FINANCIAL ASSET SECURITIES CORP., as Depositor, FREMONT INVESTMENT & LOAN, as Sponsor, Originator and Servicer, WELLS FARGO BANK, N.A., as Master Servicer, Trust Administrator and Swap Administrator, and HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee...
FINANCIAL
ASSET SECURITIES CORP.,
as
Depositor,
FREMONT
INVESTMENT & LOAN,
as
Sponsor, Originator and Servicer,
XXXXX
FARGO BANK, N.A.,
as
Master
Servicer, Trust Administrator and Swap Administrator,
and
HSBC
BANK
USA, NATIONAL ASSOCIATION,
as
Trustee
__________________________________________
Dated
as
of May 1, 2006
___________________________________________
MORTGAGE-BACKED
CERTIFICATES,
SERIES
2006-A
TABLE
OF CONTENTS
|
ARTICLE
I DEFINITIONS
|
|
|
Section
1.01.
|
Definitions
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND
WARRANTIES
|
|
|
Section
2.01.
|
Conveyance
of Mortgage Loans
|
|
Section
2.02.
|
Acceptance
by the Trustee or Trust Administrator of the Mortgage
Loans.
|
|
Section
2.03.
|
Representations,
Warranties and Covenants of the Originator and the
Servicer
|
|
Section
2.04.
|
Delivery
of Opinion of Counsel in Connection with Substitution; Non-Qualified
Mortgages
|
|
Section
2.05.
|
Execution
and Delivery of Certificates
|
|
Section
2.06.
|
Representations
and Warranties of the Depositor
|
|
Section
2.07.
|
Representations,
Warranties and Covenants of the Servicer, the Originator and the
Master
Servicer
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
|
|
|
Section
3.01.
|
Servicer
to Service Mortgage Loans
|
|
Section
3.02.
|
Subservicing
Agreements between the Servicer and Subservicers
|
|
Section
3.03.
|
Successor
Subservicers
|
|
Section
3.04.
|
Liability
of the Servicer
|
|
Section
3.05.
|
No
Contractual Relationship between Subservicers and the Trustee, Master
Servicer, Swap Administrator, Trust Administrator or
Certificateholder
|
|
Section
3.06.
|
Assumption
or Termination of Subservicing Agreements by Master Servicer, Trustee
or
Trust Administrator
|
|
Section
3.07.
|
Collection
of Certain Mortgage Loan Payments
|
|
Section
3.08.
|
Subservicing
Accounts
|
|
Section
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Escrow
Accounts
|
|
Section
3.10.
|
Collection
Account
|
|
Section
3.11.
|
Withdrawals
from the Collection Account
|
|
Section
3.12.
|
Investment
of Funds in the Collection Account and the Distribution
Account.
|
|
Section
3.13.
|
Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity
Coverage
|
|
Section
3.14.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements
|
|
Section
3.15.
|
Realization
upon Defaulted Mortgage Loans
|
|
Section
3.16.
|
Release
of Mortgage Files
|
|
Section
3.17.
|
Title,
Conservation and Disposition of REO Property
|
|
Section
3.18.
|
Notification
of Adjustments
|
|
Section
3.19.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans
|
|
Section
3.20.
|
Documents,
Records and Funds in Possession of the Servicer to Be Held for the
Trustee
|
|
Section
3.21.
|
Servicing
Compensation
|
|
Section
3.22.
|
Annual
Statement as to Compliance
|
|
Section
3.23.
|
Report
on Assessment of Compliance and Attestation
|
|
Section
3.24.
|
Master
Servicer to Act as Servicer
|
|
Section
3.25.
|
Compensating
Interest
|
|
Section
3.26.
|
Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act
|
|
Section
3.27.
|
Net
WAC Rate Carryover Reserve Account; Distribution Account; Swap
Account
|
|
Section
3.28.
|
Optional
Purchase of Delinquent Mortgage Loans
|
|
Section
3.29.
|
REMIC-Related
Covenants
|
|
Section
3A.01
|
Master
Servicer
|
|
Section
3A.02
|
REMIC-Related
Covenants
|
|
Section
3A.03
|
Monitoring
of Servicer
|
|
Section
3A.04
|
Fidelity
Bond
|
|
Section
3A.05
|
Power
to Act; Procedures
|
|
Section
3A.06
|
Due-on-Sale
Clauses; Assumption Agreements
|
|
Section
3A.07
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee
|
|
Section
3A.08
|
[RESERVED]
|
|
Section
3A.09
|
Compensation
for the Master Servicer
|
|
Section
3A.10
|
[RESERVED]
|
|
Section
3A.11
|
[RESERVED]
|
|
Section
3A.12
|
Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls
|
|
ARTICLE
IV DISTRIBUTIONS AND ADVANCES BY THE SERVICER
|
|
|
Section
4.01.
|
Advances
|
|
Section
4.02.
|
Priorities
of Distribution
|
|
Section
4.03.
|
Monthly
Statements to Certificateholders
|
|
Section
4.04.
|
Certain
Matters Relating to the Determination of LIBOR
|
|
Section
4.05.
|
Allocation
of Realized Loss Amounts
|
|
Section
4.06.
|
Compliance
with Withholding Requirements
|
|
Section
4.07.
|
Commission
Reporting
|
|
Section
4.08.
|
REMIC
Distributions and Allocation of Losses
|
|
ARTICLE
V THE CERTIFICATES
|
|
|
Section
5.01.
|
The
Certificates
|
|
Section
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates
|
|
Section
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
|
Section
5.04.
|
Persons
Deemed Owners
|
|
Section
5.05.
|
Access
to List of Certificateholders’ Names and Addresses
|
|
Section
5.06.
|
Maintenance
of Office or Agency
|
|
ARTICLE
VI THE DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SWAP
ADMINISTRATOR AND THE SERVICER
|
|
|
Section
6.01.
|
Respective
Liabilities of the Depositor, the Originator, the Master Servicer,
the
Swap Administrator and the Servicer
|
|
Section
6.02.
|
Merger
or Consolidation of the Depositor, the Originator, the Master Servicer,
the Swap Administrator or the Servicer
|
|
Section
6.03.
|
Limitation
on Liability of the Depositor, the Originator, the Master Servicer,
the
Swap Administrator, the Trust Administrator, the Servicer and
Others.
|
|
Section
6.04.
|
Limitation
on Resignation of the Servicer
|
|
Section
6.05.
|
Additional
Indemnification by the Servicer; Third Party Claims
|
|
Section
6.06.
|
Rights
of the Depositor, the Master Servicer, the Swap Administrator, the
Trust
Administrator and the Trustee in Respect of the
Servicer
|
|
Section
6.07.
|
Limitation
on Resignation of the Master Servicer
|
|
Section
6.08.
|
Assignment
of Master Servicing
|
|
ARTICLE
VII DEFAULT
|
|
|
Section
7.01.
|
Events
of Default
|
|
Section
7.02.
|
Master
Servicer to Act; Appointment of Successor
|
|
Section
7.03.
|
Notification
to Certificateholders
|
|
ARTICLE
VIII CONCERNING THE TRUSTEE AND THE TRUST
ADMINISTRATOR
|
|
|
Section
8.01.
|
Duties
of the Trustee
|
|
Section
8.02.
|
Certain
Matters Affecting the Trustee and the Trust
Administrator
|
|
Section
8.03.
|
Neither
the Trustee Nor the Trust Administrator Liable for Certificates or
Mortgage Loans
|
|
Section
8.04.
|
Trustee
and Trust Administrator May Own Certificates
|
|
Section
8.05.
|
Fees
and Expenses of the Trustee and Trust Administrator
|
|
Section
8.06.
|
Eligibility
Requirements for the Trustee and Trust Administrator
|
|
Section
8.07.
|
Resignation
and Removal of the Trustee or Trust Administrator
|
|
Section
8.08.
|
Successor
Trustee or Trust Administrator
|
|
Section
8.09.
|
Merger
or Consolidation of the Trustee or the Trust
Administrator
|
|
Section
8.10.
|
Appointment
of Co-Trustee or Separate Trustee
|
|
Section
8.11.
|
Representations
and Warranties of the Trustee, Trust Administrator and Swap
Administrator
|
|
ARTICLE
IX TERMINATION
|
|
|
Section
9.01.
|
Termination
upon Liquidation or Purchase of the Mortgage Loans
|
|
Section
9.02.
|
Final
Distribution on the Certificates
|
|
Section
9.03.
|
Additional
Termination Requirements
|
|
ARTICLE
X MISCELLANEOUS PROVISIONS
|
|
|
Section
10.01.
|
Amendment
|
|
Section
10.02.
|
Recordation
of Agreement; Counterparts
|
|
Section
10.03.
|
Governing
Law
|
|
Section
10.04.
|
Intention
of Parties
|
|
Section
10.05.
|
Notices
|
|
Section
10.06.
|
Severability
of Provisions
|
|
Section
10.07.
|
Assignment;
Sales; Advance Facilities
|
|
Section
10.08.
|
Limitation
on Rights of Certificateholders
|
|
Section
10.09.
|
Inspection
and Audit Rights
|
|
Section
10.10.
|
Certificates
Nonassessable and Fully Paid
|
|
Section
10.11.
|
Waiver
of Jury Trial
|
|
Section
10.12.
|
Benefit
of Agreement
|
|
ARTICLE
XI REMIC PROVISIONS
|
|
|
Section
11.01.
|
REMIC
Administration
|
|
Section
11.02.
|
Prohibited
Transactions and Activities
|
|
Section
11.03.
|
Indemnification
|
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
|
|
Exhibit B
|
Form of
Class P Certificate
|
|
Exhibit C
|
Form of
Class [R][R-X] 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
|
|
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® Glossary
|
|
Exhibit
Q
|
Form
of Calculation of Realized Loss
|
|
Exhibit
R
|
Form
of Additional Disclosure Notification
|
|
Exhibit
S
|
Relevant
Servicing Criteria
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting
Responsibility
|
THIS
POOLING AND SERVICING AGREEMENT, dated as of May 1, 2006, among FINANCIAL
ASSET SECURITIES CORP.,
as
depositor (the “Depositor”),
FREMONT INVESTMENT & LOAN, as originator, sponsor and servicer (the
“Originator,”
“Sponsor”
and
the
“Servicer”,
as
applicable; and together “Fremont”),
and
XXXXX
FARGO BANK, N.A.,
as
master servicer, trust administrator and swap administrator (the “Master
Servicer”,
the
“Trust
Administrator”
and
the
“Swap
Administrator”
in
such
capacities, respectively), and HSBC BANK USA, NATIONAL ASSOCIATION, as trustee
(the “Trustee”),
W I T N E S S E T H:
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 twenty-two 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, Class 2-A-3 and Class 2-A-4 Certificates,
(iii) the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class M-9 and Class M-10 Certificates, (iv) the Class
C
Certificates, (v) the Class P Certificates and (vi) the Class R and Class R-X
Certificates. The descriptions of REMIC I, REMIC II, REMIC III,
REMIC IV, REMIC V and REMIC VI 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 Swap Agreement, the Swap Account,
the
Net WAC Rate Carryover Reserve Account, any Net WAC Rate Carryover Amounts
and
any Servicer Prepayment Payment 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. None of the REMIC I Regular Interests shall be
certificated.
|
Designation
|
Initial
Uncertificated Balance
|
Uncertificated
REMIC I Pass-Through Rate
|
Latest
Possible
Maturity
Date(1)
|
|||||||||
|
I
|
$
|
39,065,857.41
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-1-A
|
$
|
4,252,841.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-1-B
|
$
|
4,252,841.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-2-A
|
$
|
4,826,641.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-2-B
|
$
|
4,826,641.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-3-A
|
$
|
5,391,731.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-3-B
|
$
|
5,391,731.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-4-A
|
$
|
5,945,983.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-4-B
|
$
|
5,945,983.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-5-A
|
$
|
6,487,282.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-5-B
|
$
|
6,487,282.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-6-A
|
$
|
7,013,536.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-6-B
|
$
|
7,013,536.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-7-A
|
$
|
7,524,663.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-7-B
|
$
|
7,524,663.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-8-A
|
$
|
11,218,202.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-8-B
|
$
|
11,218,202.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-9-A
|
$
|
11,898,892.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-9-B
|
$
|
11,898,892.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-10-A
|
$
|
12,417,383.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-10-B
|
$
|
12,417,383.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-11-A
|
$
|
12,888,636.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-11-B
|
$
|
12,888,636.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-12-A
|
$
|
13,313,701.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-12-B
|
$
|
13,313,701.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-13-A
|
$
|
13,689,528.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-13-B
|
$
|
13,689,528.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-14-A
|
$
|
14,013,402.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-14-B
|
$
|
14,013,402.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-15-A
|
$
|
14,282,973.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-15-B
|
$
|
14,282,973.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-16-A
|
$
|
14,496,290.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-16-B
|
$
|
14,496,290.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-17-A
|
$
|
14,651,820.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-17-B
|
$
|
14,651,820.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-18-A
|
$
|
14,748,482.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-18-B
|
$
|
14,748,482.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-19-A
|
$
|
14,785,662.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-19-B
|
$
|
14,785,662.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-20-A
|
$
|
14,857,267.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-20-B
|
$
|
14,857,267.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-21-A
|
$
|
223,407,268.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-21-B
|
$
|
223,407,268.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-22-A
|
$
|
2,231,436.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-22-B
|
$
|
2,231,436.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-23-A
|
$
|
1,051,247.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-23-B
|
$
|
1,051,247.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-24-A
|
$
|
1,009,163.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-24-B
|
$
|
1,009,163.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-25-A
|
$
|
968,866.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-25-B
|
$
|
968,866.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-26-A
|
$
|
930,275.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-26-B
|
$
|
930,275.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-27-A
|
$
|
893,307.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-27-B
|
$
|
893,307.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-28-A
|
$
|
857,896.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-28-B
|
$
|
857,896.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-29-A
|
$
|
823,967.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-29-B
|
$
|
823,967.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-30-A
|
$
|
791,456.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-30-B
|
$
|
791,456.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-31-A
|
$
|
760,297.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-31-B
|
$
|
760,297.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-32-A
|
$
|
870,661.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-32-B
|
$
|
870,661.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-33-A
|
$
|
1,486,866.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-33-B
|
$
|
1,486,866.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-34-A
|
$
|
965,343.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-34-B
|
$
|
965,343.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-35-A
|
$
|
574,493.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-35-B
|
$
|
574,493.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-36-A
|
$
|
553,701.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-36-B
|
$
|
553,701.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-37-A
|
$
|
533,671.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-37-B
|
$
|
533,671.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-38-A
|
$
|
514,378.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-38-B
|
$
|
514,378.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-39-A
|
$
|
495,791.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-39-B
|
$
|
495,791.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-40-A
|
$
|
477,886.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-40-B
|
$
|
477,886.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-41-A
|
$
|
460,637.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-41-B
|
$
|
460,637.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-42-A
|
$
|
444,016.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-42-B
|
$
|
444,016.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-43-A
|
$
|
428,006.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-43-B
|
$
|
428,006.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-44-A
|
$
|
412,576.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-44-B
|
$
|
412,576.25
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-45-A
|
$
|
397,712.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-45-B
|
$
|
397,712.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-46-A
|
$
|
383,388.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-46-B
|
$
|
383,388.75
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-47-A
|
$
|
369,587.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-47-B
|
$
|
369,587.50
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-48-A
|
$
|
9,934,500.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
I-48-B
|
$
|
9,934,500.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
|
P
|
$
|
100.00
|
Variable
(2
|
)
|
May
2036
|
|||||||
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each REMIC I Regular Interest.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC I Pass-Through
Rate” herein.
REMIC II
As
provided herein, the Trust Administrator shall elect 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 shall be
designated as “REMIC II.” The Class R-II Interest shall evidence the sole
class of “residual interests” in REMIC II for purposes of the REMIC
Provisions. The following table irrevocably sets forth the designation, the
Uncertificated REMIC II Pass-Through Rate, the initial Uncertificated
Balance and, for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity date” for each of the
REMIC II Regular Interests (as defined herein). None of the REMIC II
Regular Interests shall be certificated.
|
Designation
|
Initial
Uncertificated Balance
|
Uncertificated
REMIC II Pass-Through Rate
|
Latest
Possible
Maturity
Date (1)
|
|||||||
|
LTAA
|
$
|
962,881,857.26
|
Variable(2)
|
|
May
2036
|
|||||
|
LT1A1
|
$
|
2,354,100.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LT1A2
|
$
|
588,470.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LT2A1
|
$
|
1,698,710.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LT2A2
|
$
|
1,151,010.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LT2A3
|
$
|
1,340,340.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LT2A4
|
$
|
423,030.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-1
|
$
|
717,250.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-2
|
$
|
196,510.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-3
|
$
|
181,770.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-4
|
$
|
176,860.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-5
|
$
|
162,120.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-6
|
$
|
157,210.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-7
|
$
|
132,640.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-8
|
$
|
108,080.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-9
|
$
|
83,520.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTM-10
|
$
|
98,250.00
|
Variable(2)
|
|
May
2036
|
|||||
|
LTZZ
|
$
|
10,080,780.15
|
Variable(2)
|
|
May
2036
|
|||||
|
LTIO
|
(3
|
)
|
Variable(2)
|
|
May
2036
|
|||||
|
LTP
|
$
|
100.00
|
Variable(2)
|
|
May
2036
|
|||||
REMIC III
As
provided herein, the Trust Administrator shall make an election to treat
the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets
will
be designated as “REMIC III.” The Class R-III Interest represents the sole
class of “residual interests” in REMIC III for purposes of the REMIC
Provisions. Interest on each class listed below (other than the Class C Interest
or Class P Interest) will be calculated on the basis of the actual number
of
days in the related Accrual Period and a 360-day year. Interest on the Class
C
Interest will be calculated on the basis of a 360-day year consisting of
twelve
30-day months.
Each
class listed below, other than the Class R Certificates, represents ownership
of
a Regular Interest in REMIC III and also represents (i) the right to
receive payments with respect to the Net WAC Rate Carryover Amount (as defined
herein) and (ii) the obligation to pay Class IO Distribution Amounts (as
defined
herein). The Class C Interest and the Class P Interest do not represent rights
or obligations in respect of (i) or (ii) above. The entitlement to principal
of
the Regular Interest which corresponds to each Certificate shall be equal
in
amount and timing to the entitlement to principal of such Certificate.
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Certificate Balance or the REMIC III
Uncertificated Balance for each Class of Certificates or REMIC III
Uncertificated Regular Interest:
|
Class
|
Initial
Class Certificate Balance or
Initial
REMIC III Uncertificated Balance
|
Certificate
Interest
Rate
|
Assumed
Final
Maturity
Dates (1)
|
|
1-A-1
|
$235,410,000
|
(2)
|
May
2036
|
|
1-A-2
|
58,847,000
|
(2)
|
May
2036
|
|
2-A-1
|
169,871,000
|
(2)
|
May
2036
|
|
2-A-2
|
115,101,000
|
(2)
|
May
2036
|
|
2-A-3
|
134,034,000
|
(2)
|
May
2036
|
|
2-A-4
|
42,303,000
|
(2)
|
May
2036
|
|
M-1
|
71,725,000
|
(2)
|
May
2036
|
|
M-2
|
19,651,000
|
(2)
|
May
2036
|
|
M-3
|
18,177,000
|
(2)
|
May
2036
|
|
M-4
|
17,686,000
|
(2)
|
May
2036
|
|
M-5
|
16,212,000
|
(2)
|
May
2036
|
|
M-6
|
15,721,000
|
(2)
|
May
2036
|
|
M-7
|
13,264,000
|
(2)
|
May
2036
|
|
M-8
|
10,808,000
|
(2)
|
May
2036
|
|
M-9
|
8,352,000
|
(2)
|
May
2036
|
|
M-10
|
9,825,000
|
(2)
|
May
2036
|
|
C
Interest
|
(3)
|
(3)
|
May
2036
|
|
P
Interest
|
$100
|
(4)
|
May
2036
|
|
Class
SWAP-IO Interest
|
N/A(5)
|
N/A(5)
|
May
2036
|
|
R
|
N/A
|
N/A
|
May
2036
|
| (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 or REMIC III
Uncertificated Regular Interest, each of which represents one or
more of
the “regular interests” in
REMIC III.
|
| (2) |
A
variable rate calculated in accordance with the definition of
“Pass-Through Rate” herein.
|
| (3) |
The
Class C Interest will accrue interest at its 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 II Regular Interests (other than REMIC II Regular
Interest LTP). The Class C Interest will have an initial Uncertificated
Balance equal to the Initial Overcollateralization Amount. The
Class C Interest will not accrue interest on its Uncertificated
Principal Balance.
|
| (4) |
The
Class P Interest does not bear interest. The Class P Interest represents
the right to receive payments in respect of Prepayment
Premiums.
|
| (5) |
The
Class SWAP-IO Interest will not have a Pass-Through Rate or a Class
Certificate Balance, but will be entitled to 100% of amounts distributed
on REMIC II Regular Interest
LTIO.
|
REMIC IV
As
provided herein, the Trust Administrator shall make an election to treat
the
segregated pool of assets consisting of the Class C Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC IV.” The Class R-X-IV Interest represents the sole
class of “residual interests” in REMIC IV for purposes of the REMIC
Provisions.
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate and initial Class Certificate Balance for the Class C Certificates that
represents a “regular interest” in REMIC IV created hereunder:
|
Class
Designation
|
Initial
Class
Certificate
Balance
|
Pass-Through
Rate
|
Assumed
Final
Maturity
Date(1)
|
|||
|
Class
C Certificate
|
(2)(3)
|
Variable(2)
|
May
2036
|
________________
| (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 the Class C
Certificates.
|
| (2) |
The
Class C Certificates will receive 100% of amounts received in respect
of
the Class C Interest.
|
| (3) |
The
Certificate Principal Balance of the Class C Certificates shall
equal the
REMIC III Uncertificated Balance of the Class C Interest.
|
REMIC V
As
provided herein, the Trust Administrator shall make an election to treat
the
segregated pool of assets consisting of the Class P Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC V.” The Class R-X-V Interest represents the sole class
of “residual interests” in REMIC V for purposes of the REMIC
Provisions.
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate and initial Class Certificate Balance for the Class P Certificates that
represents a “regular interest” in REMIC V created hereunder:
|
Class
Designation
|
Pass-Through
Rate
|
Class
Certificate
Balance
|
Assumed
Final
Maturity
Date(1)
|
|||
|
Class
P Certificate
|
N/A
|
$100.00(2)
|
May
2036
|
________________
| (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 the Class P
Certificates.
|
| (2) |
The
Class P Certificates will receive 100% of amounts received in respect
of
the Class P Interest.
|
REMIC VI
As
provided herein, the Trust Administrator shall make an election to treat
the
segregated pool of assets consisting of the Class SWAP-IO Interest as a REMIC
for federal income tax purposes, and such segregated pool of assets shall
be
designated as “REMIC VI.” The Class R-X-VI Interest represents the sole
class of “residual interests” in REMIC VI for purposes of the REMIC
Provisions. The following table irrevocably sets forth the designation, the
Pass-Through Rate, the initial aggregate Certificate Principal Balance and,
for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for the indicated REMIC VII Regular
Interest, which will be uncertificated.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
SWAP-IO
|
Variable(2)
|
N/A
|
May
2036
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loan with the latest maturity date has been designated as the “latest
possible maturity date” for REMIC VI Regular Interest
SWAP-IO.
|
|
(2)
|
REMIC VI
Regular Interest SWAP-IO shall receive 100% of amounts received
in respect
of the Class SWAP-IO Interest.
|
As
of the
Cut-off Date, the Group 1 Mortgage Loans had an aggregate Stated Principal
Balance equal to $382,650,004.53 and the Group 2 Mortgage Loans had an aggregate
Stated Principal Balance equal to $599,882,602.88.
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;
and
provided that such Certificates must be purchased in minimum total investments
of $100,000 per Class. The minimum denomination for (a) each of the
Class P, Class R and Class R-X Certificates will be a 100% Percentage
Interest in such Class and (b) 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:
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
ERISA-Restricted
Certificates
|
The
Senior Certificates, Subordinate Certificates, Class R Certificates,
Class R-X Certificates, Class P Certificates and Class C
Certificates
|
|
LIBOR
Certificates
|
The
Senior Certificates and the Subordinate Certificates.
|
|
Mezzanine
Certificates
|
Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class M-9 and Class M-10
Certificates.
|
|
Offered
Certificates
|
The
Senior Certificates and the Mezzanine Certificates.
|
|
Physical
Certificates
|
Class C,
Class P, Class R and Class R-X Certificates.
|
|
Private
Certificates
|
Class C,
Class P, Class R and Class R-X Certificates.
|
|
Rating
Agencies
|
Xxxxx’x,
Standard & Poor’s and Fitch.
|
|
Regular
Certificates
|
All
Classes of Certificates other than the Class R and Class R-X
Certificates (exclusive of the right to receive any Net WAC Rate
Carryover
Amounts or the obligation to pay any Class IO Distribution Amount)
each of
which (other than the Class C and Class P Certificates) represents
a
regular interest in REMIC III for purposes of the REMIC Provisions.
The Class C Certificates represent a regular interest in REMIC IV for
purposes of the REMIC Provisions. The Class P Certificates represent
a
regular interest in REMIC V for purposes of the REMIC
Provisions.
|
|
Residual
Certificates
|
Class R
and Class R-X Certificates.
|
|
Senior
Certificates
|
Class
1-A-1, Class 1-A-2, Class 2-A-1, Class 2-A-2, Class 2-A-3 and Class
2-A-4
Certificates.
|
|
Subordinate
Certificates
|
The
Mezzanine Certificates and the Class C
Certificates.
|
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:
10-K
Filing Deadline:
As
defined in Section 4.07(a)(iv)(A).
1933
Act:
The
Securities Act of 1933, as amended.
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).
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, the Swap Account, any Escrow
Account or the Net WAC Rate Carryover Reserve Account. Each Account shall
be an
Eligible Account.
Accrual
Period:
With
respect to each Class of LIBOR Certificates 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 Accrual Period has the
actual
number of days in such month and each year is assumed to have 360 days. For
purposes of computing interest accruals on the REMIC I Regular Interests
and REMIC II Regular Interests, the Class C Interest and the Class C
Certificates each Accrual Period will be the prior calendar month, and each
such
month is assumed to have 30 days and each year is assumed to have 360
days.
Additional
Disclosure Notification:
The
meaning set forth in Section 4.07(a)(i).
Additional
Form 10-D Disclosure:
The
meaning set forth in Section 4.07(a)(i).
Additional
Form 10-K Disclosure:
The
meaning set forth in Section 4.07(a)(iv).
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 for any Distribution Date, a per annum rate equal to the
applicable Maximum Mortgage Rate for such Mortgage Loan as of the first day
of
the month preceding the month in which such Distribution Date occurs minus
the
sum of (i) the Servicing Fee Rate and (ii) the Administration Fee
Rate.
Adjusted
Net Mortgage Interest Rate:
As to
each Mortgage Loan for any Distribution Date, the per annum rate equal to
the
Mortgage Interest Rate for such Mortgage Loan as of the first day of the
month
preceding the month in which such Distribution Date occurs less the Expense
Fee
Rate.
Adjusted
Swap Notional Balance:
With
respect to each Distribution Date, an amount equal to the lesser of (a) the
Scheduled Maximum Swap Notional Amount for the related Distribution Date
multiplied by 250 and (b) the aggregate Certificate Principal Balance of
the
Offered Certificates for such Distribution Date.
Adjustment
Date:
As to
any Adjustable Rate 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.
Administration
Fee:
With
respect to any Distribution Date, an amount equal to one-twelfth of the
Administration Fee Rate (without regards to the words “per annum” in the
definition thereof) multiplied by the Principal Balance of the Mrotgage Loans
as
of the first day of the related Due Period.
Administration
Fee Rate:
0.0085%
per annum.
Advance:
Any
P&I Advance, Servicing Advance or other advance made by the Master Servicer
or the Servicer in respect of any Distribution Date pursuant to Section
4.01.
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.
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.
Allocated
Realized Loss Amount:
With
respect to any Class of Mezzanine Certificates or the Class 1-A-2 Certificates
and any Distribution Date, the amount, if any, equal to the sum of any Realized
Losses allocated to that Class of Certificates on the Distribution Date and
any
Allocated Realized Loss Amounts for that Class remaining undistributed from
the
previous Distribution Date minus any Subsequent Recoveries applied to that
Allocated Realized Loss Amount.
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.
Assessment
of Compliance:
As
defined in Section 3.23.
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 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,
the
Trustee (or co-trustee) or the Swap Provider (including any Net Swap Payment
owed to the Swap Provider or Swap Termination Payment owed to the Swap Provider
other than termination payments resulting from a Swap Provider Trigger Event)
are entitled to be paid or reimbursed pursuant to this Agreement.
Back-Up
Certification:
As
defined in Section 4.07(a)(iv).
Base
Rate:
For any
Distribution Date and any Class of LIBOR Certificates, the sum of (i) one-month
LIBOR plus (ii) the related Certificate 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
Margin:
With
respect to each Class of LIBOR Certificates, the following
percentages:
|
On
or Prior to Optional Termination
Date
|
After
the Optional Termination
Date
|
|
|
Class
1-A-1 Certificates
|
0.145%
|
0.290%
|
|
Class
1-A-2 Certificates
|
0.195%
|
0.390%
|
|
Class
2-A-1 Certificates
|
0.050%
|
0.100%
|
|
Class
2-A-2 Certificates
|
0.100%
|
0.200%
|
|
Class
2-A-3 Certificates
|
0.160%
|
0.320%
|
|
Class
2-A-4 Certificates
|
0.250%
|
0.500%
|
|
Class M-1
Certificates
|
0.300%
|
0.450%
|
|
Class M-2
Certificates
|
0.320%
|
0.480%
|
|
Class M-3
Certificates
|
0.380%
|
0.570%
|
|
Class M-4
Certificates
|
0.400%
|
0.600%
|
|
Class M-5
Certificates
|
0.500%
|
0.750%
|
|
Class M-6
Certificates
|
0.930%
|
1.395%
|
|
Class M-7
Certificates
|
1.100%
|
1.650%
|
|
Class M-8
Certificates
|
1.900%
|
2.850%
|
|
Class M-9
Certificates
|
2.500%
|
3.750%
|
|
Class
M-10 Certificates
|
2.500%
|
3.750%
|
Certificate
Principal Balance:
With
respect to any Class of Certificates, other than the Class C, Class R or
Class R-X Certificates, immediately prior to any Distribution Date will be
equal
to the Original Certificate Principal Balance thereof reduced by the sum
of all
amounts actually distributed in respect of principal of such Class and, in
the
case of a Mezzanine Certificate or the Class 1-A-2 Certificates, Realized
Losses
allocated thereto on all prior Distribution Dates (taking into account any
increases in the Certificate Principal Balance thereof by any Subsequent
Recoveries allocated to that class). The “Certificate Principal Balance” of the
Class C Certificates as of any date of determination is equal to the excess,
if
any, of (a) the then aggregate Stated Principal Balance of the Mortgage Loans
over (b) the then aggregate Certificate Principal Balance of the Offered
Certificates and the Class P Certificates. The Class R or Class R-X Certificates
will not have a Certificate Principal Balance.
Certificate
Interest Rate:
With
respect to each Distribution Date during the Accrual Period and each Class
of
LIBOR Certificates and the Class C Certificates, the related Pass-Through
Rate.
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
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 (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
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 (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class 2-A
Certificates:
Any of
the Class 2-A-1 Certificates, Class 2-A-2 Certificates, Class 2-A-3 Certificates
and the Class 2-A-4 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 (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
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 (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
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 (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class
2-A-4 Certificates:
All
Certificates bearing the Class designation of “Class 2-A-4 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
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 IV for purposes of the REMIC
Provisions.
Class
C Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
holders of the Class C Certificate and representing the right to distributions
as set forth herein and evidencing (i) a regular interest in REMIC III for
purposes of the REMIC Provisions, (ii) the obligation to pay Net WAC Rate
Carryover Amounts and Swap Termination Payments and (iii) the right to receive
the Class IO Distribution Amount.
Class
Certificate Balance:
With
respect to any Class and as to any date of determination, the aggregate of
the
Certificate Principal Balances of all Certificates of such Class as of such
date.
Class
C Distributable Amount:
With
respect to the Class C Interest and any Distribution Date, the sum of (i)
the
interest accrued on such Class C Interest 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 REMIC III Uncertificated Principal Balance of the
Class C Interest remaining 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)(D)(1) and (2) and the Swap Account after distributions in Section
4.02(e). With respect to the Class C Certificate, 100% of the amount distributed
to the Class C Interest.
Class
IO Distribution Amount:
As
defined in Section 3.27(c) hereof. For purposes of clarity, the Class IO
Distribution Amount for any Distribution Date shall equal the amount payable
to
the Swap Administrator on such Distribution Date in excess of the amount
payable
on the Class SWAP-IO Interest on such Distribution Date, all as further provided
in Section 3.27(c) hereof.
Class M-1
Certificates:
All
Certificates bearing the Class designation of “Class M-1 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class
M-1/M-2 Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (x) the
sum
of (i) the aggregate Certificate Principal 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 Principal
Balance of the Class M-1 Certificates and the Class M-2 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of
(i)
72.40% 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 $4,912,663.
Class M-2
Certificates:
All
Certificates bearing the Class designation of “Class M-2 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class
M-3 Certificates:
All
Certificates bearing the Class designation of “Class M-3 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class
M-3 Principal Distribution Amount:
With
respect to any Distribution Date, the an amount equal to the excess of (x)
the
sum of (i) the aggregate Certificate Principal 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
Principal Balance of the Class M-1 Certificates and the Class M-2 Certificates
(after taking into account the distribution of the Class M-1/M-2 Principal
Distribution Amount on such Distribution Date) and (iii) the Certificate
Principal Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 76.10% and
(ii)
the aggregate 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 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 approximately $4,912,663.
Class M-4
Certificates:
All
Certificates bearing the Class designation of “Class M-4 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class M-4
Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (x) the
sum
of (i) the aggregate Certificate Principal 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 Principal
Balance of the Class M-1 Certificates and the Class M-2 Certificates (after
taking into account the distribution of the Class M-1/M-2 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance
of
the Class M-3 Certificates (after taking into account the distribution of
the
Class M-3 Principal Distribution Amount on such Distribution Date) and (iv)
the
Certificate Principal Balance of the Class M-4 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 79.70%
and
(ii) the aggregate 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 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 approximately $4,912,663.
Class M-5
Certificates:
All
Certificates bearing the Class designation of “Class M-5 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class M-5
Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (x) the
sum
of (i) the aggregate Certificate Principal 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 Principal
Balance of the Class M-1 Certificates and the Class M-2 Certificates (after
taking into account the distribution of the Class M-1/M-2 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance
of
the Class M-3 Certificates (after taking into account the distribution of
the
Class M-3 Principal Distribution Amount on such Distribution Date), (iv)
the
Certificate Principal Balance of the Class M-4 Certificates (after taking
into
account the distribution of the Class M-4 Principal Distribution Amount on
such
Distribution Date) and (v) the Certificate Principal Balance of the Class
M-5
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 83.00% and (ii) the aggregate 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 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 approximately
$4,912,663.
Class
M-6 Certificates:
All
Certificates bearing the Class designation of “Class M-6 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class
M-6 Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (x) the
sum
of (i) the aggregate Certificate Principal 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 Principal
Balance of the Class M-1 Certificates and the Class M-2 Certificates (after
taking into account the distribution of the Class M-1/M-2 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance
of
the Class M-3 Certificates (after taking into account the distribution of
the
Class M-3 Principal Distribution Amount on such Distribution Date), (iv)
the
Certificate Principal Balance of the Class M-4 Certificates (after taking
into
account the distribution of the Class M-4 Principal Distribution Amount on
such
Distribution Date), (v) the Certificate Principal Balance of the Class M-5
Certificates (after taking into account the distribution of the Class M-5
Principal Distribution Amount on such Distribution Date) and (vi) the
Certificate Principal Balance of the Class M-6 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 86.20%
and
(ii) the aggregate 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 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 approximately $4,912,663.
Class M-7
Certificates:
All
Certificates bearing the Class designation of “Class M-7 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class M-7
Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (x) the
sum
of (i) the aggregate Certificate Principal 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 Principal
Balance of the Class M-1 Certificates and the Class M-2 Certificates (after
taking into account the distribution of the Class M-1/M-2 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance
of
the Class M-3 Certificates (after taking into account the distribution of
the
Class M-3 Principal Distribution Amount on such Distribution Date), (iv)
the
Certificate Principal Balance of the Class M-4 Certificates (after taking
into
account the distribution of the Class M-4 Principal Distribution Amount on
such
Distribution Date), (v) the Certificate Principal Balance of the Class M-5
Certificates (after taking into account the distribution of the Class M-5
Principal Distribution Amount on such Distribution Date), (vi) the Certificate
Principal Balance of the Class M-6 Certificates (after taking into account
the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 88.90% and (ii) the aggregate 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 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 approximately
$4,912,663.
Class M-8
Certificates:
All
Certificates bearing the Class designation of “Class M-8 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class M-8
Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (x) the
sum
of (i) the aggregate Certificate Principal 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 Principal
Balance of the Class M-1 Certificates and the Class M-2 Certificates (after
taking into account the distribution of the Class M-1/M-2 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance
of
the Class M-3 Certificates (after taking into account the distribution of
the
Class M-3 Principal Distribution Amount on such Distribution Date), (iv)
the
Certificate Principal Balance of the Class M-4 Certificates (after taking
into
account the distribution of the Class M-4 Principal Distribution Amount on
such
Distribution Date), (v) the Certificate Principal Balance of the Class M-5
Certificates (after taking into account the distribution of the Class M-5
Principal Distribution Amount on such Distribution Date), (vi) the Certificate
Principal Balance of the Class M-6 Certificates (after taking into account
the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and (viii) the Certificate
Principal Balance of the Class M-8 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 91.10% and
(ii)
the aggregate 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 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 approximately $4,912,663.
Class
M-9 Certificates:
All
Certificates bearing the Class designation of “Class M-9 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class
M-9 Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (x) the
sum
of (i) the aggregate Certificate Principal 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 Principal
Balance of the Class M-1 Certificates and the Class M-2 Certificates (after
taking into account the distribution of the Class M-1/M-2 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance
of
the Class M-3 Certificates (after taking into account the distribution of
the
Class M-3 Principal Distribution Amount on such Distribution Date), (iv)
the
Certificate Principal Balance of the Class M-4 Certificates (after taking
into
account the distribution of the Class M-4 Principal Distribution Amount on
such
Distribution Date), (v) the Certificate Principal Balance of the Class M-5
Certificates (after taking into account the distribution of the Class M-5
Principal Distribution Amount on such Distribution Date), (vi) the Certificate
Principal Balance of the Class M-6 Certificates (after taking into account
the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date) and (ix) the Certificate Principal Balance of the Class M-9 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 92.80% and (ii) the aggregate 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 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 approximately
$4,912,663.
Class
M-10 Certificates:
All
Certificates bearing the Class designation of “Class M-10 Certificates”
representing the right to distributions as set forth herein and therein and
representing (i) a regular interest in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Net WAC Rate Carryover Amount,
and
(iii) the obligation to pay the Class IO Distribution Amount.
Class
M-10 Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (x) the
sum
of (i) the aggregate Certificate Principal 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 Principal
Balance of the Class M-1 Certificates and the Class M-2 Certificates (after
taking into account the distribution of the Class M-1/M-2 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance
of
the Class M-3 Certificates (after taking into account the distribution of
the
Class M-3 Principal Distribution Amount on such Distribution Date), (iv)
the
Certificate Principal Balance of the Class M-4 Certificates (after taking
into
account the distribution of the Class M-4 Principal Distribution Amount on
such
Distribution Date), (v) the Certificate Principal Balance of the Class M-5
Certificates (after taking into account the distribution of the Class M-5
Principal Distribution Amount on such Distribution Date), (vi) the Certificate
Principal Balance of the Class M-6 Certificates (after taking into account
the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date) and (x) the Certificate Principal
Balance of the Class M-10 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 94.80% and (ii) the aggregate
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 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 approximately $4,912,663.
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 V
for purposes of the REMIC Provisions.
Class
P Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
holders of the Class P Certificate representing the right to distributions
as
set forth herein and evidencing a regular interest in REMIC III for
purposes of the REMIC Provisions.
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,
REMIC II and REMIC III for purposes of the REMIC Provisions. The
Class R Certificate represents the ownership of the Class R-I Interest, the
Class R-II Interest and the Class R-III Interest.
Class
R-X Certificates:
All
Certificates bearing the Class designation of “Class R-X Certificates” and
evidencing the ownership of the “residual interest” in each of REMIC IV and
REMIC V for purposes of the REMIC Provisions. The Class R-X Certificate
represents the ownership of the Class R-X-IV Interest, the Class R-X-V Interest
and the Class R-X-VI Interest.
Class R-I
Interest:
The
residual interest in REMIC I for purposes of the REMIC
Provisions.
Class R-II
Interest:
The
residual interest in REMIC II for purposes of the REMIC
Provisions.
Class
R-III Interest:
The
residual interest in REMIC III for purposes of the REMIC
Provisions.
Class
R-X-IV Interest:
The
residual interest in REMIC IV for purposes of the REMIC
Provisions.
Class
R-X-V Interest:
The
residual interest in REMIC V for purposes of the REMIC
Provisions.
Class
R-X-VI Interest:
The
residual interest in REMIC VI for purposes of the REMIC Provisions.
Class
SWAP-IO Interest:
An
uncertificated interest in the Trust Fund evidencing a regular interest in
REMIC III for purposes of the REMIC Provisions.
Closing
Date:
May 10,
2006.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collection
Account:
As
defined in Section 3.10.
Commission:
The
U.S. Securities and Exchange Commission.
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, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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, Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services-Fremont 2006-A, (B) for matters relating to the Custodial Files,
00
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Fremont 2006-A,
and (C) for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000 Attn: Client Manager-Fremont 2006-A, facsimile no. (000) 000-0000 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:
|
Corresponding
REMIC II Classes
|
Corresponding
REMIC III Classes
|
|
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
|
|
LT2A4
|
Class
2-A-4 Certificates
|
|
LTM-1
|
Class
M-1 Certificates
|
|
LTM-2
|
Class
M-2 Certificates
|
|
LTM-3
|
Class
M-3 Certificates
|
|
LTM-4
|
Class
M-4 Certificates
|
|
LTM-5
|
Class
M-5 Certificates
|
|
LTM-6
|
Class
M-6 Certificates
|
|
LTM-7
|
Class
M-7 Certificates
|
|
LTM-8
|
Class
M-8 Certificates
|
|
LTM-9
|
Class
M-9 Certificates
|
|
LTB1
|
Class
B1 Certificates
|
|
LTB2
|
Class
B2 Certificates
|
|
LTB3
|
Class
B3 Certificates
|
|
LTB4
|
Class
B4 Certificates
|
|
LTP
|
Class
P Interest
|
|
N/A
|
Class
C Interest
|
|
LTIO
|
Class
Swap-IO Interest
|
With
respect to the Class C Interest and the Class P Interest, the Class C
Certificates and the Class P Certificates, respectively.
Credit
Enhancement Percentage:
With
respect to any Distribution Date, the percentage obtained by dividing (x)
the
aggregate Certificate Principal Balance of the Subordinate Certificates by
(y)
the aggregate Stated Principal Balance of the Mortgage Loans calculated prior
to
taking into account distributions of principal on the Mortgage Loans and
distribution of the Principal Distribution Amount to the Holders of the
Certificates then entitled to distributions of principal on such Distribution
Date.
Current
Interest:
With
respect to any Distribution Date for each Class of the LIBOR Certificates,
the
aggregate amount of interest accrued during the related 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 Qualified Substitute Mortgage
Loan),
May 1, 2006. With respect to all Qualified 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 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
Minimum Mortgage Interest Rate; (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: (44) the
number of Mortgage Loans; (45) the
current aggregate outstanding principal balance of the Mortgage Loans;
(46) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and (47) 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(c).
Delinquency
Percentage:
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, not including in both (1) and (2) a liquidated mortgage
loan
as of the end of the Prepayment Period.
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.
Depositor:
Financial Asset Securities Corp., 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 15th day of the calendar month in
which
such Distribution Date occurs or, if such 15th day is not a Business Day,
the
Business Day immediately preceding such 15th day.
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 “Xxxxx Fargo Bank, N.A. in
trust for registered holders of Fremont Home Loan Trust 2006-A Mortgage-Backed
Certificates, Series 2006-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
June
2006.
Document
Certification and Exception Report:
The
report attached to Exhibit F hereto.
Downgrade
Provisions:
As
defined in the Swap Agreement. In summary, the Downgrade Provisions provide
that
if the Swap Provider's long-term credit ratings fall below the levels specified
in the Swap Agreement, the Swap Provider will be required, subject to the
Rating
Agency Condition (as defined in the Swap Agreement) to (1) post collateral
securing its obligations under the Swap Agreement, (2) obtain a substitute
Swap
Provider acceptable to the Rating Agencies that will assume the obligations
of
the Swap Provider under the Swap Agreement, (3) obtain a guaranty or contingent
agreement of the Swap Provider's obligations under the Swap Agreement from
another person acceptable to the Rating Agencies or (4) establish any other
arrangement sufficient to restore the credit rating of the Senior and
Subordinate Certificates, all as provided in the Swap Agreement
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 such Distribution Date occurs
and
ending on the first day of the calendar month in which such 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
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-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:
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, and the rules and regulations
thereunder.
Expense
Fee Rate:
As to
each Mortgage Loan, a per annum rate equal to the sum of (i) the Servicing
Fee
Rate and (ii) the Administration Fee Rate.
Expense
Fees:
As to
each Mortgage Loan, the Servicing Fee and the Administration Fee.
Extra
Principal Distribution Amount:
As of
any Distribution Date, the lesser of (x) the sum of (A) Net Monthly Excess
Cashflow for such Distribution Date and (B) any amounts received under the
Interest Rate Swap Agreement for this purpose and (y) the
Overcollateralization Deficiency Amount 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 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 May 2036.
Fitch:
Fitch,
Inc. If Fitch is designated as a Rating Agency in the Preliminary Statement,
for
purposes of Section 10.05(b) the address for notices to Fitch shall be
Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Pass-Through Group, or such other address as Fitch may
hereafter furnish to the Depositor, the Servicer, the Master Servicer, the
Trust
Administrator and the Trustee.
Fixed
Payer Rate:
5.324%.
Form
8-K Disclosure Information:
As
defined in Section 4.07(a)(iii).
Formula
Rate:
With
respect to each Class of LIBOR Certificates, the lesser of (a) the Base Rate
for
such Class or (b) 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:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is (i) the Group 1 Principal Remittance Amount for such
Distribution Date, and the denominator of which is (ii) the Principal Remittance
Amount for such Distribution Date.
Group
1 Basic Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the Group 1 Principal
Remittance Amount for such Distribution Date over (ii) the Overcollateralization
Release Amount, if any, for such Distribution Date multiplied by the
Group 1 Allocation Percentage.
Group
1 Certificates:
The
Class 1-A-1 Certificates and the Class 1-A-2 Certificates.
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 Group 1 Basic Principal
Distribution Amount for such Distribution Date and (ii) the Extra Principal
Distribution Amount for such Distribution Date multiplied by the Group 1
Allocation Percentage.
Group
1 Principal Remittance Amount:
With
respect to any Distribution Date, the sum of (i) all scheduled payments of
principal collected or advanced on the Group 1 Mortgage Loans by the Servicer
that were due during the related Due Period, (ii) the principal portion of
all
partial and full principal prepayments of the Group 1 Mortgage Loans applied
by
the Servicer during such Prepayment Period, (iii) the principal portion of
all
related Net Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries
received during such Prepayment Period with respect to the Group 1 Mortgage
Loans, (iv) that portion of the Purchase Price, representing principal of
any
repurchased Group 1 Mortgage Loan, deposited to the Collection Account during
such Prepayment Period, (v) the principal portion of any related Substitution
Adjustments deposited in the Collection Account during such Prepayment Period
with respect to the Group 1 Mortgage Loans and (vi) on the Distribution Date
on
which the Trust is to be terminated in accordance with the Pooling Agreement,
that portion of the Termination Price, representing principal with respect
to
the Group 1 Mortgage Loans.
Group
1 Senior Principal Distribution Amount:
An
amount equal to the excess of (x) the aggregate Certificate Principal Balance
of
the Group 1 Certificates immediately prior to such Distribution Date over
(y)
the lesser of (A) the product of (i) 53.80% 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 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 $1,913,250.
Group
2 Allocation Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is (i) the Group 2 Principal Remittance Amount for such
Distribution Date, and the denominator of which is (ii) the Principal Remittance
Amount for such Distribution Date.
Group
2 Basic Principal Distribution Amount:
With
respect to any Distribution Date, the excess of (i) the Group 2 Principal
Remittance Amount for such Distribution Date over (ii) the Overcollateralization
Release Amount, if any, for such Distribution Date multiplied by the Group
2
Allocation Percentage.
Group
2 Certificates:
The
Class 2-A-1, Class 2-A-2, Class 2-A-3 and Class 2-A-4 Certificates.
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 Group 2 Basic Principal
Distribution Amount for such Distribution Date and (ii) the Extra Principal
Distribution Amount for such Distribution Date multiplied by the Group 2
Allocation Percentage.
Group
2 Principal Remittance Amount:
With
respect to any Distribution Date, the sum of (i) all scheduled payments of
principal collected or advanced on the Group 2 Mortgage Loans by the Servicer
that were due during the related Due Period, (ii) the principal portion of
all
partial and full principal prepayments of the Group 2 Mortgage Loans applied
by
the Servicer during such Prepayment Period, (iii) the principal portion of
all
related Net Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries
received during such Prepayment Period with respect to the Group 2 Mortgage
Loans, (iv) that portion of the Purchase Price, representing principal of
any
repurchased Group 2 Mortgage Loan, deposited to the Collection Account during
such Prepayment Period, (v) the principal portion of any related Substitution
Adjustments deposited in the Collection Account during such Prepayment Period
with respect to the Group 2 Mortgage Loans and (vi) on the Distribution Date
on
which the Trust is to be terminated in accordance with the Pooling Agreement,
that portion of the Termination Price, representing principal with respect
to
the Group 2 Mortgage Loans.
Group
2 Senior Principal Distribution Amount:
An
amount equal to the excess of (x) the aggregate Certificate Principal Balance
of
the Group 2 Certificates immediately prior to such Distribution Date over
(y)
the lesser of (A) the product of (i) 53.80% 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 $2,999,413.
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
LEVELS® 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
Mortgage Interest Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the absolute maximum amount
set
forth in a provision of each Mortgage Note by which the Mortgage Interest
Rate
therein may increase or decrease on the first Adjustment Date above or below
the
Mortgage Interest Rate previously in effect.
Initial
Overcollateralization Amount:
$25,545,507.41.
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:
The
proceeds of any title policy, hazard policy or other insurance policy covering
a
Mortgage Loan, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the mortgagor
in
accordance with the procedures that the Servicer would follow in servicing
mortgage loans held for its own account, subject to the terms and conditions
of
the related mortgage note and Mortgage.
Investment
Account:
As
defined in Section 3.12(a).
Issuer:
Fremont
Home Loan Trust 2006-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 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 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 Accrual Period for the LIBOR Certificates, the second London
Business Day preceding the commencement of such 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 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 Interest and any Distribution Date, a per annum rate
equal to two (2) times the weighted average of the Uncertificated REMIC II
Pass-Through Rates for REMIC II Regular Interest LT1A1, REMIC II
Regular Interest LT1A2, REMIC II Regular Interest LT2A1, REMIC II
Regular Interest LT2A2, REMIC II Regular Interest LT2A3, REMIC II
Regular Interest LT2A4, REMIC II Regular Interest LTM-1, REMIC II
Regular Interest LTM-2, REMIC II Regular Interest LTM-3, REMIC II
Regular Interest LTM-4, REMIC II Regular Interest LTM-5, REMIC II
Regular Interest LTM-6, REMIC II Regular Interest LTM-7, REMIC II
Regular Interest LTM-8, REMIC II Regular Interest LTM-9, REMIC II
Regular Interest LTM-10 and REMIC II Regular Interest LTZZ, (i) with the
rate on each such REMIC II Regular Interest (other than REMIC II
Regular Interest LTZZ) subject to a cap equal to the lesser of (a) the Base
Rate
of its Corresponding Class and (b) the Net WAC Rate for the purposes of this
calculation and (ii) with the rate on REMIC II 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 II
Pass-Through Rate and the related caps with respect to each such REMIC II
Regular Interest (other than REMIC II Regular Interest LTZZ) shall be
multiplied by a fraction, the numerator of which is the actual number of
days in
the Accrual Period and the denominator of which is 30.
Master
Servicer:
As of
the Closing Date, Xxxxx 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 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
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:
For any
Distribution Date, a per annum rate equal to the product of (I) the weighted
average of the Adjusted Net Maximum Mortgage Rates of the Mortgage Loans,
plus
an amount, expressed as a per annum rate, equal to the product of (i) the
Net
Swap Payment made by the Swap Provider divided by the aggregate Principal
Balance of the Mortgage Loans and (ii) 12 and (II) a fraction, the numerator
of
which is 30 and the denominator of which is the actual number of days elapsed
in
the related Accrual Period.
Maximum
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 II Pass-Through Rate applicable to REMIC II
Regular Interest LTZZ for such Distribution Date on a balance equal to the
Uncertificated Balance of REMIC II Regular Interest LTZZ minus the
REMIC II Overcollateralized Amount, in each case for such Distribution
Date, over (b) REMIC II Regular Interest LT1A1, REMIC II Regular
Interest LT1A2, REMIC II Regular Interest LT2A1, REMIC II Regular
Interest LT2A2, REMIC II Regular Interest LT2A3, REMIC II Regular
Interest LT2A4, REMIC II Regular Interest LTM-1, REMIC II Regular
Interest LTM-2, REMIC II Regular Interest LTM-3, REMIC II Regular
Interest LTM-4, REMIC II Regular Interest LTM-5, REMIC II Regular
Interest LTM-6, REMIC II Regular Interest LTM-7, REMIC II Regular
Interest LTM-8, REMIC II Regular Interest LTM-9, REMIC II Regular
Interest LTM-10, each subject to a cap equal to the lesser of (a) the Base
Rate
of its Corresponding Class and (b) the Net WAC Rate for the purposes of this
calculation; provided, however, that for this purpose, calculations of the
Uncertificated REMIC II Pass-Through Rate and the related caps with respect
to Uncertificated Accrued Interest on REMIC II Regular Interest LT1A1,
REMIC II Regular Interest LT1A2, REMIC II Regular Interest LT2A1,
REMIC II Regular Interest LT2A2, REMIC II Regular Interest LT2A3,
REMIC II Regular Interest LT2A4, REMIC II Regular Interest LTM-1,
REMIC II Regular Interest LTM-2, REMIC II Regular Interest LTM-3,
REMIC II Regular Interest LTM-4, REMIC II Regular Interest LTM-5,
REMIC II Regular Interest LTM-6, REMIC II Regular Interest LTM-7,
REMIC II Regular Interest LTM-8, REMIC II Regular Interest LTM-9,
REMIC II Regular Interest LTM-10, multiplied by a fraction, the numerator
of which is the actual number of days in the Accrual Period and the denominator
of which is 30.
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® System.
MERS
Procedure Manual:
The
MERS Procedures Manual, as it may be amended, supplemented or otherwise modified
from time to time.
MERS®
System:
MERS
mortgage electronic registry system, as more particularly described in the
MERS
Procedures Manual.
Minimum
Mortgage Interest Rate:
With
respect to an Adjustable Rate Mortgage Loan, the specified minimum mortgage
rate
over the life of such mortgage loan; with respect to a Mortgage Loan with
a
fixed rate, the Mortgage Interest Rate.
Monthly
Interest Distributable Amount:
With
respect to any Distribution Date and each Class of Offered Certificates,
the
amount of interest accrued during the related Accrual Period at the related
Pass-Through Rate on the Certificate Principal Balance of such Class immediately
prior to such Distribution Date, in each case, reduced by any Prepayment
Interest Shortfalls allocated to such Class and shortfalls resulting from
the
application of the Relief Act or any state law providing for similar relief
(allocated to each Certificate based on its respective entitlements to interest
irrespective of any Prepayment Interest Shortfalls or shortfalls resulting
from
the application of the Relief Act for such Distribution Date).
Monthly
Statement:
The
statement made available to the Certificateholders pursuant to
Section 4.03.
Moody’s:
Xxxxx’x
Investors Service, Inc. If Xxxxx’x 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 Xxxxx’x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, 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;
(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 Initial Mortgage Interest Rate Cap;
(xx) a
code
indicating the documentation program;
(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
Qualified 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.
Net
Liquidation Proceeds:
With
respect to a defaulted mortgage Loan, all liquidation proceeds, insurance
proceeds or condemnation proceeds net of amounts reimbursable to the Servicer
for related Advances, Servicing Advances and Servicing Fees.
Net
Monthly Excess Cash Flow:
For any
Distribution Date, an amount equal to the sum of (a) any Overcollateralization
Release Amount and (b) the excess of (x) the Available Funds for such
Distribution Date over (y) the sum for such Distribution Date of (A) the
Monthly
Interest Distributable Amounts for the Offered Certificates, (B) the Unpaid
Interest Shortfall Amounts for the Senior Certificates and (C) the Principal
Remittance Amount.
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
Swap Payment:
A net
payment, if any, to be made on each Distribution Date to be made under the
Swap
Administration Agreement, representing payments (a) by or on behalf of the
Trust, to the Swap Provider, to the extent that the fixed amount exceeds
the
corresponding floating amount, plus plus any such amounts that remain unpaid
from prior Distribution Dates, or (b) by the Swap Provider to the Trust,
to the
extent that the floating amount exceeds the corresponding fixed amount, all
as
more particularly set forth in the Swap Agreement.
Net
WAC Rate:
For any
Distribution Date, a per annum rate equal to the product of (I) the weighted
average of the Adjusted Net Mortgage Rates of the Mortgage Loans minus an
amount, expressed as a per annum rate, equal to the sum of (x) the product
of
(i) any Net Swap Payment owed to the Swap Provider divided by the outstanding
principal balance of the Mortgage Loans and (ii) 12 and (y) the product of
(i)
any Swap Termination Payment (other than any Swap Termination Payment resulting
from a Swap Provider Trigger Event), payable by the Trust, divided by the
outstanding principal balance of the Mortgage Loans and (ii) 12 and (II)
a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Accrual Period.
Net
WAC Rate Carryover Amount:
With
respect to each Class of LIBOR Certificates, as of any Distribution Date,
if on
such Distribution Date there are unpaid Net WAC Rate Carryover Amounts from
prior Distribution Dates or 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 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 Formula Rate for such Class (without giving effect
to
any such limitations) of 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 Trust Administrator
pursuant to Sections 3.27(a) in the name of the Trust Administrator for the
benefit of the Holders of Regular Certificates and designated “Xxxxx Fargo Bank,
N.A. in trust for registered holders of Fremont Home Loan Trust 2006-A,
Mortgage-Backed Certificates, Series 2006-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 any Trust
REMIC.
NIM
Trust:
Fremont
NIM Trust 2006-A, a Delaware statutory trust, or other special purpose entity
created to securitize the cashflows relating to the Class C and/or Class
P
Certificates.
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 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 Interest and the Class C Certificates, a notional
amount
equal to the aggregate principal balance of the REMIC II Regular Interests
(other than REMIC II 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 Swap Provider, 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 or Class R-X
Certificate.
Original
Certificate Principal Balance:
With
resepct to any Class of Certificates, the Certificate Principal Balance thereof
on the Closing Date.
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.
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 Class Certificate Balance of the Senior
Certificates, the Mezzanine 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 Amount:
With
respect to any Distribution Date, the amount, if any, by which the
Overcollateralization Target Amount exceeds the Overcollateralized Amount
on
such Distribution Date (assuming that 100% of the Principal Remittance Amount
is
applied as a principal payment on such Distribution Date).
Overcollateralization
Release Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the excess, if any, of (i) the
Overcollateralized Amount for such Distribution Date (assuming that 100%
of the
Principal Remittance Amount is applied as a principal payment on such
Distribution Date) over (ii) the Overcollateralization Target Amount for
such
Distribution Date.
Overcollateralization
Target Amount:
With
respect to any Distribution Date, an amount equal to (i) prior to the Stepdown
Date or on the Stepdown Date if the Stepdown Date is caused by scenario (i)
in
the definition of Stepdown Date, then the Overcollateralization Target Amount
prior to distributing the Senior Principal Distribution Amount to pay the
Senior
Certificates to zero is 2.60% of the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date; and (ii) on the Stepdown Date if the
Stepdown Date is caused by scenario (i) in the definition of Stepdown Date,
so
long as a Trigger Event is not in effect, then the Overcollateralization
Target
Amount will be recalculated after distribution of the Senior Principal
Distribution Amount to pay the Senior Certificates to zero pursuant to Section
4.02(a)(ii)(II)(A) and (B) or after the Stepdown Date, so long as a Trigger
Event is not in effect, the greater of (a) 5.20% of the then current aggregate
outstanding Principal Balance of the Mortgage Loans as of the last day of
the
related Due Period (after giving effect to scheduled payments of principal
received during the related Due Period and unscheduled collections of principal
received during the related Prepayment Period) and (b) 0.50% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date; or
(iii)
on or after the Stepdown Date and if a Trigger Event is in effect, the
Overcollateralization Target Amount for the immediately preceding Distribution
Date. Notwithstanding the foregoing, on and after any Distribution Date
following the reduction of the aggregate Certificate Principal Balance of
the
Offered Certificates to zero, the Overcollateralization Target Amount will
be
zero.
Overcollateralized
Amount:
With
respect to any Distribution Date, an amount equal to (i) 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
(ii) the aggregate Certificate Principal Balance of the Offered Certificates
and
the Class P Certificates as of such Distribution Date (after giving effect
to
distributions to be made on such Distribution Date).
Ownership
Interest:
As to
any 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 first lien Mortgage Loans and that were delinquent on the related
Determination 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.
PCAOB:
The
Public Company Accounting Oversight Board.
Pass-Through
Rate:
For any
Distribution Date and with respect to each class of LIBOR Certificates, a
rate
equal to the lesser of (i) the related Formula Rate for such Class and (ii)
the
Net WAC Rate, in the case of any REMIC I Regular Interest, the
Uncertificated REMIC I Pass-Through Rate and in the case of any
REMIC II Regular Interest, the Uncertificated REMIC II Pass-Through
Rate.
With
respect to the Class C Interest, 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 (U) below, and the denominator
of
which is the aggregate of the Uncertificated Principal Balances of REMIC II
Regular Interest LTAA, REMIC II Regular Interest LT1A1, REMIC II
Regular Interest LT1A2, REMIC II Regular Interest LT2A1, REMIC II
Regular Interest LT2A2, REMIC II Regular Interest LT2A3, REMIC II
Regular Interest LT2A4, REMIC II Regular Interest LTM-1, REMIC II
Regular Interest LTM-2, REMIC II Regular Interest LTM-3, REMIC II
Regular Interest LTM-4, REMIC II Regular Interest LTM-5, REMIC II
Regular Interest LTM-6, REMIC II Regular Interest LTM-7, REMIC II
Regular Interest LTM-8, REMIC II Regular Interest LTM-9, REMIC II
Regular Interest LTM-10 and REMIC II Regular Interest LTZZ. For purposes of
calculating the Pass-Through Rate for the Class C Interest, the numerator
is
equal to the sum of the following components:
(A) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTAA minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTAA;
(B) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LT1A1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LT1A1;
(C) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LT1A2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LT1A2;
(D) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LT2A1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LT2A1;
(E) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LT2A2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LT2A2;
(F) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LT2A3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LT2A3;
(G) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LT2A4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LT2A4;
(H) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTM-1;
(I) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTM-2;
(J) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTM-3;
(K) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTM-4;
(L) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-5 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTM-5;
(M) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-6 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTM-6;
(N) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-7 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTM-7;
(O) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-8 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest
LTM-8;
(P) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-9 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTM-9;
(Q) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTM-10 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTM-10;
(R) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTZZ;
and
(S) 100%
of
the Interest on REMIC II Regular Interest LTP.
With
respect to the Class C Certificates, 100% of the interest distributable on
the
Class C Interest, expressed as a per annum rate.
With
respect to the Class SWAP-IO Interest, the Class SWAP-IO Interest shall not
have
a Pass-Through Rate, but interest for such Regular Interest and each
Distribution Date shall be an amount equal to 100% of the amounts distributable
to REMIC II Regular Interest LTIO for such Distribution Date.
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 absolute maximum amount
set
forth in a provision of each Mortgage Note by which the Mortgage Interest
Rate
therein may increase or decrease on an Adjustment Date (other than the first
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.
Permitted
Investment:
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) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trust Administrator or its agent acting in their respective
commercial capacities) incorporated under the laws of the United States of
America or any state thereof and subject to supervision and examination by
federal and/or state authorities, so long as, at the time of such investment
or
contractual commitment providing for such investment, such depository
institution or trust company or its ultimate parent has a short-term uninsured
debt rating in one of the two highest available rating categories of each
Rating
Agency and (B) any other demand or time deposit or deposit which is fully
insured by the FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State
thereof
and that are rated by each Rating Agency in its highest long-term unsecured
rating category at the time of such investment or contractual commitment
providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than 30 days after the date of acquisition thereof) that is rated by each
Rating
Agency in its highest short-term unsecured debt rating available at the time
of
such investment;
(vi) units
of
money market funds, including those money market funds managed or advised
by the
Trust Administrator or its Affiliates, that have the highest applicable rating
from the Rating Agencies, if so rated; and
(vii) if
previously confirmed in writing to 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 securities having ratings equivalent to its highest initial rating
of
the Senior Certificates;
provided,
however,
that no
instrument described hereunder may 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, (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 Xxxxxxx 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 portion of the Prepayment Period from the 1st
day of
the month in which such Remittance Date occurs through the 15th
day of
the month in which such Remittance Date occurs, 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 portion of the Prepayment Period from the 16th
day of
the calendar month preceding such Remittance Date to the last day of the
calendar month preceding such Remittance Date, 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 Distribution 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 Distribution Date occurs (or, in the case
of
the first Distribution Date, from May 1, 2006) to and including the 15th
day of the month in which such Distribution Date occurs, and (b) with respect
to
Principal Prepayments in part, the calendar month prior to such Distribution
Date.
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
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 Group
1
Principal Remittance Amount and the Group 2 Principal Remittance
Amount.
Private
Certificates:
As
defined in the Preliminary Statement.
Prospectus
Supplement:
The
Prospectus Supplement, dated May 3, 2006, relating to the Offered
Certificates.
PUD:
A
planned unit development.
Purchase
Agreement:
The
Mortgage Loan Purchase Agreement, dated as of May 1, 2006 by and between
Fremont
and the Depositor.
Qualified
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 an outstanding Stated
Principal Balance (or in the case of a substitution of more than one Mortgage
Loan for a Deleted Mortgage Loan, an aggregate Stated Principal Balance),
not in
excess of, and not more than 5% less than, the Principal Balance of the Deleted
Mortgage Loan; (ii) have a Mortgage Interest Rate not less than the Mortgage
Interest Rate of the Deleted Mortgage Loan and not more than 1% in excess
of the
Mortgage Rate of such Deleted Mortgage Loan; (iii) in the case of any Adjustable
Rate Mortgage Loan, have a Maximum Mortgage Interest Rate and Minimum Mortgage
Interest Rate not less than the respective rate for the Deleted Mortgage
Loan,
have a Gross Margin equal to or greater than the Deleted Mortgage Loan and
have
the same Adjustment Date frequency as the Deleted Mortgage Loan; (iv) have
the
same Due Date as the Deleted Mortgage Loan; (v) have a remaining term to
maturity not more than one year earlier and not later than the remaining
term to
maturity of the Deleted Mortgage Loan; (vi) comply with each representation
and
warranty as to the Mortgage Loans set forth in the Mortgage Loan Purchase
Agreement (deemed to be made as of the date of substitution); (vii) have
been
underwritten or re-underwritten by the Originator in accordance with the
same
underwriting criteria and guidelines as the Mortgage Loans being replaced;
(viii) be of the same or better credit quality as the Mortgage Loan being
replaced, (ix) be a first lien mortgage loan if the Deleted Mortgage Loan
is a
first lien mortgage loan and (x) comply with each representation and warranty
set forth in Section 2.03.
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:
With
respect to any Liquidated Mortgage Loan, the amount of loss realized equal
to
the portion of the Principal Balance remaining unpaid after application of
all
Net Liquidation Proceeds in respect of such Mortgage Loan.
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 calendar 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.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to the various parties, as set forth on Exhibit
S
attached hereto. For clarification purposes, multiple parties can have
responsibility for the same Servicing Criteria.
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
Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I. Each
REMIC I Regular Interest 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
Balance as set forth in the Preliminary Statement hereto. The designations
for
the respective REMIC I Regular Interests are set forth in the Preliminary
Statement hereto. The REMIC I Regular Interests consist of the REMIC I
Regular Interests I, REMIC I Regular Interest LTP and REMIC I Regular
Interests I-1-A through I-48-X.
XXXXX XX
Interest Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
the
sum of the aggregate Stated Principal Balance of the Mortgage Loans and related
REO Properties then outstanding and (ii) the Uncertificated REMIC II
Pass-Through Rate for REMIC II Regular Interest LTAA minus the Marker Rate,
divided by (b) 12.
REMIC II
Overcollateralization Target Amount:
1.00%
of the Overcollateralization Target Amount.
REMIC II
Overcollateralized Amount:
With
respect to any date of determination, (i) 1.00% of the aggregate Uncertificated
Principal Balances of the REMIC II Regular Interests minus (ii) the
aggregate of the Uncertificated Principal Balances of REMIC II Regular
Interest LT1A1, REMIC II Regular Interest LT1A2, REMIC II Regular
Interest LT2A1, REMIC II Regular Interest LT2A2, REMIC II Regular
Interest LT2A3, REMIC II Regular Interest LT2A4, REMIC II Regular
Interest LTM-1, REMIC II Regular Interest LTM-2, REMIC II Regular
Interest LTM-3, REMIC II Regular Interest LTM-4, REMIC II Regular
Interest LTM-5, REMIC II Regular Interest LTM-6, REMIC II Regular
Interest LTM-7, REMIC II Regular Interest LTM-8, REMIC II Regular
Interest LTM-9, REMIC II Regular Interest LTM-10, and REMIC II Regular
Interest LTP, in each case as of such date of determination.
REMIC II
Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
the
sum of the aggregate Stated 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 II Regular Interest LT1A1, REMIC II Regular Xxxxxxx XX0X0,
REMIC II Regular Interest LT1A2, REMIC II Regular Interest LT2A1,
REMIC II Regular Interest LT2A2, REMIC II Regular Interest LT2A3,
REMIC II Regular Interest LT2A4, REMIC II Regular Interest LTM-1,
REMIC II Regular Interest LTM-2, REMIC II Regular Interest LTM-3,
REMIC II Regular Interest LTM-4, REMIC II Regular Interest LTM-5,
REMIC II Regular Interest LTM-6, REMIC II Regular Interest LTM-7,
REMIC II Regular Interest LTM-8, REMIC II Regular Interest LTM-9,
REMIC II Regular Interest LTM-10, and the denominator of which is the
aggregate of the Uncertificated Principal Balances of REMIC II Regular
Interest LT1A1 REMIC II Regular Interest LT1A2, REMIC II Regular
Interest LT2A1, REMIC II Regular Interest LT2A2, REMIC II Regular
Interest LT2A3, REMIC II Regular Interest LT2A4, REMIC II Regular
Interest LTM-1, REMIC II Regular Interest LTM-2, REMIC II Regular
Interest LTM-3, REMIC II Regular Interest LTM-4, REMIC II Regular
Interest LTM-5, REMIC II Regular Interest LTM-6, REMIC II Regular
Interest LTM-7, REMIC II Regular Interest LTM-8, REMIC II Regular
Interest LTM-9, REMIC II Regular Interest LTM-10, and REMIC II Regular
Interest LTZZ.
REMIC II
Regular Interest LTAA:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTAA shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LT1A1:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LT1A1 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LT1A2:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LT1A2 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LT2A1:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LT2A1 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LT2A2:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LT2A2 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LT2A3:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LT2A3 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LT2A4:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LT2A4 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-1:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-1 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-2:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-2 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-3:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-3 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-4:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-4 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-5:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-5 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-6:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-6 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-7:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-7 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-8:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-8 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-9:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-9 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTM-10:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTM-10 shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTIO:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTIO shall
accrue interest at the related Uncertificated REMIC II Pass-Through Rate in
effect from time to time subject to the terms and conditions hereof, based
on
its Uncertificated Balance.
REMIC II
Regular Interest LTP:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTP shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interest LTZZ:
One of
the separate non-certificated beneficial ownership interests in REMIC II
issued hereunder and designated as a regular interest in REMIC II for
purposes of the REMIC Provisions. REMIC II Regular Interest LTZZ shall
accrue interest at the related Uncertificated REMIC II 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 II
Regular Interests:
REMIC II Regular Interest LTAA, REMIC II Regular Interest LT1A1,
REMIC II Regular Interest LT1A2, REMIC II Regular Interest LT2A1,
REMIC II Regular Interest LT2A2, REMIC II Regular Interest LT2A3,
REMIC II Regular Interest LT2A4, REMIC II Regular Interest LTM-1,
REMIC II Regular Interest LTM-2, REMIC II Regular Interest LTM-3,
REMIC II Regular Interest LTM-4, REMIC II Regular Interest LTM-5,
REMIC II Regular Interest LTM-6, REMIC II Regular Interest LTM-7,
REMIC II Regular Interest LTM-8, REMIC II Regular Interest LTM-9,
REMIC II Regular Interst LTM-10, REMIC II Regular Interest LTP and
REMIC II Regular Interest LTZZ.
REMIC II
Subordinated Balance Ratio:
The
ratio among the Uncertificated Balances of each REMIC II Regular Interest
ending with the designation “SUB,” equal to the ratio between, with respect to
each such REMIC II Regular Interest, the excess of (x) the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group over (y)
the
current Class Certificate Balance of the Senior Certificates in the related
Loan
Group.
REMIC III
Certificate:
Any
Regular Certificate or Class R Certificate.
REMIC III
Regular Interest:
Any of
the regular interests in REMIC III the ownership of which is represented by
the LIBOR Certificates and the Class C Interest, the Class P Interest and
the
Class SWAP-IO Interest.
REMIC III
Uncertificated Regular Interest:
The
Class C Interest, the Class P Interest and the Class Swap-IO
Interest.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time
as
well as provisions of applicable state laws.
REMIC
Uncertificated Pass-Through Rate:
The
Uncertificated REMIC I Pass-Through Rate or the Uncertificated
REMIC II Pass-Through Rate.
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.
Reporting
Servicer:
As
defined in Section 4.07(a)(iv)(A).
Reportable
Event:
As
defined in Section 4.07(a)(iii).
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 Trust Administrator to the date of repurchase,
(iii) all unreimbursed Advances and 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 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.
Rule 144A
Letter:
As
defined in Section 5.02(b).
Xxxxxxxx-Xxxxx
Certification:
A
written certification signed by an officer of the Servicer that complies
with
(i) the Xxxxxxxx-Xxxxx 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 Xxxxxxxx-Xxxxx 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 Xxxxxxxx-Xxxxx 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 Xxxxxxxx-Xxxxx 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.
Scheduled
Maximum Swap Notional Amount:
With
respect to any Distribution Date, the amount so specified in a schedule attached
to the Swap Agreement.
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, an amount equal to the sum of (i) the Group
1
Senior Principal Distribution Amount and (ii) the Group 2 Senior Principal
Distribution Amount.
Servicer:
Fremont, and if a successor servicer is appointed hereunder, such successor
servicer.
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 Xxxxx’x 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:
|
Distribution
Date Occurring In
|
Percentage
|
|
May
2007 through April 2008
|
1.50%
|
|
May
2008 through April 2009
|
2.50%
|
|
May
2009 through April 2010
|
3.50%
|
|
May
2010 through April 2011
|
5.25%
|
|
May
2011 through April 2012
May
2012 and thereafter
|
6.75%
7.30%
|
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:
|
Distribution
Date Occurring In
|
Percentage
|
|
May
2007 through April 2008
|
1.75%
|
|
May
2008 through April 2009
|
2.75%
|
|
May
2009 through April 2010
|
3.75%
|
|
May
2010 through April 2011
|
5.50%
|
|
May
2011 through April 2012
May
2012 and thereafter
|
7.00%
8.00%
|
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
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
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
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
Function Participant:
Any
Sub-Servicer or Subcontractor of a Servicer, the Master Servicer, the Trustee,
the Custodian or the Trust Administrator, respectively.
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, the Swap 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.
Similar
Law:
As
defined in Section 5.02.
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 more past due (without
giving effect to any grace period), including Mortgage Loans that are REO
Properties, in foreclosure or in bankruptcy and that are also two months
or more
past due.
Standard
& Poor’s:
Standard & Poor’s, a division of The XxXxxx-Xxxx 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, 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group - Fremont
2006-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 (i) the Distribution Date on which the aggregate Certificate
Principal Balance of the Senior Certificates prior to any distributions of
principal for such Distribution Date being made is less than or equal to
the
Senior Principal Distribution Amount and (ii) the later to occur of (A) the
Distribution Date occurring in June 2009 and (B) the first Distribution Date
on
which the Senior 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 46.20%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Sub-Servicer of any Servicer),
the Master Servicer, the Trustee, the Custodian or the Trust
Administrator.
Subordinate
Certificates:
As
specified in the Preliminary Statement.
Subsequent
Recoveries:
Amounts
recovered by the Servicer in respect of a liquidated Mortgage Loan in regard
to
which a Realized Loss has occurred.
Sub-Servicer:
Any
Person that services Mortgage Loans on behalf of a Servicer, and is responsible
for the performance (whether directly or through sub-servicers or
Subcontractors) of servicing functions required to be performed under this
Agreement, any related Servicing Agreement or any sub-servicing agreement
that
are identified in Item 1122(d) of Regulation AB.
Subservicing
Account:
As
defined in Section 3.08.
Subservicing
Agreements:
As
defined in Section 3.02(a).
Substitution
Adjustment Amount:
The
meaning ascribed to such term pursuant to Section 2.03(f).
Swap
Account:
A
segregated trust account to be opened and maintained by the Swap Provider
into
which the Swap Administrator will, on each Distribution Date, deposit certain
amounts, if any, received from the Swap Provider from which distributions
in
respect of Unpaid Interest Shortfall Amounts, Net WAC Rate Carryover Amounts,
amounts necessary to maintain the applicable Overcollateralization Target
Amount
and Allocated Realized Loss Amounts on the Subordinate Certificates will
be
made. The Swap Account will be an asset of the Trust but not of any
REMIC.
Swap
Administration Agreement:
The
Swap Administration Agreement, dated as of the Closing Date, among the Swap
Administrator, the Trust Administrator and the Trustee.
Swap
Agreement:
The
Interest Rate Swap Agreement, dated as of May 10, 2006 between the Trustee
on
behalf of the Trust and the Swap Provider.
Swap
Default:
Such
events of default under, and as set forth in, the Swap Agreement.
Swap
Early Termination:
As
defined in the Swap Agreement.
Swap
LIBOR:
A per
annum rate equal to the floating rate payable by the Swap Provider under
the
Swap Agreement.
Swap
Provider:
Swiss
Re Financial Corporation.
Swap
Provider Trigger Event:
As
described in the Swap Agreement, (i) an event of default under the Swap
Agreement with respect to which the Swap Provider is a Defaulting Party (as
defined in the Swap Agreement), (ii) a Termination Event under the Swap
Agreement with respect to which the Swap Provider is the sole Affected Party
(as
defined in the Swap Agreement) or (iii) an Additional Termination Event (as
defined in the Swap Agreement) under the Swap Agreement with respect to which
the Swap Provider is the sole Affected Party
Swap
Termination Payment:
A
termination payment that either the Trust or the Swap Provider may be liable
to
make, payable under the terms of the Swap Administration Agreement, upon
the
occurrence of any Swap Early Termination, as set forth in the Swap
Agreement.
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
Event:
As
defined in the Swap Agreement.
Termination
Price:
As
defined in Section 9.01.
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 on or after the Stepdown Date, a Trigger
Event
exists if either (a) the Delinquency Percentage exceeds 34.64% of the
Credit Enhancement Percentage; or (b) the aggregate amount of Realized Losses
incurred since the Cut-off Date through the last day of the related Due Period
(reduced by the aggregate amount of Subsequent Recoveries received since
the
Cut-off Date through the last day of the related Due Period) divided by the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date
exceeds the applicable percentages set forth below with respect to such
Distribution Date:
|
Distribution
Date Occurring In
|
Loss
Percentage
|
|
June
2008 through May 2009
|
1.50%
for the first month, plus an additional 1/12th
of
1.90% for each month thereafter
|
|
June
2009 through May 2010
|
3.40%
for the first month, plus an additional 1/12th
of
1.90% for each month thereafter
|
|
June
2010 through May 2011
|
5.30%
for the first month, plus an additional 1/12th of 1.50% for each
month
thereafter
|
|
June
2011 through May 2012
|
6.80%
for the first month, plus an additional 1/12th
of
0.80% for each month thereafter
|
|
June
2012 and thereafter
|
7.60%
|
Trust:
The
express trust created hereunder in Section 2.01(c).
Trust
Administrator:
Xxxxx
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, the Swap
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
Swap Agreement, and (v) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing.
Trust
REMIC:
Any of
REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V and
REMIC VI.
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 or REMIC II Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated REMIC I or REMIC II Pass-Through Rate, as applicable,
on the Uncertificated Balance or Uncertificated Notional Amount of such
REMIC Regular Interest. In the case of the REMIC I Regular Interests,
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 Accrued Interest with
respect to each Distribution Date and each REMIC I Regular Interest shall
be reduced by Realized Losses, if any, allocated to such REMIC I Regular
Interest unless such Realized Loss is restored through Subsequent Recoveries.
With respect to the Class C Interest, the interest accrued at its Pass-Through
Rate on its Notional Amount.
Uncertificated
Balance:
The
amount of any REMIC Regular Interest (other than REMIC II Regular Interest
LTIO) outstanding as of any date of determination. As of the Closing Date,
the
Uncertificated Balance of each REMIC Regular Interest (other than REMIC II
Regular Interest LTIO or other than as specified in the following paragraph)
shall equal the amount set forth in the Preliminary Statement hereto as its
initial uncertificated balance. On each Distribution Date, the Uncertificated
Balance of each REMIC Regular Interest (other than REMIC II Regular
Interest LTIO) shall be reduced by all distributions of principal made on
such
REMIC Regular Interest on such Distribution Date pursuant to Section 4.08
and, if and to the extent necessary and appropriate, shall be further reduced
on
such Distribution Date by Realized Losses as provided in Section 4.08. The
Uncertificated Balance of REMIC II Regular Interest LTZZ shall be increased
by interest deferrals as provided in Section 4.08. The Uncertificated
Balance of each REMIC Regular Interest shall never be less than
zero.
As
of
the
Closing
Date, the Uncertificated Balance of the Class P Interest shall equal the
amount
set forth in the Preliminary Statement hereto as its initial Uncertificated
Balance. On each Distribution Date, the Uncertificated Balance of the Class
P
Interest shall be reduced by all distributions of principal made on the Class
P
Certificate on such Distribution Date pursuant to Section 4.02. With respect
to
the Class C Interest, the excess if any of the then aggregate Uncertificated
Balance of the REMIC II Regular Interests over the aggregate Class
Certificate Balance of the LIBOR Certificates and the Class P Certificates
then
outstanding.
Uncertificated
Notional Amount:
With
respect to REMIC II Regular Interest LTIO and each Distribution Date listed
below, the aggregate Uncertificated Balance of the REMIC I Regular
Interests ending with the designation “A” listed below:
|
Distribution
Date
|
REMIC I
Regular Interests
|
|
|
1
|
I-1-A
through X-00-X
|
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
|
0
|
X-0-X
through X-00-X
|
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
|
0
|
X-0-X
through X-00-X
|
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
|
0
|
X-0-X
through X-00-X
|
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
|
0
|
X-0-X
through I-48-A
|
|
|
10
|
I-10-A
through I-48-A
|
|
|
11
|
I-11-A
through I-48-A
|
|
|
12
|
I-12-A
through I-48-A
|
|
|
13
|
I-13-A
through I-48-A
|
|
|
14
|
I-14-A
through I-48-A
|
|
|
15
|
I-15-A
through I-48-A
|
|
|
16
|
I-16-A
through I-48-A
|
|
|
17
|
I-17-A
through I-48-A
|
|
|
18
|
I-18-A
through I-48-A
|
|
|
19
|
I-19-A
through I-48-A
|
|
|
20
|
I-20-A
through I-48-A
|
|
|
21
|
I-21-A
through I-48-A
|
|
|
22
|
I-22-A
through I-48-A
|
|
|
23
|
I-23-A
through I-48-A
|
|
|
24
|
I-24-A
through I-48-A
|
|
|
25
|
I-25-A
through I-48-A
|
|
|
26
|
I-26-A
through I-48-A
|
|
|
27
|
I-27-A
through I-48-A
|
|
|
28
|
I-28-A
through I-48-A
|
|
|
29
|
I-29-A
through I-48-A
|
|
|
30
|
I-30-A
through I-48-A
|
|
|
31
|
I-31-A
through I-48-A
|
|
|
32
|
I-32-A
through I-48-A
|
|
|
33
|
I-33-A
through I-48-A
|
|
|
34
|
I-34-A
through I-48-A
|
|
|
35
|
I-35-A
through I-48-A
|
|
|
36
|
I-36-A
through I-48-A
|
|
|
37
|
I-37-A
through I-48-A
|
|
|
38
|
I-38-A
through I-48-A
|
|
|
39
|
I-39-A
through I-48-A
|
|
|
40
|
I-40-A
through I-48-A
|
|
|
41
|
I-41-A
through I-48-A
|
|
|
42
|
I-42-A
through I-48-A
|
|
|
43
|
I-43-A
through I-48-A
|
|
|
44
|
I-44-A
through I-48-A
|
|
|
45
|
I-45-A
through I-48-A
|
|
|
46
|
I-46-A
through I-48-A
|
|
|
47
|
I-47-A
and I-48-A
|
|
|
48
|
I-48-A
|
|
|
thereafter
|
$0.00
|
With
respect to the Class Swap-IO Interest and any Distribution Date, an amount
equal
to the Uncertificated Notional Amount of REMIC II Regular Interest
LTIO.
Uncertificated
REMIC I Pass-Through Rate:
With
respect to REMIC I Regular Interest I, a per annum rate equal to the
weighted average of the Adjusted Net Mortgage Interest Rates of the Group
1
Mortgage Loans. With respect to each REMIC I Group 1 Regular Interest
ending with the designation “A”, a per annum rate equal to the weighted average
of the Adjusted Net Mortgage Interest Rates of the Group 1 Mortgage Loans
multiplied by 2, subject to a maximum rate of the Fixed Payer Rate multiplied
by
2. With respect to each REMIC I Group 1 Regular Interest ending with the
designation “B”, the greater of (x) a per annum rate equal to the excess, if
any, of (i) 2 multiplied by the weighted average of the Adjusted Net Mortgage
Interest Rates of the Group 1 Mortgage Loans over (ii) the Fixed Payer Rate
multipled by 2 and (y) 0.00%. With respect to REMIC I Regular Interest II,
a per annum rate equal to the weighted average of the Adjusted Net Mortgage
Interest Rates of the Group 2 Mortgage Loans. With respect to each REMIC I
Group 2 Regular Interest ending with the designation “A”, a per annum rate equal
to the weighted average of the Adjusted Net Mortgage Interest Rates of the
Group
2 Mortgage Loans multiplied by 2, subject to a maximum rate of the Fixed
Payer
Rate multipled by 2. With respect to each REMIC I Group 2 Regular Interest
ending with the designation “B”, the greater of (x) a per annum rate equal to
the excess, if any, of (i) 2 multiplied by the weighted average of the Adjusted
Net Mortgage Interest Rates of the Group 2 Mortgage Loans over (ii) the Fixed
Payer Rate multipled by 2 and (y) 0.00%.
Uncertificated
REMIC II Pass-Through Rate:
With
respect to REMIC II Regular Interest LTAA, REMIC II Regular Interest
LT1A1, REMIC II Regular Interest LT1A2, REMIC II Regular Interest
LT2A1, REMIC II Regular Interest LT2A2, REMIC II Regular Interest
LT2A3, REMIC II Regular Interest LT2A4, REMIC II Regular Interest
LTM-1, REMIC II Regular Interest LTM-2, REMIC II Regular Interest
LTM-3, REMIC II Regular Interest LTM-4, REMIC II Regular Interest
LTM-5, REMIC II Regular Interest LTM-6, REMIC II Regular Interest
LTM-7, REMIC II Regular Interest LTM-8, REMIC II Regular Interest
LTM-9, REMIC II Regular Interest LTM-10, REMIC II Regular Interest
LTZZ and REMIC II Regular Interest LTP a per annum rate (but not less than
zero) equal to the weighted average of: (x) with respect to REMIC I Regular
Interest I, REMIC I Regular Interest II and each REMIC I Regular
Interest ending with the designation “B”, the weighted average of the
Uncertificated REMIC I Pass-Through Rates for such REMIC I Regular
Interests, weighted on the basis of the Uncertificated Balances of such
REMIC I Regular Interests for each such Distribution Date and (y) with
respect to REMIC I Regular Interests ending with the designation “A”, for
each Distribution Date listed below, the weighted average of the rates listed
below for each such REMIC I Regular Interest listed below, weighted on the
basis of the Uncertificated Balances of each such REMIC I Regular Interest
for each such Distribution Date:
|
Distribution
Date
|
REMIC I
Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
2
|
I-2-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
3
|
I-3-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
4
|
I-4-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
5
|
I-5-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
6
|
I-6-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
7
|
I-7-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
8
|
I-8-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
9
|
I-9-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
10
|
I-10-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
11
|
I-11-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
12
|
I-12-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
13
|
I-13-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
14
|
I-14-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
15
|
I-15-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
16
|
I-16-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
17
|
I-17-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
18
|
I-18-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
19
|
I-19-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
20
|
I-20-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
21
|
I-21-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
22
|
I-22-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
23
|
I-23-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
24
|
I-24-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
25
|
I-25-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
26
|
I-26-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
27
|
I-27-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
28
|
I-28-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
29
|
I-29-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
30
|
I-30-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
II-30-A
through II-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
II-1-A
through II-29-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
31
|
I-31-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
32
|
I-32-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
33
|
I-33-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
34
|
I-34-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
35
|
I-35-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
36
|
I-36-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
37
|
I-37-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
38
|
I-38-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
39
|
I-39-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
40
|
I-40-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
41
|
I-41-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
42
|
I-42-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
43
|
I-43-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
44
|
I-44-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
45
|
I-45-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
46
|
I-46-A
through I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
47
|
I-47-A
and I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
48
|
I-48-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-48-A
|
Uncertificated
REMIC I Pass-Through Rate
|
With
respect to REMIC II Regular Interest LTIO, and (i) the first Distribution
Date through the 48th Distribution Date, the excess of (x) the weighted average
of the Uncertificated REMIC I Pass-Through Rates for REMIC I Regular
Interests including the designation “A,” over (y) 2 multiplied by Swap LIBOR and
(ii) thereafter, 0.00%.
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 Shortfall Amount:
(i) For
each Class of Offered Certificates and the first Distribution Date, zero,
and
(ii) with respect to each Class of Offered Certificates and any Distribution
Date after the first Distribution Date, the amount, if any, by which (a)
the sum
of (1) the Monthly Interest Distributable Amount for such Class for the
immediately preceding Distribution Date and (2) the outstanding Unpaid Interest
Shortfall Amount, if any, for such class for such preceding Distribution
Date
exceeds (b) the aggregate amount distributed on such Class in respect of
interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not paid
on
the Certificates of such Class on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate for such Class for the
related
Accrual Period.
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 Principal 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 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 Swap Administration 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 or its designee, 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;
(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 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 May 1, 2006, Fremont
Home
Loan Trust 2006-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
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 2006-A” and HSBC Bank
USA, National Association 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 and directed, 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 Swap Agreement
and the
Swap Administration Agreement. The Swap Administrator is also hereby directed
to
enter into the Swap Administration Agreement.
(d) The
parties hereto acknowledge and agree that it is the policy and intention
of the
Trust to acquire only Mortgage Loans meeting the requirements set forth in
this
Agreement, including without limitation, the representation and warranty
set
forth in paragraph II(l) of Schedule IV hereto.
(e) Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge
that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of Custodial Files, including but not limited to certain insurance
policies and documents contermplated by this Agreement, and preparation and
delivery of the certifications shall be performed by the Trust Administrator
or
Custodian, as applicable, pursuant to the terms and conditions of this
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 the 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 ascertain that all
documents in the Custodial File 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 on the Closing Date, 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 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 Qualified 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
Qualified 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 or the
Trust Administrator 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
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 Qualified 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 Qualified 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 Qualified 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 Qualified
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 Qualified 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 Qualified 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 Qualified 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 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 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 Swap Administrator 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 Master Servicer,
the
Trust Administrator, 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; (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;
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) 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. 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.
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 Swap 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 Swap Administrator, 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;
(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 Swap Administrator, the Servicer
and the
Depositor that as of the Closing Date or as of such date specifically provided
herein:
(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 Swap Administrator, 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
(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;
(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 Swap Administrator, 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
ADMINISTRATION
AND SERVICING OF
MORTGAGE LOANS
Section
3.01. Servicer
to Service Mortgage Loans.
(a) For
and
on behalf of the Certificateholders, the Servicer shall service and administer
the Mortgage Loans in accordance with the terms of this Agreement and the
respective Mortgage Loans, to the extent consistent with such terms and in
accordance with Accepted Servicing Practices but without regard to:
(i) any
relationship that the Servicer, any Subservicer or any Affiliate of the Servicer
or any Subservicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make P&I Advances or Servicing Advances;
or
(iv) the
Servicer’s or any Subservicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer shall seek to maximize
the
timely and complete recovery of principal and interest on the related Mortgage
Notes. Subject only to the above-described servicing standards and the terms
of
this Agreement and of the respective Mortgage Loans, the Servicer shall have
full power and authority, acting alone or through Subservicers as provided
in
Section 3.02, to do or cause to be done any and all things in connection
with such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, the Servicer in its own
name
or in the name of a Subservicer is hereby authorized and empowered by the
Trustee when the Servicer believes it appropriate in its best judgment in
accordance with the Accepted Servicing Practices, to execute and deliver
any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings
or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on
behalf
of the Trustee. The Servicer shall service and administer the Mortgage Loans
in
accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. The Servicer
shall also comply in the performance of this Agreement with all reasonable
rules
and requirements of each insurer under any standard hazard insurance policy.
Subject to Section 3.16, the Trustee shall execute, at the written request
of the Servicer, and furnish to the Servicer and any Subservicer such documents
as are necessary or appropriate to enable the Servicer or any Subservicer
to
carry out their servicing and administrative duties hereunder, and the Trustee
hereby grants to the Servicer, and this Agreement shall constitute, a power
of
attorney to carry out such duties including a power of attorney to take title
to
Mortgaged Properties after foreclosure on behalf of the Trustee. The Trustee
shall execute any power of attorney, in the form annexed hereto as
Exhibit L, furnished to it by the Servicer in favor of the Servicer for the
purposes described herein to the extent necessary or desirable to enable
the
Servicer to perform its duties hereunder. The Trustee shall not be liable
for
the actions of the Servicer or any Subservicers under such powers of attorney,
or any actions taken by the Servicer or any Subservicer pursuant to the powers
granted to them under this paragraph.
(b) Subject
to Section 3.09(b), in accordance with Accepted Servicing Practices, the
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the timely payment of taxes and assessments on the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable
in
the first instance from related collections from the Mortgagors pursuant
to
Section 3.09(b), and further as provided in Section 3.11. Any cost
incurred by the Servicer or by Subservicers in effecting the timely payment
of
taxes and assessments on a Mortgaged Property shall not be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the
terms
of such Mortgage Loan so permit.
(c) Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any
future
advances with respect to a Mortgage Loan (except as provided in
Section 4.01) and the Servicer shall not (i) permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest
Rate,
reduce or increase the principal balance (except for reductions resulting
from
actual payments of principal) or change the final maturity date on such Mortgage
Loan (except for (A) a reduction of interest payments resulting from the
application of the Servicemembers Civil Relief Act, as amended, or any similar
state statutes or (B) as provided in Section 3.07, if the Mortgagor is
in default with respect to the Mortgage Loan or such default is, in the judgment
of the Servicer, reasonably foreseeable) or (ii) permit any modification,
waiver or amendment of any term of any Mortgage Loan that would both
(A) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or final, temporary or proposed Treasury
regulations promulgated thereunder) and (B) cause any Trust REMIC to fail
to qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions after the start-up day” under the REMIC
Provisions, or (iii) except as provided in Section 3.07(a), waive any
Prepayment Premiums.
(d) The
Servicer may delegate its responsibilities under this Agreement; provided,
however,
that no
such delegation shall release the Servicer from the responsibilities or
liabilities arising under this Agreement.
(e) In
the
event of any change in the outstanding rating by Xxxxx’x of the Servicer as a
servicer of residential mortgage loans, the Servicer shall provide written
notice of such change to the Master Servicer within five (5) Business Days
of
such change.
(f) If,
on
any date of determination, the Servicer fails the Servicer Enhanced Review
Test,
the Servicer shall promptly submit a completed form in the form of Exhibit
Q to
the Master Servicer with respect to any Realized Losses, together with any
supporting documentation reasonably requested by the Master Servicer, and
shall
continue to submit completed forms in the form of Exhibit Q, and related
supporting documentation as requested by the Master Servicer, in connection
with
any subsequent Realized Losses.
Section
3.02. Subservicing
Agreements between the Servicer and Subservicers.
(a) The
Servicer may enter into subservicing agreements with subservicers (each,
a
“Subservicer”), for the servicing and administration of the Mortgage Loans
(“Subservicing Agreements”).
(b) Each
Subservicer shall be (i) authorized to transact business in the state or
states in which the related Mortgaged Properties it is to service are situated,
if and to the extent required by applicable law to enable the Subservicer
to
perform its obligations hereunder and under the Subservicing Agreement and
(ii) an institution approved as a mortgage loan originator by the Federal
Housing Administration or an institution that has deposit accounts insured
by
the FDIC. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and
provide for servicing of the Mortgage Loans consistent with the terms of
this
Agreement. The Servicer will examine each Subservicing Agreement and will
be
familiar with the terms thereof. The terms of any Subservicing Agreement
will
not be inconsistent with any of the provisions of this Agreement. The Servicer
and the Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements;
provided,
however,
that
any such amendments or different forms shall be consistent with and not violate
the provisions of this Agreement, and that no such amendment or different
form
shall be made or entered into which could be reasonably expected to be
materially adverse to the interests of the Trustee, without the consent of the
Trustee. Any variation without the consent of the Trustee from the provisions
set forth in Section 3.08 relating to insurance or priority requirements of
Subservicing Accounts, or credits and charges to the Subservicing Accounts
or
the timing and amount of remittances by the Subservicers to the Servicer,
are
conclusively deemed to be inconsistent with this Agreement and therefore
prohibited. The Servicer shall deliver to the Trustee, the Master Servicer,
the
Swap Administrator, the Trust Administrator and the Depositor copies of all
Subservicing Agreements, and any amendments or modifications thereof, promptly
upon the Servicer’s execution and delivery of such instruments.
Any
Subservicing Agreement and any other transactions or services relating to
the
Mortgage Loans involving a Subservicer shall be deemed to be between the
Subservicer and the Servicer alone, and the Depositor, the Master Servicer,
the
Swap Administrator, the Trust Administrator and the Trustee shall have no
obligations, duties or liabilities with respect to a Subservicer including
no
obligation, duty or liability of the Depositor, the Master Servicer, the
Swap
Administrator, the Trust Administrator or Trustee, to pay a Subservicer’s fees
and expenses.
For
purposes of this Agreement, the Servicer shall be deemed to have received
any
collections, recoveries or payments with respect to the related Mortgage
Loans
that are received by a related Subservicer regardless of whether such payments
are remitted by the Subservicer to the Servicer.
(c) As
part
of its servicing activities hereunder, the Servicer (except as otherwise
provided in the last sentence of this paragraph), for the benefit of the
Trustee, shall enforce the obligations of each Subservicer under the related
Subservicing Agreement to which the Servicer is a party, including, without
limitation, any obligation to make advances in respect of delinquent payments
as
required by a Subservicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Subservicing
Agreements, and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Servicer, in its
good
faith business judgment, would require were it the owner of the related Mortgage
Loans. The Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting
from such enforcement, to the extent, if any, that such recovery exceeds
all
amounts due in respect of the related Mortgage Loans or (ii) from a
specific recovery of costs, expenses or attorneys’ fees against the party
against whom such enforcement is directed.
The
Servicer shall pay all fees, expenses or penalties necessary in order to
terminate the rights and responsibilities of its Subservicer from the Servicer’s
own funds without any right of reimbursement from the Depositor, the Trustee,
the Master Servicer, the Swap Administrator, the Trust Administrator, the
Swap
Account or the Collection Account.
Section
3.03. Successor
Subservicers.
The
Servicer shall be entitled to terminate any Subservicing Agreement to which
the
Servicer is a party and the rights and obligations of any Subservicer pursuant
to any Subservicing Agreement in accordance with the terms and conditions
of
such Subservicing Agreement. In the event of termination of any Subservicer,
all
servicing obligations of such Subservicer shall be assumed simultaneously
by the
Servicer party to the related Subservicing Agreement without any act or deed
on
the part of such Subservicer or the Servicer, and the Servicer either shall
service directly the related Mortgage Loans or shall enter into a Subservicing
Agreement with a successor Subservicer which qualifies under
Section 3.02.
Any
Subservicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Master Servicer, the Trustee or the Trust
Administrator without fee, in accordance with the terms of this Agreement,
in
the event that the Servicer (or the Master Servicer, the Trust Administrator
or
the Trustee, if then acting as Servicer) shall, for any reason, no longer
be the
Servicer (including termination due to a Servicer Event of
Default).
Section
3.04. Liability
of the Servicer.
Notwithstanding
any Subservicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of
Section 3.01 without diminution of such obligation or liability by virtue
of such Subservicing Agreements or arrangements or by virtue of indemnification
from the Subservicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering such
Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with
a Subservicer for indemnification of the Servicer by such Subservicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
Section
3.05. No
Contractual Relationship between Subservicers and the Trustee, Master Servicer,
Swap Administrator, Trust Administrator or Certificateholder.
Any
Subservicing Agreement that may be entered into and any transactions or services
relating to the Mortgage Loans involving a Subservicer in its capacity as
such
shall be deemed to be between the Subservicer and the Servicer alone, and
the
Trustee, the Master Servicer, the Swap Administrator, the Trust Administrator
and the Certificateholder (or any successor to the Servicer) shall not be
deemed
a party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in
Section 3.06. The Servicer shall be solely liable for all fees owed by it
to any Subservicer, irrespective of whether the Servicer’s compensation pursuant
to this Agreement is sufficient to pay such fees.
Section
3.06. Assumption
or Termination of Subservicing Agreements by Master Servicer, Trustee or
Trust
Administrator.
In
the
event the Servicer at any time shall for any reason no longer be the Servicer
(including by reason of the occurrence of a Servicer Event of Default), the
Master Servicer or any other successor to Servicer pursuant to this Agreement,
shall thereupon assume all of the rights and obligations of the Servicer
under
each Subservicing Agreement that the Servicer may have entered into, with
copies
thereof provided to the Master Servicer prior to the Master Servicer assuming
such rights and obligations, unless the Master Servicer elects to terminate
any
Subservicing Agreement in accordance with its terms as provided in
Section 3.03.
Upon
such
assumption, the Master Servicer, its designee or the successor servicer shall
be
deemed, subject to Section 3.03, to have assumed all of the Servicer’s
interest therein and to have replaced the Servicer as a party to each
Subservicing Agreement to the same extent as if each Subservicing Agreement
had
been assigned to the assuming party, except that (i) the Servicer shall not
thereby be relieved of any liability or obligations under any Subservicing
Agreement that arose before it ceased to be the Servicer and (ii) none of
the Trustee, the Trust Administrator, the Master Servicer, their designees
or
any successor to the Servicer shall be deemed to have assumed any liability
or
obligation of the Servicer that arose before it ceased to be the
Servicer.
The
Servicer at its expense shall, upon request of the Master Servicer, the Trust
Administrator or the Trustee, deliver to the assuming party all documents
and
records relating to each Subservicing Agreement and the Mortgage Loans then
being serviced by it and an accounting of amounts collected and held by or
on
behalf of it, and otherwise use its best efforts to effect the orderly and
efficient transfer of the Subservicing Agreements to the assuming
party.
Section
3.07. Collection
of Certain Mortgage Loan Payments.
(a) The
Servicer shall make reasonable efforts to collect all payments called for
under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures as
it
would follow with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the due dates for the
Scheduled Payments due on a Mortgage Note for a period of not greater than
180 days; provided,
that
any extension pursuant to clause (ii) above shall not affect the
amortization schedule of any Mortgage Loan for purposes of any computation
hereunder, except as provided below. In the event of any such arrangement
pursuant to clause (ii) above, the Servicer shall make timely advances on
such Mortgage Loan during such extension pursuant to Section 4.01 and in
accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to
Section 4.01(d) pursuant to which the Servicer shall not be required to
make any such advances that are Nonrecoverable P&I Advances. Notwithstanding
the foregoing, in the event that any Mortgage Loan is in default or is a
60+ Day
Delinquent Mortgage Loan, the Servicer, consistent with the standards set
forth
in Section 3.01, may also waive, modify or vary any term of such Mortgage
Loan
(including modifications that would change the Mortgage Interest Rate, forgive
the payment of principal or interest, extend the final maturity date of such
Mortgage Loan or waive, in whole or in part, a Prepayment Premium), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of such Mortgage Loan, or consent to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as “forbearance”); provided, however, that the Servicer’s
approval of a modification of a Due Date shall not be considered a modification
for purposes of this sentence; provided,
further,
that
the final maturity date of any Mortgage Loan may not be extended beyond the
Final Scheduled Distribution Date for the Offered Certificates. The Servicer’s
analysis supporting any forbearance and the conclusion that any forbearance
meets the standards of Section 3.01 shall be reflected in writing in the
applicable Servicing File. In addition, notwithstanding the foregoing, the
Servicer may also waive, in whole or in part, a Prepayment Premium if such
Prepayment Premium is (i) not permitted to be collected by applicable law
or the collection thereof would be considered “predatory” pursuant to written
guidance published by any applicable federal, state or local regulatory
authority having jurisdiction over such matters, or (ii) the enforceability
thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership
or other similar laws relating to creditor’s rights or (2) due to
acceleration in connection with a foreclosure or other involuntary payment.
In
order to waive a Prepayment Premium other than as permitted above, then the
Servicer, as a condition to any such waiver of Prepayment Premium, is required
to first pay the amount of such waived Prepayment Premium, for the benefit
of
the Holders of the Class P Certificates, by depositing such amount into the
Collection Account together with and at the time that the amount prepaid
on the
related Mortgage Loan is required to be deposited into the Collection Account
(the “Servicer Prepayment Payment Amounts”); provided,
however,
that
(i) the Servicer shall not have an obligation to pay the amount of any
uncollected Prepayment Premium if the failure to collect such amount is the
direct result of inaccurate or incomplete information on the Mortgage Loan
Schedule in effect at such time
and (ii)
any such amount shall be deemed paid outside REMIC I, REMIC II,
REMIC III, REMIC IV or REMIC V from the Servicer to the holder of
the Class P Interest and then to the Holders of the Class P
Certificates.
(b) The
Servicer shall give notice to the Trustee, the Trust Administrator, the Master
Servicer, each Rating Agency and the Depositor of any proposed change of
the
location of the Collection Account within a reasonable period of time prior
to
any change thereof.
Section
3.08. Subservicing
Accounts.
In
those
cases where a Subservicer is servicing a Mortgage Loan pursuant to a
Subservicing Agreement, the Subservicer will be required to establish and
maintain one or more accounts (collectively, the “Subservicing Account”). The
Subservicing Account shall be an Eligible Account and shall otherwise be
acceptable to the Servicer. The Subservicer shall deposit in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more
than
one Business Day after the Subservicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Subservicer less its servicing compensation
to
the extent permitted by the Subservicing Agreement, and shall thereafter
deposit
such amounts in the Subservicing Account, in no event more than two Business
Days after the deposit of such funds into the clearing account. The Subservicer
shall thereafter deposit such proceeds in the Collection Account of the Servicer
or remit such proceeds to the Servicer for deposit in the Collection Account
of
the Servicer not later than two Business Days after the deposit of such amounts
in the Subservicing Account. For purposes of this Agreement, the Servicer
shall
be deemed to have received payments on the Mortgage Loans when the Subservicer
receives such payments.
Section
3.09. Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
(a) The
Servicer shall ensure that each of the related Mortgage Loans shall be covered
by a paid-in-full, life-of-the-loan tax service contract in effect with respect
to each related Mortgage Loan (each, a “Tax Service Contract”). Each Tax Service
Contract shall be assigned to the Trustee, or its designee, at the Servicer’s
expense in the event that the Servicer is terminated as Servicer of the related
Mortgage Loan.
(b) To
the
extent that the services described in this paragraph (b) are not otherwise
provided pursuant to the Tax Service Contracts described in paragraph (a)
hereof, the Servicer undertakes to perform such functions. To the extent
the
related Mortgage Loan provides for Escrow Payments, the Servicer shall establish
and maintain, or cause to be established and maintained, one or more accounts
(the “Escrow Accounts”), which shall be Eligible Accounts. The Servicer shall
deposit in the clearing account (which account must be an Eligible Account)
in
which it customarily deposits payments and collections on mortgage loans
in
connection with its mortgage loan servicing activities on a daily basis,
and in
no event more than one Business Day after the Servicer’s receipt thereof, all
collections from the Mortgagors (or related advances from Subservicers) for
the
payment of taxes, assessments, hazard insurance premiums and comparable items
for the account of the Mortgagors (“Escrow Payments”) collected on account of
the Mortgage Loans and shall thereafter deposit such Escrow Payments in the
Escrow Accounts, in no event more than two Business Days after the deposit
of
such funds in the clearing account, for the purpose of effecting the payment
of
any such items as required under the terms of this Agreement. Withdrawals
of
amounts from an Escrow Account may be made only to (i) effect payment of
taxes, assessments, hazard insurance premiums, and comparable items;
(ii) reimburse the Servicer (or a Subservicer to the extent provided in the
related Subservicing Agreement) out of related collections for any advances
made
pursuant to Section 3.01 (with respect to taxes and assessments) and
Section 3.13 (with respect to hazard insurance); (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) apply to the
restoration or repair of the Mortgaged Property in accordance with the Section
3.13; (v) transfer to the Collection Account and application to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
related Mortgage and Mortgage Note; (vi) pay interest to the Servicer and,
if required and as described below, to Mortgagors on balances in the Escrow
Account; (vii) clear and terminate the Escrow Account at the termination of
the Servicer’s obligations and responsibilities in respect of the related
Mortgage Loans under this Agreement; or (viii) recover amounts deposited in
error. As part of its servicing duties, the Servicer or Subservicers shall
pay
to the Mortgagors interest on funds in Escrow Accounts, to the extent required
by law and, to the extent that interest earned on funds in the Escrow Accounts
is insufficient, to pay such interest from its or their own funds, without
any
reimbursement therefor. To the extent that a Mortgage does not provide for
Escrow Payments, the Servicer shall use commercially reasonable efforts
consistent with Accepted Servicing Practices to determine whether any such
payments are made by the Mortgagor in a manner and at a time that avoids
the
loss of the Mortgaged Property due to a tax sale or the foreclosure as a
result
of a tax lien. The Servicer assumes full responsibility for the payment of
all
such bills within such time and shall effect payments of all such bills
irrespective of the Mortgagor’s faithful performance in the payment of same or
the making of the Escrow Payments and shall make advances from its own funds
to
effect such payments; provided,
however,
that
such advances are deemed to be Servicing Advances.
Section
3.10. Collection
Account.
(a) On
behalf
of the Trustee, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more segregated Eligible Accounts (such
account or accounts, the “Collection Account”), held in trust for the benefit of
the Trustee. On behalf of the Trustee, the Servicer shall deposit or cause
to be
deposited in the clearing account (which account must be an Eligible Account)
in
which it customarily deposits payments and collections on mortgage loans
in
connection with its mortgage loan servicing activities on a daily basis,
and in
no event more than one Business Day after the Servicer’s receipt thereof, and
shall thereafter deposit in the Collection Account, in no event more than
two
Business Days after the deposit of such funds into the clearing account,
as and
when received or as otherwise required hereunder, the following payments
and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or
before
the Cut-off Date), or payments (other than Principal Prepayments) received
by it
on or prior to the related Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee) on each Mortgage
Loan;
(iii) all
Insurance Proceeds and Condemnation Proceeds (to the extent such Insurance
Proceeds and Condemnation Proceeds are not to be applied to the restoration
of
the related Mortgaged Property or released to the related Mortgagor in
accordance with the express requirements of law or in accordance with prudent
and customary servicing practices) and all Liquidation Proceeds;
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection
with any losses realized on Permitted Investments with respect to funds held
in
the Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.13(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
this
Agreement;
(vii) all
Substitution Shortfall Amounts; and
(viii) all
Prepayment Premiums collected by the Servicer.
The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges, NSF fees,
reconveyance fees, assumption fees and other similar fees and charges need
not
be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the Servicer shall deposit in the Collection Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Collection Account, any provision herein to the contrary
notwithstanding.
(b) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. The Servicer shall give
notice to the Trust Administrator, the Master Servicer and the Depositor
of the
location of the Collection Account maintained by it when established and
prior
to any change thereof.
Section
3.11. Withdrawals
from the Collection Account.
(a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in
Section 4.01:
(i) on
or
prior to the Remittance Date, to remit to the Trust Administrator for deposit
into the Distribution Account all Available Funds in respect of the related
Distribution Date together with all amounts representing Prepayment Premiums
from the Mortgage Loans received during the related Prepayment
Period;
(ii) to
reimburse the Servicer for P&I Advances, but only to the extent of amounts
received which represent Late Collections (net of the related Servicing Fees)
of
Scheduled Payments on Mortgage Loans with respect to which such P&I Advances
were made in accordance with the provisions of Section 4.01;
(iii) to
pay
the Servicer or any Subservicer (A) any unpaid Servicing Fees or
(B) any unreimbursed Servicing Advances with respect to each Mortgage Loan,
but only to the extent of any Late Collections, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds or other amounts as may be collected
by the Servicer from a Mortgagor, or otherwise received with respect to such
Mortgage Loan (or the related REO Property);
(iv) to
pay to
the Servicer as servicing compensation (in addition to the Servicing Fee)
on the
Remittance Date any interest or investment income earned on funds deposited
in
the Collection Account;
(v) to
pay to
the Originator, with respect to each Mortgage Loan that has previously been
repurchased or replaced pursuant to this Agreement all amounts received thereon
subsequent to the date of purchase or substitution, as the case may
be;
(vi) to
reimburse the Servicer for (A) any P&I Advance or Servicing Advance
previously made which the Servicer has determined to be a Nonrecoverable
P&I
Advance or Nonrecoverable Servicing Advance in accordance with the provisions
of
Section 4.01 and (B) any unpaid Servicing Fees to the extent not
recoverable from Liquidation Proceeds, Insurance Proceeds or other amounts
received with respect to the related Mortgage Loan under Section
3.11(a)(iii);
(vii) to
pay,
or to reimburse the Servicer for advances in respect of, expenses incurred
in
connection with any Mortgage Loan pursuant to Section 3.15;
(viii) to
reimburse the Servicer, the Depositor, the Master Servicer, the Swap
Administrator, the Trust Administrator or the Trustee for expenses incurred
by
or reimbursable to the Servicer, the Depositor, the Trustee, the Master Servicer
or the Trust Administrator, as the case may be, pursuant to this
Agreement;
(ix) to
reimburse the Servicer, the Master Servicer, the Swap Administrator, the
Trust
Administrator or the Trustee, as the case may be, for expenses reasonably
incurred in respect of the breach or defect giving rise to the repurchase
obligation under Section 2.03 of this Agreement that were included in the
Repurchase Price of the Mortgage Loan, including any expenses arising out
of the
enforcement of the repurchase obligation, to the extent not otherwise paid
pursuant to the terms hereof;
(x) to
withdraw any amounts deposited in the Collection Account in error;
and
(xi) to
clear
and terminate the Collection Account upon termination of this
Agreement.
To
the
extent that the Servicer does not timely make the remittance referred to
in
clause (i) above, the Servicer shall pay the Trust Administrator for the
account
of the Trust Administrator interest on any amount not timely remitted at
the
prime rate, from and including the applicable Remittance Date to but excluding
the date such remittance is actually made.
(b) The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan
by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Collection Account, to the extent held by or on behalf of it, pursuant to
subclauses (a)(ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix) above.
The Servicer shall provide written notification to the Depositor, on or prior
to
the next succeeding Remittance Date, upon making any withdrawals from the
Collection Account pursuant to subclause (a)(vi) above.
Section
3.12. Investment
of Funds in the Collection Account and the Distribution Account.
(a) The
Servicer may invest the funds in the Collection Account and the Trust
Administrator may invest funds in the Distribution Account (for purposes
of this
Section 3.12, each such Account is referred to as an “Investment Account”),
in one or more Permitted Investments bearing interest or sold at a discount,
and
maturing, unless payable on demand, no later than the Business Day on which
such
funds are required to be withdrawn from such account pursuant to this Agreement
(or, in the case of investments not managed or advised by the Trust
Administrator or an affiliate thereof, the Business Day prior to such date).
All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds in an Investment Account shall be made in the name
of
the Trust Administrator. The Trust Administrator shall be entitled to sole
possession (except with respect to investment direction of funds held in
the
Collection Account and any income and gain realized thereon) over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Trust Administrator or its
agent,
together with any document of transfer necessary to transfer title to such
investment to the Trust Administrator. In the event amounts on deposit in
an
Investment Account are at any time invested in a Permitted Investment payable
on
demand, the Trust Administrator may:
|
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn
on such date; and
|
|
(y)
|
demand
payment of all amounts due thereunder to the extent that such Permitted
Investment would not constitute a Permitted Investment in respect
of funds
thereafter on deposit in the Investment
Account.
|
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account and Escrow Account held by or on behalf of the Servicer,
shall be for the benefit of the Servicer and shall be subject to its withdrawal
in the manner set forth in Section 3.11. Any other benefit derived from the
Collection Account and Escrow Account associated with the receipt, disbursement
and accumulation of principal, interest, taxes, hazard insurance, mortgage
blanket insurance, and like sources, shall accrue to the benefit of the
Servicer, except that the Servicer shall not realize any economic benefit
from
any forced charging of services. The Servicer shall deposit in the Collection
Account and Escrow Account the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All
income and gain realized from the investment of funds deposited in the
Distribution Account held by the Trust Administrator, shall be for the benefit
of the Trust Administrator. The Trust Administrator shall deposit in the
Distribution Account the amount of any loss of principal incurred in respect
of
any such Permitted Investment made with funds in such accounts immediately
upon
realization of such loss.
(d) Except
as
otherwise expressly provided in this Agreement, if any default occurs in
the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(e) The
Trustee and the Trust Administrator or their respective Affiliates are permitted
to receive additional compensation that could be deemed to be in their
respective economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments.
Section
3.13. Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage.
(a) The
Servicer shall cause to be maintained for each Mortgage Loan fire insurance
with
extended coverage on the related Mortgaged Property in an amount which is
at
least equal to the least of (i) the current principal balance of such
Mortgage Loan, (ii) the amount necessary to fully compensate for any damage
or loss to the improvements that are a part of such property on a replacement
cost basis, (iii) the maximum insurable value of the improvements which are
a part of such Mortgaged Property, and (iv) the amount determined by
applicable federal or state law, in each case in an amount not less than
such
amount as is necessary to avoid the application of any coinsurance clause
contained in the related hazard insurance policy. The Servicer shall also
cause
to be maintained fire insurance with extended coverage on each REO Property
in
an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements which are a part of such property and
(ii) the outstanding principal balance of the related Mortgage Loan at the
time it became an REO Property, plus accrued interest at the Mortgage
Interest Rate and related Servicing Advances. The Servicer will comply in
the
performance of this Agreement with all reasonable rules and requirements
of each
insurer under any such hazard policies. Any amounts to be collected by any
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or
amounts
to be released to the Mortgagor in accordance with the procedures that the
Servicer would follow in servicing loans held for its own account, subject
to
the terms and conditions of the related Mortgage and Mortgage Note) shall
be
deposited in the Collection Account, subject to withdrawal pursuant to
Section 3.11. If
the
Mortgagor fails to provide Mortgage Loan hazard insurance coverage after
thirty
(30) days of Servicer’s written notification, the Servicer shall put in place
such hazard insurance coverage on the Mortgagor’s behalf. Any out-of-pocket
expense or advance made by the Servicer on such force placed hazard insurance
coverage shall be deemed a Servicing Advance. Any cost incurred by any Servicer
in maintaining any such insurance shall not, for the purpose of calculating
distributions to the Trust Administrator, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. It is understood and agreed that no earthquake or
other
additional insurance is to be required of any Mortgagor other than pursuant
to
such applicable laws and regulations as shall at any time be in force and
as
shall require such additional insurance. If the Mortgaged Property or
REO Property is at any time in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood hazards
and
flood insurance has been made available, the Servicer will cause to be
maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss
on a
replacement cost basis (or the unpaid principal balance of the related Mortgage
Loan if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under
the Flood Disaster Protection Act of 1973, as amended. If at any time during
the
term of the Mortgage Loan, the Servicer determines in accordance with applicable
law and pursuant to the Federal Emergency Management Agency Guides that a
Mortgaged Property is located in a special flood hazard area and is not covered
by flood insurance or is covered in an amount less than the amount required
by
the Flood Disaster Protection Act of 1973, as amended, the Servicer shall
notify
the related Mortgagor to obtain such flood insurance coverage, and if said
Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Servicer shall immediately
force place the required flood insurance on the Mortgagor’s behalf. Any
out-of-pocket expense or advance made by the Servicer on such force placed
flood
insurance coverage shall be deemed a Servicing Advance.
In
the
event that any Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy Rating of “B” or better in Best’s (or such other
rating that is comparable to such rating) insuring against hazard losses
on all
of the Mortgage Loans, it shall conclusively be deemed to have satisfied
its
obligations as set forth in the first two sentences of this Section 3.13,
it being understood and agreed that such policy may contain a deductible
clause,
in which case the Servicer shall, in the event that there shall not have
been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 3.13, and there shall have
been one or more losses which would have been covered by such policy, deposit
to
the Collection Account from its own funds the amount not otherwise payable
under
the blanket policy because of such deductible clause. In connection with
its
activities as administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee claims under
any
such blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of the Servicer’s obligations under this Agreement. The Servicer
shall provide the Trustee or Trust Administrator upon request with copies
of any
such insurance policies and fidelity bond. The Servicer shall be deemed to
have
complied with this provision if an Affiliate of the Servicer has such errors
and
omissions and fidelity bond coverage and, by the terms of such insurance
policy
or fidelity bond, the coverage afforded thereunder extends to the Servicer.
Any
such errors and omissions policy and fidelity bond shall by its terms not
be
cancelable without thirty days’ prior written notice to the Trustee. The
Servicer shall also cause each Subservicer to maintain a policy of insurance
covering errors and omissions and a fidelity bond which would meet such
requirements.
Section
3.14. Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that the Servicer
shall
not be required to take such action if, in its sole business judgment, the
Servicer believes it is not in the best interests of the Trust Fund and shall
not exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into an assumption
and
modification agreement from or with the person to whom such property has
been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note, and, to the extent permitted by applicable
state
law, the Mortgagor remains liable thereon. The Servicer is also authorized
to
enter into a substitution of liability agreement with such person, pursuant
to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note;
provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and such substitution
is in
the best interest of the Certificateholders as determined by the Servicer.
In
connection with any assumption, modification or substitution, the Servicer
shall
apply such underwriting standards and follow such practices and procedures
as
shall be normal and usual in its general mortgage servicing activities and
as it
applies to other mortgage loans owned solely by it. The Servicer shall not
take
or enter into any assumption and modification agreement, however, unless
(to the
extent practicable in the circumstances) it shall have received confirmation,
in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution
of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of
the
Mortgage Note (including but not limited to the related Mortgage Interest
Rate
and the amount of the Scheduled Payment) may be amended or modified, except
as
otherwise required pursuant to the terms thereof and in accordance with Section
3.01(c) herein. The Servicer shall notify the Trustee that any such
substitution, modification or assumption agreement has been completed by
forwarding to the Trustee the executed original of such substitution or
assumption agreement, which document shall be added to the related Mortgage
File
and shall, for all purposes, be considered a part of such Mortgage File to
the
same extent as all other documents and instruments constituting a part
thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.14, the term “assumption” is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section
3.15. Realization
upon Defaulted Mortgage Loans.
The
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. The Servicer shall use reasonable
efforts to realize upon such defaulted Mortgage Loans in such manner as will
maximize the receipt of principal and interest by the Trust Fund, taking
into
account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which a Mortgaged
Property shall have suffered damage from an uninsured cause, the Servicer
shall
not be required to expend its own funds toward the restoration of such property
unless it shall determine in its sole discretion (i) that such restoration
will increase the net proceeds of liquidation of the related Mortgage Loan
to
the Trust Fund, after reimbursement to itself for such expenses, and
(ii) that such expenses will be recoverable by the Servicer through
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds from the
related Mortgaged Property, as contemplated in Section 3.11. The Servicer
shall be responsible for all other costs and expenses incurred by it in any
such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related property, as contemplated in
Section 3.11.
The
proceeds of any Liquidation Event or REO Disposition, as well as any recovery
resulting from a partial collection of Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds or any income from an REO Property, will be applied
in
the following order of priority: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances, pursuant to
Section 3.11 or 3.17; second, to accrued and unpaid interest on the
Mortgage Loan or REO Imputed Interest, at the Mortgage Interest Rate, to
the date of the liquidation or REO Disposition, or to the Due Date prior to
the Remittance Date on which such amounts are to be distributed if not in
connection with a Liquidation Event or REO Disposition; third, to reimburse
any
Servicer for any related xxxxxxxxxxxx X&X Advances, pursuant to
Section 3.11; and fourth, as a recovery of principal of the Mortgage Loan.
If the amount of the recovery so allocated to interest is less than a full
recovery thereof, that amount will be allocated as follows: first, to unpaid
Servicing Fees; and second, as interest at the Mortgage Interest Rate (net
of
the Servicing Fee Rate). The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to the Servicer or any Subservicer pursuant
to Section 3.11 or 3.17. The portions of the recovery so allocated to
interest at the Mortgage Interest Rate (net of the Servicing Fee Rate) and
to
principal of the Mortgage Loan shall be applied as follows: first, to reimburse
the Servicer or any Subservicer for any related unreimbursed Servicing Advances
in accordance with Section 3.11 or 3.17, and second, to the Trust
Administrator for distribution in accordance with the provisions of
Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Servicer has
received actual notice of, or has actual knowledge of the presence of, hazardous
or toxic substances or wastes on the related Mortgaged Property, or if the
Trustee otherwise requests, the Servicer shall cause an environmental inspection
or review of such Mortgaged Property to be conducted by a qualified inspector.
Upon completion of the inspection, the Servicer shall promptly provide the
Trustee and the Depositor with a written report of the environmental
inspection.
After
reviewing the environmental inspection report, the Depositor shall determine
how
the Servicer shall proceed with respect to the Mortgaged Property. In the
event
(a) the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes and
(b) the Depositor directs the Servicer to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
for all reasonable costs associated with such foreclosure or acceptance of
a
deed in lieu of foreclosure and any related environmental clean-up costs,
as
applicable, from the related Liquidation Proceeds, or if the Liquidation
Proceeds are insufficient to fully reimburse the Servicer, the Servicer shall
be
entitled to be reimbursed from amounts in the Collection Account pursuant
to
Section 3.11. In the event the Depositor directs the Servicer not to
proceed with foreclosure or acceptance of a deed in lieu of foreclosure,
the
Servicer shall be reimbursed from general collections for all Servicing Advances
made with respect to the related Mortgaged Property from the Collection Account
pursuant to Section 3.11. Neither the Trustee nor the Master Servicer shall
be responsible for any direction given by the Depositor to the Servicer pursuant
to this paragraph.
Section
3.16. Release
of Mortgage Files.
(a) Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full shall be escrowed in a manner customary
for
such purposes, the Servicer will, within five (5) Business Days of the payment
in full, notify the Trustee or the Trust Administrator, as applicable, by
a
certification (which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment which
are
required to be deposited in the Collection Account pursuant to Section 3.10
have been or will be so deposited) of a Servicing Officer and shall request
delivery to it of the Custodial File by completing a Request for Release
(in the
form of Exhibit J or in an electronic format acceptable to the Trust
Administrator). Upon receipt of such certification and Request for Release,
the
Trustee or Trust Administrator shall promptly release the related Custodial
File
to the Servicer within three (3) Business Days. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be
chargeable to the Collection Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any Insurance Policy
relating to the Mortgage Loans, the Trustee or Trust Administrator, as
applicable, shall, upon request of the Servicer and delivery to the Trustee
or
Trust Administrator, as applicable, of a Request for Release (in the form
of
Exhibit J or in an electronic format acceptable to the Trust
Administrator), release the related Custodial File to the Servicer, and the
Trustee or Trust Administrator shall, at the direction of the Servicer, execute
such documents provided to it as shall be necessary to the prosecution of
any
such proceedings and the Servicer shall retain the Mortgage File in trust
for
the benefit of the Trustee. Such Request for Release shall obligate the Servicer
to return each and every document previously requested from the Custodial
File
to the Trustee or Trust Administrator, as applicable, when the need therefor
by
the Servicer no longer exists, unless the Mortgage Loan has been liquidated
and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in
the Collection Account or the Mortgage File or such document has been delivered
to an attorney, or to a public trustee or other public official as required
by
law, for purposes of initiating or pursuing legal action or other proceedings
for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered to the Trustee or Trust
Administrator, as applicable, a certificate of a Servicing Officer certifying
as
to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan
was liquidated and that all amounts received or to be received in connection
with such liquidation that are required to be deposited into the Collection
Account have been so deposited, or that such Mortgage Loan has become an
REO
Property, a copy of the Request for Release shall be released by the Trustee
or
Trust Administrator, as applicable, to the Servicer or its designee. Upon
receipt of a Request for Release under this Section 3.16, the Trustee or
Trust Administrator, as applicable, shall deliver the related Custodial File
to
the Servicer by overnight courier (such delivery to be at the Servicer’s
expense); provided,
however,
that in
the event the Servicer has not previously received copies of the relevant
Mortgage Loan Documents necessary to service the related Mortgage Loan in
accordance with Accepted Servicing Practices, the Originator shall reimburse
the
Servicer for any overnight courier charges incurred for the requested Custodial
Files.
Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to any Servicer copies of any court pleadings, requests for trustee’s
sale or other documents reasonably necessary to the foreclosure or trustee’s
sale in respect of a Mortgaged Property or to any legal action brought to
obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain
a
deficiency judgment, or to enforce any other remedies or rights provided
by the
Mortgage Note or Mortgage or otherwise available at law or in equity, or
shall
exercise and deliver to the Servicer a power of attorney sufficient to authorize
the Servicer to execute such documents on its behalf. Each such certification
shall include a request that such pleadings or documents be executed by the
Trustee and a statement as to the reason such documents or pleadings are
required and that the execution and delivery thereof by the Trustee will
not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee’s sale.
Notwithstanding anything to the contrary herein, the Trustee shall in no
way be
liable or responsible for the willful malfeasance of the Servicer, or for
any
wrongful or negligent actions taken by the Servicer, while the Servicer is
acting pursuant to the powersgranted to it in this paragraph.
Section
3.17. Title,
Conservation and Disposition of REO Property.
(a) This
Section shall apply only to REO Properties acquired for the account of the
Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
Servicer shall cause the deed or certificate of sale to be issued in the
name of
the Trustee, on behalf of the Certificateholders, or the Trustee’s
nominee.
(b) The
Servicer shall manage, conserve, protect and operate each REO Property for
the Trustee solely for the purpose of its prompt disposition and sale. The
Servicer, either itself or through an agent selected by the Servicer, shall
manage, conserve, protect and operate the REO Property in the same manner
that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Servicer shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Servicer deems
to
be in the best interest of the Trustee.
(c) [Reserved.]
(d) The
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall deposit such funds in the Collection
Account.
(e) The
Servicer shall deposit net of reimbursement to the Servicer for any related
outstanding Servicing Advances and unpaid Servicing Fees provided in
Section 3.11, or cause to be deposited, on a daily basis in the Collection
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property.
(f) The
Servicer, upon an REO Disposition, shall be entitled to reimbursement for
any
related unreimbursed Servicing Advances as well as any unpaid Servicing Fees
from proceeds received in connection with the REO Disposition, as further
provided in Section 3.11.
(g) Any
net
proceeds from an REO Disposition which are in excess of the unpaid principal
balance of the related Mortgage Loan plus all unpaid REO Imputed Interest
thereon through the date of the REO Disposition shall be retained by the
Servicer as additional servicing compensation.
(h) The
Servicer shall use Accepted Servicing Practices, to sell, or cause the
Subservicer to sell, any REO Property as soon as possible, but in no event
later
than the conclusion of the third calendar year beginning after the year of
its
acquisition by the REMIC unless (i) the Servicer applies for, and is
granted, an extension of such period from the Internal Revenue Service pursuant
to the REMIC Provisions and Code Section 856(e)(3), in which event such
REO Property shall be sold within the applicable extension period, or
(ii) the Servicer obtains for the Trustee an Opinion of Counsel, addressed
to the Depositor, the Trustee, the Trust Administrator and the Servicer,
to the
effect that the holding by REMIC I of such REO Property subsequent to such
period will not result in the imposition of taxes on “prohibited transactions”
as defined in Section 860F of the Code or cause any Trust REMIC to fail to
qualify as a REMIC under the REMIC Provisions or comparable provisions of
relevant state laws at any time. The Servicer shall manage, conserve, protect
and operate each REO Property for the Trustee solely for the purpose of its
prompt disposition and sale in a manner which does not cause such REO Property
to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) or result in the receipt by any REMIC of any “income
from non-permitted assets” within the meaning of Section 860F(a)(2)(B) of
the Code or any “net income from foreclosure property” which is subject to
taxation under Section 860G(a)(1) of the Code. Pursuant to its efforts to
sell such REO Property, the Servicer shall either itself or through an agent
selected by the Servicer protect and conserve such REO Property in the same
manner and to such extent as is customary in the locality where such
REO Property is located and may, incident to its conservation and
protection of the interests of the Trustee on behalf of the Certificateholders,
rent the same, or any part thereof, as the Servicer deems to be in the best
interest of the Trustee on behalf of the Certificateholders for the period
prior
to the sale of such REO Property; provided,
however,
that
any rent received or accrued with respect to such REO Property qualifies
as
“rents from real property” as defined in Section 856(d) of the
Code.
Neither
the Trustee nor the Master Servicer has any obligation with respect to REO
Dispositions.
Section
3.18. Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Servicer shall adjust
the
Mortgage Interest Rate on the related Adjustment Date and shall adjust the
Scheduled Payment on the related mortgage payment adjustment date, if
applicable, in compliance with the requirements of applicable law and the
related Mortgage and Mortgage Note. The Servicer shall execute and deliver
any
and all necessary notices required under applicable law and the terms of
the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Scheduled Payment adjustments. The Servicer shall promptly, upon written
request
therefor, deliver to the Trustee, the Trust Administrator and the Master
Servicer such notifications and any additional applicable data regarding
such
adjustments and the methods used to calculate and implement such adjustments.
Upon the discovery by the Servicer or the receipt of notice from the Trustee,
the Trust Administrator or the Master Servicer that the Servicer has failed
to
adjust a Mortgage Interest Rate or Scheduled Payment in accordance with the
terms of the related Mortgage Note, the Servicer shall deposit in the Collection
Account from its own funds the amount of any interest loss caused as such
interest loss occurs.
Section
3.19. Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
Servicer shall provide, or cause the Subservicer to provide, to the Depositor,
the Trustee, the Trust Administrator, the Master Servicer, the OTS or the
FDIC
and the examiners and supervisory agents thereof, access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge, but
only
upon 15 days’ (or, if a Servicer Event of Default has occurred and is
continuing, 2 days’) prior written request and during normal business hours at
the offices of the Servicer or any Subservicer. Nothing in this Section shall
derogate from the obligation of any such party to observe any applicable
law
prohibiting disclosure of information regarding the Mortgagors and the failure
of any such party to provide access as provided in this Section as a result
of such obligation shall not constitute a breach of this Section.
Section
3.20. Documents,
Records and Funds in Possession of the Servicer to Be Held for the
Trustee.
The
Servicer shall account fully to the Trustee for any funds received by the
Servicer or which otherwise are collected by the Servicer as Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds in respect of any Mortgage
Loan. All Mortgage Files and funds collected or held by, or under the control
of, the Servicer in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, including,
but
not limited to, any funds on deposit in the Collection Account, shall be
held by
the Servicer for and on behalf of the Trustee and shall be and remain the
sole
and exclusive property of the Trustee, subject to the applicable provisions
of
this Agreement. The Servicer also agrees that it shall not create, incur
or
subject any Mortgage File or any funds that are deposited in the Collection
Account, the Distribution Account or any Escrow Account, or any funds that
otherwise are or may become due or payable to the Trustee for the benefit
of the
Certificateholders, to any claim, lien, security interest, judgment, levy,
writ
of attachment or other encumbrance, or assert by legal action or otherwise
any
claim or right of setoff against any Mortgage File or any funds collected
on, or
in connection with, a Mortgage Loan, except, however, that the Servicer shall
be
entitled to set off against and deduct from any such funds any amounts that
are
properly due and payable to the Servicer under this Agreement.
Section
3.21. Servicing
Compensation.
(a) As
compensation for its activities hereunder, the Servicer shall, with respect
to
each Mortgage Loan, be entitled to retain from deposits to the Collection
Account and from Liquidation Proceeds, Insurance Proceeds, and Condemnation
Proceeds related to such Mortgage Loan, the Servicing Fee with respect to
each
Mortgage Loan (less any portion of such amounts retained by any Subservicer).
In
addition, the Servicer shall be entitled to recover unpaid Servicing Fees
out of
related late collections and as otherwise permitted in Section 3.11. Except
as provided in Section 6.06, the right to receive the Servicing Fee may not
be
transferred in whole or in part except in connection with the transfer of
all of
the Servicer’s responsibilities and obligations under this Agreement;
provided,
however,
that
the Servicer may pay from the Servicing Fee any amounts due to a Subservicer
pursuant to a Subservicing Agreement entered into under
Section 3.02.
(b) Additional
servicing compensation in the form of assumption or modification fees, late
payment charges, NSF fees, reconveyance fees and other similar fees and charges
(other than Prepayment Premiums) shall be retained by the Servicer only to
the
extent such fees or charges are received by the Servicer. The Servicer shall
also be entitled pursuant to Sections 3.09(b)(vi) and 3.11(a)(iv) to
withdraw from the Collection Account, as additional servicing compensation,
interest or other income earned on deposits therein.
(c) The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder (including payment of premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.13,
servicing compensation of any Subservicer to the extent not retained by such
Subservicer and the fees and expenses of independent accountants and any
agents
appointed by the Servicer), and shall not be entitled to reimbursement therefor
except as specifically provided in Section 3.11.
Section
3.22. Annual
Statement as to Compliance.
The
Servicer, Master Servicer and the Trust Administrator shall deliver (or
otherwise make available) (and the Trustee, the Master Servicer and Trust
Administrator shall cause any Servicing Function Participant engaged by it
to
deliver) to the Depositor and the Trust Administrator on or before March
1 (with
a ten-calendar day cure period) of each year, commencing in March 2007, an
Officer’s Certificate stating, as to the signer thereof, that (a) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, has been made
under
such officer’s supervision and (b) to the best of such officer’s knowledge,
based on such review, such party has fulfilled all its obligations under
this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in
any
material respect, specifying each such failure known to such officer and
the
nature and status thereof.
The
Master Servicer shall include all annual statements of compliance received
by it
from each Servicer with its own annual statement of compliance to be submitted
to the Trust Administrator pursuant to this Section.
In
the
event the Servicer, Master Servicer, the Trust Administrator or any Servicing
Function Participant engaged by any such party is terminated or resigns pursuant
to the terms of this Agreement, or any applicable agreement in the case of
a
Servicing Function Participant, as the case may be, such party shall provide
an
Officer’s Certificate pursuant to this Section 3.22 or to such applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
Section
3.23. Report
on Assessment of Compliance and Attestation.
(a) By
March
1 (with a ten-calendar day cure period) of each year, commencing in March
2007,
the Servicer, Master Servicer and the Trust Administrator, each at its own
expense, shall furnish or otherwise make available, and each such party shall
cause any Servicing Function Participant engaged by it to furnish, each at
its
own expense, to the Trust Administrator and the Depositor, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains
(i)
a statement by such party of its responsibility for assessing compliance
with
the Relevant Servicing Criteria, (ii) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (iii) such party’s assessment of compliance with the Relevant
Servicing Criteria as of and for the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 4.07, including, if there has been
any
material instance of noncompliance with the Relevant Servicing Criteria,
a
discussion of each such failure and the nature and status thereof, and (iv)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Master Servicer and the Trustee shall each forward to the Trust
Administrator and the Depositor the name of each Servicing Function Participant
engaged by it and what Relevant Servicing Criteria will be addressed in the
report on assessment of compliance prepared by such Servicing Function
Participant (provided, however, that the Master Servicer need not provide
such
information to the Trust Administrator so long as the Master Servicer and
the
Trust Administrator are the same Person). When the Master Servicer and the
Trust
Administrator (or any Servicing Function Participant engaged by them) submit
their assessments to the Trust Administrator, such parties will also at such
time include the assessment and attestation pursuant to Section 3.23(b) of
each
Servicing Function Participant engaged by it.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Trust Administrator and any Servicing Function Participant
engaged
by such parties as to the nature of any material instance of noncompliance
with
the Relevant Servicing Criteria by each such party, and (ii) the Trust
Administrator shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit S and on any similar exhibit
set
forth in each Servicing Agreement in respect of each Servcier and notify
the
Depositor of any exceptions.
The
Master Servicer shall include all annual reports on assessment of compliance
received by it from the Servicers with its own assessment of compliance to
be
submitted to the Trust Administrator pursuant to this Section.
In
the
event the Master Servicer, the Trust Administrator or any Servicing Function
Participant engaged by any such party is terminated, assigns its rights and
obligations under, or resigns pursuant to, the terms of this Agreement, or
any
other applicable agreement, as the case may be, such party shall provide
a
report on assessment of compliance pursuant to this Section 3.23(a), or to
such
other applicable agreement, notwithstanding any such termination, assignment
or
resignation.
(b) By
March
1 (with a ten-calendar day cure period) of each year, commencing in March
2007,
the Servicer, the Master Servicer and the Trust Administrator, each at its
own
expense, shall cause, and each such party shall cause any Servicing Function
Participant engaged by it to cause, each at its own expense, a registered
public
accounting firm (which may also render other services to the Master Servicer,
the Trustee, the Trust Administrator, or such other Servicing Function
Participants, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish an attestation report to the Trust
Administrator and the Depositor, to the effect that (i) it has obtained a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (ii) on the basis of an examination conducted by
such
firm in accordance with standards for attestation engagements issued or adopted
by the PCAOB, it is expressing an opinion as to whether such party’s compliance
with the Relevant Servicing Criteria was fairly stated in all material respects,
or it cannot express an overall opinion regarding such party’s assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall
state
in such report why it was unable to express such an opinion. Such report
must be
available for general use and not contain restricted use language.
Promptly
after receipt of each such assessment of compliance and attestation report,
the
Trust Administrator shall confirm that each assessment submitted pursuant
to
Section 3.23(a) is coupled with an attestation meeting the requirements of
this
Section and notify the Depositor of any exceptions.
The
Master Servicer shall include each such attestation furnished to it by the
Servicers with its own attestation to be submitted to the Trust Administrator
pursuant to this Section.
In
the
event the Master Servicer, the Trust Administrator, any Servicer or any
Servicing Function Participant engaged by any such party, is terminated,
assigns
its rights and duties under, or resigns pursuant to the terms of, this
Agreement, or any applicable Custodial Agreement, Servicing Agreement or
sub-servicing agreement, as the case may be, such party shall cause a registered
public accounting firm to provide an attestation pursuant to this Section
3.23(b), or such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
Section
3.24. Master
Servicer to Act as Servicer.
(a) In
the
event that the Servicer shall for any reason no longer be the Servicer hereunder
(including by reason of a Servicer Event of Default), the Master Servicer
or its
successor shall thereupon assume all of the rights and obligations of the
Servicer hereunder arising thereafter (except that the Master Servicer shall
not
be (i) liable for losses of such predecessor Servicer pursuant to
Section 3.10 or any acts or omissions of such predecessor Servicer
hereunder, (ii) obligated to make Advances if it is prohibited from doing
so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder, including but not limited to
repurchases or substitutions pursuant to Section 2.03,
(iv) responsible for expenses of the Servicer pursuant to Section 2.03
or (v) deemed to have made any representations and warranties of the
Servicer hereunder). Any such assumption shall be subject to
Section 7.02.
(b) If
the
Servicer shall for any reason no longer be the Servicer (including by reason
of
any Servicer Event of Default), the Master Servicer (or any other successor
Servicer) may, at its option, succeed to any rights and obligations of the
Servicer under any Subservicing Agreement in accordance with the terms thereof;
provided,
that
the Master Servicer (or any other successor Servicer) shall not incur any
liability or have any obligations in its capacity as successor Servicer under
a
Subservicing Agreement arising prior to the date of such succession unless
it
expressly elects to succeed to the rights and obligations of the Servicer
thereunder; and the Servicer shall not thereby be relieved of any liability
or
obligations under the Subservicing Agreement arising prior to the date of
such
succession.
(c) The
Servicer shall, upon request of the Master Servicer, but at the expense of
the
Servicer, deliver to the assuming party all documents and records relating
to
each Subservicing Agreement (if any) and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected and held by it and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreement to the assuming party.
Section
3.25. Compensating
Interest.
The
Servicer shall remit to the Trust Administrator for deposit into the
Distribution Account on each Remittance Date an amount from its own funds
equal
to Compensating Interest payable by the Servicer for such Remittance
Date.
Section
3.26. Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act.
(a) With
respect to each Mortgage Loan, the Servicer shall fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on the related
Mortgagor credit files to three of the national credit repositories, on a
monthly basis.
(b) The
Servicer shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999
and all
applicable regulations promulgated thereunder relating to the Mortgage Loans
and
the related borrowers, and shall provide all required notices
thereunder.
Section
3.27. Net
WAC Rate Carryover Reserve Account; Distribution Account;
Swap
Account.
(a) The
Trust
Administrator shall establish and maintain the Net WAC Rate Carryover Reserve
Account, on behalf of the Holders of the Class C Certificates, to receive
any
Net WAC Rate Carryover Payments and any Net Swap Payments and to pay to the
Holders of the LIBOR Certificates any Net WAC Rate Carryover Amounts. On
each
Distribution Date on which there is a Net WAC Rate Carryover Amount, the
Trust
Administrator has been directed by the Class C Certificateholders to, and
therefore shall, deposit the amount of any such payments in respect of Net
WAC
Rate Carryover Amounts otherwise distributable to the Class C Certificateholder
(on behalf of the Class C Interest) for such date into the Net WAC Rate
Carryover Reserve Account. The Net WAC Rate Carryover Account shall not be
an
asset of any Trust REMIC.
On
each
Distribution Date on which there exists a Net WAC Rate Carryover Amount on
any
Class of LIBOR Certificates, the Trust Administrator shall (1) withdraw
from the Distribution Account and deposit in the Net WAC Rate Carryover Reserve
Account, as set forth in Section 4.02(a)(iii)(P), the lesser of the Class C
Distributable Amount as paid from the Class C Interest to the Class C
Certificateholder (to the extent remaining after the distributions specified
in
Sections 4.02(a)(iii)(A)-(O)) and the aggregate Net WAC Rate Carryover
Amount and (2) withdraw from the Net WAC Rate Carryover Reserve Account
amounts necessary to pay to such Class or Classes of Certificates the applicable
Net WAC Rate Carryover Amounts. Such payments shall be allocated to those
Classes based upon the amount of Net WAC Rate Carryover Amount owed to each
such
Class and shall be paid in the priority set forth in Sections
4.02(a)(iii)(P)(1)-(2). In the event that the Certificate Principal Balance
of
any Class of Subordinate Certificates is permanently reduced because of
Allocated Realized Loss Amounts, the applicable Certificateholders will not
be
entitled (except to the extent of Subsequent Recoveries and as otherwise
set
forth herein) to receive Net WAC Rate Carryover Amounts on the written down
amounts on such Distribution Date or any future Distribution Dates, even
if
funds are otherwise available for distribution, unless the Certificate Principal
Balance of such Certificate is later restored through Subsequent
Recoveries.
The
Trust
Administrator shall account for the Net WAC Rate Carryover Reserve Account
as an
outside reserve fund within the meaning of Treasury Regulations
Section 1.860G-2(h) and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Net WAC Rate Carryover Reserve
Account are the Holders of the Class C Certificates (on behalf of the Class
C
Interest). For all federal income tax purposes, amounts transferred to the
Net
WAC Rate Carryover Reserve Account shall be treated as first distributed
by the
Trust Administrator from REMIC III to the Holders of the Class C Interest
and then from the Holders of the Class C Interest to the Class C Certificates,
and then contributed by the Holders of the Class C Certificates to the Net
WAC
Rate Carryover Reserve Account.
Any
Net
WAC Rate Carryover Amounts paid by the Trust Administrator to the Holders
of the
LIBOR Certificates shall be accounted for by the Trust Administrator as amounts
paid first to the Holders of the Class
C Certificates in respect of the Class C Interest and then to the respective
Class or Classes of LIBOR
Certificates. In addition, the Trust Administrator shall account for the
rights
of Holders of each Class of LIBOR Certificates to receive payments of Net
WAC
Rate Carryover Amounts as rights in a separate limited recourse interest
rate
cap contract written by the Holders of the Class C Certificates in respect
of
the Class C Interest in favor of Holders of each such Class.
Notwithstanding
any provision contained in this Agreement, the Trust Administrator shall
not be
required to make any payments from the Net WAC Rate Carryover Reserve Account
except as expressly set forth in this Section 3.27(a).
(b) The
Trust
Administrator shall establish and maintain the Distribution Account on behalf
of
the Certificateholders. The Trust Administrator shall, promptly on the Business
Day received, deposit in the Distribution Account and retain therein the
following:
(i) the
aggregate amount remitted by the Servicer to the Trust Administrator pursuant
to
Section 3.11;
(ii) any
amount deposited by the Servicer pursuant to Section 3.12(b) in connection
with any losses on Permitted Investments; and
(iii) any
other
amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that the Servicer shall remit any amount not required to be remitted,
the
Servicer may at any time direct the Trust Administrator in writing to withdraw
such amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering notice
to the
Trust Administrator which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall
be
held by the Trust Administrator in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 4.02.
(c) The
Swap
Administrator shall establish and maintain the Swap Account as a segregated
trust account on behalf of the Certificateholders. On each Distribution Date,
the Swap Administrator shall deposit certain amounts, if any, received from
the
Swap Provider from which distributions in respect of unpaid Current Interest,
Unpaid Interest Shortfall Amounts, Net WAC Rate Carryover Amounts, amounts
necessary to maintain the applicable Overcollateralization Target Amount
and
Allocated Realized Loss Amounts on the Subordinate Certificates will be made.
The Swap Account will be an asset of the Trust but not of any
REMIC.
On
each
Distribution Date, prior to any distribution to any Certificate, the Trust
Administrator shall deposit into the Swap Account: (i) the amount of any
Net
Swap Payment or Swap Termination Payment owed to the Swap Provider (after
taking
into account any upfront payment received from the counterparty to a replacement
swap agreement) from funds collected and received with respect to the Mortgage
Loans prior to the determination of Available Funds and (ii) amounts received
by
the Trust Administrator from the Swap Administrator, for distribution as
described below, pursuant to the Swap Administration Agreement. For federal
income tax purposes, any amounts paid to the Swap Provider on each Distribution
Date shall first be deemed paid to the Swap Provider in respect of the Class
SWAP-IO Interest to the extent of the amount distributable on such Class
SWAP-IO
Interest on such Distribution Date, and any remaining amount shall be deemed
paid to the Swap Provider in respect of a Class IO Distribution Amount (as
defined below).
For
federal income tax purposes, the Swap Account shall be beneficially owned
by the
Holders of the Class C Certificates.
The
Trust
Administrator shall treat the Holders of Certificates (other than the Class
P,
Class C, Class R and Class R-X Certificates) as having entered into a notional
principal contract with respect to the Holders of the Class C Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class C, Class R and Class R-X Certificates) shall
be
treated as having agreed to pay, on each Distribution Date, to the Holder
of the
Class C Certificates an aggregate amount equal to the excess, if any, of
(i) the
amount payable on such Distribution Date on the REMIC III Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable
on such
Class of Certificates on such Distribution Date (such excess, a “Class IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the amount of interest otherwise payable to such
Certificates, and a Class IO Distribution Amount payable from principal
collections shall be allocated to the most subordinate Class of Certificates
with an outstanding principal balance to the extent of such balance. In
addition, pursuant to such notional principal contract, the Holder of the
Class
C Certificates shall be treated as having agreed to pay Net WAC Rate Carryover
Amounts to the Holders of the Certificates (other than the Class C, Class
P,
Class R and Class R-X Certificates) in accordance with the terms of this
Agreement. Any payments to the Certificates from amounts deemed received
in
respect of this notional principal contract shall not be payments with respect
to a Regular Interest in a REMIC within the meaning of Code Section 860G(a)(1).
However, any payment from the Certificates (other than the Class C, Class
P,
Class R and Class R-X Certificates) of a Class IO Distribution Amount shall
be
treated for tax purposes as having been received by the Holders of such
Certificates in respect of their regular interests in REMIC III and as
having been paid by such Holders to the Swap Administrator pursuant to the
notional principal contract. Thus, each Certificate (other than the Class
P,
Class R and Class R-X Certificates) shall be treated as representing not
only
ownership of a regular interest in REMIC III for purposes of the REMIC
provisions, but also ownership of an interest in, and obligations with respect
to, a notional principal contract.
Section
3.28. Optional
Purchase of Delinquent Mortgage Loans.
The
Depositor, in its sole discretion, shall have the option, but shall not be
obligated, to purchase any 90+ Delinquent Mortgage Loans from the Trust Fund.
The purchase price for any such Mortgage Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued and unpaid interest
on the
related Mortgage Loan at the applicable Mortgage Interest Rate, plus the
amount
of any unreimbursed Servicing Advances made by the Servicer. Upon receipt
of
such purchase price, the Servicer shall provide to the Trustee or Trust
Administrator, as applicable, a Request for Release and the Trustee or Trust
Administrator, as applicable, shall promptly release to the Depositor, the
Mortgage File relating to the Mortgage Loan being repurchased.
Section
3.29. REMIC-Related
Covenants.
For
as
long as each Trust REMIC shall exist, the Servicer shall act in accordance
herewith to treat such Trust REMIC as a REMIC, and the Servicer shall comply
with any directions of the Trustee or the Trust Administrator to assure such
continuing treatment. In particular, the Servicer shall not (a) sell or permit
the sale of all or any portion of the Mortgage Loans or of any investment
of
deposits in either the Collection Account or the Distribution Account unless
such sale is as a result of a repurchase of the Mortgage Loans pursuant to
this
Agreement or the Trustee and Trust Administrator has received an Opinion
of
Counsel prepared at the expense of the Trust Fund stating that such contribution
will not result in an Adverse REMIC Event (as defined in Section 11.01(f));
and
(b) other than with respect to a substitution pursuant to the Mortgage Loan
Purchase Agreement or Section 2.03 of this Agreement, as applicable, accept
any
contribution to any Trust REMIC after the Startup Day (as defined in Section
11.01(b)) without receipt of an Opinion of Counsel stating that such
contribution will not result in an Adverse REMIC Event (as defined in Section
11.01(f)).
ARTICLE
IIIA
ADMINISTRATION
AND MASTER SERVICING OF
THE
MORTGAGE LOANS BY THE MASTER SERVICER
Section
3A.01 Master
Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicer to service and administer the Mortgage Loans in accordance with
the
terms of the Agreement and shall have full power and authority to do any
and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with
the
Servicer as necessary from time-to-time to carry out the Master Servicer’s
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by the Servicer
and
shall cause the Servicer to perform and observe the covenants, obligations
and
conditions to be performed or observed by the Servicer under this Agreement.
The
Master Servicer shall independently and separately monitor the Servicer’s
servicing activities with respect to each related Mortgage Loan, reconcile
the
results of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments to the
Servicer’s and Master Servicer’s records. The Master Servicer shall reconcile
the results of its Mortgage Loan monitoring with the actual remittances of
the
Servicer to the Distribution Account pursuant to the terms hereof based on
information provided to the Master Servicer by the Trust Administrator pursuant
to the third paragraph of Section 8.01. Notwithstanding any provision of
this
Agreement to the contrary, the Master Servicer shall have no duty or obligation
to confirm or verify the amounts reported by the Servicer as Realized Losses
with respect to any Determination Date unless the Servicer shall have failed
the
Servicer Enhanced Review Test for such Determination Date.
The
Trustee shall furnish the Master Servicer with any limited powers of attorney
and other documents in form acceptable to it that are necessary or appropriate
to enable the Master Servicer to perform its master servicing obligations.
The
Trustee shall have no responsibility for any action of the Master Servicer
pursuant to any such limited power of attorney and shall be indemnified by
the
Master Servicer, as applicable, for any cost, liability or expense incurred
by
the Trustee in connection with the Master Servicer’s misuse of any such power of
attorney.
The
Master Servicer shall provide access to the records and documentation in
possession of the Master Servicer regarding the related Mortgage Loans and
REO
Property and the servicing thereof to the Certificateholders, the FDIC, and
the
supervisory agents and examiners of the FDIC, such access being afforded
only
upon reasonable prior written request and during normal business hours at
the
office of the Master Servicer; provided, however, that, unless otherwise
required by law, the Master Servicer shall not be required to provide access
to
such records and documentation if the provision thereof would violate the
legal
right to privacy of any Mortgagor. The Master Servicer shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Master Servicer’s actual costs.
Section
3A.02 REMIC-Related
Covenants.
For
as
long as each Trust REMIC shall exist, the Master Servicer shall act in
accordance herewith to treat such Trust REMIC as a REMIC, and the Master
Servicer shall comply with any directions of the Trustee or the Trust
Administrator to assure such continuing treatment. In particular, the Master
Servicer shall not (a) sell all or any portion of the Mortgage Loans or of
any
investment of deposits in either the Collection Account or the Distribution
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee and Trust Administrator has received
an Opinion of Counsel prepared at the expense of the Trust Fund stating that
such contribution will not result in an Adverse REMIC Event (as defined in
Section 11.01(f)); and (b) other than with respect to a substitution pursuant
to
the Mortgage Loan Purchase Agreement or Section 2.03 of this Agreement, as
applicable, accept any contribution to any Trust REMIC after the Startup
Day (as
defined in Section 11.01(b)) without receipt of an Opinion of Counsel stating
that such contribution will not result in an Adverse REMIC Event (as defined
in
Section 11.01(f)).
Section
3A.03 Monitoring
of Servicer.
(a) Subject
to Section 3A.01, The Master Servicer shall be responsible for monitoring
compliance by the Servicer with its duties under this Agreement. In the review
of the Servicer’s activities, the Master Servicer may rely upon an Officer’s
Certificate of the Servicer with regard to the Servicer’s compliance with the
terms of this Agreement. In the event that the Master Servicer, in its judgment,
determines that the Servicer should be terminated in accordance with the
terms
hereof, or that a notice should be sent pursuant to the terms hereof with
respect to the occurrence of an event that, unless cured, would constitute
a
Servicer Event of Default, the Master Servicer shall notify the Servicer
and the
Trustee thereof and the Master Servicer shall issue such notice or take such
other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicer under this Agreement, and shall,
in the event that the Servicer fails to perform its obligations in accordance
with this Agreement, subject to the preceding paragraph and Article VII,
cause
the Trustee to terminate the rights and obligations of the Servicer hereunder
in
accordance with the provisions of Article VII. Such enforcement, including,
without limitation, the legal prosecution of claims and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, provided
that the Master Servicer shall not be required to prosecute or defend any
legal
action except to the extent that the Master Servicer shall have received
reasonable indemnity for its costs and expenses in pursuing such
action.
(c) The
Master Servicer shall be entitled to be reimbursed by the Servicer (or from
amounts on deposit in the Distribution Account if the Servicer does not timely
fulfill its obligations hereunder) for all reasonable out-of-pocket or third
party costs associated with the transfer of servicing from the predecessor
Servicer (or if the predecessor Servicer is the Master Servicer, from the
Servicer immediately preceding the Master Servicer), including without
limitation, any reasonable out-of-pocket or third party 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 to service the Mortgage Loans
properly and effectively, upon presentation of reasonable documentation of
such
costs and expenses.
(d) Subject
to Section 3A.01, the Master Servicer shall require the Servicer to comply
with
the remittance requirements and other obligations set forth in this
Agreement.
(e) If
the
Master Servicer acts as successor Servicer, it will not assume liability
for the
representations and warranties of the terminated Servicer.
(f) The
Master Servicer shall not be liable for any acts or omissions of the
Servicer.
Section
3A.04 Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on
such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
Section
3A.05 Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article XI, to do any and all things that it may deem necessary or desirable
in
connection with the master servicing and administration of the Mortgage Loans;
provided, however, that the Master Servicer shall not knowingly or intentionally
take any action, or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as
the
case may be, would cause any REMIC created hereunder to fail to qualify as
a
REMIC or result in the imposition of a tax upon the Trust Fund (including
but
not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in
Section 860G(d) of the Code) unless the Master Servicer has received an Opinion
of Counsel (but not at the expense of the Master Servicer) to the effect
that
the contemplated action will not cause any REMIC created hereunder to fail
to
qualify as a REMIC or result in the imposition of a tax upon any REMIC created
hereunder. The Trustee shall execute and deliver such other documents, as
the
Master Servicer or the Servicer may request, to enable the Master Servicer
to
master service and administer the Mortgage Loans and carry out its duties
hereunder, in each case in accordance with Accepted Master Servicing Practices.
If the Master Servicer or the Trustee has been advised that it is likely
that
the laws of the state in which action is to be taken prohibit such action
if
taken in the name of the Trustee or that the Trustee would be adversely affected
under the “doing business” or tax laws of such state if such action is taken in
its name, the Master Servicer shall join with the Trustee in the appointment
of
a co-trustee pursuant to Section 8.10. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall
not,
except in those instances where it is taking action in the name of the Trustee,
be deemed to be the agent of the Trustee. The Trustee shall have no
responsibility for any action of the Master Servicer or the Servicer taken
pursuant to any document delivered by the Trustee under this Section
3A.05.
Section
3A.06 Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicer to enforce such clauses in accordance with
this Agreement.
Section
3A.07 Documents,
Records and Funds in Possession of Master Servicer To Be
Held
for Trustee.
(a) The
Master Servicer shall transmit to the Trustee or the Trust Administrator
such
documents and instruments coming into the possession of the Master Servicer
from
time to time as are required by the terms hereof to be delivered to the Trustee
or the Trust Administrator. Any funds received by the Master Servicer in
respect
of any Mortgage Loan or which otherwise are collected by the Master Servicer
as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall
be remitted to the Trust Administrator for deposit in the Distribution Account.
The Master Servicer shall, and, subject to Section 3.19, shall cause the
Servicer to, provide access to information and documentation regarding the
Mortgage Loans to the Trustee, its agents and accountants at any time upon
reasonable request and during normal business hours, and to Certificateholders
that are savings and loan associations, banks or insurance companies, the
Office
of Thrift Supervision, the FDIC and the supervisory agents and examiners
of such
Office and Corporation or examiners of any other federal or state banking
or
insurance regulatory authority if so required by applicable regulations of
the
Office of Thrift Supervision or other regulatory authority, such access to
be
afforded without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by
it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b) All
funds
collected or held by, or under the control of, the Master Servicer, in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, shall be remitted
to the Trust Administrator for deposit in the Distribution Account.
Section
3A.08 [RESERVED].
Section
3A.09 Compensation
for the Master Servicer.
As
compensation for the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to all investment income on funds on deposit in
the
Distribution Account. The compensation owing to the Master Servicer in respect
of any Distribution Date shall be reduced as applicable in accordance with
Section 3A.12. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its ordinary activities hereunder and shall
not be entitled to reimbursement therefor except as provided in this
Agreement.
Section
3A.10 [RESERVED].
Section
3A.11 [RESERVED].
Section
3A.12 Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
In
the
event that the Servicer fails to perform on any Remittance Date its obligations
pursuant to Section 3.25, the Master Servicer shall remit to the Trust
Administrator not later than the Distribution Date an amount equal to the
lesser
of (i) the aggregate amounts required to be paid by the Servicer with respect
to
Prepayment Interest Shortfalls attributable to Principal Prepayments on the
related Mortgage Loans for the related Distribution Date, and not so paid
by the
Servicer and (ii) the Master Servicing Fee for such Distribution Date, without
reimbursement therefor.
ARTICLE
IV
DISTRIBUTIONS
AND ADVANCES BY THE
SERVICER
Section
4.01. Advances.
(a) The
amount of P&I Advances to be made by the Servicer for any Remittance Date
shall equal, subject to Section 4.01(c), the sum of (i) the aggregate
amount of Scheduled Payments (with each interest portion thereof net of the
Servicing Fee), due during the Due Period immediately preceding such Remittance
Date in respect of the first lien Mortgage Loans, which Scheduled Payments
were
not received as of the close of business on the related Determination Date,
plus
(ii) with respect to each REO Property, which REO Property was acquired
during or prior to the related Prepayment Period and as to which such REO
Property an REO Disposition did not occur during the related Prepayment Period,
an amount equal to the excess, if any, of the Scheduled Payments (with REO
Imputed Interest) that would have been due on the related Due Date in respect
of
the related Mortgage Loan, over the net income from such REO Property
transferred to the Collection Account for distribution on such Remittance
Date.
(b) On
each
Remittance Date, the Servicer shall remit in immediately available funds
to the
Trust Administrator for deposit into the Distribution Account an amount equal
to
the aggregate amount of P&I Advances, if any, to be made in respect of the
Mortgage Loans and REO Properties for the related Remittance Date either
(i) from its own funds or (ii) from the Collection Account, to the
extent of funds held therein for future distribution (in which case, it will
cause to be made an appropriate entry in the records of the Collection Account
that Amounts Held for Future Distribution have been, as permitted by this
Section 4.01, used by the Servicer in discharge of any such P&I
Advance) or (iii) in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made by the Servicer with
respect to the Mortgage Loans and REO Properties. Any Amounts Held for Future
Distribution and so used shall be appropriately reflected in the Servicer’s
records and replaced by the Servicer by deposit in the Collection Account
on or
before any future Remittance Date to the extent required.
(c) The
obligation of the Servicer to make such P&I Advances on first lien Mortgage
Loans is mandatory, notwithstanding any other provision of this Agreement
but
subject to (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith
or
the removal thereof from coverage under this Agreement, except as otherwise
provided in this Section.
The
Servicer may, but will not be obligated (i) to make any Advances of principal
on
any REO property or any second lien Mortgage Loan or (ii) to make any Advances
with respect to reductions in the amount of the monthly payments on the Mortgage
Loans due to bankruptcy proceedings or the application of the Relief Act
or any
similar state law.
(d) Notwithstanding
anything herein to the contrary, no P&I Advance or Servicing Advance shall
be required to be made hereunder by the Servicer if such P&I Advance or
Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. The determination by the Servicer that
it has
made a Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance or
that any proposed P&I Advance or Servicing Advance, if made, would
constitute a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance, respectively, shall be evidenced by an Officer’s Certificate of the
Servicer delivered to the Trustee, the Master Servicer and the Trust
Administrator. The Master Servicer shall be entitled to rely on any
non-recoverability analysis made by the Servicer.
(e) Except
as
otherwise provided herein, the Servicer shall be entitled to reimbursement
pursuant to Section 3.11 for Advances from recoveries from the related
Mortgagor or from all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds) with respect to
the
related Mortgage Loan.
Section
4.02. Priorities
of Distribution.
(a) On
each
Distribution Date, the Trust Administrator shall make the disbursements and
transfers from amounts then on deposit in the Distribution Account in the
following order of priority and to the extent of the Available Funds
remaining:
(i) Interest
remittances shall be distributed as follows:
(I) the
Group
1 Interest Remittance Amount for such Distribution Date will be distributed
in
the following manner:
(A) concurrently,
to the Holders of the Group 1 Certificates, on a pro
rata
basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, for such Class;
and
(B) concurrently,
to the Holders of the Group 2 Certificates, on a pro
rata
basis
based on the entitlement of each such Class, an amount equal to the excess
if
any, of (x) the amount required to be distributed pursuant to clause (II)(A)
for
such Distribution Date over (y) the amount actually distributed pursuant
to such
clause from the Group 2 Interest Remittance Amount.
(II) the
Group
2 Interest Remittance Amount for such Distribution Date will be distributed
in
the following manner:
(A) concurrently,
to the Holders of the Group 2 Certificates, on a pro
rata
basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, for each such Class;
and
(B) concurrently,
to the Holders of the Group 1 Certificates, on a pro
rata basis
based on the entitlement of each such class, an amount equal to the excess,
if
any, of (x) the amount required to be distributed pursuant to clause (I)(A)
for
such Distribution Date over (y) the amount actually distributed pursuant
to such
clause from the Group 1 Interest Remittance Amount; and
(III) following
the distributions made pursuant to clauses (I) and (II) above, the remaining
Group 1 Interest Remittance Amount and Group 2 Interest Remittance Amount
will
be distributed in the following manner:
(A) first,
to
the Holders of the Class M-1 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class;
(B) second,
to the Holders of the Class M-2 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class;
(C) third,
to
the Holders of the Class M-3 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class;
(D) fourth,
to the Holders of the Class M-4 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class;
(E) fifth,
to
the Holders of the Class M-5 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class;
(F) sixth,
to
the Holders of the Class M-6 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class;
(G) seventh,
to the Holders of the Class M-7 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class;
(H) eighth,
to the Holders of the Class M-8 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class;
(I) ninth,
to
the Holders of the Class M-9 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class; and
(J) tenth,
to
the Holders of the Class M-10 Certificates, the related Monthly Interest
Distributable Amount, if any, for such Class.
(ii)
Principal remittances shall be distributed as follows:
(I) On
each
Distribution Date (x) prior to the Stepdown Date or (y) if a Trigger Event
is in
effect:
(A) distributions
of principal to the extent of the Group 1 Principal Distribution Amount shall
be
distributed in the following amounts and order of priority:
(1) first,
to
the Holders of the Group 1 Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class, until the
Certificate Principal Balances thereof have been reduced to zero;
and
(2) second,
after taking into account the amount distributed to the Holders of the Group
2
Certificates on such Distribution Date in respect of principal, to the holders
of the Group 2 Certificates, based on the entitlement of each such Class
pursuant to the priorities set forth in clause (ii)(I)(B), until the Certificate
Principal Balances thereof have been reduced to zero.
(B) Distributions
in respect of principal to the extent of the Group 2 Principal Distribution
Amount shall be distributed in the following amounts and order of priority:
(1) first,
to
the Holders of the Class 2-A-1 Certificates until the Certificate Principal
Balance thereof has been reduced to zero;
(2) second,
to the Holders of the Class 2-A-2 Certificates until the Certificate Principal
Balance thereof has been reduced to zero;
(3) third,
to
the Holders of the Class 2-A-3 Certificates until the Certificate Principal
Balance thereof has been reduced to zero;
(4) fourth,
to the Holders of the Class 2-A-4 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; and
(5) fifth,
after taking into account the amount distributed to the Holders of the Group
1
Certificates in respect of principal, to the Holders of the Group 1
Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class, until the
Certificate Principal Balances thereof have been reduced to zero;
provided,
however, that if the aggregate Certificate Principal Balance of the Subordinate
Certificates has been reduced to zero, then distributions pursuant to this
clause shall be distributed concurrently, on a pro
rata
basis
based on the Certificate Principal Balance of each applicable Class of
Group 2 Certificates.
(C) Distributions
in respect of principal to the extent of the sum of the Group 1 Principal
Distribution Amount and the Group 2 Principal Distribution Amount remaining
undistributed for such Distribution Date after the reduction of the Certificate
Principal Balance of each of the Group 1 Certificates and Group 2 Certificates
to zero (after giving effect to clauses (A) and (B) above) shall be distributed
in the following amounts and order of priority:
(1) first,
to
the Holders of the Class M-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(2) second,
to the Holders of the Class M-2 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(3) third,
to
the Holders of the Class M-3 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(4) fourth,
to the Holders of the Class M-4 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(5) fifth,
to
the Holders of the Class M-5 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(6) sixth,
to
the Holders of the Class M-6 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(7) seventh,
to the Holders of the Class M-7 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(8) eighth,
to the Holders of the Class M-8 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(9) ninth,
to
the Holders of the Class M-9 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; and
(10) tenth,
to
the Holders of the Class M-10 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero.
(II) On
each
Distribution Date (x) on or after the Stepdown Date and (y) on which a Trigger
Event is not in effect:
(A) Distributions
in respect of principal to the extent of the Group 1 Principal Distribution
Amount shall be distributed in the following amounts and order of priority:
(1) on
the
Distribution Date on which the Stepdown Date first occurs, if the Senior
Principal Distribution Amount is greater than or equal to the aggregate
Certificate Principal Balance of the Senior Certificates prior to any
distributions of principal for such Distribution Date are made, then to the
Group 1 Certificates (in an amount equal to the Group 1 Allocation Percentage
of
such excess and allocated among the Group 1 Certificates as described below)
and
the Group 2 Certificates (in an amount equal to the Group 2 Allocation
Percentage of such excess and allocated among the Group 2 Certificates as
described below), until the Certificate Principal Balances thereof have been
reduced to zero;
(2) to
the
Holders of the Group 1 Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class, the Group
1
Senior Principal Distribution Amount until the Certificate Principal Balances
thereof have been reduced to zero; and
(3) to
the
Holders of the Group 2 Certificates, up to an amount equal to the excess,
if
any, of (x) the amount required to be distributed pursuant to clause (II)(B)
for
each Class on such Distribution Date over (y) the amount actually distributed
pursuant to clause (II)(B) for each Class from the Group 2 Principal
Distribution Amount, as applicable, on such Distribution Date, to be distributed
in accordance with clause (II)(B).
(B) Distributions
in respect of principal to the extent of the Group 2 Principal Distribution
Amount shall be distributed in the following amounts and order of
priority:
(1) On
the
Distribution Date on which the Stepdown Date first occurs, if the Senior
Principal Distribution Amount is greater than or equal to the aggregate
Certificate Principal Balance of the Senior Certificates prior to any
distributions of principal for such Distribution Date are made, then to the
Group 1 Certificates (in an amount equal to the Group 1 Allocation Percentage
of
such excess and allocated among the Group 1 Certificates as described below)
and
the Group 2 Certificates (in an amount equal to the Group 2 Allocation
Percentage of such excess and allocated among the Group 2 Certificates as
described below), until the Certificate Principal Balances thereof have been
reduced to zero;
(2) to
the
Holders of the Class 2-A-1 Certificates, the Group 2 Senior Principal
Distribution Amount until the
Certificate Principal Balance of such Class has been reduced to zero;
(3) to
the
Holders of the Class 2-A-2 Certificates, the Group 2 Senior Principal
Distribution Amount until the Certificate Principal Balance of such Class
has
been reduced to zero;
(4) to
the
Holders of the Class 2-A-3 Certificates, the Group 2 Senior Principal
Distribution Amount until the Certificate Principal Balance of such Class
has
been reduced to zero;
(5) to
the
Holders of the Class 2-A-4 Certificates, the Group 2 Senior Principal
Distribution Amount until the Certificate Principal Balance of such Class
has
been reduced to zero; and
(6) to
the
Holders of the Group 1 Certificates, on a pro
rata basis
based on the Certificate Principal Balance of each such Class, up to an amount
equal to the excess, if any, of (x) the amount required to be distributed
pursuant to clause (II)(A) for each Class on such Distribution Date over
(y) the
amount actually distributed pursuant to clause (II)(A) for each Class from
the
Group 1 Principal Distribution Amount on such Distribution Date, to be
distributed in accordance with clause (II)(A);
provided,
however, that if the aggregate Certificate Principal Balance of the Subordinate
Certificates has been reduced to zero, then distributions pursuant to this
clause shall be made concurrently, on a pro
rata
basis
based on the Certificate Principal Balance of each applicable Class of Group
2
Certificates.
(C) Distributions
in respect of principal to the extent of the sum of the Group 1 Principal
Distribution Amount and the Group 2 Principal Distribution Amount remaining
undistributed for such Distribution Date (after giving effect to distributions
pursuant to clauses (A) and (B) above) shall be distributed in the following
amounts and order of priority:
(1) first,
sequentially, to the Holders of the Class M-1 Certificates and the Class
M-2
Certificates, the Class M-1/M-2 Principal Distribution Amount until the
Certificate Principal Balances thereof have been reduced to zero;
(2) second,
to
the
Holders of the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount, until the Certificate Principal Balance thereof has been reduced
to
zero;
(3) third,
to
the Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount, until the Certificate Principal Balance thereof has been reduced
to
zero;
(4) fourth,
to the Holders of the Class M-5 Certificates, the Class M-5 Principal
Distribution Amount, until the Certificate Principal Balance thereof has
been
reduced to zero;
(5) fifth,
to
the Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount, until the Certificate Principal Balance thereof has been reduced
to
zero;
(6) sixth,
to
the Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount, until the Certificate Principal Balance thereof has been reduced
to
zero;
(7) seventh,
to the Holders of the Class M-8 Certificates, the Class M-8 Principal
Distribution Amount, until the Certificate Principal Balance thereof has
been
reduced to zero;
(8) eighth,
to the Holders of the Class M-9 Certificates, the Class M-9 Principal
Distribution Amount, until the Certificate Principal Balance thereof has
been
reduced to zero; and
(9) ninth,
to
the Holders of the Class M-10 Certificates, the Class M-10 Principal
Distribution Amount, until the Certificate Principal Balance thereof has
been
reduced to zero.
(iii) On
each
Distribution Date, the Excess Cashflow, if any, will be distributed as follows:
(A) to
the
Trustee, Master Servicer or Trust Administrator any amounts to which such
Persons are entitled to under this Agreement to the extent such amounts have
not
otherwise been paid or reimbursed;
(B) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Swap Agreement, distributable to such Holders as part of the Group 1
Principal Distribution Amount and/or the Group 2 Principal Distribution
Amount;
(C) sequentially,
to the Holders of the Class M-1 Certificates, Class M-2 Certificates, Class
M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates and Class M-10 Certificates, in that order, in each case, first
up
to the Unpaid Interest Shortfall Amount for each such Class and second up
to the
Allocated Realized Loss Amount, for each such Class;
(D) to
the
Net WAC Rate Carryover Reserve Account, the Net WAC Rate Carryover Amounts,
if
any, without taking into account amounts, if any, received under the Swap
Agreement, in respect of amounts otherwise distributable to the Class C
Certificates for such Distribution Date distributed in the following order
of
priority:
(1) concurrently,
on a pro
rata
basis
based on the remaining Net WAC Rate Carryover Amounts for each such Class,
to
the Holders of the Senior Certificates, their related Net WAC Rate Carryover
Amounts; and
(2) sequentially,
to the Holders of the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Certificates, in
that
order, their related Net WAC Rate Carryover Amounts;
(E) to
the
Swap Provider, from amounts otherwise distributable to the Class C Certificates,
any Swap Termination Payment owed to the Swap Provider due to a Swap Provider
Trigger Event pursuant to the Swap Agreement;
(F) to
the
holders of the Class
C Certificates (in respect of the Class C Interest),
the
remainder of the Class C Distributable Amount; and
(G) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Premium may be required to be paid in respect
of any
Mortgage Loan, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero; and
(H) to
the
holders of the Class R Certificates (in respect of the Class R-III
Interest) and the holders of the Class R-X Certificates (in respect of the
Class
R-X-IV Interest, the Class R-X-V Interest and the Class R-X-VI Interest),
any
remaining amount from the related REMICs.
If
on any
Distribution Date, as a result of the foregoing allocation rules, any Class
of
Senior Certificates does not receive the related Monthly Interest Distributable
Amount or the related Unpaid Interest Shortfall Amounts, if any, then that
unpaid amount will be recoverable by the holders of those Classes, with interest
thereon, on future Distribution Dates, as Unpaid Interest Shortfall Amounts,
subject to the priorities described above. In the event the Class Certificate
Balance of any Class of Subordinate Certificates has been reduced to zero,
that
Class of Certificates shall no longer be entitled to receive any related
unpaid
Net WAC Rate Carryover Amounts.
(b) On
each
Distribution Date, all amounts representing Prepayment Premiums from the
Mortgage Loans received during the related Prepayment Period shall be
distributed to the holders of the Class P Certificates (in respect of the
Class P Interest). Such distributions shall not be applied to reduce the
Certificate Principal Balance of the Class P Certificates (in respect of
the
Class P Interest). On the Distribution Date in July 2009, the Class P
Certificates (in respect of the Class P Interest) shall be entitled to receive
$100.00 in retirement of the principal balance of the REMIC regular interest
represented by the Class P Certificates, which distribution shall be made
immediately before any distributions pursuant to Section 4.02(a)(iii) on
such
Distribution Date.
(c) Notwithstanding
the provisions of this Section 4.02, if on any Distribution Date Senior
Certificates related to a Loan Group are no longer outstanding, the pro
rata
portion
of the Group 1 Principal Distribution Amount or Group 2 Principal Distribution
Amount, as applicable, otherwise allocable to such Senior Certificates will
be
allocated among the remaining group or groups of Senior Certificates, on
a
pro
rata
basis
based on the outstanding aggregate Certificate Principal Balance for such
groups, in the same manner and order of priority described in Section
4.02(a).
(d) On
any
Distribution Date, any Relief Act Interest Shortfalls and Net Prepayment
Interest Shortfalls for such Distribution Date will be allocated pro
rata,
as a
reduction of the Current Interest for the LIBOR Certificates, based on the
amount of interest to which such Classes would otherwise be entitled on such
Distribution Date.
(e) On
each
Distribution Date, and after all distributions made under Section 4.02(a)
above,
the Swap Administrator shall distribute amounts in the Swap Account, if any,
in
the following amounts and order of priority:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to
the
Swap Agreement for such Distribution Date;
(ii) to
the
Swap Provider, any Swap Termination Payment owed to the Swap Provider not
due to
a Swap Provider Trigger Event pursuant to the Swap Agreement;
(iii) concurrently,
to the Holders of each class of Senior Certificates, pro
rata,
the
related Monthly Interest Distributable Amount and Unpaid Interest Shortfall
Amounts remaining undistributed after distribution of the Group 1 Interest
Remittance Amount and the Group 2 Interest Remittance Amount, on a pro
rata
basis
based on such respective remianing Monthly Interest Distributable Amount
and
Unpaid Interest Shortfall Amount,
(iv) sequentially,
to the Holders of each Class of Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class M-9 and Class M-10 Certificates, in that order, the related
Monthly Interest Distributable Amount and Unpaid Interest Shortfall Amount,
to
the extent remaining undistributed after distribution of the Group 1 Interest
Remittance Amount and the Group 2 Interest Remittance Amount and the Net
Monthly
Excess Cashflow;
(v) as
principal to the Holders of any Certificates then entitled to distributions
of
principal, in accordance with Section 4.02(a)(ii), and after giving effect
to
distributions of principal already made on such Distribution Date, an amount
necessary to maintain the applicable Overcollateralization Target Amount
(but
only to the extent of cumulative Realized Losses on the Mortgage Loans);
(vi) sequentially,
to the Holders of the Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class M-9 and Class M-10 Certificates, in that order, in each case up
to the related Allocated Realized Loss Amount related to such Certificates
for
such Distribution Date remaining undistributed after distribution of the
Net
Monthly Excess Cashflow;
(vii) concurrently,
to the Holders of each Class of Senior Certificates, the related Net WAC
Rate
Carryover Amount, to the extent remaining undistributed after distributions
are
made from the Net WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(viii) sequentially,
to the Holders of the Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class M-9 and Class M-10 Certificates, in that order, the related Net
WAC Rate Carryover Amount, to the extent remaining undistributed after
distributions are made from the Net WAC Rate Carryover Reserve Account;
and
(ix) on
the
Final Payment Date, any amounts remaining in the Swap Account to the holder
of
the Class C Certificates (in respect of the Class C Interest).
Section
4.03. Monthly
Statements to Certificateholders.
(a) Not
later
than each Distribution Date, the Trust Administrator shall make available
to
each Certificateholder, the Servicer, the Master Servicer, the Trustee, the
Depositor and each Rating Agency a statement setting forth with respect to
the
related distribution:
(i) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Certificates allocable to principal, separately identified, and
the
amount of the distribution made on such Distribution Date to the Holders
of the
Class P Certificates allocable to Prepayment Charges;
(ii) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Certificates (other than the Class P Certificates) allocable to
interest, separately identified;
(iii) the
Net
Monthly Excess Cashflow, the Overcollateralized Amount, the
Overcollateralization Release Amount, the Overcollateralization Target Amount,
the Overcollateralization Deficiency Amount, the Credit Enhancement Percentage
for such Distribution Date;
(iv) the
fees
and expenses of the trust accrued and paid on such Distribution Date and
to whom
such fees and expenses were paid;
(v) the
aggregate amount of Advances for such Distribution Date (including the general
purpose of such Advances);
(vi) the
aggregate Principal Balance of the Mortgage Loans and any REO Properties
as of
the end of the related Due Period;
(vii) the
number, aggregate Principal Balance, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the related
Due
Date;
(viii) the
number and aggregate unpaid Principal Balance of Mortgage Loans in respect
of
which (a) one monthly payment is delinquent, (b) two monthly payments are
delinquent, (c) three monthly payments are delinquent and (d) foreclosure
proceedings have begun, in each case, as of the last day of the calendar
month
preceding the related Distribution Date and in accordance with the OTS method
of
calculating delinquencies;
(ix) the
total
number and cumulative principal balance of all REO Properties as of the close
of
business on the last day of the calendar month preceding the related
Distribution Date;
(x) the
aggregate amount of principal prepayments made during the related Prepayment
Period;
(xi) the
Delinquency Percentage;
(xii) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, the aggregate amount of Realized Losses incurred since the Closing
Date
and the aggregate amount of Subsequent Recoveries received during the related
Prepayment Period;
(xiii) the
aggregate amount of extraordinary trust fund expenses withdrawn from the
distribution account for such Distribution Date;
(xiv) the
Certificate Principal Balance of each class of certificates, before and after
giving effect to the distributions, and allocations of Realized Losses, made
on
such Distribution Date;
(xv) the
Monthly Interest Distributable Amount in respect of the Offered Certificates
and
the Class C Certificates for such Distribution Date and the Unpaid Interest
Shortfall Amount, if any, with respect to the Offered Certificates on such
Distribution Date;
(xvi) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments of Compensating Interest by the
Servicer or the Master Servicer;
(xvii) the
Net
WAC Rate Carryover Amount for the Offered Certificates, if any, for such
Distribution Date and the amount remaining undistributed after reimbursements
therefor on such Distribution Date;
(xviii) whether
the Stepdown Date or a Trigger Event has occurred;
(xix) the
total
cashflows received and the general sources thereof;
(xx) the
respective Pass-Through Rates applicable to the Offered Certificates and
the
Class C Certificates for such Distribution Date (and whether such Pass-Through
Rate was limited by the Net WAC Rate) and the Pass-Through Rate applicable
to
the Offered Certificates for the immediately succeeding Distribution
Date;
(xxi) the
amount of any Net Swap Payments or Swap Termination Payments; and
(xxii) the
applicable Record Dates, Accrual Periods and Determination Dates for calculating
distributions for such Distribution Date.
(b) The
Trust
Administrator’s responsibility for providing the above statement to the
Certificateholders, each Rating Agency, the Servicer, the Master Servicer,
the
Originator and the Depositor is limited to the availability, timeliness and
accuracy of the information derived from the Servicer. The Trust Administrator
will make the above statement available via the Trust Administrator’s internet
website. The Trust Administrator’s website will initially be located at
xxxx://xxx.xxxxxxx.xxx and assistance in using the website can be obtained
by
calling the Trust Administrator’s customer service desk at 0-000-000-0000.
Parties that are unable to use the above distribution method are entitled
to
have a paper copy mailed to them via first class mail by calling the customer
service desk and indicating such. The Trust Administrator shall have the
right
to change the manner in which the above statement is distributed in order
to
make such distribution more convenient and/or more accessible, and the Trust
Administrator shall provide timely and adequate notification to the
Certificateholders and the parties hereto regarding any such
changes.
The
Trust
Administrator shall also be entitled to rely on, but shall not be responsible
for the content or accuracy of, any information provided by the Servicer
for
purposes of preparing the above statement and may affix thereto any disclaimer
it deems appropriate in its reasonable discretion (without suggesting liability
on the part of any other party hereto).
As
a
condition to access the Trust Administrator’s internet website, the Trust
Administrator may require registration and the acceptance of a disclaimer.
The
Trust Administrator will not be liable for the dissemination of information
in
accordance with this Agreement.
Upon
written request from any Certificateholder, the Trust Administrator shall
provide the information provided for in Sections 4.03(d) to such
Certificateholder, at the expense of the requesting Certificateholder. The
Trust
Administrator’s responsibility for providing the information provided for in
Sections 4.03(d) to the Certificateholders is limited to the availability
and
timeliness of the information provided by the Servicer. The Trust Administrator
shall provide the information provided for in Sections 4.03(d) in the same
format as received from the Servicer upon request by the Certificateholders.
The
Trust Administrator shall have no duty or obligation to monitor, review or
take
any action regarding such information received pursuant to Section 4.03(d)
other than forwarding copies to Certificateholders. The Trust Administrator
shall have no liability for the accuracy, completeness or otherwise for such
information.
(c) Within
a
reasonable period of time after the end of each calendar year, the Trust
Administrator shall cause to be furnished each Person who at any time during
the
calendar year was a Certificateholder, a statement containing the information
set forth in clauses (a)(i) and (a)(ii) of this Section 4.03
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trust Administrator
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trust Administrator pursuant
to
any requirements of the Code as are from time to time in effect.
(d) Not
later
than the Reporting Date, the Servicer shall furnish to the Trust Administrator,
the Master Servicer and the Swap Provider a monthly remittance advice statement
(in a format mutually agreed upon by the Servicer and the Trust Administrator)
containing such information as shall be reasonably requested by the Trust
Administrator to provide the reports required by Section 4.03(a) as to the
accompanying remittance and the period ending on the close of business on
the
last Business Day of the immediately preceding month (the “Servicer Remittance
Report”).
The
Servicer shall furnish to the Trust Administrator an individual loan accounting
report, as of the last Business Day of each month, to document Mortgage Loan
payment activity on an individual Mortgage Loan basis. With respect to each
month, the corresponding individual loan accounting report (in electronic
format) shall be received by the Trust Administrator no later than the Reporting
Date, which report shall contain the following:
(i) with
respect to each Scheduled Payment, the amount of such remittance allocable
to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, and any Prepayment Premiums, along with a detailed
report of interest on principal prepayment amounts remitted in accordance
with
Section 3.25);
(ii) with
respect to each Scheduled Payment, the amount of such remittance allocable
to
interest;
(iii) the
amount of servicing compensation received by the Servicer during the prior
distribution period;
(iv) the
individual and aggregate Stated Principal Balance of the Mortgage
Loans;
(v) the
aggregate of any expenses reimbursed to the Servicer during the prior
distribution period pursuant to Section 3.11;
(vi) the
number and aggregate outstanding principal balances of Mortgage Loans (not
including liquidated Mortgage Loans as of the end of the Prepayment Period)
(a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or
(3) 91 days or more; (b) as to which foreclosure has commenced; and
(c) as to which REO Property has been acquired;
(vii) each
Mortgage Loan which has been altered, modified or varied during such month,
and
the reason for such modification (i.e., extension of maturity date, Mortgage
Interest Rate);
(viii) with
respect to each Mortgage Loan, the amount of any Realized Losses for such
Mortgage Loan; and
(ix) any
other
information reasonably required by the Trust Administrator to enable it to
prepare the monthly statement referred to in Section 4.03(a).
Section
4.04. Certain
Matters Relating to the Determination of LIBOR.
Until
all
of the LIBOR
Certificates
are
paid in full, the Trust Administrator will at all times retain at least four
Reference Banks for the purpose of determining LIBOR with respect to each
LIBOR
Determination Date. The Trust Administrator initially shall designate the
Reference Banks (after consultation with the Depositor). Each “Reference Bank”
shall be a leading bank engaged in transactions in Eurodollar deposits in
the
international Eurocurrency market, shall not control, be controlled by, or
be
under common control with, the Trust Administrator and shall have an established
place of business in London. If any such Reference Bank should be unwilling
or
unable to act as such or if the Trust Administrator should terminate its
appointment as Reference Bank, the Trust Administrator shall promptly appoint
or
cause to be appointed another Reference Bank (after consultation with the
Depositor). The Trust Administrator shall have no liability or responsibility
to
any Person for (i) the selection of any Reference Bank for purposes of
determining LIBOR or (ii) any inability to retain at least four Reference
Banks which is caused by circumstances beyond its reasonable
control.
The
Pass-Through Rate for each Class of LIBOR
Certificates
for
each Accrual Period shall be determined by the Trust Administrator on each
LIBOR
Determination Date so long as the LIBOR
Certificates
are
outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR
Certificates
in the
table relating to the Certificates in the Preliminary Statement. The Trust
Administrator shall not have any liability or responsibility to any Person
for
its inability, following a good-faith reasonable effort, to obtain quotations
from the Reference Banks or to determine the arithmetic mean referred to
in the
definition of LIBOR, all as provided for in this Section 4.04 and the
definition of LIBOR. The establishment of LIBOR and each Pass-Through Rate
for
the LIBOR
Certificates
by the
Trust Administrator shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the
Trustee.
Section
4.05. Allocation
of Realized Loss Amounts.
Any
Allocated Realized Loss Amounts will be allocated to the most junior Class
of
Subordinate Certificates then outstanding in reduction of the Class Certificate
Balance thereof. In the event Allocated Realized Loss Amounts are allocated
to
any Class of Subordinate Certificates, their Class Principal Balances shall
be permanently reduced by the amount so allocated, and no funds will be
distributable (except to the extent of Subsequent Recoveries and as provided
in
Section 4.02(a)(iii) herein) with respect to the written down amounts (including
without limitation Net WAC Rate Carryover Amounts) or with respect to interest
on the written down amounts on that Distribution Date or any future Distribution
Dates, even if funds are otherwise available for distribution.
Section
4.06. Compliance
with Withholding Requirements.
Notwithstanding
any other provision of this Agreement, the Trustee and the Trust Administrator
shall comply with all federal withholding requirements respecting payments
to
Certificateholders of interest or original issue discount that the Trust
Administrator reasonably believes are applicable under the Code. The consent
of
Certificateholders shall not be required for such withholding. In the event
the
Trust Administrator does withhold any amount from interest or original issue
discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Trust Administrator shall indicate
the
amount withheld to such Certificateholders.
Section
4.07. Commission
Reporting.
(a) (i)
Using
best efforts, within 10 days after each Distribution Date, and no later than
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Trust Administrator shall, in accordance with industry
standards, prepare and file, on behalf of the Trust, with the Commission
via the
Electronic Data Gathering and Retrieval System (“XXXXX”), any Form 10-D required
by the Exchange Act, in form and substance as required by the Exchange Act,
signed by the Master Servicer, with a copy of the monthly statement to be
furnished by the Trust Administrator to the Certificateholders for such
Distribution Date attached thereto. Any disclosure in addition to the monthly
statement that is required to be included on Form 10-D (“Additional Form 10-D
Disclosure”) shall be reported by the parties set forth on Exhibit T to the
Depositor and the Trust Administrator and directed and approved by the Depositor
pursuant to the following paragraph, and the Trust Administrator will have
no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
(ii) For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
within 5 calendar days after the related Distribution Date, (i) the parties
set
forth in Exhibit T shall be required to provide, pursuant to Section 4.07(a)(v)
below, to the Trust Administrator (by email at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
and by
facsimile at 410-715-2380) and the Depositor, to the extent known, in
XXXXX-compatible format, or in such other format as otherwise agreed upon
by the
Trust Administrator and such party, the form and substance of any Additional
Form 10-D Disclosure, if applicable, together with an Additional Disclosure
Notification in the form attached hereto as Exhibit R (an “Additional Disclosure
Notification”) and (ii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-D
Disclosure on Form 10-D. The Trust Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on
Exhibit
T of their duties under this paragraph or proactively solicit or procure
from
such parties any Additional Form 10-D Disclosure information. The Depositor
will
be responsible for any reasonable fees and expenses assessed or incurred
by the
Trust Administrator in connection with including any Additional Form 10-D
Disclosure on Form 10-D pursuant to this Section.
After
preparing the Form 10-D, the Trust Administrator shall, upon request, forward
electronically a copy of the Form 10-D to the Depositor for review, only
to the
extent that the Form 10-D contains Additional Form 10-D Disclosure. Within
two
Business Days after receipt of such copy, but no later than the 13th
calendar
day after the Distribution Date, the Depositor shall notify the Trust
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form
10-D,
the Trust Administrator shall be entitled to assume that such Form 10-D is
in
final form and the Trust Administrator may proceed with the execution and
filing
of the Form 10-D. A duly authorized representative of the Master Servicer
shall
sign each Form 10-D. If a Form 10-D cannot be filed on time or if a previously
filed Form 10-D needs to be amended, the Trust Administrator will follow
the
procedures set forth in Section 4.07(a)(vi). Promptly (but no later than
one
Business Day) after filing with the Commission, the Trust Administrator will
make available on its internet website a final executed copy of each Form
10-D
filed by the Trust Administrator. The parties to this Agreement acknowledge
that
the performance by the Master Servicer and the Trust Administrator of its
duties
under Sections 4.07(a)(i), (ii) and (v) related to the timely preparation
and
filing of Form 10-D is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under such Sections.
The
Depositor acknowledges that the performance by the Master Servicer and the
Trust
Administrator of its duties under this Section 4.07(a)(ii) related to the
timely
preparation, execution and filing of Form 10-D is also contingent upon the
Servicer, the Custodian and any Sub-Servicer or Subcontractor strictly observing
deadlines no later than those set forth in this paragraph that are applicable
to
the parties to this Agreement in the delivery to the Trust Administrator
of any
necessary Additional Form 10-D Disclosure pursuant to any applicable agreement.
Neither the Master Servicer nor the Trust Administrator shall have any liability
for any loss, expense, damage or claim arising out of or with respect to
any
failure to properly prepare, execute and/or timely file such Form 10-D and
Form
10-K, where such failure results from the Trust Administrator’s inability or
failure to receive, on a timely basis, any information from any other party
hereto or any Custodian, Sub-Servicer or Subcontractor needed to prepare,
arrange for execution or file such Form 10-D, not resulting from its own
negligence, bad faith or willful misconduct.
(iii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, the Trust Administrator shall prepare and file on behalf of the
Trust
a Form 8-K, as required by the Exchange Act, provided that the Depositor
shall
file the initial Form 8-K in connection with the issuance of the Certificates.
Any disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K other than the initial Form 8-K (“Form 8-K
Disclosure Information”) shall, be reported by the parties set forth on Exhibit
T to the Depositor and the Trust Administrator and directed and approved
by the
Depositor, pursuant to the following paragraph, and the Trust Administrator
will
have no duty or liability for any failure hereunder to determine or prepare
any
Form 8-K Disclosure Information or any Form 8-K, except as set forth in the
next
paragraph.
For
so
long as the Trust is subject to the Exchange Act reporting requirements,
no
later than the close of business (New York City Time) on the 2nd
Business
Day after the occurrence of a Reportable Event (i) the parties set forth
in
Exhibit T shall be required pursuant to Section 4.07(a)(v) below to provide
to
the Trust Administrator and the Depositor, to the extent known, in
XXXXX-compatible format, or in such other format as otherwise agreed upon
by the
Trust Administrator and such party, the form and substance of any Form 8-K
Disclosure Information, if applicable, together with an Additional Disclosure
Notification and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trust Administrator in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
Section.
After
preparing the Form 8-K, the Trust Administrator shall, upon request, forward
electronically a copy of the Form 8-K to the Depositor for review. Promptly,
but
no later than the close of business on the third Business Day after the
Reportable Event, the Depositor shall notify the Trust Administrator in writing
(which may be furnished electronically) of any changes to or approval of
such
Form 8-K. In the absence of receipt of any written changes or approval, or
if
the Depositor does not request a copy of a Form 8-K, the Trust Administrator
shall be entitled to assume that such Form 8-K is in final form and the Trust
Administrator may proceed with the execution and filing of the Form 8-K.
A duly
authorized representative of the Master Servicer shall sign each Form 8-K.
If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs
to be
amended, the Trust Administrator will follow the procedures set forth in
Section
4.07(a)(vi). Promptly (but no later than one Business Day) after filing with
the
Commission, the Trust Administrator will make available on its internet website
a final executed copy of each Form 8-K filed by the Trust Administrator.
The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Trust Administrator of its duties under this Section
4.07(a)(iii) related to the timely preparation and filing of Form 8-K is
contingent upon such parties strictly observing all applicable deadlines
in the
performance of their duties under this Section 4.07(a)(iii). The Depositor
acknowledges that the performance by the Master Servicer and the Trust
Administrator of its duties under this Section 4.07(a)(iii) related to the
timely preparation, execution and filing of Form 10-D is also contingent
upon
the Servicer, the Custodians and any Sub-Servicer or Subcontractor strictly
observing deadlines no later than those set forth in this paragraph that
are
applicable to the parties to this Agreement in the delivery to the Trust
Administrator of any necessary Form 8-K Disclosure Information pursuant to
the
Custodial Agreement or any other applicable agreement. Neither the Master
Servicer nor the Trust Administrator shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 8-K, where such failure
results from the Trust Administrator’s inability or failure to receive, on a
timely basis, any information from any other party hereto or any Custodian,
Sub-servicer or Subcontractor needed to prepare, arrange for execution or
file
such Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(iv) (A)
Within 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it
being understood that the fiscal year for the Trust ends on December
31st
of each
year), commencing in March 2007, the Trust Administrator shall prepare and
file
on behalf of the Trust an annual report on Form 10-K, in form and substance
as
required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Trust
Administrator within the applicable time frames set forth in this Agreement,
(i)
an annual compliance statement for the Servicer, the Master Servicer, the
Trust
Administrator and any Sub-Servicer, Subcontractor or other Person engaged
by
such parties or the Trustee (together with the Custodian, each a “Reporting
Servicer”), as described under Section 3.22 of this Agreement, provided,
however, that the Trust Administrator, at its discretion, may omit from the
Form
10-K any annual compliance statement that is not required to be filed with
such
Form 10-K for each Reporting Servicer pursuant to Regulation AB, (ii)(A)
the
annual reports on assessment of compliance with Servicing Criteria for each
Reporting Servicer, as described under Section 3.23 of this Agreement, and
(B)
if the report on assessment of compliance with the Servicing Criteria identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if each reporting Servicer’s report on assessment of
compliance with Servicing Criteria is not included as an exhibit to such
Form
10-K, disclosure that such report is not included and an explanation why
such
report is not included provided, however, that the Trust Administrator, at
its
discretion, may omit from the Form 10-K any assessment of compliance or
attestation report described in clause (iii) below that is not required to
be
filed with such Form 10-K pursuant to Regulation AB, (iii)(A) the registered
public accounting firm attestation report for each Reporting Servicer as
described under Section 3.23 of this Agreement, and (B) if any registered
public
accounting firm attestation report described under Section 3.23 identifies
any
material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(iv) a Xxxxxxxx-Xxxxx Certification (“Xxxxxxxx-Xxxxx Certification”) as
described below. Any disclosure or information in addition to the disclosure
or
information specified in items (i) through (iv) above that is required to
be
included on Form 10-K (“Additional Form 10-K Disclosure”) shall, be reported by
the parties set forth on Exhibit T to the Depositor and the Trust Administrator
and directed and approved by the Depositor pursuant to the following paragraph,
and the Trust Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure, except
as
set forth in the next paragraph.
No
later
than March 1st
(with a
10 calendar day cure period) of each year that the Trust is subject to the
Exchange Act reporting requirements, commencing in 2007, (i) the parties
set
forth in Exhibit T shall be required to provide pursuant to Section 4.07(a)(v)
below to the Depositor and to the Trust Administrator (by email at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
and by
facsimile at 410-715-2380) and the Depositor, to the extent known, in
XXXXX-compatible form, or in such other form as otherwise agreed upon by
the
Trust Administrator and such party, the form and substance of any Additional
Form 10-K Disclosure, if applicable, together with an Additional Disclosure
Notification and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Trust Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on
Exhibit
T of their duties under this paragraph or proactively solicit or procure
from
such parties any Additional Form 10-K Disclosure information. The Depositor
will
be responsible for any reasonable fees and expenses assessed or incurred
by the
Trust Administrator in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this Section.
After
preparing the Form 10-K, the Trust Administrator shall forward, upon request,
electronically a copy of the Form 10-K to the Depositor for review. Within
three
Business Days after receipt of such copy, but no later than March 25th, the
Depositor shall notify the Trust Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K.
In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Trust Administrator shall be
entitled to assume that such Form 10-K is in final form and the Trust
Administrator may proceed with the execution and filing of the Form 10-K.
No
later than 12:00 noon New York City time on the fourth Business Day prior
to the
10-K Filing Deadline, a senior officer of the Servicer shall sign the Form
10-K
and return such signed Form 10-K to the Trust Administrator. If a Form 10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Trust Administrator will follow the procedures set forth in Section
4.07(a)(vi). Promptly (but no later than one Business Day) after filing with
the
Commission, the Trust Administrator will make available on its internet website
(located at xxx.xxxxxxx.xxx)
a final
executed copy of each Form 10-K filed by the Trust Administrator. The parties
to
this Agreement acknowledge that the performance by the Master Servicer, the
Servicer and the Trust Administrator of its duties under Section 4.07(a)(iv)
and
Section 4.07(a)(v) related to the timely preparation, execution and filing
of
Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under such Sections, Section
3.22
and Section 3.23. The Depositor acknowledges that the performance by the
Master
Servicer and the Trust Administrator of its duties under this Section
4.07(a)(iv) related to the timely preparation, execution and filing of Form
10-K
is also contingent upon the Servicer, the Custodian and any Sub-Servicer
or
Subcontractor strictly observing deadlines no later than those set forth
in this
paragraph that are applicable to the parties to this Agreement in the delivery
to the Trust Administrator of any necessary Additional Form 10-K Disclosure,
any
annual statement of compliance and any assessment of compliance and attestation
pursuant to the related Custodial Agreement or any other applicable agreement.
Neither the Master Servicer nor the Trust Administrator shall have any liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare, execute and/or timely file such Form 10-K, where
such failure results from the Trust Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto or
any
Custodian, Sub-servicer or Subcontractor needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence,
bad
faith or willful misconduct.
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”), exactly
as set forth in Exhibit N-1 attached hereto, required to be included therewith
pursuant to the Xxxxxxxx-Xxxxx Act. Each of the Servicer, the Master Servicer
and the Trust Administrator shall provide, and each such party and the Trustee
shall cause any Sub-servicer or Subcontractor engaged by it to provide, to
the
Person who signs the Xxxxxxxx-Xxxxx Certification (the “Certifying Person”), by
March 15th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act, a certification (each, a “Back-Up Certification”), in the form attached
hereto as Exhibit N-2, upon which the Certifying Person, the entity for which
the Certifying Person acts as an officer, and such entity’s officers, directors
and Affiliates (collectively with the Certifying Person, “Certification
Parties”) can reasonably rely. A senior officer of Fremont shall serve as the
Certifying Person on behalf of the Trust. Such officer of the Certifying
Person
can be contacted by e-mail at Xxxxxxxx@xxxxxx.xxx
or by
facsimile at (000) 000-0000. In the event that the Master Servicer, the Trust
Administrator, the Trustee or any Sub-servicer or Subcontractor engaged by
any
such party is terminated or resigns pursuant to the terms of this Agreement,
or
any other applicable agreement, as the case may be, such party shall provide
a
Back-Up Certification to the Certifying Person pursuant to this Section
4.07(a)(iv) with respect to the period of time it was subject to this Agreement
or any other applicable agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Trust Administrator shall not
be
required to deliver a Back-Up Certification to each other if both are the
same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification
in the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing
Agreement.
(v) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trust Administrator’s obligation to
include such Additional Information in the applicable Exchange Act report
is
subject to receipt from the entity that is indicated in Exhibit T as the
responsible party for providing that information, if other than the Trust
Administrator, as and when required as described in Section 4.07(a)(ii) through
(iv) above. Each of the Master Servicer, the Servicer, the Trust Administrator
and Depositor hereby agree to notify and to provide, to the extent known,
to the
Trust Administrator and the Depositor, all Additional Disclosure relating
to the
Trust Fund, with respect to which such party is the responsible party for
providing that information, as indicated in Exhibit P hereof. The Swap Provider
will be obligated pursuant to the Swap Agreement to provide to the Trust
Administrator any information that may be required to be included in any
Form
10-D, Form 8-K or Form 10-K. The Servicer shall be responsible for determining
the pool concentration applicable to any Sub-Servicer or originator at any
time,
for purposes of disclosure as required by Items 1108 and 1110 of Regulation
AB.
(vi) On
or
prior to January 30 of the first year in which the Trust Administrator is
able
to do so under applicable law, the Trust Administrator shall prepare and
file a
Form 15 Suspension Notification relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act.
In
the
event that the Trust Administrator becomes aware that it will be unable to
timely file with the Commission all or any required portion of any Form 8-K,
Form 10-D or Form 10-K required to be filed by this Agreement because required
disclosure information was either not delivered to it or was delivered to
it
after the delivery deadlines set forth in this Agreement or for any other
reason, the Trust Administrator will promptly notify electronically the
Depositor. In the case of Form 10-D and Form 10-K, the parties to this Agreement
will cooperate to prepare and file a Form 12b-25 and a Form 10-DA and Form
10-KA
as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of
Form
8-K, the Trust Administrator will, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next succeeding Form 10-D. In
the
event that any previously filed Form 8-K, Form 10-D or Form 10-K needs to
be
amended, in connection with any Additional Form 10-D Disclosure (other than,
in
the case of Form 10-D, for the purpose of restating any Monthly Statement),
Additional Form 10-K Disclosure or Form 8-K Disclosure Information, the Trust
Administrator will electronically notify the Depositor and such other parties
to
the transaction as are affected by such amendment, and such parties will
cooperate to prepare any necessary Form 8-KA, Form 10-DA or Form 10-KA. Any
Form
15, Form 12b-25 or any amendment to Form 8-K or Form 10-D shall be signed
by a
duly authorized representative or senior officer in charge of master servicing,
as applicable, of the Master Servicer. Any amendment to Form 10-K shall be
signed by the Servicer. The parties to this Agreement acknowledge that the
performance by the Master Servicer, the Servicer and the Trust Administrator
of
its duties under this Section 4.07(a)(vi) related to the timely preparation,
execution and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
Form 10-D or Form 10-K is contingent upon each such party performing its
duties
under this Section. Neither the Master Servicer nor the Trust Administrator
shall have any liability for any loss, expense, damage, claim arising out
of or
with respect to any failure to properly prepare, execute and/or timely file
any
such Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form
10-K,
where such failure results from the Trust Administrator’s inability or failure
to receive, on a timely basis, any information from or on behalf of any other
party hereto or any custodian, sub-servicer or subcontractor needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments
to
Form 8-K, Form 10-D or Form 10-K, not resulting from its own negligence,
bad
faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trust Administrator, from time
to
time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Trust
Administrator reasonably deems appropriate to prepare and file all necessary
reports with the Commission. The Trust Administrator shall have no
responsibility to file any items other than those specified in this Section
4.07; provided, however, the Trust Administrator will cooperate with the
Depositor in connection with any additional filings with respect to the Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees and expenses
incurred by the Trust Administrator in connection with this Section 4.07
shall
not be reimbursable from the Trust Fund.
(b) (A)
The
Trust Administrator shall indemnify and hold harmless the Depositor and its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(i) a
breach of the Trust Administrator’s obligations under this Section 4.07 or the
Trust Administrator’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Annual Statement
of Compliance and the Assessment of Compliance delivered by the Trust
Administrator pursuant to Section 3.22 and Section 3.23.
(B) The
Depositor shall indemnify and hold harmless the Trust Administrator and the
Master Servicer and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Depositor
under
this Section 4.07 or the Depositor’s negligence, bad faith or willful misconduct
in connection therewith.
(C) The
Master Servicer shall indemnify and hold harmless the Trust Administrator
and
the Depositor and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) a breach of the obligations of the Master
Servicer under this Section 4.05 or the Master Servicer’s negligence, bad faith
or willful misconduct in connection therewith or (ii) any material misstatement
or omission in the Statement as to Compliance delivered by the Master Servicer
pursuant to Section 3.22 or the Assessment of Compliance delivered by the
Master
Servicer pursuant to Section 3.23.
(D) The
Servicer shall indemnify and hold harmless the Master Servicer, Trust
Administrator and the Depositor and their respective officers, directors
and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon (i) a breach of the obligations
of the
Servicer under Section 3.22, Section 3.23 or Section 4.07, including any
failure
by the Servicer (or any Sub-Servicer or any Subcontractor engaged by the
Servicer), to provide any Back-Up Certification, annual statement of compliance,
annual assessment of compliance with Servicing Criteria or attestation report,
any information, data or materials required to be included in any Exchange
Act
report or any other information or material when and as required under Sections
3.22, 3.23 or 4.07, or the Servicer’s negligence, bad faith or willful
misconduct in connection therewith and (ii) any
material misstatement or omission contained in any information, disclosure,
report, certification, data, accountants’ letter or other material provided
under Sections 3.22, 3.23 and 4.07 to the Master Servicer or the Trust
Administrator by or on behalf of the Servicer or on behalf of any Sub-Servicer
or Subcontractor), including any material misstatement or material omission
in
(i) any Back-Up Certification, annual statement of compliance, annual assessment
of compliance with Servicing Criteria or attestation report delivered by
the
Servicer, or by any Sub-Servicer or Subcontractor engaged by it, pursuant
to
this Agreement, or (ii) any Additional Form 10-D Disclosure, Additional Form
10-K Disclosure or Form 8-K Disclosure Information provided by the
Servicer.
(E) [RESERVED.]
(F) If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, the Master Servicer, the Trustee or the Trust
Administrator, as applicable, then the defaulting party, in connection with
a
breach of its respective obligations under this Section 4.07 or its respective
negligence, bad faith or willful misconduct in connection therewith, agrees
that
it shall contribute to the amount paid or payable by the other parties as
a
result of the losses, claims, damages or liabilities of the other party in
such
proportion as is appropriate to reflect the relative fault and the relative
benefit of the respective parties. This indemnification shall survive the
termination of this Agreement or the termination of any party to this
Agreement.
(c) Nothing
shall be construed from the foregoing subsections (a) and (b) to require
the
Trust Administrator or any officer, director or Affiliate thereof to sign
any
Form 10-K or any certification contained therein. Furthermore, the inability
of
the Trust Administrator to file a Form 10-K as a result of the lack of required
information as set forth in Section 4.07(a) or required signatures on such
Form
10-K or any certification contained therein shall not be regarded as a breach
by
the Trust Administrator of any obligation under this Agreement.
(d) Notwithstanding
the provisions of Section 11.01, this Section 4.07 may be amended without the
consent of the Certificateholders.
(e) Each
of
the parties agrees to provide to the Master Servicer and the Trust Administrator
such additional information related to such party as the Master Servicer
and the
Trust Administrator may reasonably request, including evidence of the
authorization of the person signing any certificate or statement, financial
information and reports, and such other information related to such party
or its
performance hereunder.
(f) Any
notice or notification required to be delivered by the Trust Administrator
or
Master Servicer to the Depositor pursuant to this Section 4.07, may be delivered
via facsimile to the legal department at (000) 000-0000, with a copy delivered
to the operations group at facsimile (000) 000-0000.
Section
4.08. REMIC
Distributions and Allocation of Losses.
(a) On
each
Distribution Date, the Trust Administrator shall cause in the following order
of
priority, the following amounts to be distributed by REMIC I to
REMIC II on account of the REMIC I Regular Interests or withdrawn from
the Distribution Account and distributed to the Holders of the Class R
Certificates (in respect of the Class R-I Interest), as the case may
be:
(1) to
Holders of REMIC I Regular Interest I and each of REMIC I Regular
Interest I-1-A through I-48-B, pro
rata,
in an
amount equal to (A) Uncertificated Accrued Interest for such REMIC I
Regular Interests for such Distribution Date, plus (B) any amounts payable
in
respect thereof remaining unpaid from previous Distribution Dates.
(2) to
the
extent of amounts remaining after the distributions made pursuant to clause
(1)
above, payments of principal shall be allocated as follows: first, to
REMIC I Regular Interest I, then to REMIC I Regular Interests I-1-A
through I-48-B starting with the lowest numerical denomination until the
Uncertificated Balance of each such REMIC I Regular Interest is reduced to
zero, provided that, for REMIC I Regular Interests with the same numerical
denomination, such payments of principal shall be allocated pro
rata
between
such REMIC I Regular Interests, and second, to the extent of the product of
(a) any Overcollateralization Release Amounts multiplied by (b) a fraction,
the
numerator of which is the aggregate Stated Principal Balance of the Group
1
Mortgage Loans and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans, to REMIC I Regular Interest I until the
Uncertificated Balance of such REMIC I Regular Interest is reduced to zero,
then to REMIC I Regular Interests I-1-A through I-48-B starting with the
lowest numerical denomination until the Uncertificated Balance of each such
REMIC I Regular Interest is reduced to zero; and
(3) to
the
Holders of REMIC I Regular Interest LTP, all amounts representing
Prepayment Premiums in respect of the Mortgage Loans received during the
related
Prepayment Period.
(b) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC II to REMIC III on account of the
REMIC II Regular Interests and distributed to the Holders of the Class R
Certificates (in respect of the Class R-II Interest), as the case may
be:
(i) first,
to
the Holders of REMIC II Regular Interest LTIO, in an amount equal to (A)
Uncertificated Accrued Interest for such REMIC II Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates and second, to the extent of the Available Funds
remaining after the distributions pursuant to clause (A), to the Holders
of
REMIC II Regular Interest LTAA, REMIC II Regular Interest LT1A1,
REMIC II Regular Interest LT1A2, REMIC II Regular Interest LT2A1,
REMIC II Regular Interest LT2A2, REMIC II Regular Interest LT2A3,
REMIC II Regular Interest LT2A4, REMIC II Regular Interest LTM-1,
REMIC II Regular Interest LTM-2, REMIC II Regular Interest LTM-3,
REMIC II Regular Interest LTM-4, REMIC II Regular Interest LTM-5,
REMIC II Regular Interest LTM-6, REMIC II Regular Interest LTM-7,
REMIC II Regular Interest LTM-8, REMIC II Regular Interest LTM-9,
REMIC II Regular Interest LTM-10 and REMIC II Regular Interest LTZZ,
pro
rata,
in an
amount equal to (A) the Uncertificated Accrued Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates. Amounts payable as Uncertificated Accrued Interest in
respect of REMIC II Regular Interest LTZZ shall be reduced and deferred
when the REMIC II Overcollateralized Amount is less than the REMIC II
Overcollateralization Target Amount, by the lesser of (x) the amount of such
difference and (y) the Maximum LTZZ Uncertificated Accrued Interest Deferral
Amount and such amount shall be payable to the Holders of REMIC II Regular
Interest LT1A1, REMIC II Regular Interest LT2A1, REMIC II Regular
Interest LT2A2, REMIC II Regular Interest LT2A3, REMIC II Regular
Interest LT2A4, REMIC II Regular Interest LTM-1, REMIC II Regular
Interest LTM-2, REMIC II Regular Interest LTM-3, REMIC II Regular
Interest LTM-4, REMIC II Regular Interest LTM-5, REMIC II Regular
Interest LTM-6, REMIC II Regular Interest LTM-7, REMIC II Regular
Interest LTM-8, REMIC II Regular Interest LTM-9, REMIC II Regular
Interest LTB1, REMIC II Regular Interest LTB2, REMIC II Regular
Interest LTB3 and REMIC II Regular Interest LTB4 in the same proportion as
the Overcollateralization Deficiency Amount is allocated to the Corresponding
Certificates and the Uncertificated Balance of the REMIC II Regular
Interest LTZZ shall be increased by such amount;
(ii) to
the
Holders of REMIC II Regular Interests, in an amount equal to the remainder
of the Available Funds for such Distribution Date after the distributions
made
pursuant to clause (i) above, allocated as follows:
(a) 98.00%
of
such remainder (other than amounts payable under clause (c) below), to the
Holders of REMIC II Regular Interest LTAA and REMIC II Regular
Interest LTP, until the Uncertificated Balance of such REMIC II Regular
Interest is reduced to zero, provided, however, that REMIC II Regular
Interest LTP shall not be reduced until the Distribution Date immediately
following the expiration of the latest Prepayment Premium or any Distribution
Date thereafter, at which point such amount shall be distributed to
REMIC II Regular Interest LTP, until $100 has been distributed pursuant to
this clause;
(b) 2.00%
of
such remainder (other than amounts payable under clause (c) below) first,
to the
Holders of REMIC II Regular Interest LT1A1, REMIC II Regular Interest
LT1A2, REMIC II Regular Interest LT2A1, REMIC II Regular Interest
LT2A2, REMIC II Regular Interest LT2A3, REMIC II Regular Interest
LT2A4, REMIC II Regular Interest LTM-1, REMIC II Regular Interest
LTM-2, REMIC II Regular Interest LTM-3, REMIC II Regular Interest
LTM-4, REMIC II Regular Interest LTM-5, REMIC II Regular Interest
LTM-6, REMIC II Regular Interest LTM-7, REMIC II Regular Interest
LTM-8, REMIC II Regular Interest LTM-9 and REMIC II Regular Interest
LTM-10, 1.00% and in the same proportion as principal payments are allocated
to
the Corresponding Certificates, until the Uncertificated Balances of such
REMIC II Regular Interests are reduced to zero and second, to the Holders
of REMIC II Regular Interest LTZZ, until the Uncertificated Balance of such
REMIC II Regular Interest is reduced to zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-II Interest);
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Release Amount shall be allocated
to
the Holders of (i) REMIC II Regular Interest LTAA and REMIC II Regular
Interest LTP, in that order and (ii) REMIC II Regular Interest LTZZ,
respectively; provided that REMIC II Regular Interest LTP shall not be
reduced until the Distribution Date immediately following the expiration
of the
latest Prepayment Premium or any Distribution Date thereafter, at which point
such amount shall be distributed to REMIC II Regular Interest LTP, until
$100 has been distributed pursuant to this clause; and
On
each
Distribution Date, 100% of the amounts distributed on REMIC II Regular
Interest LTIO shall be deemed distributed by REMIC II to REMIC III in
respect of the Class SWAP-IO Interest. On each Distribution Date, 100% of
the
amounts distributed on the Class SWAP-IO Interest shall be deemed distributed
by
REMIC III to REMIC VI in respect of REMIC VI Regular Interest
Swap IO. Such amounts shall be deemed distributed by REMIC VI to the Swap
Administrator for deposit into the Swap Account.
(c) The
Trust
Administrator shall cause the following allocation of losses:
(i)(a) For
purposes of calculating the amount of Uncertificated Accrued Interest for
the
REMIC Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls (to the extent not covered by payments by
the
Master Servicer pursuant to Section 3A.12) and any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans shall be allocated first,
to REMIC I Regular Interest I and to the REMIC I Regular Interests
ending with the designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC I Pass-Through Rates on the respective Uncertificated
Balances of each such REMIC I Regular Interest, and then, to REMIC I
Regular Interests ending with the designation “A”, pro rata based on, and to the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC I Pass-Through Rates on the respective Uncertificated Balances of
each such REMIC I Regular Interest.
(b) For
purposes of calculating the amount of Uncertificated Accrued Interest for
the
REMIC II Regular Interests for any Distribution Date:
(1) The
aggregate amount of any Prepayment Interest Shortfalls (to the extent not
covered by payments by the Master Servicer pursuant to Section 3A.12) and
any
Relief Act Interest Shortfalls incurred in respect of the Mortgage Loans
for any
Distribution Date shall be allocated among REMIC II
Regular Interest LT1A1, REMIC II Regular Interest LT2A1, REMIC II
Regular Interest LT1A2, REMIC II Regular Interest LT2A2, REMIC II
Regular Interest LT2A3, REMIC II Regular Interest LT2A4, REMIC II
Regular Interest LTM-1, REMIC II Regular Interest LTM-2, REMIC II
Regular Interest LTM-3, REMIC II Regular Interest LTM-4, REMIC II
Regular Interest LTM-5, REMIC II Regular Interest LTM-6, REMIC II
Regular Interest LTM-7, REMIC II Regular Interest LTM-8, REMIC II
Regular Interest LTM-9, REMIC II Regular Interest LTM-10 and REMIC II
Regular Interest LTZZ
and
REMIC II Regular Interest LTP, on a pro
rata
basis,
based on, and to the extent of, one month’s interest at the then applicable
respective Uncertificated REMIC II Pass-Through Rates on the respective
Uncertificated Balances of each such REMIC II Regular Interest;
and
(ii)(a)
All Realized Losses on the Mortgage Loans shall be allocated on each
Distribution Date first, to REMIC I Regular Interest I until the
Uncertificated Balance of such REMIC I Regular Interest has been reduced to
zero and second, to REMIC I Regular Interest I-1-A through REMIC I
Regular Interest I-48-B, starting with the lowest numerical denomination
until
such REMIC I Regular Interest has been reduced to zero, provided that, for
REMIC I Regular Interests with the same numerical denomination, such
Realized Losses shall be allocated pro
rata
between
such REMIC I Regular Interests.
(b)
All
Realized Losses on the Mortgage Loans shall be allocated by the Trust
Administrator on each Distribution Date to the following REMIC II Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Accrued Interest payable to the REMIC II Regular Interest LTAA and
REMIC II Regular Interest LTZZ up to an aggregate amount equal to the
REMIC II Interest Loss Allocation Amount, 98% and 2%, respectively; second,
to the Uncertificated Balances of the REMIC II Regular Interest LTAA and
REMIC II Regular Interest LTZZ up to an aggregate amount equal to the
REMIC II Principal Loss Allocation Amount, 98% and 2%, respectively; third,
to the Uncertificated Balances of REMIC II Regular Interest LTAA, and in
reverse order of seniority REMIC II Regular Interest LTM-10 through
REMIC II Regular Interest LTM-1, and REMIC II Regular Interest LTZZ,
98%, 1% and 1%, respectively, until the Uncertificated Balance of each
REMIC II Regular Interest has been reduced to zero.
(d) On
each
Distribution Date, all amounts representing Prepayment Premiums will be
distributed to REMIC II Regular Interest LTP and from REMIC II Regular
Interest LTP to the holder of the Class P Interest. Such amounts shall not
reduce the Uncertificated Balance of the Class P Interest.
(e) All
distributions in respect of the Class C Certificates and the Class P
Certificates shall be treated as having been made first from REMIC II to
the Corresponding Class of REMIC III Uncertificated Regular Interest and
then to the Class C Certificates and Class P Certificates by REMIC IV and
REMIC V, respectively. Any remaining amounts from either REMIC IV or
REMIC V shall be distributed to the Class R-X-IV Interest or the Class
R-X-V Interest, respectively.
(f) Notwithstanding
anything to the contrary contained herein, the above distributions in this
Section 4.08 (other than on the Certificates) are deemed distributions, and
distributions of funds from the Distribution Account shall be made only in
accordance with Sections 4.01 and 4.02 hereof.
(g) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests. If the Trust Administrator determines that the Residual
Certificates are entitled to any distributions, the Trust Administrator,
prior
to any such distribution to any Residual Certificate, shall notify the Depositor
of such impending distribution. Upon such notification, the Depositor will
request an amendment to the Pooling and Servicing Agreement to revise such
mistake in the distribution provisions. The Residual Certificate Holders,
by
their acceptance of their Certificates, and the Master Servicer hereby agree
and
no further consent shall be necessary, notwithstanding anything to the contrary
in this Pooling and Servicing Agreement.
ARTICLE
V
THE
CERTIFICATES
Section
5.01. The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount which must be in excess
of the
applicable minimum denomination) and aggregate denominations per Class set
forth in the Preliminary Statement.
The
Depositor hereby directs the Trust Administrator to register the Class C
Certificates and the Class P Certificates in the name of Fremont or its
designee. Pursuant to written direction by Fremont on the date specified
thereon, the Trust Administrator shall transfer the Class C Certificates
and the
Class P Certificates as follows: “Xxxxx Fargo Bank, N.A., as Indenture
Trustee on behalf of the Noteholders of the Fremont NIM Trust 2006-A”, and
deliver such Class C Certificates and Class P Certificates to Xxxxx Fargo
Bank,
N.A., as indenture trustee of the NIM Trust.
Subject
to Section 9.02 respecting the final distribution on the Certificates, on
each Distribution Date the Trust Administrator shall make distributions to
each
Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at
a bank
or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trust
Administrator or (y), in the event that no wire instructions are provided
to the
Trust Administrator, by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trust Administrator by an authorized officer. Certificates bearing the manual
or
facsimile signatures of individuals who were, at the time such signatures
were
affixed, authorized to sign on behalf of the Trust Administrator shall bind
the
Trust Administrator, notwithstanding that such individuals or any of them
have
ceased to be so authorized prior to the countersignature and delivery of
any
such Certificates or did not hold such offices at the date of such Certificate.
No Certificate shall be entitled to any benefit under this Agreement, or
be
valid for any purpose, unless countersigned by the Trust Administrator by
manual
signature, and such countersignature upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed
and delivered hereunder. All Certificates shall be dated the date of their
countersignature. On the Closing Date, the Trust Administrator shall countersign
the Certificates to be issued at the direction of the Depositor, or any
affiliate thereof.
The
Depositor shall provide, or cause to be provided, to the Trust Administrator
on
a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section
5.02. Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The
Trust
Administrator shall maintain, or cause to be maintained in accordance with
the
provisions of Section 5.06, a Certificate Register for the Trust Fund in
which, subject to the provisions of subsections (b) and (c) below and to
such reasonable regulations as it may prescribe, the Trust Administrator
shall
provide for the registration of Certificates and of transfers and exchanges
of
Certificates as herein provided. Upon surrender for registration of transfer
of
any Certificate, the Trust Administrator shall execute and deliver, in the
name
of the designated transferee or transferees, one or more new Certificates
of the
same Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest upon surrender of the Certificates to
be
exchanged at the office or agency of the Trust Administrator. Whenever any
Certificates are so surrendered for exchange, the Trust Administrator shall
execute, authenticate, and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a
written instrument of transfer in form satisfactory to the Trust Administrator
duly executed by the holder thereof or his attorney duly authorized in writing.
In the event the Depositor or an Affiliate transfers the Class C Certificates,
or a portion thereof, to another Affiliate, it shall notify the Trust
Administrator in writing of the affiliated status of the transferee. The
Trust
Administrator shall have no liability regarding the lack of notice with respect
thereto.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to
cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trust Administrator in accordance
with the Trust Administrator’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act
and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. Except with respect to the
initial transfer of the Class C and Class P Certificates to the NIM Trust
or, in connection with the ultimate dissolution of the NIM Trust, the transfer
of such Certificates from the NIM Trust to the Depositor, in the event that
a
transfer of a Private Certificate which is a Physical Certificate is to be
made
in reliance upon an exemption from the Securities Act and such laws, in order
to
assure compliance with the Securities Act and such laws, the Certificateholder
desiring to effect such transfer shall certify to the Trust Administrator
in
writing the facts surrounding the transfer in substantially the form set
forth
in Exhibit H (the “Transferor Certificate”) and either (i) there shall
be delivered to the Trust Administrator a letter in substantially the form
of
Exhibit I (the “Rule 144A Letter”) or (ii) in the case of the
Class C Certificates, there shall be delivered to the Trustee and the Trust
Administrator at the expense of the transferor an Opinion of Counsel that
such
transfer may be made without registration under the Securities Act. In the
event
that a transfer of a Private Certificate which is a Book-Entry Certificate
is to
be made in reliance upon an exemption from the Securities Act and such laws,
in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer will be deemed to have
made
as of the transfer date each of the certifications set forth in the Transferor
Certificate in respect of such Certificate and the transferee will be deemed
to
have made as of the transfer date each of the certifications set forth in
the
Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. The Depositor shall
provide to any Holder of a Private Certificate and any prospective transferee
designated by any such Holder, information regarding the related Certificates
and the Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for
transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by
Rule 144A. The Trustee, the Trust Administrator, the Master Servicer and
the Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to
the
Depositor such information regarding the Certificates, the Mortgage Loans
and
other matters regarding the Trust Fund as the Depositor shall reasonably
request
to meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trustee, the Trust Administrator, the Master Servicer, the
Depositor and the Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
Except
with respect to either the initial transfer of the Class C and Class P
Certificates to the NIM Trust or, in connection with the ultimate dissolution
of
the NIM Trust, the transfer of such Certificates from the NIM Trust to the
Depositor, no transfer of an ERISA-Restricted Certificate shall be made unless
the Trust Administrator shall have received either (i) a representation
from the transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trust Administrator (in the event such Certificate is
a
Private Certificate or a Residual Certificate, such requirement is satisfied
only by the Trust Administrator’s receipt of a representation letter from the
transferee substantially in the form of Exhibit I), to the effect that such
transferee is not an employee benefit plan or arrangement subject to Title
I of
ERISA or to Section 4975 of the Code or any federal, state or local laws
that are substantially similar to the provisions of ERISA and the Code (“Similar
Law”) (collectively, a “Plan”) or a person acting for, on behalf of or with the
assets of, any such Plan, or (ii) in the case of an ERISA-Restricted
Certificate (other than a Residual Certificate) presented for registration
in
the name of a Plan or a person acting for, on behalf of or with the assets
of,
any such Plan, an Opinion of Counsel satisfactory to the Trustee, the Trust
Administrator and the Servicer, which Opinion of Counsel shall not be an
expense
of the Depositor, the Trustee, the Trust Administrator, the Master Servicer,
the
Servicer, the Swap Administrator or the Trust Fund, upon which the Depositor,
the Trustee, the Master Servicer and the Servicer shall be entitled to rely,
to
the effect that the purchase or holding of such ERISA-Restricted Certificate
(i)
is permissible under applicable law, (ii) will not result in a non-exempt
prohibited transacion under Title I of ERISA, Section 4975 of the Code or
Similar Law and (iii) will not subject the Depositor, the Trustee, the Trust
Administrator, the Swap Administrator, the Master Servicer or the Servicer
to
any obligation or liability (including obligations or liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken by such entities
in
this Agreement. For purposes of clause (i) above, with respect to an
ERISA-Restricted Certificate that is a book-entry Certificate, in the event
the
representation letter referred to above is not furnished, such representation
shall be deemed to have been made to the Trustee and the Trust Administrator
by
the transferee’s (including an initial acquirer’s) acceptance of the
ERISA-Restricted Certificates. In the event that such representation is
violated, or any attempt to transfer to a Plan or a person acting for, on
behalf
of or with the assets of, any such plan or arrangement, without such Opinion
of
Counsel, such attempted transfer or acquisition shall be void and of no
effect.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trust Administrator shall be under no liability to any Person for any
registration or transfer of any ERISA-Restricted Certificate that is in fact
not
permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect
to
such Holder under the provisions of this Agreement so long as the transfer
was
registered by the Trust Administrator in accordance with the foregoing
requirements.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trust
Administrator of any change or impending change in its status as a Permitted
Transferee;
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trust Administrator shall not register
the Transfer of any Residual Certificate unless, in addition to the certificates
required to be delivered to the Trust Administrator under subparagraph (b)
above, the Trust Administrator shall have been furnished with an affidavit
(a
“Transfer Affidavit”) of the initial owner or the proposed transferee
substantially in the form attached hereto as Exhibit G;
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee;
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder
thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trust Administrator shall be under no liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact
not
permitted by Section 5.02(b) and this Section 5.02(c) or for making
any payments due on such Certificate to the Holder thereof or taking any
other
action with respect to such Holder under the provisions of this Agreement
so
long as the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate and the Rule 144A Letter. The Trust
Administrator shall be entitled but not obligated to recover from any Holder
of
a Residual Certificate that was in fact not a Permitted Transferee at the
time
it became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate at and
after either such time. Any such payments so recovered by the Trust
Administrator shall be paid and delivered by the Trust Administrator, to
the
last preceding Permitted Transferee of such Certificate; and
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trust Administrator, all information necessary to compute
any
tax imposed under Section 860E(e) of the Code as a result of a Transfer of
an Ownership Interest in a Residual Certificate to any Holder who is not
a
Permitted Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trust Administrator of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee,
the Trust Administrator, the Master Servicer, the Originator or the Servicer,
to
the effect that the elimination of such restrictions will not cause any Trust
REMIC to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment
of
this Agreement which, based on an Opinion of Counsel furnished to the Trust
Administrator, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Residual Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a
Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the Trust
Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates;
(iii) ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its
usual and customary fees, charges and expenses from its Depository Participants;
(v) the Trust Administrator shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the
rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they
are
made with respect to different Certificate Owners; and (vi) the Trust
Administrator may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and persons shown on the books of such indirect participating firms
as
direct or indirect Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made
in
accordance with the procedures established by the Depository Participant
or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
If
(i) the Depository or the Depositor advises the Trust Administrator in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trust Administrator or the
Depositor is unable to locate a qualified successor, the Trust Administrator
shall notify all Certificate Owners, through the Depository, of the occurrence
of any such event and of the availability of definitive, fully-registered
Certificates (the “Definitive Certificates”) to Certificate Owners requesting
the same. Upon surrender to the Trust Administrator of the related Class
of
Certificates by the Depository, accompanied by the instructions from the
Depository for registration, the Trust Administrator shall issue the Definitive
Certificates. None of the Servicer, the Master Servicer, the Trust
Administrator, the Depositor or the Trustee shall be liable for any delay
in
delivery of such instruction and each may conclusively rely on, and shall
be
protected in relying on, such instructions. The Depositor shall provide the
Trust Administrator with an adequate inventory of Certificates to facilitate
the
issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon
or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Trust Administrator, to the extent applicable with respect to such
Definitive Certificates and the Trust Administrator shall recognize the Holders
of the Definitive Certificates as Certificateholders hereunder; provided,
that
the Trust Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each
Private Certificate presented or surrendered for registration of transfer
or
exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Trust Administrator and the Certificate
Registrar, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Certificate Registrar in accordance with its customary practice.
No
service charge shall be made for any registration of transfer or exchange
of
Private Certificates, but the Trust Administrator or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge
that may be imposed in connection with any transfer or exchange of Private
Certificates.
Section
5.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Trust Administrator, or
the Trust Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the Depositor, the Servicer and the Trust Administrator such security or
indemnity as may be required by them to hold each of them harmless, then,
in the
absence of notice to the Trust Administrator that such Certificate has been
acquired by a protected purchaser, the Trust Administrator shall execute,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Trust Administrator may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trust Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete
and indefeasible evidence of ownership, as if originally issued, whether
or not
the lost, stolen or destroyed Certificate shall be found at any
time.
Section
5.04. Persons
Deemed Owners.
The
Servicer, the Master Servicer, the Swap Administrator, the Trust Administrator,
the Trustee, the Depositor and any agent of the Servicer, the Master Servicer,
the Swap Administrator, the Trust Administrator, the Depositor or the Trustee
may treat the Person in whose name any Certificate is registered as the owner
of
such Certificate for the purpose of receiving distributions as provided in
this
Agreement and for all other purposes whatsoever, and none of the Servicer,
the
Trustee, the Depositor or any agent of the Servicer, the Master Servicer,
the
Swap Administrator, the Trust Administrator, the Depositor or the Trustee
shall
be affected by any notice to the contrary.
Section
5.05. Access
to List of Certificateholders’ Names and Addresses.
If
three
or more Certificateholders (a) request such information in writing from the
Trust Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or the Servicer shall request such information in writing from
the
Trust Administrator, then the Trust Administrator shall, within ten Business
Days after the receipt of such request, provide the Depositor, the Servicer
or
such Certificateholders at such recipients’ expense the most recent list of the
Certificateholders of such Trust Fund held by the Trust Administrator, if
any.
The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Trust Administrator shall not be held accountable
by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section
5.06. Maintenance
of Office or Agency.
The
Trust
Administrator will maintain or cause to be maintained at its expense an office
or offices or agency or agencies in Minneapolis, Minnesota where Certificates
may be surrendered for registration of transfer or exchange. The Trust
Administrator initially designates its offices located at Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 for such purposes. The Trust
Administrator will give prompt written notice to the Certificateholders of
any
change in such location of any such office or agency.
ARTICLE
VI
THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SWAP ADMINISTRATOR AND
THE
SERVICER
Section
6.01. Respective
Liabilities of the Depositor, the Originator, the Master Servicer, the Swap
Administrator and the Servicer.
The
Depositor, the Originator, the Master Servicer, the Swap Administrator and
the
Servicer shall each be liable in accordance herewith only to the extent of
the
obligations specifically and respectively imposed upon and undertaken by
them
herein.
Section
6.02. Merger
or Consolidation of the Depositor, the Originator, the Master Servicer, the
Swap
Administrator or the Servicer.
The
Depositor, the Originator, the Master Servicer, the Swap Administrator and
the
Servicer will each keep in full effect its existence, rights and franchises
as a
corporation, national bank or state chartered industrial bank, as the case
may
be, under the laws of the United States or under the laws of one of the states
thereof and will each obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any
Person into which the Depositor, the Originator, the Master Servicer, the
Swap
Administrator or the Servicer may be merged or consolidated, or any Person
resulting from any merger or consolidation to which the Depositor, the
Originator, the Master Servicer, the Swap Administrator or the Servicer shall
be
a party, or any person succeeding to the business of the Depositor, the
Originator, the Master Servicer, the Swap Administrator or the Servicer,
shall
be the successor of the Depositor, the Originator, the Master Servicer, the
Swap
Administrator or the Servicer, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of
the
parties hereto, anything herein to the contrary notwithstanding; provided,
however,
that
such merger, consolidation or succession does not adversely affect the then
current rating or ratings on the Offered Certificates.
Section
6.03. Limitation
on Liability of the Depositor, the Originator, the Master Servicer, the Swap
Administrator, the Trust Administrator, the Servicer and Others.
None
of
the Depositor, the Originator, the Master Servicer, the Swap Administrator,
the
Trust Administrator, the Servicer nor any of their respective directors,
officers, employees or agents shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking
of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Servicer or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Originator, the Master Servicer,
the Swap Administrator, the Servicer, the Trust Administrator or any such
Person
from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence (or gross negligence in the case of
the
Depositor) in the performance of duties or by reason of reckless disregard
of
obligations and duties hereunder. The Depositor, the Originator, the Master
Servicer, the Swap Administrator, the Servicer, the Trust Administrator and
any
director, officer, employee or agent of the Depositor, the Originator, the
Master Servicer, the Swap Administrator, the Servicer and the Trust
Administrator may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Originator, the Master Servicer, the Swap
Administrator, the Servicer, the Trust Administrator and any director, officer,
employee or agent of the Depositor, the Originator, the Master Servicer,
the
Swap Administrator, the Servicer and the Trust Administrator shall be
indemnified by the Trust Fund and held harmless against any loss, liability
or
expense incurred in connection with any audit, controversy, judicial proceeding
or legal action relating to a governmental taxing authority or to this
Agreement, the Certificates or the Mortgage Loans or any other unanticipated
or
extraordinary expense, other than any loss, liability or expense incurred
by
reason of willful misfeasance, bad faith or negligence (or gross negligence
in
the case of the Depositor) in the performance of their respective duties
hereunder or by reason of reckless disregard of their respective obligations
and
duties hereunder. None of the Originator, the Master Servicer, the Swap
Administrator, the Depositor nor the Servicer shall be under any obligation
to
appear in, prosecute or defend any legal action that is not incidental to
its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that each of the Depositor, the
Originator, the Master Servicer, the Swap Administrator and the Servicer
may in
its discretion undertake any such action (or direct the Trustee or the Trust
Administrator to undertake such actions pursuant to Section 2.03 for the
benefit of the Certificateholders) that it may deem necessary or desirable
in
respect of this Agreement and the rights and duties of the parties hereto
and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and
the
Depositor, the Originator, the Trust Administrator, the Trustee, the Master
Servicer, the Swap Administrator and the Servicer shall be entitled to be
reimbursed therefor out of the Collection Account.
Each
of
the Master Servicer and the Swap Administrator agrees to indemnify the Trustee
from, and hold it harmless against, any loss, liability or expense resulting
from a breach of the Master Servicer’s or Swap Administrator’s respective
obligations and duties under this Agreement. Such indemnity shall survive
the
termination or discharge of this Agreement and the resignation or removal
of the
Trustee. Any payment hereunder made by the Master Servicer or the Swap
Administrator to the Trustee shall be from the Master Servicer’s or Swap
Administrator’s own funds, as applicable, without reimbursement from the Trust
Fund.
Section
6.04. Limitation
on Resignation of the Servicer.
The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except (i) by mutual consent of the Servicer,
the Depositor, the Master Servicer, the Swap Administrator, the Trust
Administrator and the Trustee or (ii) upon the determination that its
duties hereunder are no longer permissible under applicable law and such
incapacity cannot be cured by the Servicer without the incurrence of
unreasonable expense. Any such determination permitting the resignation of
the
Servicer under clause (ii) above shall be evidenced by an Opinion of Counsel
to
such effect delivered to the Depositor, the Master Servicer, the Swap
Administrator, the Trust Administrator and the Trustee which Opinion of Counsel
shall be in form and substance acceptable to the Depositor, the Trust
Administrator, the Swap Administrator, the Master Servicer and the Trustee.
No
such resignation shall become effective until a successor shall have assumed
the
Servicer’s responsibilities and obligations hereunder.
Section
6.05. Additional
Indemnification by the Servicer; Third Party Claims.
The
Servicer shall indemnify the Originator, the Depositor, the Master Servicer,
the
Swap Administrator, the Trust Administrator and the Trustee and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any
way
related to any breach by the Servicer of (i) any of its representations and
warranties referred to in Section 2.03(a), (ii) any error in any tax
or information return prepared by the Servicer, or (iii) the failure of the
Servicer to perform its duties and service the Mortgage Loans in compliance
with
the terms of this Agreement. The Servicer immediately shall notify the
Depositor, the Master Servicer, the Swap Administrator, the Trust Administrator
and the Trustee if such claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written consent of
the
Depositor, the Trust Administrator, the Swap Administrator, the Master Servicer
and the Trustee) the defense of any such claim and pay all expenses in
connection therewith, including reasonable counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against
it or
the Originator, the Depositor, the Master Servicer, the Swap Administrator,
the
Trust Administrator or the Trustee in respect of such claim.
Section
6.06. Rights
of the Depositor, the Master Servicer, the Swap Administrator, the Trust
Administrator and the Trustee in Respect of the Servicer.
The
Servicer shall afford (and any Subservicing Agreement shall provide that
each
Subservicer shall afford) the Depositor, the Master Servicer, the Swap
Administrator, the Trust Administrator and the Trustee, upon reasonable notice,
during normal business hours, access to all records maintained by the Servicer
(and any such Subservicer) in respect of the Servicer’s rights and obligations
hereunder and access to officers of the Servicer (and those of any such
Sub-Servicer) responsible for such obligations. Upon request, the Servicer
shall
furnish to the Depositor, the Master Servicer, the Swap Administrator, the
Trust
Administrator and the Trustee its (and any such Sub-Servicer’s) most recent
financial statements and such other information relating to the Servicer’s
capacity to perform its obligations under this Agreement that it possesses.
To
the extent the parties are informed that such information is not otherwise
available to the public or is deemed confidential by the Servicer, the
Depositor, the Master Servicer, the Swap Administrator, the Trust Administrator
and the Trustee shall not disseminate any information obtained pursuant to
the
preceding two sentences without the Servicer’s (or any such Subservicer’s)
written consent, except as required pursuant to this Agreement or to the
extent
that it is necessary to do so (i) in working with legal counsel, auditors,
taxing authorities or other governmental agencies, rating agencies or reinsurers
or (ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over
the
Depositor, the Trustee, the Master Servicer, the Swap Administrator, the
Trust
Administrator or the Trust Fund, and in either case, the Depositor, the Master
Servicer, the Swap Administrator, the Trust Administrator or the Trustee,
as the
case may be, shall each use its best efforts to assure the confidentiality
of
any such disseminated non-public information. Nothing in this Section shall
limit the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of the
Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section. Nothing in this
Section 6.06 shall require the Servicer to collect, create, collate or otherwise
generate any information that it does not generate in its usual course of
business. The Servicer shall not be required to make copies of or ship documents
to any party unless provisions have been made for the reimbursement of the
costs
thereof.
The
Depositor may, but is not obligated to, enforce the obligations of the Servicer
under this Agreement and may, but is not obligated to, perform, or cause
a
designee to perform, any defaulted obligation of the Servicer under this
Agreement or exercise the rights of the Servicer under this Agreement; provided
that the Servicer shall not be relieved of any of its obligations under this
Agreement by virtue of such performance by the Depositor or its designee.
The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Servicer and is not obligated to supervise the performance
of the Servicer under this Agreement or otherwise.
Section
6.07. Limitation
on Resignation of the Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (i) upon determination that its duties hereunder are no longer
permissible under applicable law or (ii) with written confirmation from each
Rating Agency (which confirmation shall be furnished to the Depositor, the
Trust
Administrator, the Master Servicer, the Swap Administrator and the Trustee)
that
such resignation will not cause such Rating Agency to reduce the then current
rating of any Class of Offered Certificates. Any such determination pursuant
to
clause (i) of the preceding sentence permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Counsel to such effect obtained
at
the expense of the Master Servicer and delivered to the Trustee and the Trust
Administrator. No resignation of the Master Servicer shall become effective
until a successor master servicer shall have assumed the Master Servicer’s
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Section
6.08. Assignment
of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement; provided,
however, that: (i) the purchaser or transferee accept in writing such assignment
and delegation and assume the obligations of the Master Servicer hereunder
and
that the purchaser or transferee (a) have a net worth of not less than
$5,000,000 (unless otherwise approved by each Rating Agency pursuant to clause
(ii) below); (b) be reasonably satisfactory to the Trustee, the Servicer
and the
Depositor (as evidenced in a writing signed by the Trustee and the Depositor);
and (c) execute and deliver to the Trustee and the Depositor an agreement,
in
form and substance reasonably satisfactory to the Trustee and the Depositor,
which contains an assumption by such Person of the due and punctual performance
and observance of each covenant and condition to be performed or observed
by it
after the date of such assumption as master servicer under this Agreement;
(ii)
each Rating Agency shall be given prior written notice of the identity of
the
proposed successor to the Master Servicer and each Rating Agency’s rating of the
Certificates in effect immediately prior to such assignment, sale and delegation
will not be downgraded, qualified or withdrawn as a result of such assignment,
sale and delegation, as evidenced by a letter to such effect delivered to
the
Master Servicer, the Depositor and the Trustee; and (iii) the Master Servicer
assigning and selling the master servicing shall deliver to the Trustee and
the
Depositor an officer’s certificate and an Opinion of Independent counsel, each
stating that all conditions precedent to such action under this Agreement
have
been completed and such action is permitted by and complies with the terms
of
this Agreement. No such assignment or delegation shall affect any liability
of
the Master Servicer arising out of acts or omissions prior to the effective
date
thereof.
ARTICLE
VII
DEFAULT
Section
7.01. Events
of Default.
(a) “Servicer
Event of Default,” wherever used herein, means any one of the following
events:
(i) any
failure by the Servicer to remit to the Trust Administrator any payment required
to be made under the terms of this Agreement which continues unremedied for
a
period of one Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Depositor, the Trustee, the Master Servicer or the Trust
Administrator, or to the Servicer, the Depositor, the Master Servicer, the
Trust
Administrator and the Trustee by Certificateholders entitled to at least
25% of
the Voting Rights; or
(ii) the
failure on the part of the Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
set
forth in this Agreement which continues unremedied for a period of thirty
days after the earlier of (i) the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Depositor, the Trustee, the Master Servicer or the Trust
Administrator, or to the Servicer, the Depositor, the Master Servicer, the
Trust
Administrator and the Trustee by Certificateholders entitled to at least
25% of
the Voting Rights and (ii) actual knowledge of such failure by a Servicing
Officer of the Servicer; provided,
however,
that in
the case of a failure or breach that cannot be cured within 30 days after
notice or actual knowledge by the Servicer, the cure period may be extended
for
an additional 30 days upon delivery by the Servicer to the Master Servicer,
the
Trust Administrator and the Trustee of a certificate to the effect that the
Servicer believes in good faith that the failure or breach can be cured within
such additional time period and the Servicer is diligently pursuing remedial
action; or
(iii) the
failure by the Servicer in any month to deliver the Servicer Remittance
Report to the Trust Administrator, and such failure continues uncured for
more
than 30 days after the date upon which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the Depositor,
the Trustee, the Master Servicer or the Trust Administrator, or to the Servicer,
the Depositor, the Master Servicer, the Trust Administrator and the Trustee
by
Certificateholders entitled to at least 25% of the Voting Rights;
or
(iv) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(v) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(vi) the
Servicer shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vii) for
so
long as Fremont Investment & Loan is the Servicer, any failure by the
Servicer of the Servicer Termination Test; or
(viii) any
failure of the Servicer to make any Advance on any Remittance Date required
to
be made from its own funds pursuant to Section 4.01 which continues
unremedied for one Business Day immediately following the Remittance Date;
or
(ix) a
breach
of any representation and warranty of the Servicer referred to in
Section 2.03(a), which materially and adversely affects the interests of
the Certificateholders and which continues unremedied for a period of thirty
days after the date upon which written notice of such breach is given to
the
Servicer by the Trustee, the Master Servicer, the Trust Administrator or
the
Depositor, or to the Servicer, the Trustee, the Master Servicer, the Trust
Administrator and the Depositor by Certificateholders entitled to at least
25%
of the Voting Rights in the Certificates; or
(x) any
failure by the Servicer to duly perform within the required time period,
its
obligations under Section 3.22, Section 3.23 or Section 4.07, which failure
continues unremedied for a period of 3 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given
to the Servicer by the Trustee, the Master Servicer, the Trust Administrator
or
the Depositor, or to the Servicer, the Trustee, the Master Servicer, the
Trust
Administrator and the Depositor by Certificateholders entitled to at least
25%
of the Voting Rights in the Certificates.
If
a
Servicer Event of Default shall occur, then, and in each and every such case,
so
long as such Servicer Event of Default shall not have been remedied, the
Master
Servicer, Trust Administrator or the Trustee may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights, the Trust
Administrator shall direct the Trustee, and the Trustee shall, by notice
in
writing to the Servicer (with a copy to each Rating Agency), terminate all
of
the rights and obligations of the Servicer under this Agreement and in and
to
the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder; provided,
however,
that
the Master Servicer or the Trustee shall not be required to give written
notice
to the Servicer of the occurrence of a Servicer Event of Default described
in
clauses (ii) through (x) of this Section 7.01(a) unless and until a
Responsible Officer of the Trustee or a Master Servicing Officer has actual
knowledge of the occurrence of such a Servicer Event of Default. In the event
that a Responsible Officer of the Trustee or a Master Servicing Officer has
actual knowledge of the occurrence of an event of default described in clause
(i) of this Section 7.01(a), the Master Servicer, the Trust Administrator
or the Trustee shall give written notice to the Servicer of the occurrence
of
such an event within one Business Day of the first day on which the Responsible
Officer obtains actual knowledge of such occurrence; provided that failure
to
give such notice shall not constitute a waiver of such Servicer Event of
Default. On and after the receipt by the Servicer of such written notice,
all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Master Servicer.
The Master Servicer is hereby authorized and empowered to execute and deliver,
on behalf of the Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any obligation
of the Servicer to pay amounts owed pursuant to Article VIII. The Servicer
agrees to cooperate with the Master Servicer in effecting the termination
of the
Servicer’s responsibilities and rights hereunder, including, without limitation,
the transfer to the Master Servicer of all cash amounts which shall at the
time
be credited to the Collection Account of such predecessor Servicer, or
thereafter be received with respect to the Mortgage Loans.
Notwithstanding
any termination of the activities of the Servicer hereunder, the Servicer
shall
be entitled to receive from the Trust Fund, prior to transfer of its servicing
obligations hereunder, payment of all accrued and unpaid portion of the
Servicing Fees to which the Servicer would have been entitled and reimbursement
for all outstanding P&I Advances and Servicing Advances, including Servicing
Advances incurred prior to but not invoiced until after the date of termination,
in accordance with the terms of this Agreement. In addition, the Servicer
shall
continue to be entitled to the benefits of Section 6.03, notwithstanding
any
termination hereunder, with respect to events occurring prior to such
termination.
(b) On
or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans
or otherwise, shall pass to and be vested in the Master Servicer pursuant
to and
under this Section and, without limitation, the Master Servicer is hereby
authorized and empowered, as attorney-in-fact or otherwise, to execute and
deliver on behalf of and at the expense of the Servicer, any and all documents
and other instruments and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to
complete the transfer and endorsement or assignment of the Mortgage Loans
and
related documents, or otherwise. The Servicer agrees, at its sole cost and
expense, promptly (and in any event no later than ten Business Days subsequent
to such notice) to provide the Master Servicer with all documents and records
requested by it to enable it to assume the Servicer’s functions under this
Agreement, and to cooperate with the Master Servicer in effecting the
termination of the Servicer’s responsibilities and rights under this Agreement,
including, without limitation, the transfer within one Business Day to the
Master Servicer for administration by it of all cash amounts which at the
time
shall be or should have been credited by the Servicer to the Collection Account
held by or on behalf of the Servicer, or any REO Account or Servicing Account
held by or on behalf of the Servicer or thereafter be received with respect
to
the Mortgage Loans or any REO Property. For purposes of this Section 7.01,
the
Master Servicer shall not be deemed to have knowledge of a Servicer Event
of
Default unless a Master Servicing Officer of the Master Servicer has actual
knowledge thereof or unless written notice of any event which is in fact
such a
Servicer Event of Default is received by the Master Servicer and such notice
references any of the Certificates, the Trust, the REMICs or this
Agreement.
The
Master Servicer shall be entitled to be reimbursed by the defaulting Servicer
(or by the Trust Fund if such Servicer is unable to fulfill its obligations
hereunder) for all reasonable out-of-pocket or third party costs associated
with
the transfer of servicing from the predecessor Servicer (or if the predecessor
Servicer is the Master Servicer, from the Servicer immediately preceding
the
Master Servicer), including without limitation, any reasonable out-of-pocket
or
third party 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
to service the Mortgage Loans properly and effectively, upon presentation
of
reasonable documentation of such costs and expenses.
Notwithstanding
any termination of the activities of the Servicer hereunder, the Servicer
shall
be entitled to receive, out of any Late Collection of a Monthly Payment on
a
Mortgage Loan which was due prior to the notice terminating such Servicer’s
rights and obligations as Servicer hereunder and received after such notice,
that portion thereof to which such Servicer would have been entitled pursuant
to
Section 3.11, and any other amounts payable to such Servicer hereunder the
entitlement to which arose in accordance with Section 3.11 and in the time
period specified in Section 3.11 prior to the termination of its activities
hereunder. The Servicer shall continue to be entitled to the benefits of
Section
6.03, notwithstanding any termination hereunder with respect to events occurring
prior to such termination.
(c) If
any
one of the following events (“Master Servicer Events of Termination”) shall
occur and be continuing:
(i) any
failure by the Master Servicer to deposit in the Distribution Account any
amount
required to be deposited by it under the terms of this Agreement (including
an
Advance required to be made pursuant to Section 4.01 hereof), which failure
shall continue unremedied for one Business Day after the date upon which
written
notice of such failure shall have been given to the Master Servicer by the
Trustee or the Depositor or to the Master Servicer and the Trustee by the
Holders of Certificates having not less than 51% of the Voting Rights evidenced
by the Certificates; or
(ii) any
failure on the part of the Master Servicer duly to observe or perform in
any
material respect any of the covenants or agreements on the part of the Master
Servicer contained in this Agreement, or the breach by the Master Servicer
of
any representation and warranty contained in Section 2.07, which continues
unremedied for a period of 30 days after the date on which written notice
of
such failure, requiring the same to be remedied, shall have been given to
the
Master Servicer by the Depositor, the Trustee, or to the Master Servicer,
the
Depositor and the Trustee by the Holders of Certificates entitled to at least
25% of the Voting Rights; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator
or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force undischarged or unstayed
for a period of 90 days; or
(iv) the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings of or relating to it or of or relating
to all
or substantially all of its property; or
(v) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors, or voluntarily suspend payment of its obligations.
If
a
Master Servicer Event of Termination described in clause (i) of this Section
7.03(c) shall occur, the Trustee shall, by notice to the Master Servicer
and the
Depositor, immediately terminate all of the rights and obligations of the
Master
Servicer under this Agreement (other than as a Holder of any Certificate)
and in
and to the Mortgage Loans and the proceeds thereof. If a Master Servicer
Event
of Termination described in clauses (ii) through (v) of this Section 7.03(c)
shall occur, then, and in each and every such case, so long as such Master
Servicer Event of Termination shall not have been remedied, the Trustee may,
and
at the written direction of the Holders of Certificates entitled to at least
51%
of the Voting Rights, the Trustee shall, by notice in writing to the Master
Servicer (and to the Depositor if given by the Trustee or to the Trustee
if
given by the Depositor) with a copy to each Rating Agency, terminate all
of the
rights and obligations of the Master Servicer in its capacity as Master Servicer
under this Agreement, to the extent permitted by law, in and to the Mortgage
Loans and the proceeds thereof. Upon such termination, or on or after receipt
by
the Master Servicer of such written notice, as the case may be, all authority,
power and obligations of the Master Servicer under this Agreement, whether
with
respect to the Certificates (other than as a Holder of any Certificate) or
the
Mortgage Loans or otherwise including, without limitation, the compensation
payable to the Master Servicer under this Agreement after the date of such
termination, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered, as attorney-in-fact or otherwise, to execute and deliver, on behalf
of and at the expense of the Master Servicer, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether
to
complete the transfer and endorsement or assignment of the Mortgage Loans
and
related documents, or otherwise. The Master Servicer agrees promptly (and
in any
event no later than ten Business Days subsequent to such notice) to provide
the
Trustee with all documents and records requested by it to enable it to assume
the Master Servicer’s functions under this Agreement, and to cooperate with the
Trustee in effecting the termination of the Master Servicer’s responsibilities
and rights under this Agreement (provided, however, that the Master Servicer
shall continue to be entitled to receive all amounts accrued or owing to
it
under this Agreement on or prior to the date of such termination and shall
continue to be entitled to the benefits of Section 6.03, notwithstanding
any
such termination, with respect to events occurring prior to such termination).
For purposes of this Section 7.01(c), the Trustee shall not be deemed to
have
knowledge of a Master Servicer Event of Termination unless a Responsible
Officer
of the Trustee assigned to and working in the Trustee’s Corporate Trust Office
has actual knowledge thereof or unless written notice of any event which
is in
fact such a Master Servicer Event of Termination is received by the Trustee
and
such notice references the Certificates, the Trust or this Agreement. The
Trustee shall promptly notify the Rating Agencies of the occurrence of a
Master
Servicer Event of Termination of which it has knowledge as provided
above.
To
the
extent that the costs and expenses of the Trustee related to the termination
of
the Master Servicer, appointment of a successor Master Servicer or the transfer
and assumption of the master servicing by the Trustee (including, without
limitation, (i) all legal costs and expenses and all due diligence costs
and
expenses associated with an evaluation of the potential termination of the
Master Servicer as a result of a Master Servicer Event of Termination and
(ii)
all costs and expenses associated with the complete transfer of the master
servicing, including all master servicing files and all master servicing
data
and the completion, correction or manipulation of such master servicing data
as
may be required by the successor Master Servicer to correct any errors or
insufficiencies in the master servicing data or otherwise to enable the
successor Master Servicer to master service the Mortgage Loans in accordance
with this Agreement) and any other master servicing transfer costs applicable
with respect to a transfer of master servicing are not fully and timely
reimbursed by the terminated Master Servicer, the Trustee shall be entitled
to
reimbursement of such costs and expenses from the Distribution
Account.
Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint any established housing and home finance institution servicer, master
servicer, servicing or mortgage servicing institution having a net worth
of not
less than $15,000,000 and meeting such other standards for a successor master
servicer as are set forth in this Agreement, as the successor to such Master
Servicer in the assumption of all of the responsibilities, duties or liabilities
of a master servicer, like the Master Servicer.
Neither
the Trustee nor any other successor Master Servicer shall be deemed to be
in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof or any failure to perform,
or any
delay in performing, any duties or responsibilities hereunder, in either
case
caused by the failure of the Master Servicer to deliver or provide, or any
delay
in delivering or providing, any cash, information, documents or records to
it.
Furthermore, neither the Trustee nor any other successor Master Servicer
shall
be liable for any acts or omissions of the terminated Master
Servicer.
Section
7.02. Master
Servicer to Act; Appointment of Successor.
(a) On
and
after the time the Servicer receives a notice of termination pursuant to
Section 7.01, the Master Servicer shall, subject to and to the extent
provided in Section 3.06, be the successor in all respects to the Servicer
in
its capacity as Servicer under this Agreement and the transactions set forth
or
provided for herein, and shall immediately assume all the responsibilities,
duties and liabilities relating thereto and arising thereafter (except for
any
representations or warranties of the Servicer under this Agreement, the
responsibilities, duties and liabilities contained in Section 2.03(d)-(h))
by
the terms and provisions hereof including, without limitation, the Servicer’s
obligations to make P&I Advances pursuant to Section 4.01; provided,
however, that if the Master Servicer is prohibited by law or regulation from
obligating itself to make advances regarding delinquent mortgage loans, then
the
Master Servicer shall not be obligated to make P&I Advances pursuant to
Section 4.01; and provided further, that any failure to perform such duties
or
responsibilities caused by the Servicer’s failure to deliver or provide, or
delay in delivering or providing, information, documents, records or cash
as
required under this Agreement shall not be considered a default by the Master
Servicer as successor to the Servicer hereunder; and provided further, that it
is understood and acknowledged by the parties hereto that there will be a
period
of transition (not to exceed 90 days) before the actual servicing functions
(other than the obligation to advance P&I Advances, which obligation shall
arise upon the receipt by the Servicer of notice of termination pursuant
to
Section 7.01) can be fully transferred to the Master Servicer or any successor
Servicer appointed in accordance with this Agreement. As compensation therefor,
the Master Servicer shall be entitled to the Servicing Fee and all funds
relating to the Mortgage Loans to which the Servicer would have been entitled
if
it had continued to act as Servicer hereunder. Notwithstanding the above
and
subject to the immediately following paragraph, the Master Servicer may,
if it
shall be unwilling to so act, or shall, if it is unable to so act promptly
appoint or petition a court of competent jurisdiction to appoint, a Person
that
satisfies the eligibility criteria set forth below as the successor Servicer
under this Agreement in the assumption of the responsibilities, duties or
liabilities of the Servicer under this Agreement.
Notwithstanding
anything herein to the contrary, in no event shall the Trustee, the Trust
Administrator or the Master Servicer be liable for any Servicing Fee or for
any
differential in the amount of the Servicing Fee paid hereunder and the amount
necessary to induce any successor Servicer to act as successor Servicer under
this Agreement and the transactions set forth or provided for
herein.
Any
successor Servicer appointed under this Agreement must (i) be an established
mortgage loan servicing institution, (ii) be approved by each Rating Agency
by a
written confirmation from each Rating Agency that the appointment of such
successor Servicer would not result in the reduction or withdrawal of the
then
current ratings of any outstanding Class of Certificates, (iii) have a net
worth
of not less than $30,000,000 and (iv) assume all the responsibilities, duties
or
liabilities of the Servicer (other than liabilities of the Servicer hereunder
incurred prior to termination of the Servicer under Section 7.01 herein)
under
this Agreement as if originally named as a party to this Agreement.
(b) i) All
Servicing Transfer Costs incurred by the Trustee, the Trust Administrator,
the
Master Servicer and any successor Servicer under paragraph (b)(2) below shall
be
paid immediately by the terminated Servicer upon presentation of reasonable
documentation of such costs, and if such predecessor or initial Servicer,
as
applicable, defaults in its obligation to pay such costs, the successor
Servicer, the Master Servicer, the Trust Administrator and the Trustee shall
be
entitled to reimbursement therefor from the assets of the Trust
Fund.
(ii) No
appointment of a successor to the Servicer under this Agreement shall be
effective until the assumption by the successor of all of the Servicer’s
responsibilities, duties and liabilities hereunder. In connection with such
appointment and assumption described herein, the Trustee, the Trust
Administrator or the Master Servicer may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and
such
successor shall agree; provided, however, that no such compensation shall
be in
excess of that permitted the Servicer as such hereunder. The Depositor, the
Trustee, the Trust Administrator, the Master Servicer and such successor
shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Pending appointment of a successor to the
Servicer under this Agreement, the Master Servicer shall act in such capacity
as
hereinabove provided.
Any
successor to the Servicer as servicer shall give notice to the Mortgagors
of
such change of Servicer, in accordance with applicable federal and state
law,
and shall, during the term of its service as Servicer, maintain in force
the
policy or policies that the Servicer is required to maintain pursuant to
Section 3.13.
Any
such
successor Servicer shall be required to satisfy the requirements of a successor
Servicer under this Section 7.02.
Section
7.03. Notification
to Certificateholders.
(a) Upon
any
termination of a Servicer or appointment of a successor Servicer, the Trust
Administrator shall give prompt written notice thereof to Certificateholders
and
to each Rating Agency.
(b) Within
60
days after the occurrence of any Servicer Event of Default or Master Servicer
Event of Termination, the Trust Administrator or Trustee respectively shall
transmit by mail to all Certificateholders and each Rating Agency notice
of each
such Servicer Event of Default or Master Servicer Event of Termination hereunder
known to the Trustee or the Trust Administrator, as applicable, unless such
Servicer Event of Default or Master Servicer Event of Termination shall have
been cured or waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE
AND THE
TRUST ADMINISTRATOR
Section
8.01. Duties
of the Trustee.
The
Trustee, before the occurrence of a Servicer Event of Default or Master Servicer
Event of Termination and after the curing of all Servicer Events of Default
or
Master Servicer Events of Termination that may have occurred, shall undertake
to
perform such duties and only such duties as are specifically set forth in
this
Agreement. In case a Master Servicer Event of Termination has occurred and
remains uncured, the Trustee shall exercise such of the rights and powers
vested
in it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances
in
the conduct of such person’s own affairs.
Each
of
the Trustee and the Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they are in the form required by this Agreement. Neither the Trustee
nor
the Trust Administrator shall be responsible for the accuracy or content
of any
resolution, certificate, statement, opinion, report, document, order, or
other
instrument.
The
Trust
Administrator agrees to notify the Master Servicer in writing no later than
5:00 p.m. New York time on each Remittance Date of the aggregate dollar
amount of the funds received by the Trust Administrator from the Servicer
on
such Remittance Date and any other information reasonably requested by the
Master Servicer, so as to enable the Master Servicer to make the reconciliations
and verifications required to be made by it pursuant to Section 3A.01. Neither
the Trustee nor the Trust Administrator shall be deemed to have knowledge
of a
Servicer Event of Default or Master Servicer Event of Termination unless
a
Responsible Officer of the Trustee or the Trust Administrator, respectively,
has
actual knowledge thereof or unless written notice of any event which is in
fact
such a Servicer Event of Default or Master Servicer Event of Termination
is
received by the Trustee or the Trust Administrator, respectively, and such
notice references any of the Certificates, the Trust, the REMICs or this
Agreement.
No
provision of this Agreement shall be construed to relieve the Trustee or
the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however,
that:
(i) The
duties and obligations of the Trust Administrator, and with respect to the
duties and obligations of the Trustee, prior to the occurrence of a Servicer
Event of Default or Master Servicer Event of Termination, and after the curing
of all such Servicer Events of Default or Master Servicer Events of Termination
which may have occurred, shall be determined solely by the express provisions
of
this Agreement, the Trustee and the Trust Administrator shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations shall be
read
into this Agreement against the Trustee or the Trust Administrator and, in
the
absence of bad faith on the part of the Trustee or the Trust Administrator,
as
applicable, the Trustee or the Trust Administrator, as applicable, may
conclusively rely, as to the truth of the statements and the correctness
of the
opinions expressed therein, upon any certificates or opinions furnished to
it
that conform to the requirements of this Agreement;
(ii) Neither
the Trustee nor the Trust Administrator shall be personally liable for an
error
of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee or the Trust Administrator, as applicable, unless it shall
be
proved that the Trustee or the Trust Administrator, as the case may be, was
negligent in ascertaining the pertinent facts; and
Neither
the Trustee nor the Trust Administrator shall be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith
in
accordance with the direction of the Holders of Certificates entitled to
at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or the
Trust
Administrator, or exercising any trust or power conferred upon the Trustee
or
the Trust Administrator, under this Agreement.
Section
8.02. Certain
Matters Affecting the Trustee
and
the Trust Administrator.
(a) Except
as
otherwise provided in Section 8.01:
(i) Before
taking any action under this Agreement, each of the Trustee or the Trust
Administrator may request and rely conclusively upon and shall be fully
protected in acting or refraining from acting upon any resolution, Officer’s
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or
other paper or document reasonably believed by it to be genuine and to have
been
signed or presented by the proper party or parties;
(ii) Each
of
the Trustee and the Trust Administrator may consult with counsel and any
written
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such written advice or Opinion of
Counsel;
(iii) Neither
the Trustee nor the Trust Administrator shall be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto
at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders shall have
offered to it security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the obligations,
upon
the occurrence of a Servicer Event of Default or Master Servicer Event of
Termination (which has not been cured or waived), to exercise such of the
rights
and powers vested in it by this Agreement, and to use the same degree of
care
and skill in their exercise as a prudent person would exercise or use under
the
circumstances in the conduct of such Person’s own affairs;
(iv) Neither
the Trustee nor the Trust Administrator shall be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be
authorized or within the discretion or rights or powers conferred upon it
by
this Agreement;
(v) The
Trust
Administrator shall not, and prior to the occurrence of a Servicer Event
of
Default or a Master Servicer Event of Termination hereunder and after the
curing
of all Master Servicer Events of Termination which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by the Holders of Certificates entitled
to
at least 25% of the Voting Rights; provided, however, that if the payment
within
a reasonable time to the Trustee or the Trust Administrator, as applicable,
of
the costs, expenses or liabilities likely to be incurred by it in the making
of
such investigation is, in the opinion of the Trustee or the Trust Administrator,
as applicable, not reasonably assured to the Trustee or the Trust Administrator,
as applicable, by such Certificateholders, the Trustee or the Trust
Administrator, as applicable, may require reasonable indemnity against such
expense, or liability from such Certificateholders as a condition to taking
any
such action;
(vi) Each
of
the Trustee and the Trust Administrator may execute any of the trusts or
powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and shall not be responsible for
any
willful misconduct or negligence of such agents, custodians, nominees or
attorneys (as long as such agents, custodians, nominees or attorneys were
appointed with due and proper care);
(vii) Neither
the Trustee nor the Trust Administrator shall be personally liable for any
loss
resulting from the investment of funds held in the Collection Account by
the
Servicer pursuant to Section 3.12;
(viii) Except
as
otherwise expressly provided herein, none of the provisions of this Agreement
shall require the Trustee or the Trust Administrator to expend or risk its
own
funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder, or in the exercise of any of
its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk
or
liability is not assured to it (not including expenses, disbursements and
advances incurred or made by the Trustee or the Trust Administrator, as
applicable, including the compensation and the expenses and disbursements
of its
agents and counsel, in the ordinary course of its performance in accordance
with
the provisions of this Agreement);
(ix) Neither
the Trustee nor the Trust Administrator shall be personally liable for any
loss
resulting from any failure or omission of any other party to this Agreement
to
comply with its obligations hereunder; and
(x) Any
permissive right of the Trustee enumerated herein shall not be construed
as a
duty.
(b) All
rights of action under this Agreement or under any of the Certificates
enforceable by the Trustee or the Trust Administrator, as applicable, may
be
enforced by it without the possession of any of the Certificates, or the
production thereof at the trial or any other proceeding relating thereto,
and
any such suit, action or proceeding instituted by the Trustee or the Trust
Administrator, as applicable, shall be brought in its name for the benefit
of
all the Holders of such Certificates, subject to the provisions of this
Agreement.
Section
8.03. Neither
the Trustee Nor the Trust Administrator Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Trust Administrator, the authentication of the Trust Administrator on
the
Certificates, the acknowledgments of the Trustee and the Trust Administrator
contained in Article II and the representations and warranties of the Trustee
and the Trust Administrator in Section 8.11) shall be taken as the statements
of
the Depositor, and the Trustee does not assume any responsibility for their
correctness. Neither the Trustee nor the Trust Administrator makes any
representation or warranty as to the validity or sufficiency of this Agreement
(other than as specifically set forth in Section 8.11) or of the Certificates
(other than the signature of the Trustee and the Trust Administrator and
authentication of the Certificate Registrar on the Certificates) or the Swap
Agreement (other than the signature of the Trustee) or of any Mortgage Loan
or
related document or of the MERS® System. Neither the Trustee nor the Trust
Administrator shall be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for
the
use or application of any funds paid to the Depositor or the Servicer in
respect
of the Mortgage Loans or deposited in or withdrawn from the Collection Account
by the Servicer.
Section
8.04. Trustee
and Trust Administrator May Own Certificates.
Each
of
the Trustee and the Trust Administrator in its individual or any other capacity
may become the owner or pledgee of Certificates with the same rights as it
would
have if it were not the Trustee or the Trust Administrator, as
applicable.
Section
8.05. Fees
and Expenses of the Trustee and Trust Administrator.
(a) The
annual fees of the Trustee hereunder shall be paid in accordance with a side
letter agreement with the Trust Administrator and at the sole expense of
the
Trust Administrator. The initial fees of the custodian hereunder shall be
paid
in accordance with a side letter agreement between the Originator and the
Trust
Administrator, as initial custodian, and ongoing fees, if any, at the sole
expense of the Trust Administrator. Subject to Section 8.05(b), the Trustee
and
the Trust Administrator, and any director, officer, employee or agent of
either,
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense (including any unreimbursed fees or expenses for work
relating to an appointment of a successor Servicer or a successor Master
Servicer under Article VII herein, but not including expenses, disbursements
and
advances incurred or made by the Trustee (or its custodian) or the Trust
Administrator, as applicable, including the reasonable compensation and the
expenses and disbursements of its agents and counsel, in the ordinary course
of
its performance in accordance with the provisions of this Agreement) incurred
by
the Trustee or the Trust Administrator arising out of or in connection with
the
acceptance or administration of its obligations and duties under this Agreement
or the Swap Agreement, the Certificates or the Mortgage Loans, other than
any
loss, liability or expense (i) resulting from the Trustee’s or the Trust
Administrator’s negligent actions or omissions in connection with this Agreement
and the Mortgage Loans, (ii) that constitutes a specific liability of the
Trustee or the Trust Administrator pursuant to Section 11.01(c), or (iii)
any
loss, liability or expense incurred by reason of willful misfeasance, bad
faith
or negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder or as a result of a breach
of the
its respective obligations under Article XI hereof. Any amounts payable to
the
Trustee (or its custodian) or the Trust Administrator, and any director,
officer, employee or agent of the Trustee (or its custodian) or the Trust
Administrator, in respect of the indemnification provided by this paragraph
(a),
or pursuant to any other right of reimbursement from the Trust Fund that
the
Trustee (or its Custodian), the Trust Administrator and any director, officer,
employee or agent of the Trustee (or its custodian) or the Trust Administrator,
may have hereunder in its capacity as such, may be withdrawn by the Trust
Administrator from the Distribution Account at any time. Such indemnity shall
survive the termination of this Agreement and the resignation of the Trustee
or
the Trust Administrator, as applicable.
(b) The
foregoing indemnity shall survive the resignation or removal of the Trustee
or
the Trust Administrator.
(c) Without
limiting the Servicer’s indemnification obligations under Section 6.03, the
Servicer agrees to indemnify the Trustee, the Master Servicer, the Swap
Administrator, and the Trust Administrator from, and hold it harmless against,
any loss, liability or expense resulting from a breach of the Servicer’s
obligations and duties under this Agreement. Such indemnity shall survive
the
termination or discharge of this Agreement and the resignation or removal
of the
Trustee or the Trust Administrator. Any payment hereunder made by the Servicer
to the Trustee or the Trust Administrator shall be from the Servicer’s own
funds, without reimbursement from the Trust Fund.
(d) The
Servicer shall pay any annual rating agency fees of S&P, Fitch and Xxxxx’x
for ongoing surveillance from its own funds without right of
reimbursement.
Section
8.06. Eligibility
Requirements for the Trustee
and
Trust Administrator.
Each
of
the Trustee and the Trust Administrator hereunder shall at all times be a
corporation or an association (other than the Depositor, the Originator,
the
Servicer or any Affiliate of the foregoing) organized and doing business
under
the laws of the United States of America or any state thereof, authorized
under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination
by
federal or state authority. If such corporation or association publishes
reports
of conditions at least annually, pursuant to law or to the requirements of
the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of conditions so published. In case at any time either the
Trustee
or the Trust Administrator shall cease to be eligible in accordance with
the
provisions of this Section, the Trustee or the Trust Administrator, as
applicable, shall resign immediately in the manner and with the effect specified
in Section 8.07.
Section
8.07. Resignation
and Removal of the Trustee
or Trust
Administrator.
The
Trustee or the Trust Administrator may at any time resign and be discharged
from
the trust hereby created by giving written notice thereof to the Depositor,
the
Servicer, the Master Servicer, the Swap Administrator, if the Trustee is
resigning to the Trust Administrator and if the Trust Administrator is resigning
to the Trustee and the Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee or
successor trust administrator, as applicable, by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee or
Trust
Administrator, as applicable, and to the successor trustee or successor trust
administrator, as applicable. The Depositor shall deliver a copy of such
instrument to the Certificateholders, the Master Servicer, the Swap
Administrator and the Servicer. If no successor trustee or successor trust
administrator, as applicable, shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or Trust Administrator, as applicable, may petition any
court
of competent jurisdiction for the appointment of a successor.
If
at any
time the Trustee or the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request by the Depositor, or if at any time the Trustee or the Trust
Administrator shall become incapable of acting, or shall be adjudged bankrupt
or
insolvent, or a receiver of the Trustee or the Trust Administrator or of
its
respective property shall be appointed, or any public officer shall take
charge
or control of the Trustee or the Trust Administrator or of its respective
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee or the Trust
Administrator, as applicable, and appoint a successor by written instrument,
in
duplicate, which instrument shall be delivered to the Trustee or the Trust
Administrator, as applicable, so removed and to the successor. The Depositor
shall deliver a copy of such instrument to the Certificateholders, the Master
Servicer and the Servicer.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may
at any
time remove the Trustee or the Trust Administrator and appoint a successor
by
written instrument or instruments, in triplicate, signed by such Holders
or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee or Trust
Administrator so removed and one complete set to the successor so appointed.
The
Depositor shall deliver a copy of such instrument to the Certificateholders,
the
Master Servicer and the Servicer.
Any
resignation or removal of the Trustee or the Trust Administrator and appointment
of a successor pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor as provided
in
Section 8.08.
Any
resignation or removal of the initial Trust Administrator will result in
the
removal of the initial Master Servicer.
Section
8.08. Successor
Trustee
or
Trust Administrator.
Any
successor appointed as provided in Section 8.07 shall execute, acknowledge
and
deliver to the Depositor and to its predecessor an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor shall become effective and such successor, without any further
act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect
as if
originally named as trustee herein. The predecessor trustee or trust
administrator shall deliver to its successor all Mortgage Files and related
documents and statements, as well as all moneys, held by it hereunder (other
than any Mortgage Files at the time held by a custodian, if any, which custodian
shall become the agent of any successor trustee hereunder), and the Depositor
and the predecessor trustee or trust administrator shall execute and deliver
such instruments and do such other things as may reasonably be required for
more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
No
successor trustee or trust administrator shall accept appointment as provided
in
this Section unless at the time of such acceptance such successor shall be
eligible under the provisions of Section 8.06 and the appointment of such
successor shall not result in a downgrading of any Class of Certificates
by
either Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon
acceptance of appointment by a successor trustee or trust administrator as
provided in this Section, the Depositor shall mail notice of the succession
to
all Holders of Certificates at their addresses as shown in the Certificate
Register. If the Depositor fails to mail such notice within 10 days after
acceptance of appointment by the successor, the successor shall cause such
notice to be mailed at the expense of the Depositor.
Section
8.09. Merger
or Consolidation of the Trustee
or
the Trust Administrator.
Any
corporation into which the Trustee or the Trust Administrator may be merged
or
converted or with which it may be consolidated or any corporation resulting
from
any merger, conversion or consolidation to which the Trustee or the Trust
Administrator shall be a party, or any corporation succeeding to the business
of
the Trustee or the Trust Administrator, shall be the successor of the Trustee
or
the Trust Administrator, as applicable, hereunder; provided, that such
corporation shall be eligible under Section 8.06 without the execution or
filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any
legal
requirements of any jurisdiction in which any part of the Trust Fund or property
securing the same may at the time be located, the Servicer and the Trustee,
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act
as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee
or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity, such title to the Trust Fund, or any
part
thereof, and, subject to the other provisions of this Section 8.10, such
powers,
duties, obligations, rights and trusts as the Servicer and the Trustee may
consider necessary or desirable. If the Servicer shall not have joined in
such
appointment within 15 days after the receipt by it of a request so to do,
or in
case a Servicer Event of Default shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee
or
separate trustee hereunder shall be required to meet the terms of eligibility
as
a successor trustee under Section 8.06 hereunder and no notice to Holders
of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be
required under Section 8.08 hereof. Any reasonable and necessary expense
of the
Trustee related to the appointment of a co-trustee or a separate trustee
for the
limited purpose of performing the Trustee’s duties pursuant to this Section 8.10
shall be reimbursable from the Trust Fund.
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 8.10 all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or performed
by the Trustee and such separate trustee or co-trustee jointly, except to
the
extent that under any law of any jurisdiction in which any particular act
or
acts are to be performed by the Trustee (whether as Trustee hereunder or
as
successor to the defaulting Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of
the
Trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trust
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee,
its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by
the
Trustee, to the extent permitted by law, without the appointment of a new
or
successor trustee.
Section
8.11. Representations
and Warranties of the Trustee, Trust Administrator and Swap
Administrator.
(a) The
Trustee hereby represents and warrants to the Servicer, the Master Servicer,
the
Swap Administrator, the Trust Administrator and the Depositor, as of the
Closing
Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its charter
or articles of association or bylaws or constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a default) under,
or, to
the best of its knowledge, result in the breach of, any material agreement
or
other instrument to which it is a party or which is applicable to it or any
of
its assets.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties, constitutes a valid, legal and binding obligation of it, enforceable
against it in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, receivership, reorganization, moratorium and other
laws
affecting the enforcement of creditors’ rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
(b) The
Trust
Administrator hereby represents and warrants to the Servicer, the Trustee
and
the Depositor, as of the Closing Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its charter
or articles of association or bylaws or constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a default) under,
or
result in the breach of, any material agreement or other instrument to which
it
is a party or which is applicable to it or any of its assets.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties, constitutes a valid, legal and binding obligation of it, enforceable
against it in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, receivership, reorganization, moratorium and other
laws
affecting the enforcement of creditors’ rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
(c) The
Swap
Administrator hereby represents and warrants to the Servicer, the Trustee
and
the Depositor, as of the Closing Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its charter
or articles of association or bylaws or constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a default) under,
or
result in the breach of, any material agreement or other instrument to which
it
is a party or which is applicable to it or any of its assets.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties, constitutes a valid, legal and binding obligation of it, enforceable
against it in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, receivership, reorganization, moratorium and other
laws
affecting the enforcement of creditors’ rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
ARTICLE
IX
TERMINATION
Section
9.01. Termination
upon Liquidation or Purchase of the Mortgage Loans.
Subject
to Section 9.03, the obligations and responsibilities of the Depositor, the
Servicer, the Master Servicer, the Trust Administrator and the Trustee created
hereby with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase, on or after the Optional Termination Date, by the
Servicer, of all Mortgage Loans (and REO Properties) at the price equal to
the
greater of (i) the Stated Principal Balance of the Mortgage Loans (after
giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) and the appraised value of
the
REO Properties and (ii) fair market value of the Mortgage Loans and REO
Properties (as determined and as agreed upon as of the close of business
on the
third Business Day next preceding the date upon which notice of any such
termination is furnished to the related Certificateholders pursuant to Section
9.02 by the Servicer, plus accrued and unpaid interest thereon at the weighted
average of the Mortgage Rates through the end of the Due Period preceding
the
final Distribution Date plus unreimbursed Servicing Advances, Advances, any
unpaid Servicing Fees allocable to such Mortgage Loans and REO Properties
and
any accrued and unpaid Net WAC Rate Carryover Amounts and any Swap Termination
payment payable to the Swap Provider (the “Termination Price”); provided,
however,
such
option may only be exercised if the Termination Price is sufficient to result
in
the payment of all interest accrued on, as well as amounts necessary to retire
the principal balance of, each class of notes issued pursuant to the Indenture
and any amounts owed to the NIMS Insurer, if any (as it notifies the Servicer
and the Trust Administrator in writing); and (b) the later of (i) the
maturity or other Liquidation Event (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to
this Agreement. In no event shall the trusts created hereby continue beyond
the
expiration of 21 years from the death of the survivor of the descendants
of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court
of
St. James’s, living on the date hereof.
Section
9.02. Final
Distribution on the Certificates.
If
on any
Remittance Date, the Servicer determines that there are no Outstanding Mortgage
Loans and no other funds or assets in the Trust Fund other than the funds
in the
Collection Account, the Servicer shall direct the Trust Administrator promptly
to send a Notice of Final Distribution to each Certificateholder. If the
Servicer elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, at least 20 days prior to the date the Notice of Final
Distribution is to be mailed to the affected Certificateholders, the Depositor
shall notify the Servicer, the Trustee and the Trust Administrator of the
date
the Depositor intends to terminate the Trust Fund and of the applicable
repurchase price of the Mortgage Loans and REO Properties.
A
Notice
of Final Distribution, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trust
Administrator by letter to Certificateholders mailed not later than the 15th
day
of the month of such final distribution. Any such Notice of Final Distribution
shall specify ii) the
Distribution Date upon which final distribution on the Certificates will
be made
upon presentation and surrender of Certificates at the office therein
designated, iii) the
amount of such final distribution, iv) the
location of the office or agency at which such presentation and surrender
must
be made, and (d) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office therein specified.
The Trust Administrator will give such Notice of Final Distribution to each
Rating Agency at the time such Notice of Final Distribution is given to
Certificateholders.
In
the
event such Notice of Final Distribution is given, the Servicer shall cause
all
funds in the Collection Account to be remitted to the Trust Administrator
for
deposit in the Distribution Account on the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect
of the
Certificates. Upon such final deposit with respect to the Trust Fund and
the
receipt by the Trustee or the Trust Administrator of a Request for Release
therefor, the Trustee or the Trust Administrator shall promptly release to
the
Depositor or its designee the Custodial Files for the Mortgage
Loans.
Upon
presentation and surrender of the Certificates, the Trust Administrator shall
cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due to the Servicer, the Depositor, the Master
Servicer, the Swap Administrator, the Trust Administrator and the Trustee
hereunder), in each case on the final Distribution Date and in the order
set
forth in Section 4.02, in proportion to their respective Percentage
Interests, with respect to Certificateholders of the same Class, an amount
up to
an amount equal to (i) as to each Class of Regular Certificates (except the
Class C Certificates), the Certificate Principal Balance thereof plus for
each
such Class and the Class C Certificates, accrued interest thereon in the
case of
an interest-bearing Certificate and all other amounts to which such Classes
are
entitled pursuant to Section 4.02, (ii) as to the Residual
Certificates, the amount, if any, which remains on deposit in the Distribution
Account with respect to the related REMIC (other than the amounts retained
to
meet claims) after application pursuant to clause (i) above.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six months after the date specified in the above-mentioned
written notice, the Trust Administrator shall give a second written notice
to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within
six months after the second notice all the applicable Certificates shall
not
have been surrendered for cancellation, the Trust Administrator may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact
the remaining Certificateholders concerning surrender of their Certificates,
and
the cost thereof shall be paid out of the funds and other assets which remain
a
part of the Trust Fund. If within one year after the second notice all
Certificates shall not have been surrendered for cancellation, the Holders
of
the Residual Certificates with respect to their related REMIC shall be entitled
to all unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
Section
9.03. Additional
Termination Requirements.
In
the
event the Servicer exercises its purchase option with respect to the Mortgage
Loans as provided in Section 9.01, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee
and
the Trust Administrator have been supplied with an Opinion of Counsel, at
the
expense of the Depositor, to the effect that the failure to comply with the
requirements of this Section 9.03 will not (i) result in the
imposition of taxes on “prohibited transactions” or “prohibited contributions”
on any Trust REMIC as defined in the REMIC Provisions, or (ii) cause any
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates
are
outstanding:
(a) The
Trust
Administrator shall sell all of the assets of the Trust Fund to the Servicer
for
cash, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
of
the Trust REMICs, with final payment made to the related class of Residual
Certificates; and
(b) The
Trust
Administrator shall attach a statement to the final federal income tax return
for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90-day liquidation
period for each such Trust REMIC was the date on which the Trust Administrator
sold the assets of the Trust Fund to the Servicer.
By
their
acceptance of the Certificates, the Holders thereof hereby agree to authorize
the Trust Administrator to specify the 90-day liquidation period for each
REMIC
created hereunder, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
Section
10.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, the Originator,
the
Servicer, the Master Servicer, the Swap Administrator, the Trust Administrator
and the Trustee without the consent of any of the Certificateholders (i) to
cure any ambiguity or mistake, (ii) to correct any defective provision
herein or to supplement any provision herein which may be inconsistent with
any
other provision herein, (iii) to add to the duties of the Depositor, the
Master Servicer, the Swap Administrator or the Servicer, the Trust Administrator
or the Trustee, (iv) to comply with any requirements in the Code, (v) to
conform
the provisions of this Agreement to the descriptions thereof in the Prospectus
Supplement, (vi) to add any other provisions with respect to matters or
questions arising hereunder or (vii) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement; provided,
that
any action pursuant to clause (vi) or (vii) above (a) that would have a
material adverse effect on the Swap Provider shall not be undertaken while
the
Swap Agreement is in effect without the prior written consent of the Swap
Provider and (b) shall not, as evidenced by an Opinion of Counsel (which
Opinion
of Counsel shall not be an expense of the Trustee, the Trust Administrator
or
the Trust Fund), adversely affect in any material respect the interests of
any
Certificateholder; provided,
further,
that
the amendment shall not be deemed to adversely affect in any material respect
the interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would
not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates; it being understood and agreed that any such letter
in and
of itself will not represent a determination as to the materiality of any
such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Originator, the
Master Service, the Swap Administrator, the Trust Administrator and the Servicer
also may at any time and from time to time amend this Agreement, but without
the
consent of the Certificateholders to modify, eliminate or add to any of its
provisions to such extent as shall be necessary or helpful to (i) maintain
the qualification of each Trust REMIC under the REMIC Provisions,
(ii) avoid or minimize the risk of the imposition of any tax on any Trust
REMIC pursuant to the Code that would be a claim at any time prior to the
final
redemption of the Certificates or (iii) comply with any other requirements
of the Code; provided, that the Trustee and the Trust Administrator have
been
provided an Opinion of Counsel, which opinion shall be an expense of the
party
requesting such opinion but in any case shall not be an expense of the Trustee
or the Trust Fund, to the effect that such action is necessary or helpful
to, as
applicable, (i) maintain such qualification, (ii) avoid or minimize
the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Originator, the Master Servicer, the Swap Administrator, the Trust
Administrator and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66 2/3% of each
Class
of Certificates affected thereby for the purpose of adding any provisions
to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders of Certificates;
provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments required to be distributed on any Certificate without
the
consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates
in a
manner other than as described in clause (i), without the consent of the
Holders
of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 66 2/3%, or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates
then
outstanding; provided further,
that
such amendment shall not be undertaken while the Swap Agreement is in place
without the prior written consent of the Swap Provider.
Notwithstanding
any contrary provision of this Agreement other than Section 4.08(g), neither
of
the Trustee nor the Trust Administrator shall consent to any amendment to
this
Agreement unless (i) it shall have first received an Opinion of Counsel,
which opinion shall not be an expense of the Trustee, the Trust Administrator
or
the Trust Fund, to the effect that such amendment will not adversely affect
in
any material respect the interest of any Certificateholder and will not cause
the imposition of any tax on any Trust REMIC or the Certificateholders or
cause
any Trust REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding and (ii) the party seeking such amendment shall have
provided written notice to the Rating Agencies (with a copy of such notice
to
the Trustee and the Trust Administrator) of such amendment, stating the
provisions of the Agreement to be amended.
Notwithstanding
the foregoing provisions of this Section 10.01, with respect to any
amendment that significantly modifies the permitted activities of the Trustee,
the Trust Administrator, the Master Servicer, the Swap Administrator or the
Servicer, any Certificate beneficially owned by the Depositor or any of its
Affiliates or by the Originator shall be deemed not to be outstanding (and
shall
not be considered when determining the percentage of Certificateholders
consenting or when calculating the total number of Certificates entitled
to
consent) for purposes of determining if the requisite consents of
Certificateholders under this Section 10.01 have been
obtained.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trust Administrator shall furnish written notification
of the substance or a copy of such amendment to each Certificateholder and
each
Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The
manner of obtaining such consents and of evidencing the authorization of
the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing
in this Agreement shall require either of the Trustee or the Trust Administrator
to enter into an amendment which modifies its obligations or liabilities
without
its consent and in all cases without receiving an Opinion of Counsel (which
Opinion shall not be an expense of the Trustee, the Trust Administrator or
the
Trust Fund), satisfactory to the Trustee or the Trust Administrator, as
applicable, that (i) such amendment is permitted and is not prohibited by
this Agreement and that all requirements for amending this Agreement have
been
complied with; and (ii) either (A) the amendment does not adversely
affect in any material respect the interests of any Certificateholder or
(B) the conclusion set forth in the immediately preceding clause (A)
is not required to be reached pursuant to this Section 10.01.
Section
10.02. Recordation
of Agreement; Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for
real
property records in all the counties or other comparable jurisdictions in
which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, such recordation
to be
effected by the Servicer at the expense of the Trust, but only upon receipt
of
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any
number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
10.03. Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS RULES (EXCEPT
FOR
GENERAL OBLIGATIONS LAW 5-1401 WHICH SHALL APPLY HERETO) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
10.04. Intention
of Parties.
It
is the
express intent of the parties hereto that the conveyance (i) of the
Mortgage Loans by the Depositor and (ii) of the Trust Fund by the Depositor
to the Trustee each be, and be construed as, an absolute sale thereof. It
is,
further, not the intention of the parties that such conveyances be deemed
a
pledge thereof. However, in the event that, notwithstanding the intent of
the
parties, such assets are held to be the property of the Depositor, as the
case
may be, or if for any other reason this Agreement is held or deemed to create
a
security interest in either such assets, then (i) this Agreement shall be
deemed to be a security agreement within the meaning of the Uniform Commercial
Code of the State of New York and (ii) the conveyances provided for in
this Agreement shall be deemed to be an assignment and a grant by the Depositor
to the Trustee, for the benefit of the Certificateholders and the Swap Provider,
of a security interest in all of the assets transferred, whether now owned
or
hereafter acquired.
The
Depositor, for the benefit of the Certificateholders, shall, to the extent
consistent with this Agreement, take such actions as may be necessary to
ensure
that, if this Agreement were deemed to create a security interest in the
Trust
Fund, such security interest would be deemed to be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of the Agreement. The Depositor shall arrange for filing any Uniform
Commercial Code continuation statements in connection with any security interest
granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section
10.05. Notices.
(a) The
Trust
Administrator shall use its best efforts to promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) Any
material change or amendment to this Agreement;
(ii) The
occurrence of any Event of Default that has not been cured;
(iii) The
resignation or termination of the Servicer, the Master Servicer, the Trust
Administrator or the Trustee and the appointment of any successor;
(iv) The
repurchase or substitution of Mortgage Loans pursuant to Sections 2.03,
2.07 or 3.28; and
(v) The
final
payment to Certificateholders.
(b) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency of a Master Servicer Event of Termination to the extent it has actual
knowledge thereof.
(c) In
addition, the Trust Administrator shall promptly make available on its internet
website to each Rating Agency copies of each report to Certificateholders
described in Section 4.03.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to (a) in the case of the
Depositor, Financial Asset Securities Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, or at such telecopy number or other address as may be
hereafter furnished to the Trustee and the Servicer by the Depositor in writing;
(b) in the case of the Originator and the Servicer, Fremont Investment
& Loan, 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxx, Xxxxxxxxxx 00000, telecopy number
(000) 000-0000, or such other address as may be hereafter furnished to the
Depositor, the Master Servicer, the Trust Administrator and the Trustee by
the
Servicer in writing; (c) in the case of the Trustee, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, telecopy number (000) 000-0000, or such other address
or
telecopy number as may hereafter be furnished to the other parties hereto;
(d) in the case of the Trust Administrator, its Corporate Trust Office; in
the case of the Master Servicer or the Swap Administrator, to Xxxxx Xxxxx
Xxxx,
X.X., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services- Fremont 2006-A; and in the case of any direction, demand or notice
relating to any Custodial File, to Xxxxx Fargo Bank, N.A., 00 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Fremont 2006-A; or such other
address as the Trust Administrator may hereafter furnish to the Depositor,
the
Trustee or the Servicer and (f) in the case of each of the Rating Agencies,
the address specified therefor in the definition corresponding to the name
of
such Rating Agency.
Notices
to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section
10.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
10.07. Assignment;
Sales; Advance Facilities.
(a) Notwithstanding
anything to the contrary contained herein, except as provided in
Section 6.02, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor, the Master Servicer, the Swap Administrator,
the Trust Administrator and the Trustee. In addition, for so long as the
Servicer is acting as the Servicer hereunder (i) the Servicer is hereby
authorized to enter into an advance facility (“Advance Facility”) under which
(A) the Servicer sells, assigns or pledges to an Advancing Person the
Servicer’s rights under this Agreement to be reimbursed for any P&I Advances
or Servicing Advances and/or (B) an Advancing Person agrees to fund some or
all P&I Advances or Servicing Advances required to be made by the Servicer
pursuant to this Agreement and (ii) the Servicer is hereby authorized to
assign its rights to the Servicing Fee; it being understood neither the Trust
Fund nor any party hereto shall have a right or claim (including without
limitation any right of offset) to the portion of the Servicing Fee so assigned;
it being further understood that upon the resignation or termination of the
Servicer, such Advance Facility (in the case of clause (i)) and such assignment
(in the case of clause (ii)) shall be terminated. No consent of the Trustee,
the
Trust Administrator, Certificateholders or any other party is required before
the Servicer may enter into an Advance Facility. Notwithstanding the existence
of any Advance Facility under which an Advancing Person agrees to fund P&I
Advances and/or Servicing Advances on the Servicer’s behalf, the Servicer shall
remain obligated pursuant to this Agreement to make P&I Advances and
Servicing Advances pursuant to and as required by this Agreement, and shall
not
be relieved of such obligations by virtue of such Advance Facility.
(b) Reimbursement
amounts shall consist solely of amounts in respect of P&I Advances and/or
Servicing Advances made with respect to the Mortgage Loans for which the
Servicer would be permitted to reimburse itself in accordance with this
Agreement, assuming the Servicer had made the related P&I Advance(s) and/or
Servicing Advance(s).
(c) The
Servicer shall maintain and provide to any successor Servicer a detailed
accounting on a loan-by-loan basis as to amounts advanced by, pledged or
assigned to, and reimbursed to any Advancing Person. The successor Servicer
shall be entitled to rely on any such information provided by the predecessor
Servicer, and the successor Servicer shall not be liable for any errors in
such
information.
(d) An
Advancing Person who purchases or receives an assignment or pledge of the
rights
to be reimbursed for P&I Advances and/or Servicing Advances, and/or whose
obligations hereunder are limited to the funding of P&I Advances and/or
Servicing Advances shall not be required to meet the criteria for qualification
of a Subservicer set forth in this Agreement.
(e) The
documentation establishing any Advance Facility shall require that such
reimbursement amounts distributed with respect to each Mortgage Loan be
allocated to outstanding xxxxxxxxxxxx X&X Advances or Servicing Advances (as
the case may be) made with respect to that Mortgage Loan on a “first-in, first
out” (FIFO) basis. Such documentation shall also require the Servicer to provide
to the related Advancing Person or its designee loan-by-loan information
with
respect to each such reimbursement amount distributed to such Advancing Person
or Advance Facility trustee on each Distribution Date, to enable the Advancing
Person or Advance Facility trustee to make the FIFO allocation of each such
reimbursement amount with respect to each Mortgage Loan. The Servicer shall
remain entitled to be reimbursed by the Advancing Person or Advance Facility
trustee for all P&I Advances and Servicing Advances funded by the Servicer
to the extent the related rights to be reimbursed therefor have not been
sold,
assigned or pledged to an Advancing Person.
(f) Any
amendment to this Section 10.07 or to any other provision of this Agreement
that may be necessary or appropriate to effect the terms of an Advance Facility
as described generally in this Section 10.07, including amendments to add
provisions relating to a successor Servicer, may be entered into by the Trustee,
the Depositor, the Master Servicer, the Trust Administrator and the Servicer
without the consent of any Certificateholder, notwithstanding anything to
the
contrary in this Agreement, provided, that the Trustee and the Trust
Administrator have been provided an Opinion of Counsel that such amendment
has
no material adverse effect on the Certificateholders which opinion shall
be an
expense of the party requesting such opinion but in any case shall not be
an
expense of the Trustee, the Trust Administrator or the Trust Fund; provided,
further, that the amendment shall not be deemed to adversely affect in any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency (instead
of
obtaining an Opinion of Counsel) stating that the amendment would not result
in
the downgrading or withdrawal of the respective ratings then assigned to
the
Certificates; it being understood and agreed that any such rating letter
in and
of itself will not represent a determination as to the materiality of any
such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that:
(a) the Advances financed by and/or pledged to the lender are obligations
owed to the Servicer on a non-recourse basis payable only from the cash flows
and proceeds received under this Agreement for reimbursement of Advances
only to
the extent provided herein, and the Trustee, the Trust Administrator and
the
Trust are not otherwise obligated or liable to repay any Advances financed
by
the lender; (b) the Servicer will be responsible for remitting to the
lender the applicable amounts collected by it as reimbursement for Advances
funded by the lender, subject to the restrictions and priorities created
in this
Agreement; and (c) neither the Trustee nor the Trust Administrator shall
have
any responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
Section
10.08. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the
trust
created hereby, or otherwise affect the rights, obligations and liabilities
of
the parties hereto or any of them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of
any
provisions of this Agreement to institute any suit, action or proceeding
in
equity or at law upon or under or with respect to this Agreement, unless
such
Holder previously shall have given to the Trustee a written notice of a Servicer
Event of Default or a Master Servicer Event of Termination and of the
continuance thereof, as herein provided, and unless the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the Certificates
shall also have made written request to the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by
each Certificateholder with every other Certificateholder and the Trustee,
that
no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions
of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement, except
in
the manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 10.08,
each and every Certificateholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section
10.09. Inspection
and Audit Rights.
The
Servicer agrees that on 15 days’ prior notice, it will permit any representative
of the Depositor or the Trustee during such Person’s normal business hours, to
examine all the books of account, records, reports and other papers of such
Person relating to the Mortgage Loans, to make copies and extracts therefrom,
to
cause such books to be audited by independent certified public accountants
selected by the Depositor, the Master Servicer, the Swap Administrator, the
Trust Administrator or the Trustee and to discuss its affairs, finances and
accounts relating to such Mortgage Loans with its officers, employees and
independent public accountants (and by this provision the Servicer hereby
authorizes said accountants to discuss with such representative such affairs,
finances and accounts), all at such reasonable times and as often as may
be
reasonably requested. Any reasonable out-of-pocket expense of the Servicer
incident to the exercise by the Depositor, the Master Servicer, the Swap
Administrator, the Trust Administrator or the Trustee of any right under
this
Section 10.09 shall be borne by the Servicer.
Section
10.10. Certificates
Nonassessable and Fully Paid.
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust
Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by
the
Certificate Registrar pursuant to this Agreement, are and shall be deemed
fully
paid.
Section
10.11. Waiver
of Jury Trial.
EACH
PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF
ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Section
10.12. Benefit
of Agreement.
The
parties hereto acknowledge and agree that the Swap Provider shall be an express
third-party beneficiary (and not merely an incidental third-party beneficiary)
of this Agreement and any other agreement related to the issuance of the
Certificates, and as such, is entitled to enforce the Agreement and any other
such agreement against the parties hereto on its own behalf and otherwise
shall
be afforded all remedies the parties hereunder or under any other such agreement
or otherwise affoded by law against the parties hereto to redress any damage
or
loss incurred by the Swap Provider.
ARTICLE
XI
REMIC
PROVISIONS
Section
11.01. REMIC
Administration.
(a)
The
Trust Administrator shall elect to treat each REMIC created hereunder as
a REMIC
under the Code and, if necessary, under applicable state law. Each such election
will be made on Form 1066 or other appropriate federal tax or information
return
or any appropriate state return for the taxable year ending on the last day
of
the calendar year in which the Certificates are issued. For the purposes
of the
REMIC election in respect of REMIC I, the REMIC I Regular Interests
shall be designated as the regular interests in REMIC I and the Class R-I
Interest shall be designated as the residual interest in REMIC I. The
REMIC II Regular Interests shall be designated as the regular interests in
REMIC II, and the Class R-II Interest shall be designated as the residual
interest in REMIC II. The LIBOR Certificates (exclusive of any right to
receive Net WAC Rate Carryover Amounts or the obligation to pay any Class
IO
Distribution Amount) and the Class C Interest (other than the obligation
to pay
Net WAC Rate Carryover Amounts and Swap Termination Payments and the right
to
receive the Class IO Distribution Amount) and the Class P Interest shall
be
designated as the regular interests in REMIC III and the Class R-III
Interest shall be designated as the residual interest in REMIC III. The
Class C Certificates shall be designated as the regular interests in
REMIC IV, and the Class R-X-IV Interest shall be designated as the residual
interest in REMIC IV. The Class P Certificates shall be designated as the
regular interests in REMIC V, and the Class R-X-V Interest shall be
designated as the residual interest in REMIC V. Neither the Trustee nor the
Trust Administrator shall permit the creation of any “interests” in any REMIC
created hereunder (within the meaning of Section 860G of the Code) other
than
those designated above.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC created
hereunder within the meaning of Section 860G(a)(9) of the Code.
(c) The
Trust
Administrator shall pay out of funds on deposit in the Distribution Account,
any
and all expenses relating to any tax audit of the Trust Fund (including,
but not
limited to, any professional fees or any administrative or judicial proceedings
with respect to any REMIC created hereunder that involve the Internal Revenue
Service or state tax authorities) unless such expenses, professional fees
or any
administrative or judicial proceedings are incurred by reason of the Trustee’s
or the Trust Administrator’s willful misfeasance, bad faith or negligence. The
Trust Administrator, as agent for all of REMIC I’s, REMIC II’s,
REMIC III’s, REMIC IV’s and REMIC V’s tax matters persons, unless
another agent is appointed in such role for either the Class R or Class R-X
Certificates, shall (i) act on behalf of the Trust Fund in relation to any
tax
matter or controversy involving any related REMIC created hereunder and (ii)
represent the Trust Fund in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority with respect
thereto and will be entitled to reimbursement from the Trust Fund for any
expenses incurred by the Trust Administrator in connection therewith unless
such
administrative or judicial proceeding relating to an examination or audit
by any
governmental taxing authority is incurred by reason of the Trust Administrator’s
willful misfeasance, bad faith or negligence. The holder of the largest
Percentage Interest of each Class of Residual Certificates shall be designated,
in the manner provided under Treasury regulations section 1.860F-4(d) and
Treasury regulations section 301.6231(a)(7)-1, as the tax matters person
of the
related REMIC created hereunder. By its acceptance thereof, the holder of
the
largest Percentage Interest of the Residual Certificates hereby agrees to
irrevocably appoint the Trust Administrator or an Affiliate as its agent
to
perform all of the duties of the tax matters person for the Trust
Fund
unless
another agent is appointed in such role for either the Class R or Class R-X
Certificates.
(d) The
Trust
Administrator shall prepare and file, and the Trustee shall sign, in a timely
manner all of the Tax Returns in respect of each REMIC created hereunder.
The
expenses of preparing and filing such returns shall be borne by the Trust
Administrator without any right of reimbursement for such expenses. The Servicer
shall provide on a timely basis to the Trust Administrator or its designee
such
information with respect to the assets of the Trust Fund as is in its possession
and reasonably required by the Trust Administrator to enable it to perform
its
obligations under this Article.
(e) The
Trust
Administrator shall perform on behalf of each REMIC created hereunder all
reporting and other tax compliance duties that are the responsibility of
such
REMIC under the Code, the REMIC Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, as required by the Code, the REMIC Provisions or other
such
compliance guidance, the Trust Administrator shall provide (i) to any Transferor
of a Residual Certificate such information as is necessary for the application
of any tax relating to the transfer of a Residual Certificate to any Person
who
is not a Permitted Transferee, (ii) to the Certificateholders such information
or reports as are required by the Code or the REMIC Provisions including
reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required) and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of each REMIC created hereunder. The Servicer
shall
provide on a timely basis to the Trust Administrator such information with
respect to the assets of the Trust Fund, including, without limitation, the
Mortgage Loans, as is in its possession and reasonably required by the Trust
Administrator to enable it to perform its obligations under this subsection.
In
addition, the Depositor shall provide or cause to be provided to the Trust
Administrator, within ten (10) days after the Closing Date, all information
or
data that the Trust Administrator reasonably determines to be relevant for
tax
purposes as to the valuations and issue prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected
cash
flow of the Certificates.
(f) The
Trust
Administrator shall take such action and shall cause each REMIC created
hereunder to take such action as shall be necessary to create or maintain
the
status thereof as a REMIC under the REMIC Provisions (and the Servicer and
the
Trustee shall assist the Trust Administrator, to the extent reasonably requested
by the Trust Administrator to do specific actions in order to assist in the
maintenance of such status). The Trust Administrator shall not take any action,
cause the Trust Fund to take any action or fail to take (or fail to cause
to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of any REMIC created hereunder
as
a REMIC or (ii) result in the imposition of any tax upon the Trust Fund
(including but not limited to the tax on prohibited transactions as defined
in
Section 860F(a)(2) of the Code, the tax on contributions to a REMIC set forth
in
Section 860G(d) of the Code) (either (i) or (ii), an “Adverse REMIC Event”)
unless each of the Trustee and the Trust Administrator has received an Opinion
of Counsel, addressed to the Trustee and the Trust Administrator (at the
expense
of the party seeking to take such action but in no event at the expense of
the
Trustee or the Trust Administrator) to the effect that the contemplated action
will not, with respect to any REMIC created hereunder, endanger such status
or
result in the imposition of such a tax, nor shall the Servicer or the Master
Servicer take or fail to take any action (whether or not authorized hereunder)
as to which the Trustee and the Trust Administrator has advised it in writing
that it has received an Opinion of Counsel to the effect that an Adverse
REMIC
Event could occur with respect to such action; provided that the Servicer
or the
Master Servicer may conclusively rely on such Opinion of Counsel and shall
incur
no liability for its action or failure to act in accordance with such Opinion
of
Counsel. In addition, prior to taking any action with respect to any REMIC
created hereunder or the respective assets of each, or causing any REMIC
created
hereunder to take any action, which is not contemplated under the terms of
this
Agreement, the Servicer and the Master Servicer will consult with the Trust
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to any REMIC created
hereunder, and neither the Servicer nor the Master Servicer shall take any
such
action or cause any REMIC created hereunder to take such action as to which
the
Trust Administrator has advised it in writing that an Adverse REMIC Event
could
occur; provided that the Servicer and the Master Servicer may conclusively
rely
on such writing and shall incur no liability for its action or failure to
act in
accordance with such writing. The Trust Administrator may consult with counsel
to make such written advice, and the cost of same shall be borne by the party
seeking to take the action not permitted by this Agreement, but in no event
shall such cost be an expense of the Trust Administrator. At all times as
may be
required by the Code, the Trust Administrator will ensure that substantially
all
of the assets of each REMIC created hereunder will consist of “qualified
mortgages” as defined in Section 860G(a)(3) of the Code and “permitted
investments” as defined in Section 860G(a)(5) of the Code.
(g) In
the
event that any tax is imposed on “prohibited transactions” of any REMIC created
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of any such REMIC as defined in Section 860G(c) of the
Code, on any contributions to any such REMIC after the Startup Day pursuant
to
Section 860G(d) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, such tax shall be charged
(i)
to the Trustee pursuant to Section 11.03 hereof, if such tax arises out of
or
results from a breach by the Trustee of any of its obligations under this
Article XI, (ii) to the Trust Administrator pursuant to Section 11.03 hereof,
if
such tax arises out of or results from a breach by the Trust Administrator
of
any of its obligations under this Article XI, (iii) to the Servicer pursuant
to
Section 11.03 hereof, if such tax arises out of or results from a breach
by the
Servicer of any of its obligations under Article III or this Article XI,
or
otherwise (iv) against amounts on deposit in the Distribution Account and
shall
be paid by withdrawal therefrom.
(h) On
or
before April 15th of each calendar year (other than the calendar year during
which the Closing Date occurs), the Trust Administrator shall deliver to
the
Servicer, the Depositor, the Trustee, each Rating Agency and the Swap Provider
an Officer’s Certificate from a Responsible Officer of the Trust Administrator
stating, without regard to any actions taken by any party other than the
Trust
Administrator, the Trust Administrator’s compliance with this Article
XI.
(i) The
Trust
Administrator shall, for federal income tax purposes, maintain books and
records
with respect to each REMIC created hereunder on both a calendar year basis
and
an accrual basis.
(j) Following
the Startup Day, neither the Trustee nor the Trust Administrator shall accept
any contributions of assets to any REMIC created hereunder other than in
connection with any Qualified Substitute Mortgage Loan delivered in accordance
with Section 2.03 unless the Trustee and the Trust Administrator shall have
received an Opinion of Counsel to the effect that the inclusion of such assets
in the Trust Fund will not cause the related Trust REMIC to fail to qualify
as a
REMIC at any time that any Certificates are outstanding or subject such REMIC
to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(k) Neither
the Trustee, the Trust Administrator, the Master Servicer nor the Servicer
shall
enter into any arrangement by which any REMIC created hereunder will receive
a
fee or other compensation for services nor permit any such REMIC to receive
any
income from assets other than “qualified mortgages” as defined in Section
860G(a)(3) of the Code or “permitted investments” as defined in Section
860G(a)(5) of the Code.
(l) The
Trustee and the Trust Administrator shall treat the Net WAC Rate Carryover
Reserve Account as an outside reserve fund within the meaning of Treasury
Regulation 1.860G-2(h) that is owned by the Holders of the Class C Certificates
and that is not an asset of any REMIC. The Trustee and the Trust Administrator
shall treat the rights of the Holders of the Offered Certificates and the
Class
B4 Certificates to receive payments from the Net WAC Rate Carryover Reserve
Account as rights in an interest rate cap contract written by the Holder
of the
Class C Certificates in favor of the other Certificateholders. Thus, each
Certificate other than the Class R, Class R-X, Class C and Class P Certificates
shall be treated as representing ownership of not only Regular Certificates,
but
also ownership of an interest in an interest rate cap contract. For purposes
of
determining the issue price of the Regular Certificates, the Trust Administrator
shall assume that the interest rate cap contract has a value of $10,000 and
shall allocate such value proportionately to each Class of Certificates entitled
to receive Net WAC Rate Carryover Amounts based on such Class’s initial
Certificate Principal Balance.
(m) The
Trust
Administrator shall apply for an Employee Identification Number from the
IRS via
a Form SS-4 or any other applicable method for all tax entities formed pursuant
to this Agreement and will also file a Form 8811 for each REMIC formed pursuant
to this Agreement.
Section
11.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Servicer, the Master Servicer, the Swap Administrator,
the
Trust Administrator or the Trustee shall sell, dispose of or substitute for
any
of the Mortgage Loans (except in connection with (i) the foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy
of the Trust Fund, (iii) the termination of the Trust Fund pursuant to Article
IX of this Agreement, (iv) a substitution pursuant to Article II of this
Agreement or (v) a purchase of Mortgage Loans pursuant to Article II or III
of
this Agreement), nor acquire any assets for any REMIC created hereunder (other
than REO Property acquired in respect of a defaulted Mortgage Loan), nor
sell or
dispose of any investments in the Collection Account or the Distribution
Account
for gain, nor accept any contributions to any REMIC created hereunder after
the
Closing Date (other than a Qualified Substitute Mortgage Loan delivered in
accordance with Section 2.03), unless it has received an Opinion of Counsel,
addressed to the Trustee and the Trust Administrator (at the expense of the
party seeking to cause such sale, disposition, substitution, acquisition
or
contribution but in no event at the expense of the Trustee or the Trust
Administrator) that such sale, disposition, substitution, acquisition or
contribution will not (a) affect adversely the status of any REMIC created
hereunder as a REMIC at any time that any Certificates are outstanding or
(b)
cause any REMIC created hereunder to be subject to a tax on “prohibited
transactions” or “prohibited contributions” pursuant to the REMIC
Provisions.
Section
11.03. Indemnification.
(a) The
Trustee agrees to indemnify, severally and not jointly, the Trust Fund, the
Depositor, the Trust Administrator, the Master Servicer, the Swap Administrator
and the Servicer for any taxes and costs including, without limitation, any
reasonable attorneys fees imposed on or incurred by the Trust Fund, the
Depositor, the Trust Administrator, the Master Servicer, the Swap Administrator
or the Servicer, as a result of a breach of its respective covenants set
forth
in this Article XI.
(b) The
Servicer agrees to indemnify the Trust Fund, the Depositor, the Master Servicer,
the Swap Administrator, the Trust Administrator and the Trustee for any taxes
and costs including, without limitation, any reasonable attorneys’ fees imposed
on or incurred by the Trust Fund, the Depositor, the Master Servicer, the
Swap
Administrator, the Trust Administrator or the Trustee, as a result of a breach
of the Servicer’s covenants set forth in Article III or this Article
XI.
(c) The
Trust
Administrator agrees to indemnify, severally and not jointly, the Trust Fund,
the Depositor, the Trustee and the Servicer for any taxes and costs including,
without limitation, any reasonable attorneys’ fees imposed on or incurred by the
Trust Fund, the Depositor, the Trustee or the Servicer, as a result of a
breach
of its covenants set forth in this Article XI.
(d) The
Master Servicer agrees to indemnify, severally and not jointly, the Trust
Fund,
the Depositor, the Trustee, the Trust Administrator and the Servicer for
any
taxes and costs including, without limitation, any reasonable attorneys’ fees
imposed on or incurred by the Trust Fund, the Depositor, the Trustee, the
Trust
Administrator or the Servicer, as a result of a breach of its covenants set
forth in this Article XI.
IN
WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer, the Trust
Administrator, the Swap Administrator, the Sponsor, the Servicer and the
Originator have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above
written.
|
FINANCIAL
ASSET SECURITIES CORP.,
as
Depositor
|
||
|
By:
|
/s/ Xxx Xxxxxxxxxx | |
|
|
Name:
Xxx Xxxxxxxxxx
|
|
|
|
Title:
Vice President
|
|
|
XXXXX
FARGO BANK, N.A.,
as
Master Servicer, Trust Administrator and Swap
Administrator
|
||
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
|
|
Name:
Xxxxxx Xxxxxxx
|
|
|
|
Title:
Assistant Vice President
|
|
|
HSBC
BANK USA, NATIONAL ASSOCIATION,
as
Trustee
|
||
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
|
|
Name:
Xxxxxx Xxxxxxx
|
|
|
|
Title:
Officer
|
|
|
FREMONT
INVESTMENT & LOAN,
as
Sponsor, Servicer and
Originator
|
||
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
|
|
Name:
Xxxx Xxxxxxxxxxx
|
|
|
|
Title:
Senior Vice President
|
|
(Signature
Page to the PSA - Fremont 2006-A)
SCHEDULE I
Mortgage
Loan Schedule
[On
File
With The Depositor]
SCHEDULE II
[Reserved]
SCHEDULE III
[Reserved]
SCHEDULE IV
Representations
and Warranties Relating to the Mortgage Loans
I. The
Originator hereby represents and warrants to the Purchaser, with respect
to each
Mortgage Loan that is a Mortgage Loan as of the Closing Date (or in the case
of
certain specified representations and warranties, as of the Cut-off Date)
or as
of such other date specifically provided herein (except that with respect
to any
Qualified Substitute Mortgage Loan such representations and warranties shall
be
as of the date of substitution and made by the Originator), that:
(a) Mortgage
Loans as Described.
The
information set forth in the Mortgage Loan Schedule is complete, true and
correct in all material respects as of the Cut-off Date;
(b) Payments
Current.
As of
the Closing Date, other than with respect to not more than 0.50% of the Mortgage
Loans by outstanding principal balance, all payments required to be made
up to
the Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments not yet one month delinquent, have been made and credited.
No payment required under the Mortgage Loan is one month or more delinquent
nor
has any payment under the Mortgage Loan been delinquent for more than one
month
at any time since the origination of the Mortgage Loan;
(c) No
Outstanding Charges.
As of
the Closing Date, other than payments due but not yet one month or more
delinquent, there are no defaults in complying with the terms of the Mortgage,
and all taxes, governmental assessments, insurance premiums, water, sewer
and
municipal charges, leasehold payments or ground rents which previously became
due and owing have been paid, or an escrow of funds has been established
in an
amount sufficient to pay for every such item which remains unpaid and which
has
been assessed but is not yet due and payable. The Originator has not advanced
funds, or induced, solicited or knowingly received any advance of funds by
a
party other than the Mortgagor, directly or indirectly, for the payment of
any
amount required under the Mortgage Loan, except for interest accruing from
the
date of the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the date which precedes by one month the Due Date
of
the first installment of principal and interest;
(d) Original
Terms Unmodified.
The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect, from the date of origination except by a written
instrument which has been recorded, if necessary to protect the interests
of the
Purchaser, and which has been delivered to the Custodian or to such other
Person
as the Purchaser shall designate in writing, and the terms of which are
reflected in the Mortgage Loan Schedule. No Mortgage Loan has been modified
so
as to restructure the payment obligations or re-age the Mortgage Loan. The
substance of any such waiver, alteration or modification has been approved
by
the title insurer, if any, to the extent required by the policy, and its
terms
are reflected on the Mortgage Loan Schedule, if applicable. No Mortgagor
has
been released, in whole or in part, except in connection with an assumption
agreement, approved by the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Mortgage Loan File delivered
to
the Custodian or to such other Person as the Purchaser shall designate in
writing and the terms of which are reflected in the Mortgage Loan
Schedule;
(e) No
Defenses.
The
Mortgage Loan is not subject to any right of rescission, set-off, counterclaim
or defense, including without limitation the defense of usury, nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto, and no Mortgagor was a debtor
in
any state or federal bankruptcy or insolvency proceeding at, or subsequent
to,
the time the Mortgage Loan was originated;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located. If required
by
the National Flood Insurance Act of 1968, as amended, each Mortgage Loan
is
covered by a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration as in effect. All individual
insurance policies contain a standard mortgagee clause naming the Originator
and
its successors and assigns as mortgagee, and all premiums thereon have been
paid
and such policies may not be reduced, terminated or cancelled without 30
days’
prior written notice to the mortgagee. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and
expense, and on the Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy
is not
a “master”
or
“blanket”
hazard
insurance policy covering a condominium, or any hazard insurance policy covering
the common facilities of a planned unit development. The hazard insurance
policy
is the valid and binding obligation of the insurer, is in full force and
effect,
and will be in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this Agreement.
The
Originator has not engaged in, and has no knowledge of the Mortgagor’s or any
servicer’s having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of such policy, including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by
any
attorney, firm or other person or entity, and no such unlawful items have
been
received, retained or realized by the Originator;
(g) Compliance
with Applicable Laws.
Any and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity and disclosure laws, all predatory
and abusive lending laws or unfair and deceptive practices laws applicable
to
the Mortgage Loan, including, without limitation, any provisions relating
to
Prepayment Penalties, have been complied with; the consummation of the
transactions contemplated hereby will not involve the violation of any such
laws
or regulations. Originator shall maintain in its possession, available for
the
Purchaser’s inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;
(h) No
Satisfaction of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
The
Originator has not waived the performance by the Mortgagor of any action,
if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Originator waived any default resulting from any
action
or inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property.
The
Mortgaged Property is a fee simple property located in the state identified
in
the Mortgage Loan Schedule except that with respect to real property located
in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, the Mortgaged Property may be a leasehold
estate
and consists of a single parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
residential condominium unit in a low-rise condominium project, or an individual
unit in a planned unit development and that no residence or dwelling is (i)
a
mobile home or (ii) a manufactured home. As of the date of origination, no
portion of the Mortgaged Property was used for commercial purposes, and since
the date of origination, no portion of the Mortgaged Property has been used
for
commercial purposes; provided, that Mortgaged Properties which contain a
home
office shall not be considered as being used for commercial purposes as long
as
the Mortgaged Property has not been altered for commercial purposes and is
not
storing any chemicals or raw materials other than those commonly used for
homeowner repair, maintenance and/or household purposes;
(j) Valid
First or Second Lien.
Each
Mortgage is a valid and subsisting first or second lien of record on a single
parcel of real estate constituting the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property and all installations
and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time, with respect to the related Mortgage Loan, which exceptions
are generally acceptable to prudent mortgage lending companies, and such
other
exceptions to which similar properties are commonly subject and which do
not
individually, or in the aggregate, materially and adversely affect the benefits
of the security intended to be provided by such Mortgage. The lien of the
Mortgage is subject only to:
(i) the
lien
of current real property taxes and assessments not yet due and
payable;
(ii) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to prudent mortgage
lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and
(A) specifically referred to or otherwise considered in the appraisal made
for the originator of the Mortgage Loan or (B) which do not adversely
affect the Appraised Value of the Mortgaged Property set forth in such
appraisal;
(iii) with
respect to each second lien Mortgage, the first or senior lien on the related
Mortgaged Property; and
(iv) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a
valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein and the Originator has full right
to
sell and assign the same to Purchaser;
(k) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan are genuine, and each is the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms (including, without limitation, any provisions
therein
relating to Prepayment Penalties), except as such enforcement may be limited
by
bankruptcy, insolvency, reorganization, receivership, 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
a proceeding in equity or a law). All parties to the Mortgage Note, the Mortgage
and any other such related agreement had legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage
and any
such agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other such related parties.
The documents, instruments and agreements submitted for loan underwriting
were
not falsified and contain no untrue statement of material fact or omit to
state
a material fact required to be stated therein or necessary to make the
information and statements therein not misleading. No fraud, error, omission,
misrepresentation, gross negligence or similar occurrence with respect to
a
Mortgage Loan has taken place on the part of any Person, including without
limitation, the Mortgagor, any appraiser, any builder or developer, or any
other
party involved in the origination or servicing of the Mortgage Loan. The
Originator has reviewed all of the documents constituting the Servicing
File;
(l) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and the proceeds of the Mortgage Loan have
been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage Loan
and
the recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) Ownership.
Immediately prior to the sale of the Mortgage Loan hereunder on the Closing
Date, the Originator is the sole owner of record and holder of the Mortgage
Loan
and the indebtedness evidenced by each Mortgage Note and upon the sale of
the
Mortgage Loans to the Purchaser, the Originator will retain the Mortgage
Files
or any part thereof not delivered to the Custodian, the Purchaser or the
Purchaser’s designee, in trust only for the purpose of servicing and supervising
the servicing of each Mortgage Loan. The Mortgage Loan is not assigned or
pledged, and the Originator has good, indefeasible and marketable title thereto,
and has full right to transfer and sell the Mortgage Loan to the Purchaser
free
and clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and has full right and authority subject
to
no interest or participation of, or agreement with, any other party, to sell
and
assign each Mortgage Loan pursuant to this Agreement and following the sale
of
each Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear
of
any encumbrance, equity, participation interest, lien, pledge, charge, claim
or
security interest. The Originator intends to relinquish all rights to possess,
control and monitor the Mortgage Loan. After the Closing Date, the Originator
will have no right to modify or alter the terms of the sale of the Mortgage
Loan
and the Originator will have no obligation or right to repurchase the Mortgage
Loan or substitute another Mortgage Loan, except as provided in this
Agreement;
(n) Doing
Business.
All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (i) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (ii) either (A) organized under the laws of
such state, or (B) qualified to do business in such state, or (C) a
federal savings and loan association, a savings bank or a national bank having
a
principal office in such state, or (iii) not doing business in such
state;
(o) LTV.
No
Mortgage Loan
was
originated with an LTV greater than 100%;
(p) Title
Insurance.
The
Mortgage Loan is covered by an ALTA lender’s title insurance policy, or with
respect to any Mortgage Loan for which the related Mortgaged Property is
located
in California a CLTA lender’s title insurance policy, and each such title
insurance policy is issued by a title insurer and qualified to do business
in
the jurisdiction where the Mortgaged Property is located, insuring the
Originator, its successors and assigns, as to the first or second priority
lien
of the Mortgage in the original principal amount of the Mortgage Loan, subject
only to the exceptions contained in clauses (i), (ii) and (iv) of paragraph
(j)
above and in the case of second liens, the exception contained in clause
(iii)
of paragraph (j) above, and in the case of Adjustable Rate Mortgage Loans,
against any loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment to
the
Mortgage Interest Rate and Monthly Payment. Where required by state law or
regulation, the Mortgagor has been given the opportunity to choose the carrier
of the required mortgage title insurance. Additionally, such lender’s title
insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein.
The
title policy does not contain any special exceptions (other than the standard
exclusions) for zoning and uses and has been marked to delete the standard
survey exception or to replace the standard survey exception with a specific
survey reading. The Originator, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force
and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims are pending under such lender’s title insurance policy, and no prior
holder of the related Mortgage, including the Originator, has done, by act
or
omission, anything which would impair the coverage of such lender’s title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or
will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Originator;
(q) No
Defaults.
As of
the Closing Date, other than with respect to not more than 0.50% of the Mortgage
Loans by outstanding principal balance and other than payment delinquencies
of
less than one month, there is no default, breach, violation or event which
would
permit acceleration existing under the Mortgage or the Mortgage Note and
no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and as of the Closing Date neither the
Originator nor any of its affiliates nor any of their respective predecessors,
have waived any default, breach, violation or event which would permit
acceleration; in addition, as of the Closing Date, no Mortgage Loan was in
foreclosure, nor are foreclosure proceedings imminent with respect to any
Mortgage Loan;
(r) No
Mechanics’ Liens.
As of
the Closing Date, there are no mechanics’ or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that
under
law could give rise to such liens) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien
of the
related Mortgage;
(s) Location
of Improvements; No Encroachments.
All
improvements which were considered in determining the Appraised Value of
the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being
part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms.
The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to Sections 203 and 211 of the National Housing
Act, savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or other similar institution which is supervised
and
examined by a federal or state authority. The documents, instruments and
agreements submitted for loan underwriting were not falsified and contain
no
untrue statement of material fact or omit to state a material fact required
to
be stated therein or necessary to make the information and statements therein
not misleading. No Mortgage Loan contains terms or provisions which would
result
in negative amortization. Principal payments on the Mortgage Loan (other
than a
Mortgage Loan that does not provide for payment of principal for a period
of
twenty-four to thirty-six months after the date of origination (such Mortgage
Loan, an “Interest Only Mortgage Loan”)) commenced no more than sixty days after
funds were disbursed in connection with the Mortgage Loan. The Mortgage Interest
Rate as well as the Lifetime Rate Cap and the Periodic Mortgage Interest
Rate
Cap are as set forth on the Mortgage Loan Schedule. With respect to any Mortgage
Loan other than an Interest Only Mortgage Loan and Balloon Mortgage Loans,
the
Mortgage Note is payable in equal monthly installments of principal and
interest, which installments of interest, with respect to Adjustable Rate
Mortgage Loans, are subject to change due to the adjustments to the Mortgage
Interest Rate on each Mortgage Interest Rate Adjustment Date, with interest
calculated and payable in arrears, sufficient to amortize the Mortgage Loan
fully by the stated maturity date, over an original term of not more than
thirty
years from commencement of amortization. Each Balloon Mortgage Loan has an
original term to maturity of 30 years and an amortization schedule of 40
years.
None of the Mortgage Loans allows for conversion of the interest rate thereon
from an adjustable rate to a fixed rate. No Mortgage Loan is a simple interest
mortgage loan;
(u) Customary
Provisions.
The
Mortgage contains customary and enforceable provisions such as to render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by
a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee’s sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy
and
right of redemption or similar law;
(v) Conformance
with Underwriting Guidelines.
The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
in
effect as of the date of origination of such Mortgage Loan (as described
in the
Prospectus Supplement). The Mortgage Note and Mortgage are on forms generally
acceptable to Xxxxxxx Mac or Xxxxxx Mae and the Originator has not made any
representations to a Mortgagor that are inconsistent with the mortgage
instruments used;
(w) Occupancy
of the Mortgaged Property.
As of
the Closing Date the Mortgaged Property is lawfully occupied under applicable
law. All inspections, licenses and certificates required to be made or issued
with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made
or
obtained from the appropriate authorities;
(x) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in clause (j)
above;
(y) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, authorized and
duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a reconveyance of the deed of trust or a
trustee’s sale after default by the Mortgagor;
(z) Condominiums/Planned
Unit Developments.
If the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development) such condominium or planned unit
development project is acceptable to Originator and underwritten in accordance
with the Underwriting Guidelines;
(aa) Transfer
of Mortgage Loans.
The
Assignment of Mortgage with respect to each Mortgage Loan is in recordable
form
and is acceptable for recording under the laws of the jurisdiction in which
the
Mortgaged Property is located. The transfer, assignment and conveyance of
the
Mortgage Notes and the Mortgages by the Originator is not subject to the
bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
(bb) Due-On-Sale.
The
Mortgage contains an enforceable provision (except as such enforcement may
be
effected by bankruptcy and insolvency laws or by general principals of equity)
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the mortgagee thereunder, and to the
best
of the Originator’s knowledge, such provision is enforceable;
(cc) Assumability.
None of
the Mortgage Loans are, by their terms, assumable;
(dd) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Originator, the Mortgagor, or anyone on behalf of the Mortgagor, or
paid
by any source other than the Mortgagor nor does it contain any other similar
provisions which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(ee) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second lien priority,
as applicable, by a title insurance policy, an endorsement to the policy
insuring the mortgagee’s consolidated interest or by other title evidence. The
consolidated principal amount does not exceed the original principal amount
of
the Mortgage Loan;
(ff) Mortgaged
Property Undamaged; No Condemnation Proceedings.
There
is no proceeding pending or, to the best of the Originator’s knowledge,
threatened for the total or partial condemnation of the Mortgaged Property.
As
of the Closing Date, the Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty
so as
to affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended and each Mortgaged
Property is inhabitable under applicable state and local laws;
(gg) Collection
Practices; Escrow Deposits; Interest Rate Adjustments.
The
origination, servicing and collection practices used by the Originator with
respect to the Mortgage Loan have been in all respects in compliance with
Accepted Servicing Practices, applicable laws and regulations, and have been
in
all respects legal and proper and prudent in the mortgage origination and
servicing business. With respect to escrow deposits and Escrow Payments,
all
such payments are in the possession of, or under the control of, the Originator
and there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All Escrow Payments
have
been collected in full compliance with state and federal law and the provisions
of the related Mortgage Note and Mortgage. An escrow of funds is not prohibited
by applicable law and has been established in an amount sufficient to pay
for
every item that remains unpaid and has been assessed but is not yet due and
payable. No escrow deposits or Escrow Payments or other charges or payments
due
the Originator have been capitalized under the Mortgage or the Mortgage Note.
All Mortgage Interest Rate adjustments have been made in strict compliance
with
state and federal law and the terms of the related Mortgage and Mortgage
Note on
the related Interest Rate Adjustment Date. If, pursuant to the terms of the
Mortgage Note, another index was selected for determining the Mortgage Interest
Rate, the same index was used with respect to each Mortgage Note which required
a new index to be selected, and such selection did not conflict with the
terms
of the related Mortgage Note. The Originator executed and delivered any and
all
notices required under applicable law and the terms of the related Mortgage
Note
and Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments. Any interest required to be paid pursuant to state, federal
and
local law has been properly paid and credited;
(hh) Conversion
to Fixed Interest Rate.
With
respect to Adjustable Rate Mortgage Loans, the Mortgage Loan is not a
Convertible Mortgage Loan;
(ii) No
Violation of Environmental Laws.
To the
best of the Originator’s knowledge, the Mortgaged Property is free from any and
all toxic or hazardous substances and there exists no violation of any local,
state or federal environmental law, rule or regulation. To the best of the
Originator’s knowledge, there is no pending action or proceeding directly
involving the Mortgaged Property in which compliance with any environmental
law,
rule or regulation is an issue; there is no violation of any environmental
law,
rule or regulation with respect to the Mortgage Property; and nothing further
remains to be done to satisfy in full all requirements of each such law,
rule or
regulation constituting a prerequisite to use and enjoyment of said
property;
(jj) Servicemembers
Civil Relief Act.
The
Mortgagor has not notified the Originator, and the Originator has no knowledge
of any relief requested or allowed to the Mortgagor under the Servicemembers
Civil Relief Act;
(kk) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by a qualified appraiser,
duly appointed by the related originator, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of
the
Mortgage Loan, and the appraisal and appraiser both satisfy the requirements
of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989
and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated;
(ll) Disclosure
Materials.
The
Mortgagor has received all disclosure materials required by, and the Originator
has complied with, all applicable law with respect to the making of the Mortgage
Loans;
(mm) Construction
or Rehabilitation of Mortgaged Property.
No
Mortgage Loan was made in connection with the construction or rehabilitation
of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(nn) Value
of Mortgaged Property.
The
Originator has no knowledge of any circumstances existing that could reasonably
be expected to adversely affect the value or the marketability of any Mortgaged
Property or Mortgage Loan or to cause the Mortgage Loans to prepay during
any
period materially faster or slower than similar mortgage loans originated
to the
same Underwriting Guidelines held by the Originator generally secured by
properties in the same geographic area as the related Mortgaged
Property;
(oo) No
Defense to Insurance Coverage.
The
Originator has caused or will cause to be performed any and all acts required
to
preserve the rights and remedies of the Purchaser in any insurance policies
applicable to the Mortgage Loans including, without limitation, any necessary
notifications of insurers, assignments of policies or interests therein,
and
establishments of coinsured, joint loss payee and mortgagee rights in favor
of
the Purchaser. No action has been taken or failed to be taken, no event has
occurred and no state of facts exists or has existed on or prior to the Closing
Date (whether or not known to the Originator on or prior to such date) which
has
resulted or will result in an exclusion from, denial of, or defense to coverage
under any applicable, special hazard insurance policy, or bankruptcy bond
(including, without limitation, any exclusions, denials or defenses which
would
limit or reduce the availability of the timely payment of the full amount
of the
loss otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Originator,
the
related Mortgagor or any party involved in the application for such coverage,
including the appraisal, plans and specifications and other exhibits or
documents submitted therewith to the insurer under such insurance policy,
or for
any other reason under such coverage, but not including the failure of such
insurer to pay by reason of such insurer’s breach of such insurance policy or
such insurer’s financial inability to pay;
(pp) Escrow
Analysis.
With
respect to each Mortgage with an Escrow Account, the Originator has within
the
last twelve months (unless such Mortgage was originated within such twelve
month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance
with
RESPA and any other applicable law;
(qq) Prior
Servicing.
Each
Mortgage Loan has been serviced in all material respects in compliance with
Accepted Servicing Practices and the Originator has reported or caused to
be
reported, the Mortgagor credit files to each of the three primary credit
repositories monthly in a timely manner;
(rr) Leaseholds.
If the
Mortgage Loan is secured by a long-term residential lease, (i) the lessor
under
the lease holds a fee simple interest in the land; (ii) the terms of such
lease
expressly permit the mortgaging of the leasehold estate, the assignment of
the
lease without the lessor’s consent and the acquisition by the holder of the
Mortgage of the rights of the lessee upon foreclosure or assignment in lieu
of
foreclosure or provide the holder of the Mortgage with substantially similar
protections; (iii) the terms of such lease do not (A) allow the termination
thereof upon the lessee’s default without the holder of the Mortgage being
entitled to receive written notice of, and opportunity to cure, such default,
(B) allow the termination of the lease in the event of damage or destruction
as
long as the Mortgage is in existence, (C) prohibit the holder of the Mortgage
from being insured (or receiving proceeds of insurance) under the hazard
insurance policy or policies relating to the Mortgaged Property or (D) permit
any increase in rent other than pre-established increases set forth in the
lease; (iv) the original term of such lease is not less than 15 years; (v)
the
term of such lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (vi) the Mortgaged Property is located in
a
jurisdiction in which the use of leasehold estates in transferring ownership
in
residential properties is a widely accepted practice;
(ss) Prepayment
Penalty.
The
Mortgage Loan is subject to a prepayment penalty as provided in the related
Mortgage Note except as set forth on the Mortgage Loan Schedule. With respect
to
each Mortgage Loan that has a prepayment penalty feature, each such prepayment
penalty is enforceable and will be enforced by the Originator, as servicer
of
the Mortgage Loan, for the benefit of the Purchaser, and each prepayment
penalty
is permitted pursuant to federal, state and local law. Each
such
prepayment penalty
is
in an
amount equal to the maximum amount permitted under applicable law and no
such
prepayment penalty may be imposed for a term in excess of three (3) years.
With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a prepayment penalty upon a prepayment prior to maturity: (i) prior to the
loan’s origination, the borrower agreed to such prepayment penalty in exchange
for a monetary benefit, including but not limited to a rate or fee reduction,
(ii) originator has available programs that offered the option of obtaining
a
mortgage loan that did not require payment of such a prepayment penalty and
prior to the Mortgage Loan’s origination, the Mortgage Loan was available to the
Mortgagor with and without the prepayment penalty, (iii) the prepayment penalty
was disclosed to the borrower in the loan documents pursuant to applicable
state
and federal law, and (iv) notwithstanding any state or federal law to the
contrary, the Servicer shall not impose such prepayment penalty in any instance
when the mortgage debt is accelerated as the result of the borrower’s default in
making the loan payments;
(tt) Predatory
Lending Regulations.
None of
the Mortgage Loans are (i) subject to the Home Ownership and Equity Protection
Act of 1994 as amended or (ii) in violation of, or classified as “high cost”,
“threshold”, “covered”, “high risk” or “predatory” loans 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);
(uu) Single-Premium
Credit Life Insurance Policy.
In
connection with the origination of any Mortgage Loan, no proceeds from any
Mortgage Loan were used to finance or acquire single-premium credit insurance
policies. No Mortgagor was required to purchase any credit life, disability,
accident or health insurance product as a condition of obtaining the extension
of credit. No Mortgagor obtained a prepaid single-premium credit life, credit
disability, credit unemployment, credit property, accident or health insurance
policy in connection with the origination of the Mortgage Loan;
(vv) Tax
Service Contract; Flood Certification Contract.
Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and a paid in full, life of loan, flood certification contract and each of
these
contracts is assignable to the Purchaser;
(ww) Qualified
Mortgage.
Each
Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3)
of the Code;
(xx) Regarding
the Mortgagor.
The
Mortgagor is one or more natural persons and/or trustees for an Illinois
land
trust;
(yy) Recordation.
Each
original Mortgage was recorded and, except for those Mortgage Loans subject
to
the MERS identification system, all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded
in the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Originator, or is in the process
of
being recorded;
(zz) Credit
Scores.
Except
as permitted by the Underwriting Guidelines, each Mortgagor has a non-zero
credit score;
(aaa) Compliance
with Anti-Money Laundering Laws.
The
Originator has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money
Laundering Laws”);
to
the extent required to comply with the Anti-Money Laundering Laws, as of
the
Closing Date, the Originator has established an anti-money laundering compliance
program as required by the Anti-Money Laundering Laws, has conducted the
requisite due diligence in connection with the origination of each Mortgage
Loan
for purposes of the Anti-Money Laundering Laws, including with respect to
the
legitimacy of the applicable Mortgagor and the origin of the assets used
by the
said Mortgagor to purchase the property in question, and maintains, and will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws;
(bbb) Georgia
Fair Lending Act.
There
is no Mortgage Loan that was originated on or after October 1, 2002 and on
or
prior to March 7, 2003, which is secured by property located in the State
of
Georgia. There is no Mortgage Loan that was originated on or after March 7,
2003 that is a “high cost home loan” as defined under the Georgia Fair Lending
Act;
(ccc) New
York State Banking Law.
There
is no Mortgage Loan that (a) is secured by property located in the State
of New
York; (b) had an original principal balance of $300,000 or less, and (c)
has an
application date on or after April 1, 2003, the terms of which loan equal
or
exceed either the annual percentage rate or the points and fees threshold
for
“high-cost home loans,” as defined in Section 6-L of the New York State Banking
Law;
(ddd) New
Jersey Mortgage Loans.
All
Mortgage Loans originated in New Jersey on or after November 27, 2003 are
ratable by Standard & Poor’s and Xxxxx’x;
(eee) New
Mexico Mortgage Loans.
There
is no Mortgage Loan that was originated on or after January 1, 2004, and
is a
“high-cost” loan subject to the New Mexico Home Loan Protection
Act.
(fff) Arkansas
Mortgage Loans.
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003);
(ggg) Kentucky
Mortgage Loans.
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Kentucky high-cost
home loan statute effective June 24, 2003 (Ky. Rev. Stat. Section 360.100);
(hhh) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.);
(iii) No
Mortgage Loan is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C);
(jjj) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Indiana Home Loan
Practices Act, effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1
through
24-9-9);
(kkk) MERS
Designations.
With
respect to each MERS Designated Mortgage Loan, the Originator has designated
the
Custodian as the Investor and no Person is listed as Interim Funder on the
MERS®
System;
(lll) Delivery
to the Custodian.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to this
Agreement and the Pooling and Servicing Agreement, have been delivered to
the
Trust Administrator in its capacity as Custodian all in compliance with the
specific requirements of this Agreement and the Pooling and Servicing
Agreement;
(mmm) Reports.
On or
prior to the Closing Date, the Originator has provided the Custodian and
the
Purchaser with a MERS Report listing the Custodian as the Investor with respect
to each MERS Designated Mortgage Loan;
(nnn) Payoffs.
No
Mortgage Loans prepaid in full prior to the Closing Date;
(ooo) Credit
Information.
As to
each consumer report (as defined in the Fair Credit Reporting Act, Public
Law
91-508) or other credit information furnished by the Originator to the
Purchaser, the Originator has full right and authority and is not precluded
by
law or contract from furnishing such information to the Purchaser and the
Purchaser is not precluded by the terms of the Mortgage Loan Documents from
furnishing the same to any subsequent or prospective purchaser of such Mortgage.
The Originator shall hold the Purchaser harmless from any and all damages,
losses, costs and expenses (including attorney’s fees) arising from disclosure
of credit information in connection with the Purchaser’s secondary marketing
operations and the purchase and sale of mortgages. The Originator has or
has
caused the related servicer to, for each Mortgage Loan, fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company (three of the credit repositories), on a monthly basis;
(ppp) Origination
Practices.
Each
Mortgagor was assigned the highest credit grade available with respect to
a
mortgage loan product offered by such Mortgage Loan’s originator, taking into
account the credit history, debt to income ratio and loan requirement of
such
Mortgagor;
(qqq) No
Arbitration Provision.
No
mortgage loan originated on or after August 1, 2004 requires the borrower
to
submit to arbitration to resolve any dispute arising out of or relating in
any
way to the mortgage loan transaction;
(rrr) S&P
Glossary.
No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such
terms
are defined in the then current Standard & Poor’s LEVELS® Glossary which is
now Version 5.6c Revised, Appendix E) and no Mortgage Loan originated on
or
after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act; and
(sss) Manufactured
Housing.
No
manufactured home securing any manufactured housing contract is other than
a
"single family residence" as defined in section 25(e)(10) of the Code, i.e.,
it
is used as a single family residence, has a minimum living space of 400 square
feet and a minimum width of over 102 inches and is of the kind customarily
used
at a fixed location. The manufactured home securing each manufactured housing
contract is a "manufactured home" as defined in 42 U.S.C. section
5402(6).
(ttt) Points
and Fees.
All
points and fees related to each Mortgage Loan were disclosed in writing to
the
borrower in accordance with applicable state and federal law and
regulation.
II. Except
in
the case of a Group 1 Mortgage Loan in an original principal amount of less
than
$60,000 which would have resulted in an unprofitable origination, no borrower
under a Group 1 Mortgage Loan was charged “points and fees” (whether or not
financed) in an amount greater than 5% of the principal amount of such loan,
such 5% limitation is calculated in accordance with Xxxxxx Mae’s anti-predatory
lending requirements as set forth in the Xxxxxx Xxx Selling Guide.
EXHIBIT A
FORM
OF
CLASS [A] [M]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN
A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”),
AND
CERTAIN OTHER ASSETS.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUST ADMINISTRATOR WITH (A) A REPRESENTATION TO
THE
EFFECT THAT SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR SIMILAR LAW (COLLECTIVELY, A
“PLAN”), NOR A PERSON ACTING FOR, ON BEHALF OF OR WITH THE ASSETS OF, ANY SUCH
PLAN, OR (B) AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, THE TRUST
ADMINISTRATOR AND THE SERVICER, AND UPON WHICH THE DEPOSITOR, THE TRUSTEE,
THE
TRUST ADMINISTRATOR, THE MASTER SERVICER AND THE SERVICER SHALL BE ENTITLED
TO
RELY, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF SUCH CERTIFICATE BY THE
PROSPECTIVE TRANSFEREE (I) IS PERMISSIBLE UNDER APPLICABLE LAW, (II) WILL
NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION
4975 OF THE CODE OR SIMILAR LAW AND (III) WILL NOT SUBJECT THE DEPOSITOR,
THE
TRUSTEE, THE SWAP ADMINISTRATOR, THE TRUST ADMINISTRATOR, THE MASTER SERVICER
OR
THE SERVICER TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE IN ADDITION TO THOSE
UNDERTAKEN BY SUCH ENTITIES IN THE POOLING AND SERVICING AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE DEPOSITOR, THE TRUSTEE,
THE
TRUST ADMINISTRATOR, THE MASTER SERVICER, THE SERVICER, THE SWAP ADMINISTRATOR
OR THE TRUST FUND. A TRANSFEREE OF A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED
TO
HAVE MADE A REPRESENTATION AS REQUIRED HEREIN.
|
Certificate
No.
|
:
|
|||
|
Cut-off
Date
|
:
|
May
1, 2006
|
||
|
First
Distribution Date
|
:
|
The
Distribution Date in June, 2006
|
||
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
|||
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
Class
|
Principal
Amount
|
|
|
1-A-1
|
$
|
235,410,000
|
||
|
1-A-2
|
$
|
58,847,000
|
||
|
2-A-1
|
$
|
169,871,000
|
||
|
2-A-2
|
$
|
115,101,000
|
||
|
2-A-3
|
$
|
134,034,000
|
||
|
2-A-4
|
$
|
42,303,000
|
||
|
M-1
|
$
|
71,725,000
|
||
|
M-2
|
$
|
19,651,000
|
||
|
M-3
|
$
|
18,177,000
|
||
|
M-4
|
$
|
17,686,000
|
||
|
M-5
|
$
|
16,212,000
|
||
|
M-6
|
$
|
15,721,000
|
||
|
M-7
|
$
|
13,264,000
|
||
|
M-8
|
$
|
10,808,000
|
||
|
M-9
|
$
|
8,352,000
|
||
|
M-10
|
$
|
9,825,000
|
||
|
CUSIP
|
:
|
Class
|
CUSIP
No.
|
|
0-X-0
|
00000XXX0
|
||
|
0-X-0
|
00000XXX0
|
||
|
2-A-1
|
00000XXX0
|
||
|
0-X-0
|
00000XXX0
|
||
|
0-X-0
|
00000XXX0
|
||
|
2-A-4
|
00000XXX0
|
||
|
M-1
|
00000XXX0
|
||
|
M-2
|
00000XXX0
|
||
|
M-3
|
00000XXX0
|
||
|
M-4
|
00000XXX0
|
||
|
M-5
|
00000XXX0
|
||
|
M-6
|
00000XXX0
|
||
|
M-7
|
00000XXX0
|
||
|
M-8
|
00000XXX0
|
||
|
M-9
|
00000XXX0
|
||
|
M-10
|
00000XXX0
|
||
|
XXXX
|
:
|
0-X-0
|
XX00000XXX00
|
|
0-X-0
|
XX00000XXX00
|
||
|
2-A-1
|
US35729RAC07
|
||
|
0-X-0
|
XX00000XXX00
|
||
|
0-X-0
|
XX00000XXX00
|
||
|
2-A-4
|
US35729RAF38
|
||
|
M-1
|
XX00000XXX00
|
||
|
X-0
|
XX00000XXX00
|
||
|
M-3
|
US35729RAJ59
|
||
|
M-4
|
US35729RAK23
|
||
|
M-5
|
US35729RAL06
|
||
|
M-6
|
US35729RAM88
|
||
|
M-7
|
US35729RAN61
|
||
|
M-8
|
US35729RAP10
|
||
|
M-9
|
US35729RAQ92
|
||
|
M-10
|
US35729RAR75
|
||
FINANCIAL
ASSET SECURITIES CORP.
Fremont
Home Loan Trust
Asset-Backed
Certificates, Series 2006-A
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, the Trust Administrator, the Master Servicer or the Trustee referred
to below or any of their respective affiliates. Neither this Certificate
nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate of the denominations of all Certificates of
the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement, dated as of May 1, 2006 (the
“Agreement”),
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Fremont Investment & Loan, as sponsor, originator and servicer
(“Fremont”),
Xxxxx
Fargo Bank, N.A., as master servicer, trust administrator and swap
administrator, and HSBC Bank USA, National Association, as trustee (the
“Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made, except as provided
in
section 5.02 of the Agreement, unless the Trustee and the Trust Administrator
shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee
and the Trust Administrator, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA, Section 4975 of the
Code
or any materially similar provisions of applicable Federal, state or local
law
(“Similar
Law”),
or a
person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee, the Trust
Administrator or the Trust Fund.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trust Administrator.
* * *
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
__________, 2006
|
XXXXX
FARGO BANK, N.A.,
as
Trust Administrator
|
|
|
By:
|
|
|
Authorized
Officer
|
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Classes of Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
FINANCIAL
ASSET SECURITIES CORP.
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated
as
Fremont Home Loan Trust 2006-A Asset-Backed Certificates, of the Series
specified on the face hereof (herein collectively called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by
the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of each month or, if such day is not a Business Day, the Business Day
immediately following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement. The Record Date applicable
to
each Distribution Date is the Business Day immediately preceding such
Distribution Date; provided,
however,
that
for any Definitive Certificates, the Record Date shall be the last Business
Day
of the month next preceding the month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trust Administrator in writing at least five Business Days prior
to
the related Record Date and such Certificateholder shall satisfy the conditions
to receive such form of payment set forth in the Agreement, or, if not, by
check
mailed by first class mail to the address of such Certificateholder
appearing in the Certificate Register. The final distribution on each
Certificate will be made in like manner, but only upon presentment and surrender
of such Certificate at the offices designated by the Trust Administrator
for
such purposes, or such other location specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the Trustee and the rights of the Certificateholders under
the
Agreement at any time by the Depositor, the Sponsor, the Originator, the
Servicer, the Master Servicer, the Trust Administrator, the Swap Administrator
and the Trustee with the consent of the Holders of Certificates affected
by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trust Administrator upon surrender of this Certificate for registration
of
transfer at the offices designated by the Trust Administrator for such purposes
or the office or agency maintained by the Trust Administrator, accompanied
by a
written instrument of transfer in form satisfactory to the Trust Administrator
duly executed by the holder hereof or such holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Swap Administrator, the
Trust
Administrator and the Trustee and any agent of the Depositor, the Servicer,
the
Master Servicer, the Swap Administrator, the Trust Administrator or the Trustee
may treat the Person in whose name this Certificate is registered as the
owner
hereof for all purposes, and neither the Depositor, the Servicer, the Master
Servicer, the Swap Administrator, the Trust Administrator, the Trustee, nor
any
such agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than or equal to 10% of the Cut-off Date Pool Principal
Balance, the Person specified in Section 9.01 of the Agreement will have
the option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of the Mortgage Loans at a purchase
price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in
Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
| Dated: |
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
______________________________________________________ for the account of
_______________________________________ account number ,
or, if
mailed by check, to _________________________________________. Applicable
statements should be mailed to _______________________________.
This
information is provided by__________________________________, the
assignee named above, or ________________________________________________________
as
its
agent.
EXHIBIT B
FORM
OF
CLASS [P] CERTIFICATE
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE AND THE TRUST ADMINISTRATOR A TRANSFEROR
LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE TRUSTEE AND THE TRUST ADMINISTRATOR RECEIVE A RULE 144A
LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR
(ii) THE TRUSTEE AND THE TRUST ADMINISTRATOR RECEIVE AN OPINION OF COUNSEL,
DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN
A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND CERTAIN OTHER
ASSETS.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUST ADMINISTRATOR WITH (A) A REPRESENTATION TO
THE
EFFECT THAT SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR SIMILAR LAW (COLLECTIVELY, A
“PLAN”), NOR A PERSON ACTING FOR, ON BEHALF OF OR WITH THE ASSETS OF, ANY SUCH
PLAN, OR (B) AN OPINION OF COUNSEL UPON WHICH THE DEPOSITOR, THE TRUSTEE,
THE
MASTER SERVICER AND THE SERVICER SHALL BE ENTITLED TO RELY, TO THE EFFECT
THAT
THE PURCHASE OR HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE
(I) IS
PERMISSIBLE UNDER APPLICABLE LAW, (II) WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
AND
(III) WILL NOT SUBJECT THE DEPOSITOR, THE TRUSTEE, THE TRUST ADMINISTRATOR,
THE
SWAP ADMINISTRATOR, THE MASTER SERVICER OR THE SERVICER TO ANY OBLIGATION
OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975
OF
THE CODE) IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE POOLING
AND
SERVICING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF
THE
TRUSTEE, THE DEPOSITOR, THE TRUST ADMINISTRATOR, THE MASTER SERVICER, THE
SERVICER, THE SWAP ADMINISTRATOR OR THE TRUST FUND.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
The
Distribution Date in June, 2006
|
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
[100]%
|
|
CUSIP
|
:
|
|
|
ISIN
|
:
|
FINANCIAL
ASSET SECURITIES CORP.
Asset-Backed
Certificates, Series 2006-A
Class [P]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Servicer, the Trust Administrator, the
Master Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
This
certifies that [_____________________] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of
this Certificate by the aggregate of the denominations of all Certificates
of
the Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of May 1, 2006 (the
“Agreement”)
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Fremont Investment & Loan, as sponsor, originator and servicer
(“Fremont”),
Xxxxx
Fargo Bank, N.A., as master servicer, trust administrator and swap administrator
(the “Trust
Administrator”),
and
HSBC Bank USA, National Association, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate does not have a Pass-Through Rate and will be entitled to
distributions only to the extent set forth in the Agreement. In addition,
any
distribution of the proceeds of any remaining assets of the Trust will be
made
only upon presentment and surrender of this Certificate at the offices
designated by the Trust Administrator for such purpose, or the office or
agency
maintained by the Trust Administrator.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933,
as
amended (the “1933 Act”),
and
any applicable state securities laws or is made in accordance with the 1933
Act
and such laws. In the event of any such transfer, the Trustee and the Trust
Administrator shall require the transferor to execute a transferor certificate
(in substantially the form attached to the Pooling and Servicing Agreement)
and
deliver either (i) a Rule 144A Letter, in either case substantially in
the form attached to the Agreement, or (ii) a written Opinion of Counsel to
the Trustee and the Trust Administrator that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion
of
Counsel shall be an expense of the transferor.
No
transfer of a Certificate of this Class shall be made, except as provided
in
section 5.02 of the Agreement, unless the Trustee and the Trust Administrator
shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee
and the Trust Administrator, to the effect that such transferee is not an
employee benefit plan subject to Title I of ERISA, Section 4975 of the
Code or any materially similar provisions of applicable Federal, state or
local
law (“Similar
Law”),
or a
person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee, the Trust
Administrator or the Trust Fund.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trust Administrator.
* * *
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
___________, 2006
|
XXXXX
FARGO BANK, N.A.,
as
Trust Administrator
|
|
|
By:
|
|
|
Authorized
Officer
|
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Classes of Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
FINANCIAL
ASSET SECURITIES CORP.
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated
as
Fremont Home Loan Trust 2006-A Asset-Backed Certificates, of the Series
specified on the face hereof (herein collectively called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by
the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of each month or, if such day is not a Business Day, the Business Day
immediately following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement. The Record Date applicable
to
each Distribution Date is the Business Day immediately preceding such
Distribution Date; provided,
however,
that
for any Definitive Certificates, the Record Date shall be the last Business
Day
of the month next preceding the month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trust Administrator in writing at least five Business Days prior
to
the related Record Date and such Certificateholder shall satisfy the conditions
to receive such form of payment set forth in the Agreement, or, if not, by
check
mailed by first class mail to the address of such Certificateholder
appearing in the Certificate Register. The final distribution on each
Certificate will be made in like manner, but only upon presentment and surrender
of such Certificate at the offices designated by the Trust Administrator
for
such purposes, or such other location specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the Trustee and the rights of the Certificateholders under
the
Agreement at any time by the Depositor, the Originator, the Servicer, the
Master
Servicer, the Trust Administrator, the Swap Administrator and the Trustee
with
the consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding
on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in
lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trust Administrator upon surrender of this Certificate for registration
of
transfer at the offices designated by the Trust Administrator for such purposes
or the office or agency maintained by the Trust Administrator, accompanied
by a
written instrument of transfer in form satisfactory to the Trust Administrator
duly executed by the holder hereof or such holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Swap Administrator, the
Trust
Administrator and the Trustee and any agent of the Depositor, the Servicer,
the
Master Servicer, the Swap Administrator, the Trust Administrator or the Trustee
may treat the Person in whose name this Certificate is registered as the
owner
hereof for all purposes, and neither the Depositor, the Servicer, the Master
Servicer, the Swap Administrator, the Trust Administrator, the Trustee, nor
any
such agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than or equal to 10% of the Cut-off Date Pool Principal
Balance, the Person specified in Section 9.01 of the Agreement will have
the option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of the Mortgage Loans at a purchase
price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in
Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:___________________________________________________________________________________.
| Dated: |
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
______________________________________________________ for the account of
_______________________________________ account number ,
or, if
mailed by check, to _________________________________________. Applicable
statements should be mailed to _______________________________.
This
information is provided by__________________________________, the
assignee named above, or ___________________________________________
as
its
agent.
EXHIBIT C
FORM
OF
CLASS [R] [R-X] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN TWO “REAL ESTATE MORTGAGE INVESTMENT CONDUITS,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE AND THE TRUST ADMINISTRATOR A TRANSFEROR
LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE TRUSTEE AND THE TRUST ADMINISTRATOR RECEIVE A RULE 144A
LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR
(II) THE TRUSTEE AND THE TRUST ADMINISTRATOR RECEIVE AN OPINION OF COUNSEL,
DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUST ADMINISTRATOR WITH A REPRESENTATION TO THE
EFFECT
THAT SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF
1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”), (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING FOR,
ON BEHALF OF OR WITH THE ASSETS OF, ANY SUCH PLAN.
|
Certificate
No.
|
:
|
1
|
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
|
First
Distribution Date
|
:
|
The
Distribution Date in June, 2006
|
|
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
[100]%
|
|
|
CUSIP
|
:
|
Class
|
CUSIP
No.
|
|
R
|
[_______]
|
||
|
R-X
|
[_______]
|
||
|
ISIN
|
:
|
Class
|
ISIN
No.
|
|
R
|
[_______]
|
||
|
R-X
|
[_______]
|
||
FINANCIAL
ASSET SECURITIES CORP.
Fremont
Home Loan Trust 2006-A
Asset-Backed
Certificates, Series 2006-A
Class [R]
[R-X]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Class [R] [R-X] Certificate has no Certificate Balance and is not
entitled to distributions in respect of principal or interest. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Sponsor, the Originator, the Servicer, the Trust
Administrator, the Swap Administrator, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This
certifies that [_____________________] is the registered owner of the Percentage
Interest specified above of any monthly distributions due to the Class [R]
[R-X] Certificates pursuant to a Pooling and Servicing Agreement dated as
of May
1, 2006 (the “Agreement”)
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Fremont Investment & Loan, as sponsor, orginator and servicer (“Fremont”),
Xxxxx
Fargo Bank, N.A., as master servicer (the “Master
Servicer”),
trust
administrator (the “Trust
Administrator”)
and
swap administrator (the “Swap
Administrator”),
and
HSBC Bank USA, National Association, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Class [R] [R-X]
Certificate at the offices designated by the Trust Administrator for such
purposes or the office or agency maintained by the Trust
Administrator.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933,
as
amended (the “1933 Act”),
and
any applicable state securities laws or is made in accordance with the 1933
Act
and such laws. In the event of any such transfer, the Trustee and the Trust
Administrator shall require the transferor to execute a transferor certificate
(in substantially the form attached to the Pooling and Servicing Agreement)
and
deliver either (i) a Rule 144A Letter, in either case substantially in
the form attached to the Agreement, or (ii) a written Opinion of Counsel to
the Trustee and the Trust Administrator that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion
of
Counsel shall be an expense of the transferor.
No
transfer of a Class [R] [R-X] Certificate shall be made unless the Trust
Administrator shall have received a representation letter from the transferee
of
such Certificate to the effect that such transferee is not an employee benefit
plan or arrangement subject to Title I of ERISA, a plan or arrangement subject
to Section 4975 of the Code or a plan subject to Similar Law, or a person
acting on behalf of any such plan or arrangement nor using the assets of
any
such plan or arrangement to effect such transfer, which representation letter
shall not be an expense of the Trustee, the Servicer or the Trust Fund. In
the
event that such representation is violated, or any attempt is made to transfer
to a plan or arrangement subject to Title I of ERISA or a plan subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such
plan or arrangement, such attempted transfer or acquisition shall be void
and of
no effect.
Each
Holder of this Class [R] [R-X] Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class [R] [R-X]
Certificate to have agreed to be bound by the following provisions, and the
rights of each Person acquiring any Ownership Interest in this Class [R]
[R-X] Certificate are expressly subject to the following provisions:
(i) each Person holding or acquiring any Ownership Interest in this
Class [R] [R-X] Certificate shall be a Permitted Transferee and shall
promptly notify the Trust Administrator of any change or impending change
in its
status as a Permitted Transferee, (ii) no Ownership Interest in this
Class [R] [R-X] Certificate may be registered on the Closing Date or
thereafter transferred, and the Trust Administrator shall not register the
Transfer of this Certificate unless, in addition to the certificates required
to
be delivered to the Trust Administrator under Section 5.02(c) of the
Agreement, the Trust Administrator shall have been furnished with a Transfer
Affidavit of the initial owner or the proposed transferee substantially in
the
form attached as Exhibit G to the Agreement, (iii) each Person holding
or acquiring any Ownership Interest in this Class [R] [R-X] Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest this Class [R]
[R-X] Certificate, (B) to obtain a Transfer Affidavit from any Person for
whom such Person is acting as nominee, trustee or agent in connection with
any
Transfer of this Class [R] [R-X] Certificate, (C) not to cause income
with respect to the Class [R] [R-X] Certificate to be 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 and
(D) not to Transfer the Ownership Interest in this Class [R] [R-X]
Certificate or to cause the Transfer of the Ownership Interest in this
Class [R] [R-X] Certificate to any other Person if it has actual knowledge
that such Person is not a Permitted Transferee and (iv) any attempted or
purported Transfer of the Ownership Interest in this Class [R] [R-X]
Certificate in violation of the provisions herein shall be absolutely null
and
void and shall vest no rights in the purported Transferee.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
______________, 2006
|
XXXXX
FARGO BANK, N.A.,
as
Trust Administrator
|
|
|
By:
|
|
|
Authorized
Officer
|
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Classes of Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
FINANCIAL
ASSET SECURITIES CORP.
Fremont
Home Loan Trust 2006-A
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated
as
Fremont Home Loan Trust 2006-A Asset-Backed Certificates, of the Series
specified on the face hereof (herein collectively called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by
the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of each month or, if such day is not a Business Day, the Business Day
immediately following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement. The Record Date applicable
to
each Distribution Date is the Business Day immediately preceding such
Distribution Date; provided,
however,
that
for any Definitive Certificates, the Record Date shall be the last Business
Day
of the month next preceding the month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trust Administrator in writing at least five Business Days prior
to
the related Record Date and such Certificateholder shall satisfy the conditions
to receive such form of payment set forth in the Agreement, or, if not, by
check
mailed by first class mail to the address of such Certificateholder
appearing in the Certificate Register. The final distribution on each
Certificate will be made in like manner, but only upon presentment and surrender
of such Certificate at the offices designated by the Trust Administrator
for
such purposes, or such other location specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the Trustee and the rights of the Certificateholders under
the
Agreement at any time by the Depositor, the Originator, the Servicer, the
Master
Servicer, the Swap Administrator, the Trust Administrator and the Trustee
with
the consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding
on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in
lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trust Administrator upon surrender of this Certificate for registration
of
transfer at the offices designated by the Trust Administrator for such purposes
or the office or agency maintained by the Trust Administrator, accompanied
by a
written instrument of transfer in form satisfactory to the Trust Administrator
duly executed by the holder hereof or such holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Swap Administrator, the
Trust
Administrator and the Trustee and any agent of the Depositor, the Servicer,
the
Master Servicer, the Swap Administrator, the Trust Administrator or the Trustee
may treat the Person in whose name this Certificate is registered as the
owner
hereof for all purposes, and neither the Depositor, the Servicer, the Master
Servicer, the Swap Administrator, the Trust Administrator, the Trustee, nor
any
such agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than or equal to 10% of the Cut-off Date Pool Principal
Balance, the Person specified in Section 9.01 of the Agreement will have
the option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of the Mortgage Loans at a purchase
price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in
Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:___________________________________________________________________________________.
| Dated: |
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
______________________________________________________ for the account of
_______________________________________ account number ,
or, if
mailed by check, to _________________________________________. Applicable
statements should be mailed to _______________________________.
This
information is provided by__________________________________, the
assignee named above, or _______________________________________
as
its
agent.
EXHIBIT D
FORM
OF
CLASS [C] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN
A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”),
AND
CERTAIN OTHER ASSETS.
NEITHER
THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE AND THE TRUST ADMINISTRATOR A TRANSFEROR
LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE TRUSTEE AND THE TRUST ADMINISTRATOR RECEIVE A RULE 144A
LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR
(II) THE TRUSTEE AND THE TRUST ADMINISTRATOR RECEIVE AN OPINION OF COUNSEL,
DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUST ADMINISTRATOR WITH (A) A REPRESENTATION TO
THE
EFFECT THAT SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR SIMILAR LAW (COLLECTIVELY, A
“PLAN”), NOR A PERSON ACTING FOR, ON BEHALF OF OR WITH THE ASSETS OF, ANY SUCH
PLAN, OR (B) AN OPINION OF COUNSEL UPON WHICH THE DEPOSITOR, THE TRUSTEE,
THE
MASTER SERVICER AND THE SERVICER SHALL BE ENTITLED TO RELY, TO THE EFFECT
THAT
THE PURCHASE OR HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE
(I) IS
PERMISSIBLE UNDER APPLICABLE LAW, (II) WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
AND
(III) WILL NOT SUBJECT THE DEPOSITOR, THE TRUSTEE, THE TRUST ADMINISTRATOR,
THE
SWAP ADMINISTRATOR, THE MASTER SERVICER OR THE SERVICER TO ANY OBLIGATION
OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975
OF
THE CODE) IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE POOLING
AND
SERVICING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF
THE
TRUSTEE, THE DEPOSITOR, THE TRUST ADMINISTRATOR, THE MASTER SERVICER, THE
SERVICER, THE SWAP ADMINISTRATOR OR THE TRUST FUND.
|
Certificate
No.
|
:
|
[
]
|
|
Cut-off
Date
|
:
|
May
1, 2006
|
|
First
Distribution Date
|
:
|
The
Distribution Date in June, 2006
|
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
[100]%
|
|
CUSIP
|
:
|
|
|
ISIN:
|
:
|
FINANCIAL
ASSET SECURITIES CORP.
Fremont
Home Loan Trust 2006-A
Asset-Backed
Certificates, Series 2006-A
Class [C]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Servicer, the Trust Administrator, the
Master Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
This
certifies that FREMONT INVESTMENT & LOAN is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of
all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of May
1,
2006 (the “Agreement”)
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Fremont Investment & Loan, as sponsor, originator and servicer
(“Fremont”),
Xxxxx
Fargo Bank, N.A., as master servicer (the “Master
Servicer”)
and
trust administrator (the “Trust
Administrator”),
and
HSBC Bank USA, National Association, as trustee (the “Trustee”).
To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate will be entitled to distributions only to the extent set forth
in
the Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the offices designated by the Trust Administrator for such
purposes or the office or agency maintained by the Trust
Administrator.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933,
as
amended (the “1933 Act”),
and
any applicable state securities laws or is made in accordance with the 1933
Act
and such laws. In the event of any such transfer, the Trustee and the Trust
Administrator shall require the transferor to execute a transferor certificate
(in substantially the form attached to the Pooling and Servicing Agreement)
and
deliver either (i) a Rule 144A Letter, in either case substantially in
the form attached to the Agreement, or (ii) a written Opinion of Counsel to
the Trustee and the Trust Administrator that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion
of
Counsel shall be an expense of the transferor.
No
transfer of a Certificate of this Class shall be made, except as provided
in
section 5.02 of the Agreement, unless the Trustee and the Trust Administrator
shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee
and the Trust Administrator, to the effect that such transferee is not an
employee benefit plan subject to Title I of ERISA, Section 4975 of the Code
or any materially similar provisions of applicable Federal, state or local
law
(“Similar
Law”),
or a
person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee, the Trust
Administrator or the Trust Fund.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trust Administrator.
* * *
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
____________, 2006
|
XXXXX
FARGO BANK, N.A.,
as
Trust Administrator
|
|
|
By:
|
|
|
Authorized
Officer
|
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Classes of Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
FINANCIAL
ASSET SECURITIES CORP.
Fremont
Home Loan Trust 2006-A
Asset-Backed
Certificates
This
Certificate is one of a duly authorized issue of Certificates designated
as
Fremont Home Loan Trust 2006-A Asset-Backed Certificates, of the Series
specified on the face hereof (herein collectively called the “Certificates”),
and
representing a beneficial ownership interest in the Trust Fund created by
the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of each month or, if such day is not a Business Day, the Business Day
immediately following (the “Distribution
Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement. The Record Date applicable
to
each Distribution Date is the Business Day immediately preceding such
Distribution Date; provided,
however,
that
for any Definitive Certificates, the Record Date shall be the last Business
Day
of the month next preceding the month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trust Administrator in writing at least five Business Days prior
to
the related Record Date and such Certificateholder shall satisfy the conditions
to receive such form of payment set forth in the Agreement, or, if not, by
check
mailed by first class mail to the address of such Certificateholder
appearing in the Certificate Register. The final distribution on each
Certificate will be made in like manner, but only upon presentment and surrender
of such Certificate at the offices designated by the Trust Administrator
for
such purposes, or such other location specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the Trustee and the rights of the Certificateholders under
the
Agreement at any time by the Depositor, the Originator, the Servicer, the
Master
Servicer, the Swap Administrator, the Trust Administrator and the Trustee
with
the consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding
on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in
lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trust Administrator upon surrender of this Certificate for registration
of
transfer at the offices designated by the Trust Administrator for such purposes
or the office or agency maintained by the Trust Administrator, accompanied
by a
written instrument of transfer in form satisfactory to the Trust Administrator
duly executed by the holder hereof or such holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Swap Administrator, the
Trust
Administrator and the Trustee and any agent of the Depositor, the Servicer,
the
Master Servicer, the Swap Administrator, the Trust Administrator or the Trustee
may treat the Person in whose name this Certificate is registered as the
owner
hereof for all purposes, and neither the Depositor, the Servicer, the Master
Servicer, the Swap Administrator, the Trust Administrator, the Trustee, nor
any
such agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than or equal to 10% of the Cut-off Date Pool Principal
Balance, the Person specified in Section 9.01 of the Agreement will have
the option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of the Mortgage Loans at a purchase
price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in
Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:___________________________________________________________________________________.
| Dated: |
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
______________________________________________________ for the account of
_______________________________________ account number ,
or, if
mailed by check, to _________________________________________. Applicable
statements should be mailed to _______________________________.
This
information is provided by__________________________________, the
assignee named above, or ____________________________________________
as
its
agent.
EXHIBIT E
FORM
OF
INITIAL CERTIFICATION OF TRUST ADMINISTRATOR
[date]
[Trustee]
[Depositor]
[Servicer]
_____________________
_____________________
Re: Pooling
and Servicing Agreement, dated as of May 1, 2006, among Financial Asset
Securities Corp., as Depositor, Fremont Investment & Loan, as Sponsor,
Originator and Servicer, Xxxxx Fargo Bank, N.A., as Master Servicer, Trust
Administrator and Swap Administrator, and HSBC Bank USA, National
Association, as Trustee, Fremont Home Loan Trust, 2006-A
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling
and Servicing Agreement”),
the
undersigned, as Trust Administrator, for each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule of exceptions), certifies that it has received:
(i) the
original Mortgage Note, endorsed as provided in the following form: “Pay to the
order of ________, without recourse”; and
(ii) a
duly
executed Assignment of Mortgage (which may be included in a blanket assignment
or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trust
Administrator has made no independent examination of any documents contained
in
each Mortgage File beyond the review specifically required in the Pooling
and
Servicing Agreement. The Trust Administrator makes no representations as
to:
(i) the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
|
XXXXX
FARGO BANK, N.A.,
as
Trust Administrator
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT F
FORM
OF
DOCUMENT CERTIFICATION
AND
EXCEPTION REPORT OF TRUST ADMINISTRATOR
[date]
[Trustee]
[Depositor]
[Servicer]
[Originator]
_____________________
_____________________
Re: Pooling
and Servicing Agreement, dated as of May 1, 2006, among Financial Asset
Securities Corp., as Depositor, Fremont Investment & Loan, as Sponsor,
Originator and Servicer, Xxxxx Fargo Bank, N.A., as Master Servicer, Trust
Administrator and Swap Administrator, and HSBC Bank USA, National Association,
as Trustee, Fremont Home Loan Trust, 2006-A
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling
and Servicing Agreement”),
the
undersigned, as Trust Administrator, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on the attached Document Exception Report) it has
received:
(i) The
original Mortgage Note, endorsed in the form provided in Section 2.01 of
the Pooling and Servicing Agreement, with all intervening endorsements showing
a
complete chain of endorsement from the originator to the last
endorsee.
(ii) The
original recorded Mortgage.
(iii) A
duly
executed Assignment of Mortgage in the form provided in Section 2.01 of the
Pooling and Servicing Agreement; or, if the Originator has certified or the
Trustee otherwise knows that the related Mortgage has not been returned from
the
applicable recording office, a copy of the Assignment of Mortgage (excluding
information to be provided by the recording office).
(iv) The
original or duplicate original recorded assignment or assignments of the
Mortgage showing a complete chain of assignment from the originator to the
last
endorsee.
(v) The
original or duplicate original lender’s title policy and all riders thereto or,
any one of an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the title
company.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan,
and
(b) 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
accurately reflects information set forth in the Custodial File.
The
Trust
Administrator has made no independent examination of any documents contained
in
each Mortgage File beyond the review of the Custodial File specifically required
in the Pooling and Servicing Agreement. The Trust Administrator makes
no
representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan Schedule or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Trust
Administrator has
made
no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party
so endorsing, as Noteholder or assignee thereof, in and to that Mortgage
Note or
(ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to
which
the assignment relates.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
|
XXXXX
FARGO BANK, N.A.,
as
Trust Administrator
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT G
RESIDUAL
TRANSFER AFFIDAVIT AND AGREEMENT
Fremont
Home Loan Trust 2006-[ ]
Asset-Backed
Certificates
|
)
|
||
|
)
|
ss.:
|
|
|
COUNTY
OF
|
)
|
_________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am a
_________________ of [ ]
(the
“Owner”) a [corporation] duly organized and existing under the laws of [ ], the
record owner of Fremont Home Loan Trust 2006-[ ], Asset-Backed Certificates,
Series [ ], [Class R (the “Class R Certificates”)] [Class R-X (the “Class R-X
Certificates”)], on behalf of whom I make this affidavit and agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Pooling and Servicing Agreement pursuant to which
the
Class [R] [R-X] Certificates were issued.
2. The
Owner
(i) is and will be a “Permitted Transferee” as of ______________ and (ii) is
acquiring the Class [R] [R-X] Certificates for its own account or for the
account of another Owner from which it has received an affidavit in
substantially the same form as this affidavit. A “Permitted Transferee” is any
person other than a “disqualified organization” or a possession of the United
States. For this purpose, a “disqualified organization” means the United States,
any state or political subdivision thereof, any agency or instrumentality
of any
of the foregoing (other than an instrumentality all of the activities of
which
are subject to tax and, except for the Federal Home Loan Mortgage Corporation,
a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency
or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, any organization (other than certain farmers’
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income,
an
electing large partnership within the meaning of Section 775 of the Code,
a
United States person (as defined in the Code) 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 United States Person, or any other entity identified
as a
disqualified organization in the REMIC provisions of the Code or Treasury
Regulations.
3. The
Owner
is aware (i) of the tax that would be imposed on transfers of the Class [R]
[R-X] Certificates to disqualified organizations under the Internal Revenue
Code
of 1986, as amended; (ii) that such tax would be on the transferor or, if
such
transfer is through an agent (which person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the person
otherwise liable for the tax shall be relieved of liability for the tax if
the
transferee furnishes to such person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such person does not have
actual knowledge that the affidavit is false; and (iv) that each of the Class
[R] [R-X] Certificates may be a “noneconomic residual interest” within the
meaning of certain Treasury regulations promulgated under the Code and that
the
transferor of a “noneconomic residual interest” will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer is to impede the assessment or collection of
tax.
4. The
Owner
is aware of the tax imposed on a “pass-through entity” holding the Class [R]
[R-X] Certificates if, at any time during the taxable year of the pass-through
entity, a non-Permitted Transferee is the record holder of an interest in
such
entity. (For this purpose, a “pass-through entity” includes a regulated
investment company, a real estate investment trust or common trust fund,
a
partnership, trust or estate, and certain cooperatives.)
5. The
Owner
is aware that the Trust Administrator will not register the transfer of any
Class [R] [R-X] Certificates unless the transferee, or the transferee’s agent,
delivers to the Trust Administrator and the Trustee, among other things,
an
affidavit in substantially the same form as this affidavit. The Owner expressly
agrees that it will not consummate any such transfer if it knows or believes
that any of the representations contained in such affidavit and agreement
are
false.
6. The
Owner
consents to any additional restrictions or arrangements that shall be deemed
necessary upon advice of counsel to constitute a reasonable arrangement to
ensure that the Class [R] [R-X] Certificates will only be owned, directly
or
indirectly, by an Owner that is a Permitted Transferee.
7. The
Owner’s taxpayer identification number is _______________________.
8. The
Owner
has reviewed the restrictions set forth on the face of the Class [R] [R-X]
Certificates and the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement under which the Class [R] [R-X] Certificates were issued; and the
Owner expressly agrees to be bound by and to comply with such restrictions
and
provisions.
9. The
Owner
is not acquiring and will not transfer the Class [R] [R-X] Certificates in
order
to impede the assessment or collection of any tax.
10. The
Owner
anticipates that it will, so long as it holds the Class [R] [R-X] Certificates,
have sufficient assets to pay any taxes owed by the holder of such Class
[R]
[R-X] Certificates, and hereby represents to and for the benefit of the person
from whom it acquired the Class [R] [R-X] Certificates that the Owner intends
to
pay taxes associated with holding such Class [R] [R-X] Certificates as they
become due, fully understanding that it may incur tax liabilities in excess
of
any cash flows generated by the Class [R] [R-X] Certificates.
11. The
Owner
has no present knowledge that it may become insolvent or subject to a bankruptcy
proceeding for so long as it holds the Class [R] [R-X]
Certificates.
12. The
Owner
has no present knowledge or expectation that it will be unable to pay any
United
States taxes owed by it so long as any of the Certificates remain
outstanding.
13. The
Owner
is not acquiring the Class [R] [R-X] Certificates with the intent to transfer
the Class [R] [R-X] Certificates to any person or entity that will not have
sufficient assets to pay any taxes owed by the holder of such Class [R] [R-X]
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R] [R-X] Certificates remain
outstanding.
14. The
Owner
will, in connection with any transfer that it makes of the Class [R] [R-X]
Certificates, obtain from its transferee the representations required by
Section
5.02(c) of the Pooling and Servicing Agreement under which the Class [R]
[R-X]
Certificate were issued and will not consummate any such transfer if it knows,
or knows facts that should lead it to believe, that any such representations
are
false.
15. The
Owner
will, in connection with any transfer that it makes of the Class [R] [R-X]
Certificates, deliver to the Trust Administrator and the Trustee an affidavit,
which represents and warrants that it is not transferring the Class [R] [R-X]
Certificates to impede the assessment or collection of any tax and that it
has
no actual knowledge that the proposed transferee: (i) has insufficient assets
to
pay any taxes owed by such transferee as holder of the Class [R] [R-X]
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding
for so long as the Class [R] [R-X] Certificates remain outstanding; and (iii)
is
not a “Permitted Transferee.”
16. The
Owner
is a citizen or resident of the United States, a corporation, partnership
or
other entity created or organized in, or under the laws of, the United States
or
any political subdivision thereof, or an estate or trust whose income from
sources without the United States may be included in gross income for the
United
States federal income tax purposes regardless of its connection with the
conduct
of a trade or business within the United States. If any such Owner is a
partnership, each partner of such partnership is subject to taxation on a
net
income basis in the United States.
17. The
Owner
of the Class [R] [R-X] Certificates hereby agrees that in the event that
the
Trust Fund created by the Pooling and Servicing Agreement is terminated pursuant
to Section 9.01 thereof, the undersigned shall assign and transfer to the
Servicer any amounts in excess of par received in connection with such
termination. Accordingly, in the event of such termination, the Trust
Administrator is hereby authorized to withhold any such amounts in excess
of par
and to pay such amounts directly to the Servicer. This agreement shall bind
and
be enforceable against any successor, transferee or assigned of the undersigned
in the Class [R] [R-X] Certificates. In connection with any transfer of the
Class [R] [R-X] Certificates, the Owner shall obtain an agreement substantially
similar to this clause from any subsequent owner.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its
_________________, effective on the __day of _________, _____.
|
[
]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Personally
appeared before me the above-named _________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be a
_________________ of the Owner, and acknowledged to me that [he/she] executed
the same as [his/her] free act and deed and the free act and deed of the
Owner.
Subscribed
and sworn before me this ____ day of _________________, ____.
|
Notary
Public
|
County
of_____________________
State
of_______________________
My
Commission expires:
EXHIBIT H
FORM
OF
TRANSFEROR CERTIFICATE
__________, 20__
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.,
as
Trust
Administrator,
HSBC
Bank
USA, National Association,
as
Trustee
| Re: |
Fremont
Home Loan Trust 2006-A,
Asset-Backed Certificates, Class [ ]
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the “Act”),
and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates
to, or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that
would be deemed, or taken any other action which would result in, a violation
of
Section 5 of the Act and (c) to the extent we are disposing of a
Residual Certificate, (A) we have no knowledge the Transferee is not a
Permitted Transferee and (B) after conducting a reasonable investigation of
the financial condition of the Transferee, we have no knowledge and no reason
to
believe that the Transferee will not pay all taxes with respect to the Residual
Certificates as they become due and (C) we have no reason to believe that
the statements made in the Transferee’s Residual Transfer Affidavit are
false.
|
Very
truly yours,
|
|
|
Print
Name of Transferor
|
|
|
By:
|
|
|
Authorized
Officer
|
|
EXHIBIT I
FORM
OF
RULE 144A LETTER
____________, 20__
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.,
as
Trust
Administrator
HSBC
Bank
USA, National Association,
as
Trustee
| Re: |
Fremont
Home Loan Trust 2006-A, Asset-Backed Certificates, Class [ ]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the “Act”),
or
any state securities laws and are being transferred to us in a transaction
that
is exempt from the registration requirements of the Act and any such laws,
(b) we have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of investments in
the
Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificates, (d) either (i) we are not an
employee benefit plan that is subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”),
or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the “Code”),
or a
plan subject to any Federal, state or local law materially similar to the
foregoing provisions of ERISA or the Code (“Similar
Law”),
nor
are we acting on behalf of any such plan or arrangement nor using the assets
of
any such plan or arrangement to effect such acquisition, or, (ii) other than
with respect to the Residual Certificates, we have provided the Trust
Administrator with an opinion of counsel on which the Depositor, the Trustee,
the Servicer and the Master Servicer may rely, that the purchase of the
certificate (a) is permissible under applicable law, (b) will not constitute
or
result in a non-exempt prohibited transaction under ERISA, Section 4975 of
the
Code or Similar Law and (c) will not subject the Depositor, the Trustee,
the
Trust Administrator, the Swap Administrator, the Servicer or the Master Servicer
to any obligation or liability (including obligations or liabilities under
ERISA
or Section 4975 of the Code) in addition to those undertaken in the Pooling
and
Servicing Agreement, which opinion of counsel shall not be an expense of
the
Depositor, the Trustee, the Trust Administrator, the Swap Administrator,
the
Servicer or the Master Servicer, (e) we have not, nor has anyone acting on
our behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means
of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities
Act or
that would render the disposition of the Certificates a violation of
Section 5 of the Securities Act or require registration pursuant thereto,
nor will act, nor has authorized or will authorize any person to act, in
such
manner with respect to the Certificates, and (f) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the
Securities Act and have completed either of the forms of certification to
that
effect attached hereto as Annex 1 or Annex 2. We are aware that the
sale to us is being made in reliance on Rule 144A. We are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional
buyer that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
ANNEX 1
TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
|
(i)
|
As
indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the
Buyer.
|
||
|
(ii)
|
In
connection with purchases by the Buyer, the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the
Securities Act of 1933, as amended (“Rule 144A”),
because (i) the Buyer owned and/or invested on a discretionary basis
$ _____1
in
securities (except for the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer
satisfies the criteria in the category marked below.
|
||
|
____
|
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
|
||
|
____
|
Bank.
The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia,
the
business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official
or is a
foreign bank or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a
copy of which is attached hereto.
|
||
|
____
|
Savings
and Loan.
The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a
foreign
savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a
copy of which is attached hereto.
|
||
|
____
|
Broker-dealer.
The Buyer is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.
|
||
|
____
|
Insurance
Company.
The Buyer is an insurance company whose primary and predominant
business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a
State,
territory or the District of Columbia.
|
||
|
____
|
State
or Local Plan.
The Buyer is a plan established and maintained by a State, its
political
subdivisions, or any agency or instrumentality of the State or
its
political subdivisions, for the benefit of its
employees.
|
||
|
____
|
ERISA
Plan.
The Buyer is an employee benefit plan within the meaning of Title I
of the Employee Retirement Income Security Act of 1974.
|
||
|
____
|
Investment
Advisor.
The Buyer is an investment advisor registered under the Investment
Advisors Act of 1940.
|
||
|
____
|
Small
Business Investment Company.
Buyer is a small business investment company licensed by the U.S.
Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
|
||
|
____
|
Business
Development Company.
Buyer is a business development company as defined in
Section 202(a)(22) of the Investment Advisors Act of
1940.
|
||
|
(iii)
|
The
term “securities”
as used herein does
not include
(i) securities of issuers that are affiliated with the Buyer,
(ii) securities that are part of an unsold allotment to or
subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof,
(iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreement, (vii) securities
owned but subject to a repurchase agreement and (viii) currency,
interest rate and commodity swaps.
|
||
|
(iv)
|
For
purposes of determining the aggregate amount of securities owned
and/or
invested on a discretionary basis by the Buyer, the Buyer used
the cost of
such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on
the basis
of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in
the preceding sentence applies, the securities may be valued at
market.
Further, in determining such aggregate amount, the Buyer may have
included
securities owned by subsidiaries of the Buyer, but only if such
subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles
and
if the investments of such subsidiaries are managed under the Buyer’s
direction. However, such securities were not included if the Buyer
is a
majority-owned, consolidated subsidiary of another enterprise and
the
Buyer is not itself a reporting company under the Securities Exchange
Act
of 1934, as amended.
|
||
|
(v)
|
The
Buyer acknowledges that it is familiar with Rule 144A and understands
that the seller to it and other parties related to the Certificates
are
relying and will continue to rely on the statements made herein
because
one or more sales to the Buyer may be in reliance on
Rule 144A.
|
||
|
(vi)
|
Until
the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made
of any
changes in the information and conclusions herein. Until such notice
is
given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase.
In
addition, if the Buyer is a bank or savings and loan is provided
above,
the Buyer agrees that it will furnish to such parties updated annual
financial statements promptly after they become
available.
|
||
|
Print
Name of Transferee
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Date:
|
|
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in
securities.
ANNEX 2
TO EXHIBIT I
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
|
(i)
|
As
indicated below, the undersigned is the President, Chief Financial
Officer
or Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the
Securities Act of 1933, as amended (“Rule 144A”),
because Buyer is part of a Family of Investment Companies (as defined
below), is such an officer of the Adviser.
|
|
|
(ii)
|
In
connection with purchases by Buyer, the Buyer is a “qualified
institutional buyer” as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment
Company Act
of 1940, as amended and (ii) as marked below, the Buyer alone, or the
Buyer’s Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the
Buyer’s
Family of Investment Companies, the cost of such securities was
used,
except (i) where the Buyer or the Buyer’s Family of Investment
Companies reports its securities holdings in its financial statements
on
the basis of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If
clause (ii) in the preceding sentence applies, the securities may be
valued at market.
|
|
|
____
|
The
Buyer owned $ _______in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
|
|
|
____
|
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $ _______
in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
|
|
|
(iii)
|
The
term “Family of Investment Companies” as used herein means two or more
registered investment companies (or series thereof) that have the
same
investment adviser or investment advisers that are affiliated (by
virtue
of being majority owned subsidiaries of the same parent or because
one
investment adviser is a majority owned subsidiary of the
other).
|
|
|
(iv)
|
The
term “securities”
as used herein does not include (i) securities of issuers that are
affiliated with the Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreement,
(vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
|
|
|
(v)
|
The
Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on
the
statements made herein because one or more sales to the Buyer will
be in
reliance on Rule 144A. In addition, the Buyer will only purchase for
the Buyer’s own account.
|
|
|
(vi)
|
Until
the date of purchase of the Certificates, the undersigned will
notify the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification
by the
undersigned as of the date of such
purchase.
|
|
|
Print
Name of Transferee
|
|
|
Name
|
|
|
Title
|
|
|
IF
AN ADVISER:
|
|
|
Print
Name of Buyer
|
|
|
Date:
|
|
EXHIBIT J
FORM
OF
REQUEST FOR RELEASE
(for
Trust Administrator)
|
To:
|
Xxxxx
Fargo Bank, N.A.
|
|
00
Xxxxxxxxx Xxxx, Xxxxx 000
|
|
|
Xxxxxx,
Xxxxxxxxxx 00000
|
|
|
Copy
to:
|
HSBC
Bank USA, National Association
|
|
000
Xxxxx Xxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Re:
|
Pooling
and Servicing Agreement among Financial Asset Securities Corp.,
as
Depositor, Fremont Investment & Loan, as Sponsor, Originator and
Servicer, Xxxxx Fargo Bank, N.A., as Master Servicer, Trust Administrator
and Swap Administrator, and HSBC Bank USA, National Association,
as
Trustee, Fremont Home Loan
Trust, 2006-A
|
In
connection with the administration of the Mortgage Loans held by you as the
Trust
Administrator on
behalf
of the Certificateholders pursuant to the above-captioned Pooling Agreement,
we
request the release, and acknowledge receipt, of the Custodial
File
for
the Mortgage Loan described below, for the reason indicated. Any payments
received in connection with this Request for Release of documents have been
or
will be deposited into the Collection Account for the benefit of the
Trust.
Mortgage
Loan Number:
Mortgagor’s
Name, Address & Zip Code:
Reason
for Requesting Documents
(check
one)
|
____
|
1.
|
Mortgage
Paid in Full.
|
|
|
____
|
2.
|
Foreclosure
|
|
|
____
|
3.
|
Substitution
|
|
|
____
|
4.
|
Other
Liquidation (Repurchases, etc.)
|
|
|
____
|
5.
|
Nonliquidation
|
Reason:
|
|
Address
to which Trust
Administrator should
|
||
|
Deliver
the Custodial
File:
|
||
|
By:
|
||
|
(authorized
signer)
|
||
|
Issuer:
|
||
|
Address:
|
||
|
Date:
|
||
Trust
Administrator
Xxxxx
Fargo Bank, N.A.
Please
acknowledge the execution of the above request by your signature and date
below:
|
Signature
|
Date
|
|
|
Documents
returned to Trust
Administrator:
|
||
|
Trust
Administrator
|
Date
|
EXHIBIT K
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser
and
which shall be retained by the Servicer or delivered to and retained by the
Trust Administrator, as applicable:
| 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 Originator that state law so
allows.
|
| ii. |
The
original of any guaranty executed in connection with the Mortgage
Note.
|
| iii. |
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 Purchaser or the Trust Administrator)
shall deliver or cause to be delivered to the Trustee, (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, 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.
|
| vi. |
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 Purchaser or the Trust Administrator)
shall
deliver or cause to be delivered to 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 mortgagee title insurance policy or attorney’s opinion of title
and abstract of title or, in the event such original title policy
is
unavailable, a certified true copy of the related policy binder
or
commitment for title certified to be true and complete by the title
insurance company.
|
| viii. |
The
original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if
provided).
|
| ix. |
Residential
loan application.
|
| x. |
Mortgage
Loan closing statement.
|
| xi. |
Verification
of employment and income, if
applicable.
|
| xii. |
Verification
of acceptable evidence of source and amount of down
payment.
|
| xiii. |
Credit
report on Mortgagor.
|
| xiv. |
Residential
appraisal report.
|
| xv. |
Photograph
of the Mortgaged Property.
|
| xvi. |
Survey
of the Mortgaged Property.
|
| xvii. |
Copy
of each instrument necessary to complete identification of any
exception
set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
|
| xviii. |
All
required disclosure statements.
|
| xix. |
If
required in an appraisal, termite report, structural engineer’s report,
water potability and septic
certification.
|
| xx. |
Sales
contract, if applicable.
|
| xxi. |
Original
powers of attorney, if applicable, with evidence of recording thereon,
if
required.
|
Evidence
of payment of taxes and insurance, insurance claim files, correspondence,
current and historical computerized data files (which include records of
tax
receipts and payment history from the date of origination), and all other
processing, underwriting and closing papers and records which are customarily
contained in a mortgage loan file and which are required to document the
Mortgage Loan or to service the Mortgage Loan.
EXHIBIT
L
POWER
OF
ATTORNEY
Record
and Return to:
Fremont
Investment & Loan
0000
Xxxx
Xxxxxxxx Xxxxxxx
Xxxx,
Xxxxxxxxxx 00000
LIMITED
POWER OF ATTORNEY
This
Limited Power of Attorney is made as of _____________ by HSBC Bank USA, National
Association, having an office at _____________________________ (the
“Trustee”)
as
Trustee for the Fremont Home Loan Trust 2006-A (the “Trust”),
in
favor of Fremont Investment & Loan, a California state chartered industrial
bank, having an office at 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxx, Xxxxxxxxxx 00000
(“Servicer”).
WHEREAS,
the Trustee and Servicer have executed and delivered a certain Pooling and
Servicing Agreement dated as of May 1, 2006 (the “Pooling
and Servicing Agreement”),
pursuant to which the Trustee and Servicer agreed to certain terms governing
the
servicing of single family mortgage loans (“Mortgage
Loans”)
by
Servicer on behalf of the Trustee; and
WHEREAS,
the Trustee and Servicer desire that the Trustee execute and deliver this
Limited Power of Attorney in order to facilitate the servicing of the Mortgage
Loans by Servicer; and
NOW
THEREFORE, the Trustee does hereby appoint, subject to and in accordance
with
the Pooling and Servicing Agreement, Servicer, as its attorney-in-fact, in
its
name, place and stead:
| 1. |
To
execute all documents necessary to satisfy or discharge “security
instruments” and “notes” upon receipt of all principal, interest and other
payments called for in the related lien
documents;
|
| 2. |
To
take such actions as are necessary and appropriate to pursue, prosecute
and defend foreclosures (or other comparable conversions to Trusteeship),
ejectments, evictions, bankruptcies, suits and other related matters
with
respect to “Mortgaged Properties” (as defined in the Pooling and Servicing
Agreement), in accordance with the Pooling and Servicing
Agreement;
|
| 3. |
To
execute all deeds, deeds to secure debt, assignments, transfers,
tax
declarations, certificates, pledges and any other documents or
instruments
whatsoever which are necessary, appropriate, or required in order
to
transfer and assign Mortgaged Properties acquired by the Trustee
on behalf
of the Trust either by foreclosure or by deed in lieu of foreclosure
and
any such deed to be without
recourse;
|
| 4. |
To
endorse checks, notes, drafts and other evidences of payment made
payable
to the Trustee on behalf of the Trust, representing payments on
accounts
in the name of the Trustee on behalf of the
Trust.
|
| 5. |
To
execute subordination agreements affecting the lien priority of
the
Security Instruments.
|
| 6. |
To
take such further actions as are deemed necessary or desirable
to service,
administer, and enforce the terms of said Mortgage Loans in accordance
with the Pooling and Servicing Agreement;
and
|
Until
a
properly executed revocation of this Limited Power of Attorney is duly executed
and delivered, all parties dealing with said attorney-in-fact (individually
or
collectively) in connection with the above described matters may fully rely
upon
the power and authority of said attorney-in-fact to act for and on behalf
of the
undersigned, and in its name, place and stead, and may accept and rely on
all
documents and agreements entered into by said attorney-in-fact pursuant to
the
powers listed herein.
As
between the Trustee and Servicer, this Limited Power of Attorney shall be
effective as ______________ and shall remain in full force and effect thereafter
until a written notice of revocation hereof shall have been executed by the
Trustee. The expiration or revocation of the period of agency hereunder shall
in
no wise affect the validity of any actions of said Attorney-In-Fact during
said
period. This Limited Power of Attorney is not intended to modify or expand
the
rights and obligations of Servicer as set forth in the Pooling and Servicing
Agreement.
Nothing
in this Limited Power of Attorney shall be construed to prevent the Trustee
from
acting on its behalf as the Trustee of the Mortgage Loans.
IN
WITNESS WHEREOF, the Trustee has caused this Limited Power of Attorney to
be
signed and executed as its seal hereto affixed in its name by its proper
officer
thereunto duly authorized on the ______ day of _________________,
2006.
|
[___________________________________]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
_________________________________________
Witness
_________________________________________
Witness
State
of
[________________________]:
County
of
[______________________]:
On
this,
the _____ day of _____________, 2006, before me, a Notary Public in and for
said
County and State, personally appeared, ______________________, personally
known
to me (or proved on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged
to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS
my hand and official seal
_________________________
Notary
Signature
My
Commission Expires on ________________.
EXHIBIT
M
FORM
OF
TRUST ADMINISTRATOR CERTIFICATION
|
Re:
|
Fremont
Home Loan Trust 2006-A (the “Trust”)
Asset-Backed Certificates, Series 2006-A, issued pursuant to the
Pooling
and Servicing Agreement, dated as of May 1, 2006 (the “Pooling
and Servicing Agreement”),
among Financial Asset Securities Corp., as depositor (the “Depositor”),
Fremont Investment & Loan, as sponsor, originator and servicer
(“Fremont”),
Xxxxx Fargo Bank, N.A., as master servicer, trust administrator
and swap
administrator (the “Master
Servicer”,
the “Trust
Administrator”
and the “Swap
Administrator”
in such capacities, respectively), and HSBC Bank USA, National
Association, as trustee (the “Trustee”)
|
I,
[identify the certifying individual], a [title] of Xxxxx Fargo Bank, N.A.,
as
Trust Administrator of the Trust, hereby certify to Financial Asset Securities
Corp. (the “Depositor”), and its officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification,
that:
1. I
have
reviewed the annual report on Form 10-K for the fiscal year [ ], and all
reports
on Form 8-K containing distribution reports filed in respect of periods included
in the year covered by that annual report, relating to the above-referenced
trust;
2. Based
on
my knowledge, the information in these distribution reports prepared by the
Trust Administrator, taken as a whole, does not contain any untrue statement
of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were
made, not misleading as of the last day of the period covered by that annual
report; and
3. Based
on
my knowledge, the distribution information required to be provided by the
Trust
Administrator under the Pooling and Servicing Agreement is included in these
reports.
Date:
_________________
|
Xxxxx
Fargo Bank, N.A., as Trust Administrator
|
|
|
By:
|
|
|
[Signature]
|
|
|
[Title]
|
|
EXHIBIT N
[Reserved]
EXHIBIT
O
PURCHASE
AGREEMENT
[On
File
With The Depositor]
EXHIBIT P
APPENDIX
E OF THE STANDARD & POOR’S GLOSSARY FOR
FILE
FORMAT FOR LEVELS® VERSION 5.6d REVISED
REVISED
February 14, 2006
(Appendix
begins on the following page)
APPENDIX
E - Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that
certain loans classified by the relevant statute as Covered are included
in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
Standard
& Poor’s High Cost Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et
seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et
seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et
seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et
seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et
seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et
seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et
seq.
Effective
October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et
seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et
seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et
seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id.§
16a-3-207) and;
|
|
High
APR Consumer Loan (id.§
16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev. Stat. §§ 360.100
et
seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et
seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et
seq.
and 209 C.M.R. §§ 40.01 et
seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et
seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et
seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et
seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et
seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code Xxx.
§§ 1349.25 et
seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et
seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et
seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et
seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et
seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
Standard
& Poor’s Home Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et
seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et
seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et
seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et
seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et
seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Revised
2/14/06
EXHIBIT
Q
FORM
OF
CALCULATION OF REALIZED LOSS
[Begins
on the following page.]
XXXXX
FARGO BANK, N.A.
Form
332
Calculation
of Realized Loss
Purpose
To
provide the Servicer with a form for the calculation of any Realized Loss
(or
gain) as a result of a Mortgage Loan having been foreclosed and
liquidated.
Distribution
The
Servicer will prepare the form in duplicate and send the original together
with
evidence of conveyance of title and appropriate supporting documentation
to the
Master Servicer with the Monthly Accounting Reports which supports the Mortgage
Loan’s removal from the Mortgage Loan Activity Report. The Servicer will retain
the duplicate for its own records.
Due
Date
With
respect to any Liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the
Master
Servicer under Section 4.03 of this Agreement (the “Statement Date”) in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if
such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage
Loan,
then the form will be submitted on the first Statement Date occurring after
the
30th day following receipt of final liquidation proceeds and supporting
documentation.
Preparation
Instructions
The
numbers on the form correspond with the numbers listed below.
|
1.
|
The
actual Unpaid Principal Balance of the Mortgage Loan.
|
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as
agreed.
|
|
3-7.
|
Complete
as necessary. All line entries must be supported by copies of appropriate
statements, vouchers, receipts, canceled checks, etc., to document
the
expense. Entries not properly documented will not be reimbursed
to the
Servicer.
|
|
8.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage
Loan as calculated on a monthly basis.
|
|
10.
|
The
total of lines 1 through 9.
|
Credits
|
11-17.
|
Complete
as necessary. All line entries must be supported by copies of the
appropriate claims forms, statements, payment checks, etc. to document
the
credit. If the Mortgage Loan is subject to a Bankruptcy Deficiency,
the
difference between the Unpaid Principal Balance of the Note prior
to the
Bankruptcy Deficiency and the Unpaid Principal Balance as reduced
by the
Bankruptcy Deficiency should be input on line 16.
|
|
18.
|
The
total of lines 11 through 17.
|
Total
Realized Loss (or Amount of Any Gain)
|
19.
|
The
total derived from subtracting line 18 from 10. If the amount represents
a
realized gain, show the amount in parentheses (
).
|
XXXXX
FARGO BANK, N.A.
CALCULATION
OF REALIZED LOSS
XXXXX
FARGO BANK, N.A. Trust:
___________________________
|
Prepared
by: __________________
|
Date:
_______________
|
|
Phone:
______________________
|
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
XXXXX
FARGO BANK, N.A.
Loan
No._____________________________
Borrower’s
Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation
and Acquisition Expenses:
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
_______________(1)
|
|
Interest
accrued at Net Rate
|
________________(2)
|
|
Attorney’s
Fees
|
________________(3)
|
|
Taxes
|
________________(4)
|
|
Property
Maintenance
|
________________(5)
|
|
MI/Hazard
Insurance Premiums
|
________________(6)
|
|
Hazard
Loss Expenses
|
________________(7)
|
|
Accrued
Servicing Fees
|
________________(8)
|
|
Other
(itemize)
|
________________(9)
|
|
_________________________________________
|
$
_________________
|
|
_________________________________________
|
__________________
|
|
_________________________________________
|
__________________
|
|
_________________________________________
|
__________________
|
|
Total
Expenses
|
$
______________(10)
|
|
Credits:
|
|
|
Escrow
Balance
|
$
______________(11)
|
|
HIP
Refund
|
________________(12)
|
|
Rental
Receipts
|
________________(13)
|
|
Hazard
Loss Proceeds
|
________________(14)
|
|
Primary
Mortgage Insurance Proceeds
|
________________(15)
|
|
Proceeds
from Sale of Acquired Property
|
________________(16)
|
|
Other
(itemize)
|
________________(17)
|
|
_________________________________________
|
___________________
|
|
_________________________________________
|
___________________
|
|
Total
Credits
|
$________________(18)
|
|
Total
Realized Loss (or Amount of Gain)
|
$________________(19)
|
EXHIBIT
R
FORM
OF
ADDITIONAL DISCLOSURE NOTIFICATION
Additional
Disclosure Notification
Xxxxx
Fargo Bank, N.A. as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
Corporate Trust Services - Fremont 2006-A-SEC REPORT PROCESSING
RE:
**Additional Form [ ]
Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and
Servicing Agreement, dated as of [ ] [ ],
2006,
among [ ], as [ ],
[ ], as [ ],
[ ], as
[ ] and [
],
as [ ]. The
Undersigned, as [ ], hereby notifies
you that certain events have come to our attention that [will][may] need
to be
disclosed on Form [ ].
Description
of Additional Form [ ]
Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone
number: [ ]; email address:
[ ].
|
[NAME
OF PARTY]
as
[role]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
S
RELEVANT
SERVICING CRITERIA
Servicing
Criteria to be Addressed in Assessment of Compliance
The
assessment of compliance to be delivered by the parties named below shall
address, at a minimum, the criteria identified below for such
party:
|
SERVICING
CRITERIA
|
PRIMARY
SERVICER
|
MASTER
SERVICER, TRUST ADMIN., CUSTODIAN
|
TRUSTEE
|
|
|
Reference
|
Criteria
|
|
||
|
|
General
Servicing Considerations
|
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
X
|
|
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
|
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
X
|
|
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
X
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
X
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
[X]
if
obligated
under
transaction
documents
|
||
|
|
|
|
||
EXHIBIT
T
FORM
10-D, FORM 8-K AND FORM 10-K REPORTING RESPONSIBILITY
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the monthly statement
|
Servicer
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the monthly
statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Depositor/Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor/Sponsor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two
years and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor/Sponsor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator/Trustee
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
