on the
first day of the calendar month in
which the Distribution Date occurs.
Eligible
Account: Either (i) an account maintained with a federal or
state
chartered depository institution or trust
company the short-term unsecured debt
obligations of which (or, in the case of a
depository institution or trust
company that is a subsidiary of a holding
company, the short-term unsecured debt
obligations of such holding company) are
rated A-1 by Standard & Poor's and P-1
by Moody's (and a comparable rating if
another Rating Agency is specified by the
Depositor by written notice to the
Servicer) at the time any amounts are held on
deposit
Fremont 2005-A
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<PAGE>
therein, (ii) a trust account or accounts
maintained with a federal or state
chartered depository institution or trust
company acting in its fiduciary
capacity or (iii) any other account
acceptable to each Rating Agency. Eligible
Accounts may bear interest, and may
include, if otherwise qualified under this
definition, accounts maintained with the
Trustee.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that
meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67
Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially
similar administrative exemption
granted by the U.S. Department of
Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow
Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow
Payments: As defined in Section 3.09(b) of this Agreement.
Event of
Default: Means any (i) Servicer Event of Default or (ii) Master
Servicer Event of Termination, each as
defined in Section 7.01.
Excess
Cashflow: As to any Distribution Date, an amount equal to the
excess if any, of (i) the interest
collected on the Mortgage Loans received by
the Servicer on or prior to the related
Determination Date or advanced by the
Servicer for the related Remittance Date
(net of Expense Fees) over (ii) the sum
of the amounts payable to the Classes of
Certificates on such Distribution Date
pursuant to Section 4.02(a)(i).
Excess
Overcollateralized Amount: With respect to any Distribution
Date,
the excess, if any, of (a) the
Overcollateralized Amount on such Distribution
Date over (b) the Overcollateralization
Target Amount for such Distribution
Date.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Expense
Fee Rate: As to each Mortgage Loan, a per annum rate equal to
the
sum of the Servicing Fee Rate, the Master
Servicing Fee Rate and the Trust
Administration Fee Rate.
Expense
Fees: As to each Mortgage Loan, the sum of the Servicing Fee,
the
Master Servicing Fee and the Trust
Administration Fee.
Extra
Principal Distribution Amount: As of any Distribution Date, the
lesser of (x) the Excess Cashflow for such
Distribution Date and (y) the related
Overcollateralization Deficiency for such
Distribution Date.
FDIC: The
Federal Deposit Insurance Corporation, or any successor
thereto.
Final
Recovery Determination: With respect to any defaulted Mortgage
Loan
or any REO Property (other than a Mortgage
Loan or REO Property purchased by the
Originator as
Fremont 2005-A
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<PAGE>
contemplated by this Agreement), a
determination made by the Servicer that all
Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and other
payments or recoveries which the Servicer,
in its reasonable good faith
judgment, expects to be finally recoverable
in respect thereof have been so
recovered. The Servicer shall maintain
records, prepared by a Servicing Officer,
of each Final Recovery Determination made
thereby and deliver a certificate of a
Servicing Officer evidencing such
determination to the Master Servicer.
Final
Scheduled Distribution Date: The Final Scheduled Distribution
Date
for each Class of Certificates is the
Distribution Date occurring in January
2035.
Formula
Rate: With respect to each Class of LIBOR Certificates, the
lesser
of the related Base Rate for such Class and
the Maximum Cap Rate.
Fremont:
Fremont Investment & Loan, a California state chartered
industrial bank, and its successors in
interest.
Gross
Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the
related Mortgage Note to be added to
the applicable Index to determine the
Mortgage Interest Rate.
Group 1
Allocation Percentage: For any Distribution Date, the
percentage
equivalent of a fraction, the numerator of
which is (i) the Principal Remittance
Amount for the Group 1 Mortgage Loans for
such Distribution Date, and the
denominator of which is (ii) the Principal
Remittance Amount for such
Distribution Date.
Group 1
Interest Remittance Amount: With respect to any Distribution
Date,
that portion of the Available Funds for
such Distribution Date attributable to
interest received or advanced with respect
to the Group 1 Mortgage Loans,
reduced by the pro rata portion of the
amounts specified in clause (y) of the
definition of Available Funds for such
Distribution Date.
Group 1
Mortgage Loans: The Mortgage Loans identified on the Mortgage
Loan
Schedule as Group 1 Mortgage Loans.
Group 1
Principal Distribution Amount: With respect to any Distribution
Date is the sum of (i) the excess of (x)
the Principal Remittance Amount
relating to the Group 1 Mortgage Loans over
(y) the Overcollateralization
Release Amount multiplied by the Group 1
Allocation Percentage for such
Distribution Date and (ii) the Extra
Principal Distribution Amount for such
Distribution Date multiplied by the Group 1
Allocation Percentage.
Group 1
Senior Principal Distribution Amount: An amount equal to the
excess of (x) the aggregate Certificate
Balance of the Class 1-A Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 53.90% and (ii) the
aggregate Stated Principal Balance of the
Group 1 Mortgage Loans as of the last day
of the related Due Period (after
giving effect to Scheduled Payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of
principal received during the related
Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Group 1
Mortgage Loans as of the last day of the
related Due Period (after giving effect to
scheduled
Fremont 2005-A
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<PAGE>
payments of principal due during the
related Due Period, to the extent received
or advanced, and unscheduled collections of
principal received during the
related Prepayment Period) minus
$2,828,646.66.
Group 1
Sequential Trigger Event: With respect to any Distribution Date,
a
Group 1 Sequential Trigger Event exists if
(1) before March 2008, the quotient
(expressed as a percentage) of (x) the
aggregate amount of Realized Losses
incurred since the Cut-off Date through the
last day of the related Prepayment
Period divided by (y) the Cut-off Date Pool
Principal Balance, exceeds 3.50%, or
(2) on or after March 2008, a Trigger Event
is in effect.
Group 2
Allocation Percentage: For any Distribution Date, the
percentage
equivalent of a fraction, the numerator of
which is (i) the Principal Remittance
Amount for the Group 2 Mortgage Loans for
such Distribution Date, and the
denominator of which is (ii) the Principal
Remittance Amount for such
Distribution Date.
Group 2
Interest Remittance Amount: With respect to any Distribution
Date,
that portion of the Available Funds for
such Distribution Date attributable to
interest received or advanced with respect
to the Group 2 Mortgage Loans,
reduced by the pro rata portion of the
amounts specified in clause (y) of the
definition of Available Funds for such
Distribution Date.
Group 2
Mortgage Loans: The Mortgage Loans identified on the Mortgage
Loan
Schedule as Group 2 Mortgage Loans.
Group 2
Principal Distribution Amount: With respect to any Distribution
Date is the sum of (i) the excess of (x)
the Principal Remittance Amount
relating to the Group 2 Mortgage Loans over
(y) the Overcollateralization
Release Amount multiplied by the Group 2
Allocation Percentage for such
Distribution Date and (ii) the Extra
Principal Distribution Amount for such
Distribution Date multiplied by the Group 2
Allocation Percentage.
Group 2
Senior Principal Distribution Amount: An amount equal to the
excess of (x) the aggregate Certificate
Balance of the Class 2-A Certificates
immediately prior to such Distribution Date
over (y) the lesser of (A) the
product of (i) 53.90% and (ii) the
aggregate Stated Principal Balance of the
Group 2 Mortgage Loans as of the last day
of the related Due Period (after
giving effect to Scheduled Payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of
principal received during the related
Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Group 2
Mortgage Loans as of the last day of the
related Due Period (after giving effect to
scheduled payments of principal due
during the related Due Period, to the
extent received or advanced, and
unscheduled collections of principal
received during the related Prepayment
Period) minus $3,220,600.40.
High Cost
Mortgage Loan: A Mortgage Loan classified as (a) a "high cost"
loan under the Home Ownership and Equity
Protection Act of 1994, (b) a "high
cost," "threshold," "covered" or
"predatory" loan under any other applicable
state, federal or local law (or a similarly
classified loan using different
terminology under a law imposing heightened
regulatory scrutiny or additional
legal liability for residential mortgage
loans having high interest rates,
points and/or fees) or (c) a High Cost Loan
or Covered Loan as defined in the
Standard & Poor's
Fremont 2005-A
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<PAGE>
LEVELS(R) Glossary attached as Exhibit P
(the "Glossary") where (x) a "High Cost
Loan" is each loan identified in the column
"Category under applicable
anti-predatory lending law" of the table
entitled "Standard & Poor's High Cost
Loan Categorization" in the Glossary as
each such loan is defined in the
applicable anti-predatory lending law of
the State or jurisdiction specified in
such table and (y) "Covered Loan" is each
loan identified in the column
"Category under applicable anti-predatory
lending law" of the table entitled
"Standard & Poor's High Covered Loan
Categorization" in the Glossary as each
such loan is defined in the applicable
anti-predatory lending law of the State
of jurisdiction specified in such
table.
Index: As
to each Adjustable Rate Mortgage Loan, the index from time to
time in effect for the adjustment of the
Mortgage Interest Rate set forth as
such on the related Mortgage Note.
Initial
Overcollateralization Amount: $21,777,311.48.
Insurance
Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including all
riders and endorsements thereto in
effect, including any replacement policy or
policies for any Insurance Policies.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage
Loan or the related Mortgaged Property.
Interest
Accrual Period: With respect to each Class of REMIC I Regular
Interests and any Distribution Date, the
period commencing on the Distribution
Date occurring in the month preceding the
month in which the current
Distribution Date occurs and ending on the
day immediately preceding the current
Distribution Date (or, in the case of the
first Distribution Date, the period
from and including the Closing Date to but
excluding such first Distribution
Date). For purposes of computing interest
accruals on each Class of LIBOR
Certificates, each Interest Accrual Period
has the actual number of days in such
month and each year is assumed to have 360
days.
Investment
Account: As defined in Section 3.12(a).
Issuer:
Fremont Home Loan Trust 2005-A,
Late
Collections: With respect to any Mortgage Loan and any Due
Period,
all amounts received after the Remittance
Date immediately following such Due
Period, whether as late payments of
Scheduled Payments or as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late
payments or collections of principal and/or
interest due (without regard to any
acceleration of payments under the related
Mortgage and Mortgage Note) but
delinquent for such Due Period and not
previously recovered.
LIBOR:
With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the
Trust Administrator on the related
LIBOR Determination Date on the basis of
the offered rate for one-month U.S.
dollar deposits as such rate appears on
Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that
if such rate does not appear on
Telerate Page 3750, the rate for such date
will be determined on the basis of
the rates at which one-month U.S. dollar
deposits are offered by the Reference
Banks at approximately 11:00 a.m.
(London
Fremont 2005-A
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<PAGE>
time) on such date to prime banks in the
London interbank market. In such event,
the Trust Administrator will request the
principal London office of each of the
Reference Banks to provide a quotation of
its rate. If at least two such
quotations are provided, the rate for that
date will be the arithmetic mean of
the quotations (rounded upwards if
necessary to the nearest whole multiple of
1/16%). If fewer than two quotations are
provided as requested, the rate for
that date will be the arithmetic mean of
the rates quoted by major banks in New
York City, selected by the Trust
Administrator (after consultation with the
Depositor), at approximately 11:00 a.m.
(New York City time) on such date for
one-month U.S. dollar loan to leading
European banks.
LIBOR
Determination Date: With respect to any Interest Accrual Period
for
the LIBOR Certificates, the second London
Business Day preceding the
commencement of such Interest Accrual
Period.
Lifetime
Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which
provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage
Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at
any time exceed the Mortgage Interest
Rate at the time of origination of such
Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the
Mortgage Loan Schedule.
Liquidated
Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO
Property) which was liquidated in the
calendar month preceding the month of such
Distribution Date and as to which the
Servicer has certified (in accordance with
this Agreement) that it has received
all amounts it expects to receive in
connection with the liquidation of such
Mortgage Loan including the final
disposition of any REO Property.
Liquidation Event: With respect to any Mortgage Loan, any of the
following
events: (i) such Mortgage Loan is paid in
full; (ii) a Final Recovery
Determination is made as to such Mortgage
Loan; or (iii) such Mortgage Loan is
removed from coverage under this Agreement
by reason of its being purchased,
sold or replaced pursuant to or as
contemplated by this Agreement. With respect
to any REO Property, either of the
following events: (i) a Final Recovery
Determination is made as to such REO
Property; or (ii) such REO Property is
removed from coverage under this Agreement
by reason of its being purchased
pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance
Proceeds,
Condemnation Proceeds or those received
following the acquisition of REO
Property, received in connection with the
liquidation of a defaulted Mortgage
Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's
sale, foreclosure sale or otherwise.
Loan
Group: The Group 1 Mortgage Loans and the Group 2 Mortgage Loans,
as
applicable.
Loan-to-Value Ratio or LTV:
With respect to any Mortgage Loan, the ratio
(expressed as a percentage) of the original
outstanding principal amount of the
Mortgage Loan (or, in the case of a
second-lien Mortgage Loan, the combined
original outstanding principal amount of
such Mortgage Loan and any first-lien
mortgage loan on the same Mortgaged
Property) as of the Cut-off Date (unless
otherwise indicated), to either (a) if the
Mortgage Loan was made to finance the
acquisition of the related Mortgaged
Property, the least of (i) the purchase
price of the Mortgaged Property, or (ii)
the Appraisal Value of the
Fremont 2005-A
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<PAGE>
Mortgaged Property at origination, or (b)
if the Mortgage Loan was a refinancing
or modification, the Appraisal Value of the
Mortgaged Property at the time of
the refinancing or modification.
London
Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London
interbank market.
Marker
Rate: With respect to the Class C Certificates and any
Distribution
Date, a per annum rate equal to two (2)
times the weighted average of the
Uncertificated REMIC I Pass-Through Rates
for REMIC I Regular Interest LT1A1,
REMIC I Regular Interest LT1A2, REMIC I
Regular Interest LT2A1, REMIC I Regular
Interest LT2A2, REMIC I Regular Interest
LT2A3, REMIC I Regular Interest LTM1,
REMIC I Regular Interest LTM2, REMIC I
Regular Interest LTM3, REMIC I Regular
Interest LTM4, REMIC I Regular Interest
LTM5, REMIC I Regular Interest LTM6,
REMIC I Regular Interest LTM7, REMIC I
Regular Interest LTM8, REMIC I Regular
Interest LTM9, REMIC I Regular Interest
LTM10 and REMIC I Regular Interest LTZZ,
(i) with the rate on each such REMIC I
Regular Interest (other than REMIC I
Regular Interest LTZZ) subject to a cap
equal to the Formula Rate of its
Corresponding Class (taking into account in
determining any such Formula Rate
the imposition of the Net WAC Rate, as
applied through its corresponding
Pass-Through Rate) for the purposes of this
calculation and (ii) with the rate
on REMIC I Regular Interest LTZZ subject to
a cap of zero for the purpose of
this calculation; provided, however, that
for this purpose, calculations of the
Uncertificated REMIC I Pass-Through Rate
and the related caps with respect to
each such REMIC I Regular Interest (other
than REMIC I Regular Interest LTZZ)
shall be multiplied by a fraction, the
numerator of which is the actual number
of days in the Interest Accrual Period and
the denominator of which is 30.
Master
Servicer: As of the Closing Date, Wells Fargo Bank, N.A. and
thereafter, its respective successors in
interest who meet the qualifications of
this Agreement. As long as a Master
Servicer is required under this Agreement,
the Master Servicer and the Trust
Administrator shall at all times be the same
Person.
Master
Servicer Event of Termination: One or more of the events
described
in Section 7.01(c).
Master
Servicing Fee: With respect to the Mortgage Loans and for any
calendar month, an amount, payable as
provided in Section 3A.09, equal to the
Master Servicing Fee Rate accrued for one
month on the same principal amount on
which interest on each Mortgage Loan
accrues for such calendar month.
Master
Servicing Fee Rate: 0.004% per annum; provided, however, if
Fremont
Investment & Loan has been removed as
Servicer or has resigned as Servicer, and
in either such case if a Master Servicer is
no longer required hereunder, then
the Master Servicing Fee Rate shall be
0.00% per annum.
Master
Servicing Officer: Any employee of the Master Servicer involved
in,
or responsible for, the administration and
servicing of the Mortgage Loans,
whose name and specimen signature appear on
a list of Master Servicing Officers
furnished by the Master
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<PAGE>
Servicer to the Trustee, the Trust
Administrator, the Servicer and the Depositor
on the Closing Date, as such list may from
time to time be amended.
Maximum
Cap Rate: A per annum rate equal to (a) the weighted average of
the Adjusted Net Maximum Mortgage Interest
Rates then in effect at the beginning
of the related Due Period on the Mortgage
Loans (adjusted for Prepayments during
such Due Period that were distributed on
the Distribution Date falling within
such Due Period), multiplied by (b) 30
divided by the actual number of days in
the related Interest Accrual Period.
Maximum
Mortgage Interest Rate: With respect to an Adjustable Rate
Mortgage Loan, the specified maximum
mortgage rate over the life of such
mortgage loan; with respect to a Mortgage
Loan with a fixed rate, the Mortgage
Interest Rate.
Maximum
LTZZ Uncertificated Accrued Interest Deferral Amount: With
respect
to any Distribution Date, the excess of (a)
accrued interest at the
Uncertificated REMIC I Pass-Through Rate
applicable to REMIC I Regular Interest
LTZZ for such Distribution Date on a
balance equal to the Uncertificated
Principal Balance of REMIC I Regular
Interest LTZZ minus the REMIC I
Overcollateralized Amount, in each case for
such Distribution Date, over (b)
REMIC I Regular Interest LT1A1, REMIC I
Regular Interest LT1A2, REMIC I Regular
Interest LT2A1, REMIC I Regular Interest
LT2A2, REMIC I Regular Interest LT2A3,
REMIC I Regular Interest LTM1, REMIC I
Regular Interest LTM2, REMIC I Regular
Interest LTM3, REMIC I Regular Interest
LTM4, REMIC I Regular Interest LTM5,
REMIC I Regular Interest LTM6, REMIC I
Regular Interest LTM7, REMIC I Regular
Interest LTM8, REMIC I Regular Interest
LTM9 and REMIC I Regular Interest LTM10,
each subject to a cap equal to the Formula
Rate of its Corresponding Class
(taking into account in determining any
such Formula Rate the imposition of the
Net WAC Rate, as applied through its
corresponding Pass-Through Rate) for the
purposes of this calculation; provided,
however, that for this purpose,
calculations of the Uncertificated REMIC I
Pass-Through Rate and the related
caps with respect to Uncertificated Accrued
Interest on REMIC I Regular Interest
LT1A1, REMIC I Regular Interest LT1A2,
REMIC I Regular Interest LT2A1, REMIC I
Regular Interest LT2A2, REMIC I Regular
Interest LT2A3, REMIC I Regular Interest
LTM1, REMIC I Regular Interest LTM2, REMIC
I Regular Interest LTM3, REMIC I
Regular Interest LTM4, REMIC I Regular
Interest LTM5, REMIC I Regular Interest
LTM6, REMIC I Regular Interest LTM7, REMIC
I Regular Interest LTM8, REMIC I
Regular Interest LTM9 and REMIC I Regular
Interest LTM10 multiplied by a
fraction, the numerator of which is the
actual number of days in the Interest
Accrual Period and the denominator of which
is 30.
MERS: As
defined in Section 2.01.
MERS
Designated Mortgage Loan: Mortgage Loans for which (a) the
Originator
has designated or will designate MERS as,
and has taken or will take such action
as is necessary to cause MERS to be, the
mortgagee of record, as nominee for the
Originator, in accordance with MERS
Procedure Manual and (b) the Originator has
designated or will designate the Trustee as
the Investor on the MERS(R) System.
MERS
Procedure Manual: The MERS Procedures Manual, as it may be
amended,
supplemented or otherwise modified from
time to time.
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<PAGE>
MERS(R)
System: MERS mortgage electronic registry system, as more
particularly described in the MERS
Procedures Manual.
Monthly
Statement: The statement made available to the
Certificateholders
pursuant to Section 4.03.
Moody's:
Moody's Investors Service, Inc. If Moody's is designated as a
Rating Agency in the Preliminary Statement,
for purposes of Section 10.05(b) the
address for notices to Moody's shall be
Moody's Investors Service, Inc., 99
Church Street, New York, New York 10007,
Attention: Residential Mortgage
Pass-Through Group, or such other address
as Moody's may hereafter furnish to
the Depositor, the Servicer, the Master
Servicer, the Trust Administrator and
the Trustee.
Mortgage:
The mortgage, deed of trust or other instrument identified on
the Mortgage Loan Schedule as securing a
Mortgage Note.
Mortgage
File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or
Custodial File.
Mortgage
Interest Rate: The annual rate of interest borne on a Mortgage
Note with respect to each Mortgage
Loan.
Mortgage
Loan: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan originally
sold and subject to this Agreement
being identified on the Mortgage Loan
Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the
Custodial File, the Servicing File,
the Scheduled Payments, Principal
Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds,
REO Disposition proceeds, Prepayment
Premiums and all other rights, benefits,
proceeds and obligations arising from
or in connection with such Mortgage Loan,
excluding replaced or repurchased
Mortgage Loans.
Mortgage
Loan Documents: The mortgage loan documents pertaining to each
Mortgage Loan.
Mortgage
Loan Schedule: As of any date, the list of Mortgage Loans
included in the Trust Fund on such date,
attached hereto as Schedule I. The
Mortgage Loan Schedule shall set forth by
Loan Group the following information
with respect to each Mortgage Loan in such
Loan Group :
(i) the
Mortgagor's name and the Originator's Mortgage Loan
identifying number;
(ii) the street
address of the Mortgaged Property including the
state and
zip code;
(iii) a code indicating whether the Mortgaged Property is
owner-occupied;
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<PAGE>
(iv) the number and
type of residential dwelling constituting the
Mortgaged Property (i.e., a single family
residence, a 2-4 family residence, a
unit in a condominium project or a unit in
a planned unit development,
manufactured housing);
(v) the original
months to maturity;
(vi) the Loan-to-Value
Ratio, at origination;
(vii) the Mortgage Interest Rate in effect immediately following
the
Cut-off
Date;
(viii) the date on which the first monthly payment was due on
the
Mortgage
Loan;
(ix) the stated
maturity date of such Mortgage Loan;
(x) the amount
of the monthly payment (a) at origination and (b)
due on the
first Due Date after the Cut-off Date;
(xi) the last Due Date
on which a monthly payment was actually
applied to
the unpaid Stated Principal Balance;
(xii) the original principal amount of the Mortgage Loan as of
the
date of
origination;
(xiii) the Stated Principal Balance of the Mortgage Loan as of
the
close of
business on the Cut-off Date;
(xiv) with respect to each Adjustable Rate Mortgage Loan, the
Applicable
Index and Gross Margin;
(xv) a code indicating
the purpose of the Mortgage Loan (i.e.,
purchase
financing, rate/term refinancing, cash-out refinancing);
(xvi) with respect to each Adjustable Rate Mortgage Loan, the
maximum
Mortgage Interest Rate;
(xvii) with respect to each Adjustable Rate Mortgage Loan, the
minimum
Mortgage Interest Rate;
(xviii) the Mortgage Interest Rate at origination;
(xix) with respect to each Adjustable Rate Mortgage Loan, the
Periodic
Mortgage Interest Rate Cap and the maximum first Adjustment
Date
Mortgage
Interest Rate adjustment;
(xx) a code indicating
the documentation program;
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<PAGE>
(xxi) with respect to each Adjustable Rate Mortgage Loan, the
first
Adjustment
Date immediately following the Cut-off Date and the Adjustment
Date
frequency;
(xxii) the value of the Mortgaged Property used to calculate the
LTV
for the
related Mortgage Loan;
(xxiii) the sale price of the Mortgaged Property, if
applicable;
(xxiv) the Originator's risk grade;
(xxv) the actual interest "paid to date" of the Mortgage Loan as
of
the
Cut-off Date;
(xxvi) the number of years any Prepayment Premium is in effect;
(xxvii) the loan type (i.e. fixed, adjustable; 2/28, 3/27,
etc.);
(xxviii) the actual unpaid principal balance of the Mortgage Loan
as
of the
Cut-off Date;
(xxix) a code indicating whether such Mortgage Loan is a Group
1
Mortgage
Loan or a Group 2 Mortgage Loan;
(xxx) a code indicating whether the Mortgage Loan is a MERS
Designated
Mortgage Loan and, if so, its corresponding mortgage
identification number; and
(xxxi) a code indicating whether the Mortgage Loan is subject to
a
Prepayment
Premium, if any.
The
Mortgage Loan Schedule shall set forth the following information
with
respect to the Mortgage Loans in the
aggregate as of the Cut-off Date: (1) the
number of Mortgage Loans; (2) the current
principal balance of the Mortgage
Loans; (3) the weighted average Mortgage
Interest Rate of the Mortgage Loans;
and (4) the weighted average maturity of
the Mortgage Loans. The Mortgage Loan
Schedule shall set forth the aggregate
Stated Principal Balance of the Mortgage
Loans. The Mortgage Loan Schedule shall be
amended from time to time by the
Depositor in accordance with the provisions
of this Agreement. With respect to
any Substitute Mortgage Loan, the Cut-off
Date shall refer to the related
Cut-off Date for such Mortgage Loan,
determined in accordance with the
definition of Cut-off Date herein.
Mortgage
Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgaged
Property: The real property (or leasehold estate, if
applicable)
identified on the Mortgage Loan Schedule as
securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor:
The obligor(s) on a Mortgage Note.
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<PAGE>
Net
Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to
subsection 4.02(a)(iii) (before giving
effect to distributions pursuant to such
subsection).
Net
Prepayment Interest Shortfall: For any Distribution Date, the
amount
by which the sum of the Prepayment Interest
Shortfalls exceeds the sum of the
Compensating Interest payments made on such
Distribution Date.
Net WAC
Rate: A per annum rate equal to (a) the weighted average of the
Adjusted Net Mortgage Interest Rates then
in effect at the beginning of the
related Due Period on the Mortgage Loans
(adjusted for prepayments during such
Due Period that were distributed on the
Distribution Date falling within such
Due Period), multiplied by (b) 30 divided
by the actual number of days in such
Interest Accrual Period.
Net WAC
Rate Carryover Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date,
if on such Distribution Date the
Pass-Through Rate for any Class of LIBOR
Certificates is based upon the Net WAC
Rate, the sum of (A) the excess of the
Formula Rate for that Class of LIBOR
Certificates over the the Net WAC Rate, and
(B) the Net WAC Rate Carryover
Amount for such Class of Certificates for
all previous Distribution Dates not
previously paid, together with interest
thereon at the applicable Pass-Through
Rate for such Class (without giving effect
to any such limitations) of LIBOR
Certificates for such Distribution
Date.
Net WAC
Rate Carryover Payment: For any Distribution Date, an amount
equal
to the aggregate of the Net WAC Rate
Carryover Amounts for such Distribution
Date.
Net WAC
Rate Carryover Reserve Account: The separate Eligible Account
created and maintained by the Trustee
pursuant to Sections 3.27(a) in the name
of the Trust Administrator for the benefit
of the Holders of Regular
Certificates and designated "Wells Fargo
Bank, N.A. in trust for registered
holders of Fremont Home Loan Trust 2005-A,
Mortgage-Backed Certificates, Series
2005-A." Funds in the Net WAC Rate
Carryover Reserve Account shall be held in
trust for the Holders of Regular
Certificates for the uses and purposes set
forth in this Agreement. Amounts on deposit
in the Net WAC Rate Carryover
Reserve Account shall not be invested. The
Net WAC Rate Carryover Reserve
Account shall not be an asset of REMIC I or
REMIC II.
NIM Trust:
Fremont NIM Trust 2005-A, a Delaware statutory trust.
Non-Delay
Certificates: As specified in the Preliminary Statement.
Nonrecoverable P&I Advance: Any P&I Advance previously made
or proposed to
be made in respect of a Mortgage Loan or
REO Property that, in the good faith
business judgment of the Servicer, will not
or, in the case of a proposed P&I
Advance, would not be ultimately
recoverable from related late payments,
Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided
herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made
or proposed to be made in respect of a
Mortgage Loan or REO Property, which, in
the good faith
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<PAGE>
business judgment of the Servicer, will not
or, in the case of a proposed
Servicing Advance, would not, be ultimately
recoverable from related Insurance
Proceeds, Condemnation Proceeds,
Liquidation Proceeds or otherwise.
Notice of
Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final
distribution on any of the Certificates
shall be made only upon presentation and
surrender thereof.
Notional
Amount: With respect to the Class C Certificates, a notional
amount equal to the aggregate principal
balance of the REMIC I Regular Interests
(other than REMIC I Regular Interest
LTP).
Offered
Certificates: As defined in the Preliminary Statement.
Officer's
Certificate: A certificate signed by an officer of the Servicer
with responsibility for the servicing of
the Mortgage Loans required to be
serviced by the Servicer and listed on a
list delivered to the Trustee or Trust
Administrator, as applicable, pursuant to
this Agreement.
Opinion of
Counsel: A written opinion of counsel, who may be in-house
counsel for the Servicer or a Subservicer,
the Master Servicer, the Originator
or the Depositor, reasonably acceptable to
the Trustee and the Trust
Administrator; provided, that any Opinion
of Counsel relating to (a)
qualification of any Trust REMIC as a REMIC
or (b) compliance with the REMIC
Provisions, must be (unless otherwise
stated in such Opinion of Counsel) an
opinion of counsel who (i) is in fact
independent of the Servicer of the
Mortgage Loans, (ii) does not have any
material direct or indirect financial
interest in the Servicer of the Mortgage
Loans or in an affiliate of either and
(iii) is not connected with the Servicer of
the Mortgage Loans as an officer,
employee, director or person performing
similar functions.
Optional
Termination Date: Any Distribution Date when the aggregate
Stated
Principal Balance of the Mortgage Loans, as
of the last day of the related Due
Period, is equal to 10% or less of the
Cut-off Date Pool Principal Balance that
has been designated as an Optional
Termination Date by the Servicer or holder of
the Class R Certificate.
Originator: Fremont.
OTS:
Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore
executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or the
Trust
Administrator or delivered to the Trustee or the Trust
Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other
Certificates have been executed and delivered by the Trustee or the
Trust
Administrator pursuant to this Agreement.
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<PAGE>
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a
Stated Principal Balance greater than zero
which was not the subject of a
Principal Prepayment in Full prior to such
Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due
Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if
any, of (a) the aggregate Stated Principal
Balance of the Mortgage Loans and REO
Properties for such Distribution Date over
(b) the aggregate of the Class
Certificate Balances of the LIBOR
Certificates and the Class P Certificate as of
such Distribution Date (after giving effect
to the payment of the Principal
Remittance Amount on such Certificates on
such Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date,
the excess, if any, of (a) the
Overcollateralization Target Amount applicable to
such Distribution Date over (b) the
Overcollateralized Amount applicable to such
Distribution Date.
Overcollateralization Floor: With respect to any Distribution Date,
0.50%
of the aggregate Stated Principal Balance
of the Mortgage Loans as of the
Cut-off Date.
Overcollateralization Release Amount: With respect to any
Distribution
Date, an amount equal to the lesser of (a)
the Excess Overcollateralized Amount
and (b) the Excess Cashflow.
Overcollateralization Target Amount: With respect to any
Distribution Date
(i) prior to the Stepdown Date, an amount
equal to 1.80% of the Cut-off Date
Pool Principal Balance, (ii) on and after
the Stepdown Date provided a Trigger
Event is not in effect, an amount equal to
the greater of (A) the lesser of (x)
3.60% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the
last day of the related Due Period (after
giving effect to scheduled payments of
principal due during the related Due
Period, to the extent received or advanced,
and unscheduled collections of principal
received during the related Prepayment
Period) and (y) 1.80% of the aggregate
Cut-off Date Pool Principal Balance of
all of the Mortgage Loans and (B) 0.50% of
the aggregate Cut-off Date Pool
Principal Balance of all of the Mortgage
Loans and (iii) on or after the
Stepdown Date if a Trigger Event is in
effect, the Overcollateralization Target
Amount for the immediately preceding
Distribution Date.
Ownership
Interest: As to any Residual 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.
P&I
Advance: As to any Mortgage Loan or REO Property, any advance made
by
the Servicer in respect of any Remittance
Date representing the aggregate of all
payments of principal and interest, net of
the Servicing Fee, that were due
during the related Due Period on the
Mortgage Loans and that were delinquent on
the related Remittance Date, plus certain
amounts representing assumed payments
not covered by any current net income on
the Mortgaged Properties acquired by
foreclosure or deed in lieu of foreclosure
as determined pursuant to Section
4.01.
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<PAGE>
Pass-Through Margin: With respect to each Class of LIBOR
Certificates, the
following percentages:
<TABLE>
<CAPTION>
PRIOR TO OPTIONAL
ON AND AFTER OPTIONAL
TERMINATION DATE
TERMINATION DATE
-----------------
---------------------
<S>
<C>
<C>
Class 1-A-1 Certificates
0.245%
0.490%
Class 1-A-2 Certificates
0.280%
0.560%
Class 2-A-1 Certificates
0.110%
0.220%
Class 2-A-2 Certificates
0.240%
0.480%
Class 2-A-3 Certificates
0.350%
0.700%
Class M1 Certificates
0.430%
0.645%
Class M2 Certificates
0.460%
0.690%
Class M3 Certificates
0.490%
0.735%
Class M4 Certificates
0.680%
1.020%
Class M5 Certificates
0.700%
1.050%
Class M6 Certificates
0.780%
1.170%
Class M7 Certificates
1.200%
1.800%
Class M8 Certificates
1.350%
2.025%
Class M9 Certificates
2.000%
3.000%
Class M10 Certificates
2.500%
3.750%
</TABLE>
Pass-Through Rate: For any Distribution Date and with respect to
each of
the LIBOR Certificates, a rate equal to the
lesser of (i) the related Formula
Rate for such Class and (ii) the Net WAC
Rate; and in the case of any REMIC I
Regular Interest, the Uncertificated REMIC
I Pass-Through Rate.
With
respect to the Class C Certificates and any Distribution Date, a
per
annum rate equal to the percentage
equivalent of a fraction, the numerator of
which is the sum of the amounts calculated
pursuant to clauses (A) through (R)
below, and the denominator of which is the
aggregate of the Uncertificated
Principal Balances of REMIC I Regular
Interest LTAA, REMIC I Regular Interest
LT1A1, REMIC I Regular Interest LT1A2,
REMIC I Regular Interest LT2A1, REMIC I
Regular Interest LT2A2, REMIC I Regular
Interest LT2A3, REMIC I Regular Interest
LTM1, REMIC I Regular Interest LTM2, REMIC
I Regular Interest LTM3, REMIC I
Regular Interest LTM4, REMIC I Regular
Interest LTM5, REMIC I Regular Interest
LTM6, REMIC I Regular Interest LTM7, REMIC
I Regular Interest LTM8, REMIC I
Regular Interest LTM9, REMIC I Regular
Interest LTM10 and REMIC I Regular
Interest LTZZ. For purposes of calculating
the Pass-Through Rate for the Class C
Certificates, the numerator is equal to the
sum of the following components:
(A)the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTAA minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTAA;
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<PAGE>
(B) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LT1A1 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LT1A1;
(C) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LT1A2 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LT1A2;
(D)
the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LT2A1 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LT2A1;
(E) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LT2A2 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LT2A2;
(F) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LT2A3 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LT2A3;
(G) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM1 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM1;
(H) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM2 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM2;
(I) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM3 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM3;
(J) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM4 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM4;
(K) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM5 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM5;
(L) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM6 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM6;
(M) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM7 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM7;
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<PAGE>
(N) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM8 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM8;
(O) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM9 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM9;
(P) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTM10 minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTM10; and
(Q) the Uncertificated REMIC I Pass-Through Rate for REMIC I
Regular Interest LTZZ minus the Marker Rate, applied to an
amount
equal to the Uncertificated Principal Balance of REMIC I
Regular
Interest LTZZ; and
(R) 100% of the Interest on REMIC I Regular Interest LTP.
Percentage
Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required
to be made on the related Class,
such percentage interest being set forth on
the face thereof or equal to the
percentage obtained by dividing the
Denomination of such Certificate by the
aggregate of the Denominations of all
Certificates of the same Class.
Periodic
Mortgage Interest Rate Cap: With respect to each Adjustable
Rate
Mortgage Loan, the provision of each
Mortgage Note which provides for an
absolute maximum amount by which the
Mortgage Interest Rate therein may increase
or decrease on an Adjustment Date above or
below the Mortgage Interest Rate
previously in effect. The Periodic Mortgage
Interest Rate Cap for each
Adjustable Rate Mortgage Loan is the rate
set forth on the Mortgage Loan
Schedule.
Periodic
Mortgage Interest Rate Floor: With respect to each Adjustable
Rate Mortgage Loan, the provision of each
Mortgage Note which provides for an
absolute minimum amount by which the
Mortgage Interest Rate therein may increase
or decrease on an Adjustment Date above or
below the Mortgage Interest Rate
previously in effect. The Periodic Mortgage
Interest Rate Floor for each
Adjustable Rate Mortgage Loan is the rate
set forth on the Mortgage Loan
Schedule.
Permitted
Investments: Any one or more of the following obligations or
securities acquired at a purchase price of
not greater than par, regardless of
whether issued by the Depositor, the
Servicer, the Master Servicer, the Trust
Administrator, the Trustee or any of their
respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States
or
any agency or instrumentality thereof, provided such obligations
are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original
maturity
of not more than 90 days and, in
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the case of bankers' acceptances, shall in no event have an
original
maturity of more than 365 days or a remaining maturity of more
than
30 days) denominated in United States dollars and issued by any
Depository Institution and rated P-1 by Moody's and A-1+ by
Standard
& Poor's;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of
the
United States of America or any state thereof and that are rated
by
each Rating Agency that rates such securities in its highest
long-term unsecured rating categories at the time of such
investment
or contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable
on
demand or on a specified date not more than 30 days after the
date
of acquisition thereof) that is rated by each Rating Agency
that
rates such securities in its highest short-term unsecured debt
rating available at the time of such investment;
(vi) units of money market funds, including money market funds
advised or managed by the Depositor, the Trustee or the Trust
Administrator or an Affiliate thereof, that have been rated "Aaa"
by
Moody's, "AAAm" or "AAAMG" by Standard & Poor's; and
(vii) if previously confirmed in writing to the Trustee and
the Trust Administrator, any other demand, money market or time
deposit, or any other obligation, security or investment, as may
be
acceptable to the Rating Agencies as a permitted investment of
funds
backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument
described hereunder shall evidence either
the right to receive (a) only interest with
respect to the obligations
underlying such instrument or (b) both
principal and interest payments derived
from obligations underlying such instrument
and the interest and principal
payments with respect to such instrument
provide a yield to maturity at par
greater than 120% of the yield to maturity
at par of the underlying obligations.
Permitted
Transferee: Any 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)
which 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
any Residual Certificate, (iv) rural
electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the
Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to
whom income from a Residual Certificate
is attributable to a foreign permanent
establishment or fixed base (within the
meaning of an applicable income tax treaty)
of such Person or any other U.S.
Person,
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(vi) an "electing large partnership" within
the meaning of Section 775 of the
Code and (vii) any other Person so
designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an
Ownership Interest in a Residual
Certificate to such Person may cause any
Trust REMIC to fail to qualify as a
REMIC at any time that the Certificates are
outstanding. The terms "United
States," "State" and "international
organization" shall have the meanings set
forth in Section 7701 of the Code or
successor provisions. A corporation will
not be treated as an instrumentality of the
United States or of any State or
political subdivision thereof for these
purposes if all of its activities are
subject to tax and, with the exception of
Freddie Mac, a majority of its board
of directors is not selected by such
government unit.
Person:
Any individual, corporation, partnership, joint venture,
association, limited liability company,
joint-stock company, trust,
unincorporated organization or government,
or any agency or political
subdivision thereof.
Physical
Certificates: As specified in the Preliminary Statement.
Pool
Stated Principal Balance: As to any Distribution Date, the
aggregate
of the Stated Principal Balances of the
Mortgage Loans for such Distribution
Date that were Outstanding Mortgage Loans
on the Due Date in the related Due
Period.
Prepayment
Interest Excess: With respect to any Remittance Date, the sum
of, for each Mortgage Loan that was, during
the related Prepayment Period, the
subject of a Principal Prepayment in Full
that was applied by the Servicer to
reduce the outstanding principal balance of
such Mortgage Loan on a date
preceding the Due Date in the succeeding
Prepayment Period, an amount equal to
the product of (a) the Mortgage Interest
Rate net of the Servicing Fee Rate for
such Mortgage Loan, (b) the amount of the
Principal Prepayment in Full for such
Mortgage Loan, (c) 1/360 and (d) the number
of days commencing on the first day
of the calendar month in which such
Remittance Date occurs and ending on the
date on which such Principal Prepayment in
Full was applied.
Prepayment
Interest Shortfall: With respect to any Remittance Date, the
sum of, for each Mortgage Loan that was,
during the related Prepayment Period,
the subject of a Principal Prepayment in
Full that was applied by the Servicer
to reduce the outstanding principal balance
of such Mortgage Loan on a date
preceding the Due Date in the succeeding
Prepayment Period, an amount equal to
the product of (a) the Mortgage Interest
Rate net of the Servicing Fee Rate for
such Mortgage Loan, with respect to the
Servicer's obligation in respect of any
Prepayment Interest Shortfall, or the sum
of the Servicing Fee Rate and the
Master Servicing Fee Rate, with respect to
the Master Servicer's obligation in
respect of any Prepayment Interest
Shortfall, (b) the amount of the Principal
Prepayment for such Mortgage Loan, (c)
1/360 and (d) the number of days
commencing on the date on which such
Principal Prepayment was applied and ending
on the last day of the related Prepayment
Period.
Prepayment
Period: With respect to any Remittance Date, (a) with respect
to a Principal Prepayment in Full, the
period from and including the 16th day of
the month preceding the month in which such
Remittance Date occurs to and
including the 15th day of the month in
which such Remittance Date occurs, and
(b) with respect to Principal Prepayments
in part, the calendar month prior to
such Remittance Date.
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<PAGE>
Prepayment
Premium: Any prepayment premium, penalty or charge collected by
the Servicer with respect to a Mortgage
Loan from a Mortgagor in connection with
any voluntary Principal Prepayment in Full
pursuant to the terms of the related
Mortgage Note.
Principal
Distribution Amount: For any Distribution Date, the sum of (i)
the Group 1 Principal Distribution Amount
for such Distribution Date and (ii)
the Group 2 Principal Distribution Amount
for such Distribution Date
Principal
Prepayment: Any partial payment or other recovery of principal
on a Mortgage Loan (including upon
liquidation of a Mortgage Loan) which is
received in advance of its scheduled Due
Date, excluding any Prepayment Premium
and which is not accompanied by an amount
of interest representing scheduled
interest due on any date or dates in any
month or months subsequent to the month
of prepayment.
Principal
Prepayment in Full: Any Principal Prepayment made by a
Mortgagor
of the entire principal balance of a
Mortgage Loan.
Principal
Remittance Amount: With respect to any Distribution Date, the
amount equal to the sum of the following
amounts (without duplication) with
respect to the related Due Period: (i) each
scheduled payment of principal on a
Mortgage Loan due during such Due Period
and received by the Servicer on or
prior to the Determination Date or advanced
by the Servicer prior to the related
Remittance Date (including the portion of
Insurance Proceeds or Condemnation
Proceeds allocable to principal), and all
Principal Prepayments received during
the related Prepayment Period, (ii) the
Liquidation Proceeds on the Mortgage
Loans allocable to principal actually
collected by the Servicer during the
related Prepayment Period, (iii) the
portion of the purchase price allocable to
principal with respect to each Deleted
Mortgage Loan, the repurchase obligation
for which arose during the related
Prepayment Period, that was repurchased
during the period from the prior
Distribution Date through the Remittance Date
for the current Distribution Date, (iv) the
principal portion of all
Substitution Adjustment Amounts with
respect to the substitutions of Mortgage
Loans that occur during the calendar month
in which such Distribution Date
occurs and (v) the allocable portion of the
proceeds received with respect to
the termination of the Trust Fund (to the
extent such proceeds relate to
principal), less any amounts payable or
reimbursable to the Servicer, the Master
Servicer, the Trust Administrator or the
Trustee hereunder on such Distribution
Date to the extent not already reimbursed
or paid from the Group 1 Interest
Remittance Amount or the Group 2 Interest
Remittance Amount.
Private
Certificates: As defined in the Preliminary Statement.
Prospectus
Supplement: The Prospectus Supplement, dated February [ ],
2005, relating to the Offered
Certificates.
PTCE
95-60: As defined in Section 5.02(b).
PUD: A
planned unit development.
Purchase
Agreement: The Mortgage Loan Purchase Agreement, dated as of
February 1, 2005, by and between Fremont
and the Depositor.
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Rating Agency: Each of the Rating
Agencies specified in the Preliminary
Statement. If such organization or a
successor is no longer in existence,
"Rating Agency" shall be such nationally
recognized statistical rating
organization, or other comparable Person,
as is designated by the Depositor,
notice of which designation shall be given
to the Trustee. References herein to
a given rating or rating category of a
Rating Agency shall mean such rating
category without giving effect to any
modifiers. For purposes of Section
10.05(c), the addresses for notices to each
Rating Agency shall be the address
specified therefor in the definition
corresponding to the name of such Rating
Agency, or such other address as either
such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized
Loss Percentage: For purposes of the Servicer Termination Test
and the Servicer Enhanced Review Test, the
percentage produced by the following
calculation: (i) (a) the aggregate amount
of cumulative Realized Losses incurred
on the Mortgage Loans since the Cut-off
Date through the last day of the related
Due Period, minus (b) any amount received
with respect to Realized Losses on the
Mortgage Loans subsequent to a Final
Recovery Determination being made with
respect to the Mortgage Loans, divided by
(ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the
Cut-off Date; provided however, that for
purposes of this definition, the term
"Realized Losses" shall not include Debt
Service Reductions or Deficient
Valuations.
Realized
Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if
any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan
together with accrued and unpaid
interest thereon exceeds (b) the
Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in
connection with the liquidation of
such Liquidated Mortgage Loan and net of
any amount of unreimbursed Servicing
Advances with respect to such Liquidated
Mortgage Loan.
Record
Date: With respect to any Distribution Date, the close of
business
on the Business Day immediately preceding
such Distribution Date; provided,
however, that for any Certificate issued in
definitive form, the Record Date
shall be the close of business on the last
day of the month immediately
preceding the related Distribution Date (or
if such day is not a Business Day,
on the immediately preceding Business
Day).
Reference
Bank: As defined in Section 4.04.
Regular
Certificates: As defined in the Preliminary Statement.
Relief Act
Interest Shortfall: With respect to any Distribution Date and
any Mortgage Loan, any reduction in the
amount of interest collectible on such
Mortgage Loan for the most recently ended
Due Period as a result of the
application of the Servicemembers Civil
Relief Act, as amended, or any similar
state statutes.
REMIC: A
"real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC I
Interest Loss Allocation Amount: With respect to any
Distribution
Date, an amount equal to (a) the product of
(i) the aggregate Principal Balance
of the Mortgage Loans and
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<PAGE>
related REO Properties then outstanding and
(ii) the Uncertificated REMIC I
Pass-Through Rate for REMIC I Regular
Interest LTAA minus the Marker Rate,
divided by (b) 12.
REMIC I
Overcollateralization Target Amount: 1.0% of the Target
Overcollateralization Amount.
REMIC I
Overcollateralized Amount: With respect to any date of
determination, (i) the aggregate
Uncertificated Principal Balances of the REMIC
I Regular Interests minus (ii) the
aggregate of the Uncertificated Principal
Balances of REMIC I Regular Interest REMIC
I Regular Interest LT1A1, REMIC I
Regular Interest LT1A2, REMIC I Regular
Interest LT2A1, REMIC I Regular Interest
LT2A2, REMIC I Regular Interest LT2A3,
REMIC I Regular Interest LTM1, REMIC I
Regular Interest LTM2, REMIC I Regular
Interest LTM3, REMIC I Regular Interest
LTM4, REMIC I Regular Interest LTM5, REMIC
I Regular Interest LTM6, REMIC I
Regular Interest LTM7, REMIC I Regular
Interest LTM8, REMIC I Regular Interest
LTM9, REMIC I Regular Interest LTM10 and
REMIC I Regular Interest LTP, in each
case as of such date of determination.
REMIC I
Principal Loss Allocation Amount: With respect to any
Distribution
Date, an amount equal to (a) the product of
(i) the aggregate Principal Balance
of the Mortgage Loans and related REO
Properties then outstanding and (ii) 1
minus a fraction, the numerator of which is
two times the aggregate of the
Uncertificated Principal Balances of REMIC
I Regular Interest LT1A1, REMIC I
Regular Interest LT1A2, REMIC I Regular
Interest LT2A1, REMIC I Regular Interest
LT2A2, REMIC I Regular Interest LT2A3,
REMIC I Regular Interest LTM1, REMIC I
Regular Interest LTM2, REMIC I Regular
Interest LTM3, REMIC I Regular Interest
LTM4, REMIC I Regular Interest LTM5, REMIC
I Regular Interest LTM6, REMIC I
Regular Interest LTM7, REMIC I Regular
Interest LTM8, REMIC I Regular Interest
LTM9 and REMIC I Regular Interest LTM10 and
the denominator of which is the
aggregate of the Uncertificated Principal
Balances of REMIC I Regular Interest
LT1A1, REMIC I Regular Interest LT1A2,
REMIC I Regular Interest LT2A1, REMIC I
Regular Interest LT2A2, REMIC I Regular
Interest LT2A3, REMIC I Regular Interest
LTM1, REMIC I Regular Interest LTM2, REMIC
I Regular Interest LTM3, REMIC I
Regular Interest LTM4, REMIC I Regular
Interest LTM5, REMIC I Regular Interest
LTM6, REMIC I Regular Interest LTM7, REMIC
I Regular Interest LTM8, REMIC I
Regular Interest LTM9, REMIC I Regular
Interest LTM10 and REMIC I Regular
Interest LTZZ.
REMIC I
Regular Interest LTAA: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTAA shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LT1A1: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LT1A1 shall accrue
interest at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LT1A2: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LT1A2 shall accrue
interest at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and
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<PAGE>
shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount
equal to its initial Uncertificated
Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I
Regular Interest LT2A1: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LT2A1 shall accrue
interest at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LT2A2: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LT2A2 shall accrue
interest at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LT2A3: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LT2A3 shall accrue
interest at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM1: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM1 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM2: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM2 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM3: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM3 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM1: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM4 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM2: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM5 shall accrue
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<PAGE>
interest at the related Uncertificated
REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to
distributions of principal, subject to
the terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM3: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM6 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM4: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM7 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM5: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM8 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM6: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM9 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM7: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM10 shall accrue
interest at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM8: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in
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REMIC I for purposes of the REMIC
Provisions. REMIC I Regular Interest LTM8
shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in
effect from time to time, and shall be
entitled to distributions of principal,
subject to the terms and conditions hereof,
in an aggregate amount equal to its
initial Uncertificated Principal Balance as
set forth in the Preliminary
Statement hereto.
REMIC I
Regular Interest LTM9: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM9 shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTM10: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTM10 shall accrue
interest at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTP: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTP shall accrue interest
at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interest LTZZ: One of the separate non-certificated
beneficial ownership interests in REMIC I
issued hereunder and designated as a
regular interest in REMIC I for purposes of
the REMIC Provisions. REMIC I
Regular Interest LTZZ shall accrue interest
at the related Uncertificated REMIC
I Pass-Through Rate in effect from time to
time, and shall be entitled to
distributions of principal, subject to the
terms and conditions hereof, in an
aggregate amount equal to its initial
Uncertificated Principal Balance as set
forth in the Preliminary Statement
hereto.
REMIC I
Regular Interests: REMIC I Regular Interest LTAA, REMIC I
Regular
Interest LT1A1, REMIC I Regular Interest
LT1A2, REMIC I Regular Interest LT2A1,
REMIC I Regular Interest LT2A2, REMIC I
Regular Interest LT2A3, REMIC I Regular
Interest LTM1, REMIC I Regular Interest
LTM2, REMIC I Regular Interest LTM3,
REMIC I Regular Interest LTM4, REMIC I
Regular Interest LTM5, REMIC I Regular
Interest LTM6, REMIC I Regular Interest
LTM7, REMIC I Regular Interest LTM8,
REMIC I Regular Interest LTM9, REMIC I
Regular Interest LTM10, REMIC I Regular
Interest LTP and REMIC I Regular Interest
LTZZ.
Fremont 2005-A
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<PAGE>
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
regulations promulgated thereunder, as the
foregoing may be in effect from time
to time as well as provisions of applicable
state laws.
Remittance
Date: With respect to any Distribution Date, no later than
12:00 PM, Central Time on the Business Day
immediately preceding such
Distribution Date.
REO
Disposition: The final sale by the Servicer of any REO
Property.
REO
Imputed Interest: As to any REO Property, for any period, an
amount
equivalent to interest (at the Mortgage
Interest Rate net of the Servicing Fee
Rate that would have been applicable to the
related Mortgage Loan had it been
outstanding) on the unpaid principal
balance of the Mortgage Loan as of the date
of acquisition thereof (as such balance is
reduced pursuant to Section 3.15 by
any income from the REO Property treated as
a recovery of principal).
REO
Property: A Mortgaged Property acquired by the Trust Fund
through
foreclosure or deed-in-lieu of foreclosure
in connection with a defaulted
Mortgage Loan.
Reporting
Date: The 18th day of each calendar month or the immediately
preceding Business Day if the 18th is not a
Business Day.
Repurchase
Price: With respect to any Mortgage Loan, an amount equal to
the sum of (i) the unpaid principal balance
of such Mortgage Loan as of the date
of repurchase, (ii) interest on such unpaid
principal balance of such Mortgage
Loan at the Mortgage Interest Rate from the
last date through which interest has
been paid and distributed to the Trustee to
the date of repurchase, (iii) all
unreimbursed Servicing Advances and (iv)
all expenses incurred by the Servicer,
the Trust, the Trust Administrator or the
Trustee, as the case may be, in
respect of a breach or defect, including,
without limitation, (a) expenses
arising out of the Servicer's, the Trust
Administrator's or Trustee's, as the
case may be, enforcement of the
Originator's repurchase obligation, to the
extent not included in clause (iii), and
(b) any costs and damages incurred by
the Trust in connection with any violation
by such Mortgage Loan of any
predatory lending law or abusive lending
law.
Request
for Release: The Request for Release submitted by the Servicer
to
the Trust Administrator, substantially in
the form of Exhibit J.
Residual
Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee means
any
officer in the Corporate Trust Office with
direct responsibility for the
administration of this Agreement and any
other officer to whom a particular
matter is referred because of such
officer's knowledge of and familiarity with
the particular subject; and when used with
respect to the Trust Administrator
means any vice president, any assistant
vice president, any assistant secretary,
any assistant treasurer, any associate or
any other officer of the Trustee or
the Trust Administrator customarily
performing functions similar to those
performed by any of the above designated
officers who at such time shall be
officers to whom, with respect to a
particular matter, such matter is referred
Fremont 2005-A
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<PAGE>
because of such officer's knowledge of and
familiarity with the particular
subject and who shall have direct
responsibility for the administration of this
Agreement.
Rolling
Three-Month Delinquency Rate: With respect to any Distribution
Date, the weighted average of the
Delinquency Rates for each of three calendar
months immediately preceding such
Distribution Date; provided, that with respect
to the first two Distribution Dates, it
shall refer to the preceding one or two
calendar months, as appropriate.
Rule 144A
Letter: As defined in Section 5.02(b).
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 which,
unless otherwise specified herein, shall
give effect to any related Debt Service
Reduction and any Deficient Valuation that
affects the amount of the monthly
payment due on such Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended.
Senior
Principal Distribution Amount: With respect to any Distribution
Date, the sum of the Group 1 Senior
Principal Distribution Amount and Group 2
Senior Principal Distribution Amount, as
applicable.
Servicer:
Fremont, and if a successor servicer is appointed hereunder,
such successor servicer.
Servicer
Certification: A written certification signed by an officer of
the Servicer that complies with (i) the
Sarbanes-Oxley Act of 2002, as amended
from time to time, and (ii) the February
21, 2003 Statement by the Staff of the
Division of Corporation Finance of the
Securities and Exchange Commission
Regarding Compliance by Asset-Backed
Issuers with Exchange Act Rules 13a-14 and
15d-14, as in effect from time to time;
provided that if, after the Closing Date
(a) the Sarbanes-Oxley Act of 2002 is
amended, (b) the Statement referred to in
clause (ii) is modified or superseded by
any subsequent statement, rule or
regulation of the Securities and Exchange
Commission or any statement of a
division thereof, or (c) any future
releases, rules and regulations are
published by the Securities and Exchange
Commission from time to time pursuant
to the Sarbanes-Oxley Act of 2002, which in
any such case affects the form or
substance of the required certification and
results in the required
certification being, in the reasonable
judgment of the Servicer, materially more
onerous than the form of the required
certification as of the Closing Date, the
Servicer Certification shall be as agreed
to by the Servicer and the Depositor
following a negotiation in good faith to
determine how to comply with any such
new requirements.
Servicer
Enhanced Review Test: With respect to any Distribution Date,
the
Servicer will fail the Servicer Enhanced
Review Test if both (i) the outstanding
rating by Moody's of Fremont as a servicer
of residential mortgage loans is not
"SQ2" or better (including any +/-
designation), and (ii) the Realized Loss
Percentage for the Mortgage Loans exceeds
the applicable percentages set forth
below:
Fremont 2005-A
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<PAGE>
<TABLE>
<CAPTION>
DISTRIBUTION DATE OCCURRING IN
PERCENTAGE
------------------------------
----------
<S>
<C>
March 2006 through February 2007
1.50%
March 2007 through February 2008
2.50%
March 2008 through February 2009
3.50%
March 2009 through February 2010
5.25%
March 2010 through February 2011
6.75%
March 2011 and thereafter
7.30%
</TABLE>
Servicer
Event of Default: One or more of the events described in
Section
7.01(a).
Servicer
Remittance Report: As defined in Section 4.03(d).
Servicer
Termination Test: With respect to any Distribution Date, the
Servicer will fail the Servicer Termination
Test if the Realized Loss Percentage
for the Mortgage Loans exceeds the
applicable percentages set forth below or
such other higher amounts as set by any of
the Rating Agencies with respect to
such Distribution Date:
<TABLE>
<CAPTION>
DISTRIBUTION DATE OCCURRING IN
PERCENTAGE
------------------------------
----------
<S>
<C>
March 2006 through February 2007
1.75%
March 2007 through February 2008
2.75%
March 2008 through February 2009
3.75%
March 2009 through February 2010
5.50%
March 2010 through February 2012
7.00%
March 2011 through February 2012
8.00%
March 2012 and thereafter
8.00%
</TABLE>
Servicing
Advances: The reasonable "out-of-pocket" costs and expenses
(including legal fees) incurred by the
Servicer in the performance of its
servicing obligations in connection with a
default, delinquency or other
unanticipated event, including, but not
limited to, the cost of (i) the
preservation, restoration, inspection and
protection of a Mortgaged Property,
(ii) any enforcement or judicial
proceedings, including foreclosures and
litigation, in respect of a particular
Mortgage Loan, (iii) the management
(including reasonable fees in connection
therewith) and liquidation of any REO
Property, and (iv) the performance of its
obligations under Sections 3.01, 3.09,
3.13 and 3.15. Servicing Advances also
include any reasonable "out-of-pocket"
costs and expenses (including legal fees)
incurred by the Servicer in connection
with executing and recording instruments of
satisfaction, deeds of reconveyance
or Assignments of Mortgage in connection
with any satisfaction or foreclosures
in respect of any Mortgage Loan to the
extent not recovered from the Mortgagor
or otherwise payable under this Agreement.
The Servicer shall not be required to
make any Nonrecoverable Servicing
Advances.
Servicing
Fee: With respect to each Mortgage Loan and any Distribution
Date, an amount equal to the product of (i)
one-twelfth of the Servicing Fee
Rate, and (ii) the Stated Principal Balance
of such Mortgage Loan as of the
first day of the calendar month preceding
the month in which such Distribution
Date occurs. Such fee shall be payable
monthly, and shall be pro rated for any
portion of a month during which the
Mortgage Loan is serviced by the Servicer
under this Agreement. The Servicing Fee is
payable solely from the interest
portion (including
Fremont 2005-A
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<PAGE>
recoveries with respect to interest from
Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds and
proceeds received with respect to REO
Properties, to the extent permitted by
Section 3.11) of such Scheduled Payment
collected by the Servicer or as otherwise
provided under Section 3.11.
Servicing
Fee Rate: With respect to each Mortgage Loan, 0.50% per annum.
Servicing
File: With respect to each Mortgage Loan, the file retained by
the Servicer consisting of originals or
copies of all documents in the Mortgage
File which are not delivered to the Trust
Administrator in the Custodial File
and copies of the Mortgage Loan Documents
set forth in Exhibit K hereto.
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 officers furnished to the
Trustee, the Master Servicer, the Trust
Administrator and the Depositor by the
Servicer on the Closing Date pursuant to
this Agreement, as such list may from
time to time be amended.
Servicing
Rights: Any and all of the following: (a) all rights and
obligations to service the Mortgage Loans;
(b) any compensation for servicing
the Mortgage Loans; (c) any late fees,
penalties or similar payments with
respect to the Mortgage Loans (other than
prepayment penalties); (d) all
agreements or documents creating, defining
or evidencing any such servicing
rights to the extent they relate to such
servicing rights; (e) any interest on
Escrow Accounts allowed by law or other
similar payments with respect to the
Mortgage Loans and any amounts actually
collected with respect thereto; (f) all
accounts and other rights to payment
related to any of the property described in
this paragraph; (g) the right to possess
and use any and all servicing files,
servicing records, data tapes, computer
records, or other information pertaining
to the Mortgage Loans to the extent
relating to the past, present or prospective
servicing of the Mortgage Loans; and (h)
all rights, powers and privileges
incident to any of the foregoing.
Servicing
Transfer Costs: All reasonable out-of-pocket costs and expenses
(including all extraordinary expenses)
incurred by the Master Servicer in
connection with the transfer of servicing
from a terminated Servicer, including,
without limitation, any such costs or
expenses associated with the complete
transfer of all servicing data and the
completion, correction or manipulation of
such servicing data as may be required by
the Master Servicer to correct any
errors or insufficiencies in the servicing
data or otherwise to enable the
Master Servicer (or any successor Servicer
appointed pursuant to Section 7.02)
to service the Mortgage Loans properly and
effectively.
Six-Month
LIBOR Index: With respect to each applicable Adjustable Rate
Mortgage Loan, the rate as determined on
the basis of rates at which six-month
U.S. dollar deposits are offered to prime
banks in the London interbank market
on such date as provided in the related
Mortgage Note.
60+ Day
Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which
any portion of a Scheduled Payment is, as
of the last day of the prior Due
Period, two months or
Fremont 2005-A
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<PAGE>
more past due (without giving effect to any
grace period), each Mortgage Loan in
foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has
filed for bankruptcy.
Standard
& Poor's: Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc. If Standard
& Poor's is designated as a Rating
Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the
address for notices to Standard &
Poor's shall be Standard & Poor's, 55 Water
Street, New York, New York 10041,
Attention: Residential Mortgage Surveillance
Group - Fremont 2005-A, or such other
address as Standard & Poor's may hereafter
furnish to the Depositor, the Servicer, the
Master Servicer, the Trust
Administrator and the Trustee.
Start-up
Day: As defined in Section 11.01(b).
Stated
Principal Balance: As to each Mortgage Loan and as of any date
of
determination, (i) the principal balance of
the Mortgage Loan at the Cut-off
Date after giving effect to payments of
principal due on or before such date,
minus (ii) all amounts previously remitted
to the Trustee with respect to the
related Mortgage Loan representing payments
or recoveries of principal including
advances in respect of scheduled payments
of principal. For purposes of any
Distribution Date, the Stated Principal
Balance of any Mortgage Loan will give
effect to any scheduled payments of
principal received by the Servicer on or
prior to the related Determination Date or
advanced by the Servicer for the
related Remittance Date and any unscheduled
principal payments and other
unscheduled principal collections received
during the related Prepayment Period.
Stepdown
Date: The earlier to occur of (a) the date on which the
aggregate
Class Certificate Balances of the Senior
Certificates have been reduced to zero,
and (b) the later to occur of (i) the
Distribution Date in March 2008, and (ii)
the first Distribution Date on which the
Credit Enhancement Percentage
(calculated for this purpose only after
taking into account distributions of
principal on the Mortgage Loans but prior
to distribution of the Group 1
Principal Distribution Amount and the Group
2 Principal Distribution Amount to
the holders of the Certificates then
entitled to distributions of principal on
such Distribution Date) is greater than or
equal to 46.10%
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent
Recovery: Amounts recovered by the Servicer in respect of a
liquidated Mortgage Loan in regard to which
a Realized Loss has occurred.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing
Agreements: As defined in Section 3.02(a).
Substitute
Mortgage Loan: A Mortgage Loan substituted by the Originator
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 J, (i)
have a Stated Principal Balance, after
deduction of the principal portion of the
Scheduled Payment due in the month of
substitution, not
Fremont 2005-A
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<PAGE>
in excess of the Stated Principal Balance
of the Deleted Mortgage Loan; (ii) be
accruing interest at a rate no lower than
and not more than 1.00% per annum
higher than, that of the Deleted Mortgage
Loan; (iii) have a Loan-to-Value Ratio
no higher than that of the Deleted Mortgage
Loan; (iv) have a remaining term to
maturity no greater than (and not more than
one year less than that of) the
Deleted Mortgage Loan; and (v) comply with
each representation and warranty set
forth in Section 2.03.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant
to Section 2.03(g).
Tax
Service Contract: As defined in Section 3.09(a).
Telerate
Page 3750: The display page currently so designated on the
Bridge
Telerate Service (or such other page as may
replace that page on that service
for displaying comparable rates or
prices).
Termination Price: As defined in Section 9.01.
30-Day
Delinquency: Each Mortgage Loan with respect to which any
portion
of a Scheduled Payment is, as of the last
day of the prior Due Period, one month
past due (without giving effect to any
grace period).
Transfer:
Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer
Affidavit: As defined in Section 5.02(c).
Transferor
Certificate: As defined in Section 5.02(b).
Trigger
Event: With respect to any Distribution Date, a Trigger Event
exists if (i) the Rolling Three Month
Delinquency Rate as of the last day of the
related Due Period, equals or exceeds
34.70% of the Credit Enhancement
Percentage as of the last day of the prior
Due Period or (ii) the quotient
(expressed as a percentage) of (x) the
aggregate amount of Realized Losses
incurred since the Cut-off Date through the
last day of the related Prepayment
Period divided by (y) the Cut-off Date Pool
Principal Balance, exceeds the
applicable percentages set forth below with
respect to such Distribution Date:
<TABLE>
<CAPTION>
DISTRIBUTION DATE OCCURRING IN
LOSS
PERCENTAGE
--------------------------------
---------------------------------------------
<S>
<C>
March 2008 through February 2009
3.50% for the first month, plus an additional
1/12th of 1.75% for each month thereafter
March 2009 through February 2010
5.25% for the first month, plus an additional
1/12th of 1.50% for each month thereafter
March 2010 through February 2011
6.75% for the first month, plus an additional
1/12th of 0.55% for each month thereafter
March 2011 and thereafter
7.30%
</TABLE>
Trust: The
express trust created hereunder in Section 2.01(c).
Fremont 2005-A
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<PAGE>
Trust
Administration Fee: As to each Mortgage Loan and any
Distribution
Date, an amount equal to the product of (i)
one-twelfth of the Trust
Administration Fee Rate, and (ii) the
Stated Principal Balance of such Mortgage
Loan as of the first day of the calendar
month preceding the month in which such
Distribution Date occurs.
Trust
Administration Fee Rate: 0.002% per annum.
Trust
Administrator: Wells Fargo Bank, N.A., and its successors in
interest and, if a successor trust
administrator is appointed hereunder, such
successor.
Trust
Fund: The corpus of the trust created hereunder consisting of
(i)
the Mortgage Loans and all interest and
principal received on or with respect
thereto after the related Cut-off Date,
other than such amounts which were due
on the Mortgage Loans on or before the
related Cut-off Date; (ii) the Collection
Account, Net WAC Rate Carryover Reserve
Account, the Distribution 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 Certificate Cap
Agreement, and (v) all proceeds of the
conversion, voluntary or involuntary, of
any of the foregoing.
Trust
REMIC: Either of REMIC I and REMIC II.
Trustee:
HSBC Bank USA, National Association, and its successors in
interest and, if a successor trustee is
appointed hereunder, such successor.
Uncertificated Accrued Interest: With respect to each REMIC I
Regular
Interest on each Distribution Date, an
amount equal to one month's interest at
the related Uncertificated REMIC I
Pass-Through Rate on the Uncertificated
Principal Balance of such REMIC I Regular
Interest. In each case, Uncertificated
Accrued Interest will be reduced by any
Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls (allocated
to such REMIC I Regular Interests
based on their respective entitlements to
interest irrespective of any
Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls for such
Distribution Date).
Uncertificated Principal Balance: The amount of any REMIC I
Regular
Interest outstanding as of any date of
determination. As of the Closing Date,
the Uncertificated Balance of each REMIC I
Regular Interest shall equal the
amount set forth in the Preliminary
Statement hereto as its initial
uncertificated balance. On each
Distribution Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest
shall be reduced by all distributions
of principal made on such REMIC I Regular
Interest on such Distribution Date
pursuant to Section 4.08 and, if and to the
extent necessary and appropriate,
shall be further reduced on such
Distribution Date by Realized Losses as
provided in Section 4.08. The
Uncertificated Balance of REMIC I Regular Interest
LTZZ shall be increased by interest
deferrals as provided in Section 4.08. The
Uncertificated Balance of each REMIC I
Regular Interest shall never be less than
zero.
Uncertificated REMIC I Pass-Through Rate: With respect to REMIC I
Regular
Interest LTAA, REMIC I Regular Interest
LT1A1, REMIC I Regular Interest LT1A2,
REMIC I Regular Interest LT2A1, REMIC I
Regular Interest LT2A2, REMIC I Regular
Interest LT2A3, REMIC I
Fremont 2005-A
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<PAGE>
Regular Interest LTM1, REMIC I Regular
Interest LTM2, REMIC I Regular Interest
LTM3, REMIC I Regular Interest LTM4, REMIC
I Regular Interest LTM5, REMIC I
Regular Interest LTM6, REMIC I Regular
Interest LTM7, REMIC I Regular Interest
LTM8, REMIC I Regular Interest LTM9, REMIC
I Regular Interest LTM10, REMIC I
Regular Interest LTZZ, and REMIC I Regular
Interest LTP, the Net WAC Rate.
Underwriters' Exemption: Any exemption listed in footnote 1 of,
and
amended by, Prohibited Transaction
Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to
the
Purchase Agreement.
Unpaid
Interest Amounts: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of
the Current Interest from prior
Distribution Dates remaining unpaid and (b)
interest on such unpaid amount at
the applicable Pass-Through Rate (to the
extent permitted by applicable law).
U.S.
Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a
corporation for tax purposes) created or
organized in the United States or under the
laws of the United States or of any
State thereof, including, for this purpose,
the District of Columbia; (iii) a
partnership (or entity treated as a
partnership for tax purposes) organized in
the United States or under the laws of the
United States or of any state
thereof, including, for this purpose, the
District of Columbia (unless provided
otherwise by future Treasury regulations);
(iv) an estate whose income is
includible in gross income for United
States income tax purposes regardless of
its source; or (v) 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 U.S. Persons have authority to control
all substantial decisions of the
trust. Notwithstanding the last clause of
the preceding sentence, to the extent
provided in Treasury regulations, certain
trusts in existence on August 20,
1996, and treated as U.S. Persons prior to
such date, may elect to continue to
be U.S. Persons.
Voting
Rights: The portion of the voting rights of all of the
Certificates
which is allocated to any Certificate. As
of any date of determination, (a) 1%
of all Voting Rights shall be allocated to
the Class C Certificates, if any
(such Voting Rights to be allocated among
the holders of Certificates of each
such Class in accordance with their
respective Percentage Interests), (b) 1% of
all Voting Rights shall be allocated to the
Class P Certificates, if any, and
(c) the remaining Voting Rights shall be
allocated among Holders of the
remaining Classes of Certificates in
proportion to the Certificate Balances of
their respective Certificates on such
date.
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,
hereby
sells, transfers, assigns, sets over and
otherwise conveys to the Trustee for
the benefit of the
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<PAGE>
Certificateholders, without recourse, all
the right, title and interest of the
Depositor in and to the Trust Fund,
together with all rights of the Depositor
under the Certificate Cap Agreement (if
any), and the Trustee, on behalf of the
Trust, hereby accepts the Trust Fund.
(a) In
connection with the transfer and assignment of each Mortgage
Loan,
the Depositor has delivered or caused to be
delivered to the Trustee or the
Trust Administrator, as applicable, for the
benefit of the Certificateholders,
the following documents or instruments with
respect to each Mortgage Loan so
assigned:
(i) the
original Mortgage Note bearing all intervening endorsements
showing a
complete chain of endorsement from the originator to the last
endorsee,
endorsed "Pay to the order of _________, without recourse" and
signed
(which may be by facsimile signature) in the name of the last
endorsee
by an authorized officer. To the extent that there is no room
on
the face
of the Mortgage Notes for endorsements, the endorsement may be
contained
on an allonge, if state law so allows and the Trustee is so
advised by
the Depositor that state law so allows;
(ii) the original of any guarantee executed in connection with
the
Mortgage
Note;
(iii) with respect to each Mortgage Loan, the original Mortgage
with
evidence
of recording thereon or a certified true copy of such Mortgage
submitted
for recording. If in connection with any Mortgage Loan, the
Originator
cannot deliver or cause to be delivered the original Mortgage
with
evidence of recording thereon on or prior to the Closing Date
because
of a delay
caused by the public recording office where such Mortgage has
been
delivered for recordation or because such Mortgage has been lost
or
because
such public recording office retains the original recorded
Mortgage,
the Originator (to the extent that it has not previously
delivered
the same to the Depositor, the Trustee or the Trust
Administrator) shall deliver or cause to be delivered to the
Trustee or
Trust
Administrator, (1) a photocopy of such Mortgage, certified by
the
Originator
(or certified by the title company, escrow agent, or closing
attorney)
to be a true and complete copy of such Mortgage dispatched to
the
appropriate public recording office for recordation; and (2)
upon
receipt
thereof by the Originator, the original recorded Mortgage, or,
in
the case
of a Mortgage where a public recording office retains the
original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such
Mortgage
certified
by such public recording office to be a true and complete copy
of the
original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation
or
extension
agreements (if provided), with evidence of recording thereon or
a
certified true copy of such agreement submitted for recording;
(v) except with respect to each MERS Designated Mortgage Loan,
the
original
Assignment of Mortgage for each Mortgage Loan endorsed in blank
and in
recordable form;
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(vi) with respect to each Mortgage Loan, the originals of all
intervening Assignments of Mortgage (if any) evidencing a complete
chain
of
assignment from the applicable originator (or MERS with respect to
each
MERS
Designated Mortgage Loan) to the last endorsee with evidence of
recording
thereon, or if any such intervening assignment has not been
returned
from the applicable recording office or has been lost or if
such
public
recording office retains the original recorded Assignments of
Mortgage,
the Originator (to the extent that it has not previously
delivered
the same to the Depositor, the Trustee or the Trust
Administrator) shall deliver or cause to be delivered to the
Trustee or
the Trust
Administrator, (1) a photocopy of such intervening assignment,
certified
by the Originator (or certified by the title company, escrow
agent, or
closing attorney) to be a complete copy of such intervening
Assignment
of Mortgage dispatched to the appropriate public recording
office for
recordation upon receipt thereof by the Originator, and (2) the
original
recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public
recording
office, a copy of such
intervening assignment certified by such public
recording
office to be a true and complete copy of the original recorded
intervening assignment;
(vii) the original or duplicate lender's title policy and any
riders
thereto
or, any one of an original title binder, an original or copy of
the
preliminary title report or an original or copy of the title
commitment, and if, copies then certified by the title company;
(viii) a security agreement, chattel mortgage or equivalent
document
executed
in connection with the Mortgage (if provided); and
(ix) original powers of attorney, if applicable, with evidence
of
recording
thereon, if required.
Each
Mortgage Loan for which a Mortgage Note is missing shall be
evidenced
by a lost note affidavit as of the Closing
Date. In the event, for purposes of
the Closing Date, one or more lost note
affidavits are provided to cover
multiple missing Mortgage Notes, the
Originator shall deliver to the Trustee or
the Trust Administrator the applicable
individual lost note affidavits within
ten (10) Business Days of the Closing Date.
If the Originator fails to deliver
the required individual lost note
affidavits within the specified period of
time, the Trustee or the Trust
Administrator shall notify the Originator to take
such remedial actions, including, without
limitation, the repurchase by the
Originator of such Mortgage Loan within 30
days of the Closing Date.
The
Originator shall deliver to the Trustee or the Trust Administrator
the
applicable recorded document promptly upon
receipt from the respective recording
office but in no event later than 150 days
from the Closing Date.
If any
Mortgage has been recorded in the name of Mortgage Electronic
Registration System, Inc. ("MERS") or its
designee, no Assignment of Mortgage in
favor of the Trustee will be required to be
prepared or delivered and instead,
the Servicer shall take all reasonable
actions as are necessary at the expense
of the Depositor to cause the Trustee to be
shown as the owner of
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the related Mortgage Loan on the records of
MERS for the purpose of the system
of recording transfers of beneficial
ownership of mortgages maintained by MERS.
From time
to time, the Originator shall forward with respect to the
Mortgage Loans, to the Trustee or the Trust
Administrator additional original
documents, and additional documents
evidencing an assumption, modification,
consolidation or extension of a Mortgage
Loan approved by the Originator in
accordance with the terms of this
Agreement. All such mortgage documents held by
the Trustee or the Trust Administrator as
to each Mortgage Loan shall constitute
the "Custodial File."
The
requirements of this paragraph relate only to Mortgage Loans that
are
not MERS Designated Mortgage Loans. On or
prior to the Closing Date, the
Originator shall deliver to the Trustee or
Trust Administrator Assignments of
Mortgages, in blank, for each Mortgage Loan
(except with respect to each MERS
Designated Mortgage Loan). The Originator
shall cause such Assignments of
Mortgage with completed recording
information to be provided to the Trustee or
the Trust Administrator in a reasonably
acceptable manner. No later than thirty
(30) Business Days following the later of
the Closing Date and the date of
receipt by the Servicer of the fully
completed Assignments of Mortgages in
recordable form, the Servicer shall
promptly submit or cause to be submitted for
recording, at the expense of the Originator
at no expense to the Trust Fund, the
Master Servicer, the Trust Administrator,
the Trustee or the Depositor in the
appropriate public office for real property
records, each Assignment of Mortgage
referred to in Section 2.01(a)(vi).
Notwithstanding the foregoing, however, for
administrative convenience and facilitation
of servicing and to reduce closing
costs, the Assignments of Mortgage shall
not be required to be completed and
submitted for recording with respect to any
Mortgage Loan if the Trustee, the
Trust Administrator and each Rating Agency
have received an opinion of counsel,
satisfactory in form and substance to the
Trustee and Trust Administrator and
each Rating Agency, to the effect that the
recordation of such Assignments of
Mortgage in any specific jurisdiction is
not necessary to protect the Trustee's
interest in the related Mortgage Note. If
the Assignment of Mortgage is to be
recorded, the Mortgage shall be assigned by
the Originator at the Originator's
expense to "HSBC Bank USA, National
Association, as trustee under the Pooling
and Servicing Agreement dated as of
February 1, 2005, Fremont Home Loan Trust
2005-A." In the event that any such
assignment is lost or returned unrecorded
because of a defect therein, the Originator
shall promptly prepare a substitute
assignment to cure such defect and
thereafter cause each such assignment to be
duly recorded.
On or
prior to the Closing Date, the Depositor shall deliver to the
Trustee, the Servicer and the Trust
Administrator a copy of the Data Tape
Information in an electronic, machine
readable medium in a form mutually
acceptable to the Depositor, the Servicer,
the Master Servicer, the Trust
Administrator and the Trustee. Within ten
(10) Business Days of the Closing
Date, the Depositor shall deliver a copy of
the complete Mortgage Loan Schedule
to the Trustee, the Master Servicer, the
Trust Administrator and the Servicer.
In the
event, with respect to any Mortgage Loans, that such original
or
copy of any document submitted for
recordation to the appropriate public
recording office is not so delivered to the
Trustee or the Trust Administrator
within 150 days following the Closing Date,
and in the event that the Originator
does not cure such failure within 30 days
of discovery or receipt of written
notification of such failure from the
Depositor, the related Mortgage Loan
shall, upon the
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request of the Depositor, be repurchased by
the Originator at the price and in
the manner specified in Section 2.03. The
foregoing repurchase remedy shall not
apply in the event that the Originator
cannot deliver such original or copy of
any document submitted for recordation to
the appropriate public recording
office within the specified period due to a
delay caused by the recording office
in the applicable jurisdiction; provided,
that the Originator shall instead
deliver a recording receipt of such
recording office or, if such recording
receipt is not available, an officer's
certificate of an officer of the
Originator confirming that such document
has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01,
in those instances where the public
recording office retains or loses the
original Mortgage or assignment after it
has been recorded, the obligations of
the Originator shall be deemed to have been
satisfied upon delivery by the
Originator to the Trustee or the Trust
Administrator prior to the Closing Date
of a copy of such Mortgage or assignment,
as the case may be, certified (such
certification to be an original thereof) by
the public recording office to be a
true and complete copy of the recorded
original thereof.
(b) The
Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws
of the State of New York, an express
trust (the "Trust") to be known, for
convenience, as "Fremont Home Loan Trust
2005-A" and HSBC Bank USA, N.A. is hereby
appointed as Trustee in accordance
with the provisions of this Agreement.
(c) The
Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby
authorized, to accept the sale,
transfer, assignment, set over and
conveyance by the Depositor to the Trust of
all the right, title and interest of the
Depositor in and to the Trust Fund
(including, without limitation, the
Mortgage Loans) pursuant to Section 2.01(a)
and, solely in its capacity as Trustee on
behalf of the Certificateholders, to
enter into the Certificate Cap
Agreement.
Section
2.02. Acceptance by the Trustee or Trust Administrator of the
Mortgage Loans.
The
Trustee or the Trust Administrator on its behalf acknowledges
receipt
of the documents identified in its initial
certification in the form annexed
hereto as Exhibit E (the "Initial
Certification"), and declares that it, or the
Trust Administrator on its behalf, holds
and will hold such documents and the
other documents delivered to it pursuant to
Section 2.01, and that it holds or
will hold such other assets as are included
in the Trust Fund, in trust for the
exclusive use and benefit of all present
and future Certificateholders. Each of
the Trustee and the Trust Administrator, as
applicable, on its behalf
acknowledges that it will maintain
possession of the related Mortgage Notes in
any of the states of Minnesota, California
or Utah, unless otherwise permitted
by the Rating Agencies.
Prior to
and as a condition to the Closing, the Trustee shall deliver,
or
cause the Trust Administrator to deliver,
via facsimile (with original to follow
the next Business Day) to the Depositor,
the Master Servicer and the Servicer
the Initial Certification prior to the
Closing Date, or as the Depositor agrees,
on the Closing Date, certifying receipt of
a Mortgage Note and Assignment of
Mortgage for each Mortgage Loan with any
exceptions thereon. The Trustee or
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the Trust Administrator, as applicable,
shall not be responsible to verify the
validity, sufficiency or genuineness of any
document in any Custodial File.
On the
Closing Date, the Trustee or the Trust Administrator, as
applicable, shall ascertain that all
documents required to be reviewed by it are
in its possession, and shall deliver to the
Depositor, the Master Servicer and
the Servicer the Initial Certification and
shall deliver to the Depositor and
the Servicer a Document Certification and
Exception Report, in the form annexed
hereto as Exhibit F, within 90 days after
the Closing Date to the effect that,
as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage
Loan specifically identified in such
certification as an exception and not
covered by such certification): (i) all
documents required to be received by it are
in its possession; (ii) such
documents have been reviewed by it and
appear regular on their face and relate
to such Mortgage Loan; (iii) based on its
examination and only as to the
foregoing documents, the information set
forth in items (i), (ii) and (xii) of
the Mortgage Loan Schedule and items (1),
(2), (3) and (13) of the Data Tape
Information respecting such Mortgage Loan
is correct; and (iv) each Mortgage
Note has been endorsed as provided in
Section 2.01 of this Agreement. The
Trustee or Trust Administrator, as
applicable, shall not be responsible to
verify the validity, sufficiency or
genuineness of any document in any Custodial
File.
The
Trustee or the Trust Administrator, as applicable, shall retain
possession and custody of each Custodial
File in accordance with and subject to
the terms and conditions set forth herein.
The Servicer shall promptly deliver
to the Trustee or the Trust Administrator,
as applicable, upon the execution or
receipt thereof, the originals of such
other documents or instruments
constituting the Custodial File as come
into the possession of the Servicer from
time to time.
The
Originator shall deliver to the Servicer copies of all trailing
documents required to be included in the
Custodial File at the same time the
original or certified copies thereof are
delivered to the Trustee or the Trust
Administrator, as applicable, including but
not limited to such documents as the
title insurance policy and any other
Mortgage Loan documents upon return from
the public recording office. The documents
shall be delivered by the Originator
at the Originator's expense to the Servicer
and in no event shall the Servicer
be responsible for such expense.
Section
2.03. Representations, Warranties and Covenants of the
Originator
and the Servicer.
(a) The
Originator hereby makes the representations and warranties set
forth in Schedule IV hereto to the
Depositor, the Trust Administrator and the
Trustee as of the Closing Date.
(b) It is
understood and agreed that the representations and warranties
set forth in this Section 2.03 shall
survive the transfer of the Mortgage Loans
by the Depositor to the Trustee, and shall
inure to the benefit of the
Depositor, the Trust Administrator and the
Trustee notwithstanding any
restrictive or qualified endorsement on any
Mortgage Note or Assignment of
Mortgage or the examination or failure to
examine any Mortgage File. Upon
discovery by any of the Originator, the
Depositor, the Trustee, the Trust
Administrator, the Master Servicer or
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the Servicer of a breach of any of the
foregoing representations and warranties,
the party discovering such breach shall
give prompt written notice to the
others.
(c) Within
30 days of the earlier of either discovery by or notice to the
Originator that any Mortgage Loan does not
conform to the requirements as
determined in the Trustee's or the Trust
Administrator's review of the related
Custodial File or within 60 days of the
earlier of either discovery by or notice
to the Originator of any breach of a
representation or warranty set forth in
Section 2.03(b), that materially and
adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the
Certificateholders therein, the
Originator shall use its best efforts to
cause to be remedied a material defect
in a document constituting part of a
Mortgage File or promptly to cure such
breach in all material respects and, if
such defect or breach cannot be
remedied, the Originator shall, (i) if such
30- or 60-day period, as applicable,
expires prior to the second anniversary of
the Closing Date, remove such related
Mortgage Loan (a "Deleted Mortgage Loan")
from the Trust Fund and substitute in
its place a Substitute Mortgage Loan, in
the manner and subject to the
conditions set forth in this Section 2.03,
or (ii) repurchase such Mortgage Loan
at the Repurchase Price; provided, however,
that any such substitution pursuant
to clause (i) above shall not be effected
prior to the delivery to the Trustee
and the Trust Administrator of the Opinion
of Counsel required by Section 2.04,
if any, and a Request for Release
substantially in the form of Exhibit J, and
the Mortgage File for any such Substitute
Mortgage Loan; provided, further, that
with respect to any representations and
warranties which are made to the best of
the Originator's knowledge, if it is
discovered by the Originator, the Servicer,
the Master Servicer, the Trust
Administrator, the Depositor or the Trustee that
the substance of such representation and
warranty is inaccurate and such
inaccuracy materially and adversely affects
the value of the related Mortgage
Loans or materially and adversely affects
the interests of the Trustee or the
Certificateholders therein or such
inaccuracy materially and adversely affects
the value of the related Mortgage Loan or
materially and adversely affects the
interests of the Trustee or the
Certificateholders therein in the case of a
representation and warranty relating to a
particular Mortgage Loan,
notwithstanding the Originator's lack of
knowledge with respect to the substance
of such representation and warranty, such
inaccuracy shall be deemed a breach of
the applicable representation and warranty.
In the event that a breach which
materially and adversely affects the value
of the related Mortgage Loan or
Mortgage Loans, as the case may be, or the
interests of the Trustee or the
Certificateholders therein, shall involve
any representation or warranty set
forth in Schedule IV, and such breach
cannot be cured within 60 days of the
earlier of either discovery by or notice to
the Originator of such breach, all
of the Mortgage Loans shall, at the
Depositor's option, be repurchased by the
Originator at the Repurchase Price.
Notwithstanding the foregoing, a breach
which causes a Mortgage Loan not to
constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code,
or by the Originator of any of the
representations and warranties set forth in
clauses I(tt), I(uu) or I(lll) of
Schedule IV, in each case, will be deemed
automatically to materially and
adversely affect the value of such Mortgage
Loan and the interests of the
Trustee and Certificateholders in such
Mortgage Loan. In the event that the
Trustee or the Trust Administrator receives
notice of a breach by the Originator
of any of the representations and
warranties set forth in clauses I(tt), I(uu)
or I(lll) of Schedule IV, the Trustee shall
give notice of such breach to the
Originator and request the Originator to
repurchase the Mortgage Loan at the
Repurchase Price within sixty (60) days of
the Originator's receipt of such
notice. The
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Originator shall repurchase each such
Deleted Mortgage Loan within 60 days of
the earlier of discovery or receipt of
notice with respect to each such Deleted
Mortgage Loan.
(d) With
respect to any Substitute Mortgage Loan or Loans, the
Originator
shall deliver to the Trustee or the Trust
Administrator for the benefit of the
Certificateholders, the Mortgage Note, the
Mortgage, the related assignment of
the Mortgage, and such other documents and
agreements as are required by Section
2.01, with the Mortgage Note endorsed and
the Mortgage assigned as required by
Section 2.01. No substitution is permitted
to be made in any calendar month
after the Determination Date for such
month. Scheduled Payments due with respect
to Substitute Mortgage Loans in the Due
Period of substitution shall not be part
of the Trust Fund and will be retained by
the Originator on the next succeeding
Distribution Date. For the Due Period of
substitution, distributions to
Certificateholders will include the
Scheduled Payment due on any Deleted
Mortgage Loan for such Due Period and
thereafter the Originator shall be
entitled to retain all amounts received in
respect of such Deleted Mortgage
Loan.
(e) In
connection with any repurchase or substitution of a Mortgage
Loan
pursuant to this Section 2.03, the Servicer
shall, based on information provided
by the Originator, amend the Mortgage Loan
Schedule for the benefit of the
Certificateholders to reflect the removal
of such Deleted Mortgage Loan and the
substitution of the Substitute Mortgage
Loan or Loans and the Servicer shall
deliver the amended Mortgage Loan Schedule
to the Trustee, the Trust
Administrator and the Master Servicer. Upon
such substitution, the Substitute
Mortgage Loan or Loans shall be subject to
the terms of this Agreement in all
respects, and the Originator shall be
deemed to have made with respect to such
Substitute Mortgage Loan or Loans, as of
the date of substitution, the
representations and warranties made
pursuant to Section 2.03(b) with respect to
such Mortgage Loan. Upon any such
substitution and the deposit to the Collection
Account of the amount required to be
deposited therein in connection with such
substitution as described in the following
paragraph, the Trustee or the Trust
Administrator, as applicable, shall release
the Mortgage File held for the
benefit of the Certificateholders relating
to such Deleted Mortgage Loan to the
Originator and shall execute and deliver at
the direction of the Originator such
instruments of transfer or assignment
prepared by the Originator in each case
without recourse, as shall be necessary to
vest title in the Originator or its
designee, the Trustee's interest in any
Deleted Mortgage Loan substituted for
pursuant to this Section 2.03.
(f) For
any month in which the Originator substitutes one or more
Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Servicer
will determine the amount (if any) by which
the aggregate unpaid principal
balance of all such Substitute Mortgage
Loans as of the date of substitution is
less than the aggregate Stated Principal
Balance of all such Deleted Mortgage
Loans (after application of the scheduled
principal portion of the Scheduled
Payments due in the Due Period of
substitution). The amount of such shortage
(the "Substitution Adjustment Amount") plus
an amount equal to the aggregate of
any unreimbursed Advances with respect to
such Deleted Mortgage Loans shall be
remitted by the Originator to the Servicer
for deposit into the Collection
Account on or before the next Remittance
Date.
(g) In
addition to such repurchase or substitution obligations, the
Originator shall indemnify the Depositor,
any of its Affiliates, the Servicer,
the Master Servicer, the Trust
Administrator and the Trustee and hold such
parties harmless against any losses,
damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and
related costs, judgments, and
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other costs and expenses resulting from any
claim, demand, defense or assertion
based on or grounded upon, or resulting
from, a breach by the Originator of any
of its representations and warranties
contained in this Agreement.
(h) In the event
that a Mortgage Loan shall have been repurchased pursuant
to this Agreement, the proceeds from such
repurchase shall be deposited in the
Collection Account by the Servicer pursuant
to Section 3.10 on or before the
next Remittance Date and upon such deposit
of the Repurchase Price, the delivery
of the Opinion of Counsel required by
Section 2.04, if applicable, and receipt
of a Request for Release in the form of
Exhibit J hereto, the Trustee or the
Trust Administrator, as applicable, shall
release the related Custodial File
held for the benefit of the
Certificateholders to such Person as directed by the
Servicer, and the Trustee shall execute and
deliver at such Person's direction
such instruments of transfer or assignment
prepared by such Person, in each case
without recourse, as shall be necessary to
transfer title from the Trustee. It
is understood and agreed that the
obligation under this Agreement of any Person
to cure, repurchase or replace any Mortgage
Loan as to which a breach has
occurred and is continuing, together with
any related indemnification
obligations, shall constitute the sole
remedy against such Persons respecting
such breach available to
Certificateholders, the Depositor, the Servicer, the
Master Servicer, the Trust Administrator or
the Trustee on their behalf.
The
representations and warranties made pursuant to this Section 2.03
shall
survive delivery of the respective
Custodial Files to the Trustee or Trust
Administrator for the benefit of the
Certificateholders.
Section 2.04.
Delivery of Opinion of Counsel in Connection with
Substitution; Non-Qualified Mortgages.
(a)
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.03 shall
be made more than 90 days after the
Closing Date unless the Originator delivers
to the Trustee and the Trust
Administrator an Opinion of Counsel, which
Opinion of Counsel shall not be at
the expense of either the Trustee, the
Trust Administrator or the Trust Fund,
addressed to the Trustee and the Trust
Administrator, to the effect that such
substitution will not (i) result in the
imposition of the tax on "prohibited
transactions" on any Trust REMIC or
contributions after the Start-up Day, as
defined in Sections 860F(a)(2) and 860G(d)
of the Code, respectively or (ii)
cause any Trust REMIC to fail to qualify as
a REMIC at any time that any
Certificates are outstanding.
(b) Upon
discovery by the Depositor, the Originator, the Master
Servicer,
the Trust Administrator, 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. In connection therewith, the
Trustee shall require the Originator
to repurchase the affected Mortgage Loan
within 30 days of the earlier of
discovery or receipt of notice in the same
manner as it would a Mortgage Loan
for a breach of representation or warranty
made pursuant to Section 2.03. The
Trustee shall reconvey to the Originator
the Mortgage Loan to be released
pursuant hereto in the same manner, and
on
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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 2.05.
Execution 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 Trust
Administrator has executed and delivered to
or upon the order of the Depositor,
the Certificates in authorized
denominations evidencing directly or indirectly
the entire ownership of the 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.
Section 2.06.
Representations and Warranties of the Depositor.
The Depositor
hereby represents, warrants and covenants to the Trustee, the
Trust Administrator, the Master Servicer,
the Servicer and the Originator that
as of the date of this Agreement or as of
such date specifically provided
herein:
(a) The
Depositor is a corporation duly organized, validly existing and
in
good standing under the laws of the state
of Delaware;
(b) The
Depositor has the corporate power and authority to convey the
Mortgage Loans and to execute, deliver and
perform, and to enter into and
consummate the transactions contemplated
by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and
delivered by the Depositor, all requisite
corporate action having been taken,
and, assuming the due authorization,
execution and delivery hereof by the
Servicer, the Originator and the Trustee,
constitutes or will constitute the
legal, valid and binding agreement of the
Depositor, enforceable against the
Depositor in accordance with its terms,
except as such enforcement may be
limited by bankruptcy, insolvency,
reorganization, moratorium or other similar
laws relating to or affecting the rights of
creditors generally, and by general
equity principles (regardless of whether
such enforcement is considered in a
proceeding in equity or at law);
(d) No consent,
approval, authorization or order of or registration or
filing with, or notice to, any governmental
authority or court is required for
the execution, delivery and performance of
or compliance by the Depositor with
this Agreement or the consummation by the
Depositor of any of the transactions
contemplated hereby, except as have been
made on or prior to the Closing Date;
(e) None of the
execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby or
thereby, or the fulfillment of or
compliance with the terms and conditions of
this Agreement, (i) conflicts or
will conflict with or results or will
result in a breach of, or constitutes or
will constitute a default or results or
will result in an acceleration under (A)
the charter or bylaws of the Depositor, or
(B) of any term, condition or
provision of any material indenture, deed
of trust, contract or other agreement
or instrument to which the Depositor or any
of its subsidiaries is a party or by
which it or any of its subsidiaries is
bound;
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(ii) results or will result in a violation
of any law, rule, regulation, order,
judgment or decree applicable to the
Depositor of any court or governmental
authority having jurisdiction over the
Depositor or its subsidiaries; or (iii)
results in the creation or imposition of
any lien, charge or encumbrance which
would have a material adverse effect upon
the Mortgage Loans or any documents or
instruments evidencing or securing the
Mortgage Loans;
(f) There are no
actions, suits or proceedings before or against or
investigations of, the Depositor pending,
or to the knowledge of the Depositor,
threatened, before any court,
administrative agency or other tribunal, and no
notice of any such action, which, in the
Depositor's reasonable judgment, might
materially and adversely affect the
performance by the Depositor of its
obligations under this Agreement, or the
validity or enforceability of this
Agreement;
(g) The
Depositor is not in default with respect to any order or decree
of
any court or any order, regulation or
demand of any federal, state, municipal or
governmental agency that may materially and
adversely affect its performance
hereunder;
(h) Immediately
prior to the transfer and assignment by the Depositor to
the Trustee on the Closing Date, the
Depositor had good title to, and was the
sole owner of each Mortgage Loan, free of
any interest of any other Person, and
the Depositor has transferred all right,
title and interest in each Mortgage
Loan to the Trustee. The transfer of each
Mortgage Note and each Mortgage as and
in the manner contemplated by this
Agreement is sufficient either (i) fully to
transfer to the Trustee, for the benefit of
the Certificateholders, all right,
title, and interest of the Depositor
thereto as note holder and mortgagee or
(ii) to grant to the Trustee, for the
benefit of the Certificateholders, the
security interest referred to in Section
10.04;
(i) None of the
Mortgage Loans has a prepayment penalty period in excess of
three years;
It is understood
and agreed that the representations, warranties and
covenants set forth in this Section 2.06
shall survive delivery of the
respective Custodial Files to the Trustee
or to a custodian, as the case may be,
and shall inure to the benefit of the
Trustee.
Within 60 days
of the earlier of either discovery by or notice to the
Depositor of a breach of the
representations and warranties set forth in clause
(h) or (i) above that materially and
adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the
Certificateholders therein, the
Depositor shall use its best efforts to
promptly cure such breach in all
material respects and if such defect or
breach cannot be remedied, the Depositor
shall either (i) if such 60-day period
expires prior to the second anniversary
of the Closing Date, remove such Deleted
Mortgage Loan from the Trust Fund and
substitute in its place a Substitute
Mortgage Loan, in the manner and subject to
the conditions set forth in Section 2.03,
or (ii) repurchase such Mortgage Loan
at the Repurchase Price. The obligations of
the Depositor to cure such breach or
to substitute or purchase any Mortgage Loan
constitute the sole remedies
respecting a material breach of any such
representation or warranty to the
Holders of the Certificates and the
Trustee.
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Section 2.07.
Representations, Warranties and Covenants of the Servicer,
the Originator and the Master Servicer.
(a) The Servicer
hereby represents, warrants and covenants to the Trustee,
the Trust Administrator, the Master
Servicer, the Originator and the Depositor
that as of the Closing Date or as of such
date specifically provided herein:
(i) The Servicer is a state chartered industrial bank duly
organized,
validly existing
and in good standing under the laws of the State of
California 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 related to a Mortgage Loan 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 serviced and to service the Mortgage Loans in
accordance with
the terms of this Agreement;
(ii) The Servicer has the full power and authority to service
each
Mortgage Loan
which the Servicer is required to service hereunder, 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 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 thereof by the Depositor, the
Originator, the
Master Servicer, the Trust Administrator and the Trustee,
constitutes a
legal, valid and binding obligation of the Servicer,
enforceable
against the Servicer in accordance with its terms, except to
the extent 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 the
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 by the Servicer hereunder, the
consummation by
the Servicer of any other of the transactions herein
contemplated,
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
breach of any term or provision of the organizational documents
of the Servicer
or (B) conflict with, result in a breach, violation or
acceleration of,
or result in a 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 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 a party
to, bound by, or in breach or violation of any indenture or
other agreement
or instrument, or subject to or in violation of any
statute, order
or regulation of any court, regulatory body, administrative
agency or
governmental body having jurisdiction over it, which materially
and adversely
affects or, to the Servicer's knowledge, would in the future
materially and
adversely affect, (x) the ability of the Servicer to perform
its obligations
under this Agreement or (y) the business, operations,
financial
condition, properties or assets of the Servicer taken as a
whole;
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(iv) The Servicer is a HUD-approved non-supervised mortgagee
pursuant
to Section 203
and Section 211 of the National Housing Act, and no event
has occurred,
including but not limited to a change in insurance coverage,
that would make
the Servicer unable to comply with HUD eligibility
requirements or
which would require notification to HUD;
(v) No litigation is pending or, to the best knowledge of the
Servicer,
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 hereunder 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 compliance by the Servicer with, this
Agreement or the
consummation by the Servicer of the transactions
contemplated by
this Agreement, except for such consents, approvals,
authorizations
or orders, if any, that have been obtained prior to the
Closing
Date;
(vii) The Servicer will not waive any Prepayment Premium or part of
a
Prepayment
Premium unless such waiver would, in the reasonable opinion of
the Servicer,
maximize recovery of total proceeds taking into account the
value of such
Prepayment Premium and related Mortgage Loan and doing so is
standard and
customary in servicing mortgage loans similar to the Mortgage
Loans (including
any waiver of a Prepayment Premium in connection with a
refinancing of a
Mortgage Loan that is related to a default or an imminent
default), and in
no event will it waive a Prepayment Premium in connection
with a
refinancing of a Mortgage Loan that is not related to a default
or
an imminent
default. Notwithstanding the previous sentence, if the Servicer
has not received
any document or information necessary for the Servicer to
verify the
existence or amount of the related Prepayment Premium or if the
Servicer
determines that any Prepayment Premium is not legally
enforceable
under the
circumstances in which the related Principal Prepayment occurs,
then the
Servicer shall not be required to attempt to collect the
applicable
Prepayment Premium, and shall have no liability or obligation
with respect to
such Prepayment Premium pursuant to Section 3.07(a) hereof;
(viii) For each Mortgage Loan, the Servicer will accurately, fully
and
in a timely
manner report its borrower credit files to each of the three
credit repositories;
and
(ix) the Servicer is a member of MERS in good standing and will
comply
in all material
respects with the rules and procedures of MERS in
connection with
the servicing of the MERS Designated Mortgage Loans for as
long as such
Mortgage Loans are registered with MERS.
(b) The
Originator hereby represents, warrants and covenants to the
Trustee, the Trust Administrator, the
Master Servicer, the Servicer and the
Depositor that as of the Closing Date or as
of such date specifically provided
herein:
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(i) The Originator is a state chartered industrial bank duly
organized,
validly existing and in good standing under the laws of the
state of
California;
(ii) The Originator has full power and authority to own its
property,
to carry on its
business as presently conducted and to enter into and
perform its
obligations under this Agreement;
(iii) The execution and delivery by the Originator of this
Agreement
have been duly
authorized by all necessary corporate action on the part of
the Originator;
and neither the execution and delivery of this Agreement,
nor the
consummation of the transactions contemplated herein, nor
compliance with
the provisions hereof, will conflict with or result in a
breach of, or
constitute a default under, any of the provisions of any law,
governmental
rule, regulation, judgment, decree or order binding on the
Originator or
its properties or the certificate of incorporation or by-laws
of the
Originator, except those conflicts, breaches or defaults which
would
not reasonably
be expected to have a material adverse effect on the
Originator's
ability to enter into this Agreement and to consummate the
transactions
contemplated hereby;
(iv) The execution, delivery and performance by the Originator of
this
Agreement and
the consummation of the transactions contemplated hereby do
not require the
consent or approval of, the giving of notice to, the
registration
with, or the taking of any other action in respect of, any
state, federal
or other governmental authority or agency, except those
consents,
approvals, notices, registrations or other actions as have
already been
obtained, given or made and, in connection with the
recordation of
the Mortgages, powers of attorney or assignments of
Mortgages not
yet completed;
(v) This Agreement has been duly executed and delivered by the
Originator and,
assuming due authorization, execution and delivery by the
Trustee, the
Servicer, the Master Servicer, the Trust Administrator and the
Depositor,
constitutes a valid and binding obligation of the Originator,
enforceable
against it in accordance with its terms (subject to applicable
bankruptcy and
insolvency laws and other similar laws affecting the
enforcement of
the rights of creditors generally);
(vi) There are no actions, litigation, suits or proceedings
pending
or, to the
knowledge of the Originator, threatened against the Originator
before or by any
court, administrative agency, arbitrator or governmental
body (i) with
respect to any of the transactions contemplated by this
Agreement or
(ii) with respect to any other matter which in the judgment of
the Originator
if determined adversely to the Originator would reasonably
be expected to
materially and adversely affect the Originator's ability to
perform its
obligations under this Agreement; and the Originator is not in
default with
respect to any order of any court, administrative agency,
arbitrator or
governmental body so as to materially and adversely affect
the transactions
contemplated by this Agreement;
(vii) The Originator hereby makes the representations and
warranties
set forth in
Exhibit A to the Mortgage Loan Purchase Agreement, as of the
Closing Date, or
the date specified therein, with respect to the Mortgage
Loans identified
on Schedule I hereto; and
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(viii) The Originator is a member of MERS in good standing and
will
comply in all
material respects with the rules and procedures of MERS in
connection with
the servicing of the MERS Mortgage Loans for as long as
such Mortgage
Loans are registered with MERS.
(c) The Master
Servicer hereby represents, warrants and covenants to the
Servicer, the Originator, the Depositor and
the Trustee, for the benefit of each
of the Trustee and the Certificateholders,
that as of the Closing Date or as of
such date specifically provided herein:
(i) The Master Servicer is a national banking association duly
formed,
validly existing
and in good standing under the laws of the United States
of America and
is duly authorized and qualified to transact any and all
business contemplated by this
Agreement to be conducted by the Master
Servicer;
(ii) The Master Servicer has the full power and authority to
conduct
its business as
presently conducted by it and to execute, deliver and
perform, and to
enter into and consummate, all transactions contemplated by
this Agreement.
The Master Servicer has duly authorized the execution,
delivery and
performance of this Agreement, has duly executed and delivered
this Agreement,
and this Agreement, assuming due authorization, execution
and delivery by
the Depositor, the Originator, the Servicer and the
Trustee,
constitutes a legal, valid and binding obligation of the Master
Servicer,
enforceable against it in accordance with its terms except as
the
enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization
or similar laws affecting the enforcement of creditors'
rights generally
and by general principles of equity;
(iii) The execution and delivery of this Agreement by the
Master
Servicer, the
consummation by the Master Servicer of any other of the
transactions
herein contemplated, and the fulfillment of or compliance with
the terms hereof
are in the ordinary course of business of the Master
Servicer and
will not (A) result in a breach of any term or provision of
charter and
by-laws of the Master Servicer or (B) conflict with, result in
a breach,
violation or acceleration of, or result in a default under, the
terms of any
other material agreement or instrument to which the Master
Servicer is a
party or by which it may be bound, or any statute, order or
regulation
applicable to the Master Servicer of any court, regulatory
body,
administrative
agency or governmental body having jurisdiction over the
Master Servicer;
and the Master Servicer is not a party to, bound by, or in
breach or
violation of any indenture or other agreement or instrument, or
subject to or in
violation of any statute, order or regulation of any
court,
regulatory body, administrative agency or governmental body
having
jurisdiction
over it, which materially and adversely affects or, to the
Master
Servicer's knowledge, would in the future materially and
adversely
affect, the
ability of the Master Servicer to perform its obligations under
this
Agreement;
(iv) The Master Servicer does not believe, nor does it have any
reason
or cause to
believe, that it cannot perform each and every covenant made by
it and contained
in this Agreement;
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(v) No litigation is pending against the Master Servicer that
would
materially and
adversely affect the execution, delivery or enforceability
of this
Agreement or the ability of the Master Servicer to perform any
of
its other
obligations hereunder in accordance with the terms hereof;
(vi) There are no actions or proceedings against, or
investigations
known to it of,
the Master Servicer before any court, administrative or
other tribunal
(A) that might prohibit its entering into this Agreement,
(B) seeking to
prevent the consummation of the transactions contemplated by
this Agreement
or (C) that might prohibit or materially and adversely
affect the
performance by the Master Servicer of its obligations under, or
validity or
enforceability of, this Agreement; and
(vii) No consent, approval, authorization or order of any court
or
governmental
agency or body is required for the execution, delivery and
performance by
the Master Servicer of, or compliance by the Master Servicer
with, this
Agreement or the consummation by it of the transactions
contemplated by
this Agreement, except for such consents, approvals,
authorizations
or orders, if any, that have been obtained prior to the
Closing
Date.
(d) It is
understood and agreed that the representations, warranties and
covenants set forth in this Section 2.07
shall survive delivery of the Mortgage
Files to the Trustee. Upon discovery by any
of the Depositor, the Originator,
the Master Servicer, the Trust
Administrator, the Servicer or the Trustee of a
breach of any of the foregoing
representations, warranties and covenants which
materially and adversely affects the value
of any Mortgage Loan, Prepayment
Premium or the interests therein of the
Certificateholders, the party
discovering such breach shall give prompt
written notice (but in no event later
than two Business Days following such
discovery) to the other such parties. The
obligation of the Originator set forth in
Section 2.03(d) to cure breaches shall
constitute the sole remedy against the
Originator available to the
Certificateholders, the Depositor, the
Trust Administrator or the Trustee on
behalf of the Certificateholders respecting
a breach of the Originator's
representations, warranties and covenants
contained in paragraph (b)(vii) of
this Section 2.07. The obligation of the
Servicer set forth in Section 3.07(a)
to pay the amount of any waived Prepayment
Premium shall constitute the sole
remedy against the Servicer available to
the Certificateholders, the Depositor,
the Trust Administrator or the Trustee on
behalf of the Certificateholders
respecting a breach of the Servicer's
representations, warranties and covenants
contained in paragraph (a)(vii) of this
Section 2.07.
ARTICLE III
