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XXXXX FARGO ASSET SECURITIES CORPORATION
(Seller)
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
(Master Servicer)
and
WACHOVIA BANK, NATIONAL ASSOCIATION
(Trustee)
POOLING AND SERVICING AGREEMENT
Dated as of August 29, 2002
$403,357,675.81
Mortgage Pass-Through Certificates
Series 2002-D
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................
Section 1.02 Acts of Holders.............................................
Section 1.03 Effect of Headings and Table of Contents....................
Section 1.04 Benefits of Agreement.......................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF THE CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans................................
Section 2.02 Acceptance by Trustee.......................................
Section 2.03 Representations and Warranties of the Master Servicer and
the Seller..............................................
Section 2.04 Execution and Delivery of Certificates......................
Section 2.05 Designation of Certificates; Designation of Startup Day and
Latest Possible Maturity Date...........................
Section 2.06 Optional Substitution of Mortgage Loans.....................
ARTICLE III
ADMINISTRATION OF THE TRUST ESTATE; SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Certificate Account.........................................
Section 3.02 Permitted Withdrawals from the Certificate Account..........
Section 3.03 Advances by Master Servicer and Trustee.....................
Section 3.04 Custodian to Cooperate; Release of Owner Mortgage Loan
Files...................................................
Section 3.05 Reports to the Trustee; Annual Compliance Statements........
Section 3.06 Title, Management and Disposition of Any REO Mortgage Loan..
Section 3.07 Amendments to Servicing Agreements,
Modification of Standard Provisions.....................
Section 3.08 Oversight of Servicing......................................
Section 3.09 Termination and Substitution of Servicing Agreements........
Section 3.10 Application of Net Liquidation Proceeds.....................
Section 3.11 Act Reports.................................................
ARTICLE IV
DISTRIBUTIONS IN RESPECT OF CERTIFICATES;
PAYMENTS TO CERTIFICATEHOLDERS;
STATEMENTS AND REPORTS
Section 4.01 Distributions...............................................
Section 4.02 Allocation of Realized Losses...............................
Section 4.03 Paying Agent................................................
Section 4.04 Statements to Certificateholders;
Reports to the Trustee and the Seller...................
Section 4.05 Reports to Mortgagors and the Internal Revenue Service......
Section 4.06 Calculation of Amounts; Binding Effect of Interpretations
and Actions of Master Servicer..........................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates............................................
Section 5.02 Registration 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.............................
Section 5.07 Definitive Certificates.....................................
Section 5.08 Notices to Clearing Agency..................................
ARTICLE VI
THE SELLER AND THE MASTER SERVICER
Section 6.01 Liability of the Seller and the Master Servicer.............
Section 6.02 Merger or Consolidation of the Seller or the Master
Servicer................................................
Section 6.03 Limitation on Liability of the Seller, the Master Servicer
and Others..............................................
Section 6.04 Resignation of the Master Servicer..........................
Section 6.05 Compensation to the Master Servicer.........................
Section 6.06 Assignment or Delegation of Duties by Master Servicer.......
Section 6.07 Indemnification of Trustee and Seller by Master Servicer....
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...........................................
Section 7.02 Other Remedies of Trustee...................................
Section 7.03 Directions by Certificateholders and
Duties of Trustee During Event of Default...............
Section 7.04 Action upon Certain Failures of the
Master Servicer and upon Event of Default...............
Section 7.05 Trustee to Act; Appointment of Successor....................
Section 7.06 Notification to Certificateholders..........................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee...........................................
Section 8.02 Certain Matters Affecting the Trustee.......................
Section 8.03 Trustee Not Required to Make Investigation..................
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans.......
Section 8.05 Trustee May Own Certificates................................
Section 8.06 The Master Servicer to Pay Fees and Expenses................
Section 8.07 Eligibility Requirements....................................
Section 8.08 Resignation and Removal.....................................
Section 8.09 Successor...................................................
Section 8.10 Merger or Consolidation.....................................
Section 8.11 Authenticating Agent........................................
Section 8.12 Separate Trustees and Co-Trustees...........................
Section 8.13 Tax Matters; Compliance with REMIC Provisions...............
Section 8.14 Monthly Advances............................................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Purchase by the
Seller or Liquidation of All Mortgage Loans.............
Section 9.02 Additional Termination Requirements.........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment...................................................
Section 10.02 Recordation of Agreement....................................
Section 10.03 Limitation on Rights of Certificateholders..................
Section 10.04 Governing Law; Jurisdiction.................................
Section 10.05 Notices.....................................................
Section 10.06 Severability of Provisions..................................
Section 10.07 Special Notices to Rating Agencies..........................
Section 10.08 Covenant of Seller..........................................
Section 10.09 Recharacterization..........................................
ARTICLE XI
TERMS FOR CERTIFICATES
Section 11.01 Cut-Off Date................................................
Section 11.02 Cut-Off Date Aggregate Principal Balance....................
Section 11.03 Original Group Percentage...................................
Section 11.03(a) Original Group I-A Percentage...............................
Section 11.03(b) Original Group II-A Percentage..............................
Section 11.04 Original Principal Balances of the Classes of Class A
Certificates..........................
Section 11.05 Original Notional Amount....................................
Section 11.06 Original Group II-A Non-PO Principal Balance................
Section 11.07 Original Aggregate Subordinate Percentage...................
Section 11.08 Original Class B Principal Balance..........................
Section 11.09 Original Subordinated Principal Balance.....................
Section 11.09(a) Original Group I Subordinated Principal Balance.............
Section 11.09(b) Original Group II Subordinated Principal Balance............
Section 11.10 Original Principal Balances of the Classes of Class B
Certificates............................................
Section 11.11 Original Class B-1 Fractional Interest......................
Section 11.12 Original Class B-2 Fractional Interest......................
Section 11.13 Original Class B-3 Fractional Interest......................
Section 11.14 Original Class B-4 Fractional Interest......................
Section 11.15 Original Class B-5 Fractional Interest......................
Section 11.16 Closing Date................................................
Section 11.17 Right to Purchase...........................................
Section 11.18 Wire Transfer Eligibility...................................
Section 11.19 Single Certificate..........................................
Section 11.20 Servicing Fee Rate..........................................
Section 11.21 Master Servicing Fee Rate...................................
EXHIBITS
EXHIBIT A-I-A-1 - Form of Face of Class I-A-1 Certificate
EXHIBIT A-I-A-2 - Form of Face of Class I-A-2 Certificate
EXHIBIT A-I-A-3 - Form of Face of Class I-A-3 Certificate
EXHIBIT A-I-A-4 - Form of Face of Class I-A-4 Certificate
EXHIBIT A-I-A-5 - Form of Face of Class I-A-5 Certificate
EXHIBIT A-I-A-6 - Form of Face of Class I-A-6 Certificate
EXHIBIT A-I-A-7 - Form of Face of Class I-A-7 Certificate
EXHIBIT A-I-A-R - Form of Face of Class I-A-R Certificate
EXHIBIT A-I-A-LR - Form of Face of Class I-A-LR Certificate
EXHIBIT A-II-A-1 - Form of Face of Class II-A-1 Certificate
EXHIBIT A-II-A-2 - Form of Face of Class II-A-2 Certificate
EXHIBIT A-II-A-3 - Form of Face of Class II-A-3 Certificate
EXHIBIT A-II-A-4 - Form of Face of Class II-A-4 Certificate
EXHIBIT B-1 - Form of Face of Class B-1 Certificate
EXHIBIT B-2 - Form of Face of Class B-2 Certificate
EXHIBIT B-3 - Form of Face of Class B-3 Certificate
EXHIBIT B-4 - Form of Face of Class B-4 Certificate
EXHIBIT B-5 - Form of Face of Class B-5 Certificate
EXHIBIT B-6 - Form of Face of Class B-6 Certificate
EXHIBIT C - Form of Reverse of Series 2002-D Certificates
EXHIBIT D - Reserved
EXHIBIT E - Custodial Agreement
EXHIBIT F-1A - Schedule of Type 1 Mortgage Loans in Loan Group I
EXHIBIT F-1B - Schedule of Type 1 Mortgage Loans in Loan Group II
EXHIBIT F-2A - Schedule of Type 2 Mortgage Loans in Loan Group I
EXHIBIT F-2B - Schedule of Type 2 Mortgage Loans in Loan Group II
EXHIBIT G - Request for Release
EXHIBIT H - Affidavit Pursuant to Section 860E(e)(4) of the
Internal Revenue Code of 1986, as amended, and for
Non-ERISA Investors
EXHIBIT I - Letter from Transferor of Residual Certificates
EXHIBIT J - Transferee's Letter (Class [B-4] [B-5] [B-6]
Certificates)
EXHIBIT K - Reserved
EXHIBIT L - Servicing Agreements
EXHIBIT M - Form of Special Servicing Agreement
EXHIBIT N Form of Initial Certification of the Custodian
EXHIBIT O Form of Final Certification of the Custodian
EXHIBIT P Schedule of Pledged Asset Mortgage Loans
SCHEDULE I - Applicable Unscheduled Principal Receipt Period
This Pooling and Servicing Agreement, dated as of August 29, 2002 executed
by XXXXX FARGO ASSET SECURITIES CORPORATION, as Seller, XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, as Master Servicer, and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the Seller, the
Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this Article.
Accepted Master Servicing Practices: Accepted Master Servicing Practices
shall consist of the customary and usual master servicing practices of prudent
master servicing institutions which service mortgage loans of the same type as
the Mortgage Loans in the jurisdictions in which the related Mortgaged
Properties are located, regardless of the date upon which the related Mortgage
Loans were originated.
Adjusted Principal Balance: As to any Distribution Date and any Class of
Class B Certificates, the greater of (A) zero and (B)(i) the Principal Balance
of such Class with respect to such Distribution Date minus (ii) the Adjustment
Amount for such Distribution Date less the Principal Balances for any Classes of
Class B Certificates with higher numerical designations.
Adjustment Amount: For any Distribution Date, the difference between (A)
the sum of the Aggregate Class A Principal Balance and the Class B Principal
Balance as of the related Determination Date and (B) the sum of (i) the sum of
the Aggregate Class A Principal Balance and the Class B Principal Balance as of
the Determination Date succeeding such Distribution Date and (ii) the aggregate
amount that would have been distributed to all Classes as principal in
accordance with Section 4.01(a)(i) for such Distribution Date without regard to
the provisos in the definitions of Class B-1 Optimal Principal Amount, Class B-2
Optimal Principal Amount, Class B-3 Optimal Principal Amount, Class B-4 Optimal
Principal Amount, Class B-5 Optimal Principal Amount and Class B-6 Optimal
Principal Amount.
Adjustment Date: As to each Mortgage Loan, the Due Date on which date an
adjustment to the Mortgage Interest Rate of such Mortgage Loan becomes effective
under the related Mortgage Note, which Due Date is the date set forth in the
Mortgage Loan Schedule as the first Adjustment Date and each subsequent
anniversary thereof.
Aggregate Adjusted Pool Amount: With respect to any Distribution Date, the
sum of the Group I Adjusted Pool Amount and Group II Adjusted Pool Amount.
Aggregate Class A Principal Balance: With respect to any Determination
Date, the sum of the Group I-A Principal Balance and Group II-A Principal
Balance.
Aggregate Class A Percentage: With respect to any Distribution Date, the
percentage, the numerator of which is the Aggregate Class A Principal Balance
prior to giving effect to any distributions on such Distribution Date, and the
denominator of which is the sum of the Pool Balances for each Loan Group on the
first day of the month preceding the month of such Distribution Date.
Aggregate Group I-A Unpaid Interest Shortfall: As to any Distribution Date,
an amount equal to the sum of the Class A Unpaid Interest Shortfalls for the
Group I-A Certificates.
Aggregate Group II-A Unpaid Interest Shortfall: As to any Distribution
Date, an amount equal to the sum of the Class A Unpaid Interest Shortfalls for
the Group II-A Certificates.
Aggregate Principal Balance: As of any Determination Date, the sum of the
Group I-A Principal Balance, the Group II-A Principal Balance and the Class B
Principal Balance as of such date.
Aggregate Non-PO Principal Balance: As of any Determination Date, the sum
of the Group I-A Non-PO Principal Balance, the Group II-A Non-PO Principal
Balance and the Class B Principal Balance as of such date.
Aggregate Subordinate Percentage: As to any Determination Date, 100% less
the Aggregate Class A Percentage.
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements hereto.
Applicable Unscheduled Principal Receipt Period: With respect to the
Mortgage Loans serviced by each Servicer and each of Full Unscheduled Principal
Receipts and Partial Unscheduled Principal Receipts, the Unscheduled Principal
Receipt Period specified on Schedule I hereto, as amended from time to time by
the Master Servicer pursuant to Section 10.01(b) hereof.
Apportioned Class B Principal Distribution Amount: As to any Distribution
Date and any Class of Class B Certificates, the product of (i) the applicable
Class B Principal Distribution Amount less the amount, if any, that would have
been distributable to such Class pursuant to Section 4.01(a)(ii) that is used to
pay the PO Deferred Amount as provided in Paragraph fourth of Section 4.01(a)(i)
and (ii) the Apportionment Fraction for such Class.
Apportionment Fraction: As to any Class of Class B Certificates and any
Distribution Date occurring prior to the Subordination Depletion Date and on or
after the Distribution Date on which the Principal Balance of each Class of one
Group has been reduced to zero, a fraction, the numerator of which is the Class
B Loan Group Optimal Principal Amount for which the corresponding Class A
Certificates (other than the Class II-A-2 Certificate prior to the Distribution
Date in December 2008) are no longer outstanding and the denominator of which is
the applicable Class B Optimal Principal Amount without regard to the proviso
thereto.
Authenticating Agent: Any authenticating agent appointed by the Trustee
pursuant to Section 8.11. There shall initially be no Authenticating Agent for
the Certificates.
Available Master Servicing Compensation: With respect to any Distribution
Date, the sum of (a) the Master Servicing Fee for such Distribution Date, (b)
interest earned through the business day preceding the applicable Distribution
Date on any Prepayments in Full remitted to the Master Servicer and (c) the
aggregate amount of Month End Interest remitted by the Servicers to the Master
Servicer pursuant to the related Servicing Agreements.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss hereunder so long as the applicable Servicer has
notified the Master Servicer and the Trustee in writing that such Servicer is
diligently pursuing any remedies that may exist in connection with the
representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard
insurance policy and any related escrow payments in respect of such Mortgage
Loan are being advanced on a current basis by such Servicer without giving
effect to any Debt Service Reduction.
Beneficial Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency), as the case may be.
Book-entry Certificate: Any one of the Class I-A-1 Certificates, Class
I-A-2 Certificates, Class I-A-3 Certificates, Class I-A-4 Certificates, Class
I-A-5 Certificates, Class I-A-6 Certificates, Class I-A-7 Certificates, Class
II-A-1 Certificates, Class II-A-2 Certificates, Class II-A-3 Certificates, Class
II-A-4 Certificates, Class B-1 Certificates, Class B-2 Certificates and Class
B-3 Certificates, beneficial ownership and transfers of which shall be evidenced
by, and made through, book entries by the Clearing Agency as described in
Section 5.01(b).
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
legal holiday in the City of New York, State of Iowa, State of Maryland, State
of Minnesota or State of North Carolina or (iii) a day on which banking
institutions in the City of New York, or the State of Iowa, State of Maryland,
State of Minnesota or State of North Carolina are authorized or obligated by law
or executive order to be closed.
Certificate: Any one of the Class A Certificates or Class B Certificates.
Certificate Account: The trust account established and maintained by the
Master Servicer in the name of the Master Servicer on behalf of the Trustee
pursuant to Section 3.01. The Certificate Account shall be an Eligible Account.
Certificate Custodian: Initially, Wachovia Bank, National Association;
thereafter any other Certificate Custodian acceptable to The Depository Trust
Company and selected by the Trustee.
Certificate Register and Certificate Registrar: Respectively, the register
maintained pursuant to and the registrar provided for in Section 5.02. The
initial Certificate Registrar is the Trustee.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
the taking of any action under Articles VII or VIII, any Certificate registered
in the name of the Master Servicer, a Servicer or any affiliate thereof shall be
deemed not to be outstanding and the Voting Interest evidenced thereby shall not
be taken into account in determining whether the requisite percentage of
Certificates necessary to effect any such action has been obtained.
Class: All certificates whose form is identical except for variations in
the Percentage Interest evidenced thereby.
Class I-A-1 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-I-A-1 and Exhibit C hereto.
Class I-A-1 Certificateholder: The registered holder of a Class I-A-1
Certificate.
Class I-A-2 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-I-A-2 and Exhibit C hereto.
Class I-A-2 Certificateholder: The registered holder of a Class I-A-2
Certificate.
Class I-A-2 Loss Amount: With respect to any Determination Date after the
Subordination Depletion Date, the amount, if any, by which the Principal Balance
of the Class I-A-2 Certificates would be reduced as a result of the application
of the third sentence of the definition of Principal Balance.
Class I-A-3 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-I-A-3 and Exhibit C hereto.
Class I-A-3 Loss Amount: With respect to any Determination Date after the
Subordination Depletion Date, the amount, if any, by which the Principal Balance
of the Class I-A-3 Certificates would be reduced as a result of the application
of the third sentence of the definition of Principal Balance.
Class I-A-3 Certificateholder: The registered holder of a Class I-A-3
Certificate.
Class I-A-4 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-I-A-4 and Exhibit C hereto.
Class I-A-4 Certificateholder: The registered holder of a Class I-A-4
Certificate.
Class I-A-4 Loss Allocation Amount: With respect to any Determination Date
after the Subordination Depletion Date the lesser of (a) the Principal Balance
of the Class I-A-4 Certificates with respect to such Determination Date prior to
any reduction for the Class I-A-4 Loss Allocation Amount and (b) sum of the
Class I-A-2 Loss Amount and the Class I-A-3 Loss Amount.
Class I-A-5 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-I-A-5 and Exhibit C hereto.
Class I-A-5 Certificateholder: The registered holder of a Class I-A-5
Certificate.
Class I-A-6 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-I-A-6 and Exhibit C hereto.
Class I-A-6 Certificateholder: The registered holder of a Class I-A-6
Certificate.
Class I-A-7 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-I-A-7 and Exhibit C hereto.
Class I-A-7 Certificateholder: The registered holder of a Class I-A-7
Certificate.
Class I-A-7 Notional Amount: As to (i) any Distribution Date prior to the
Distribution Date in January 2007, the sum of the Principal Balances of the
Class I-A-1, Class I-A-3 and Class I-A-5 Certificates and (ii) on and after the
Distribution Date in January 2007, zero.
Class I-A-L1 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class I-A-L2 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class I-A-L3 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class I-A-L5 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class I-A-R Certificate: The Certificate executed by the Trustee and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-I-A-R and Exhibit C hereto.
Class I-A-R Certificateholder: The registered holder of the Class I-A-R
Certificate.
Class I-A-LR Certificate: The Certificate executed by the Trustee and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-I-A-LR and Exhibit C hereto.
Class I-A-LR Certificateholder: The registered holder of the Class I-A-LR
Certificate.
Class I-A-LUR Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class II-A-1 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-II-A-1 and Exhibit C hereto.
Class II-A-1 Certificateholder: The registered holder of a Class II-A-1
Certificate.
Class II-A-2 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-II-A-2 and Exhibit C hereto.
Class II-A-2 Certificateholder: The registered holder of a Class II-A-2
Certificate.
Class II-A-3 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-II-A-3 and Exhibit C hereto.
Class II-A-3 Certificateholder: The registered holder of a Class II-A-3
Certificate.
Class II-A-4 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-II-A-4 and Exhibit C hereto.
Class II-A-4 Certificateholder: The registered holder of a Class II-A-4
Certificate.
Class II-A-4 Notional Amount: As to the first Distribution Date, an amount
equal to the aggregate Cut-Off Date Principal Balance of the Premium Mortgage
Loans in Loan Group II and as to each Distribution Date thereafter but prior to
the Distribution Date in December 2008, an amount equal to the aggregate
Scheduled Principal Balance of the Premium Mortgage Loans in Loan Group II on
the first day of the month preceding the month of such Distribution Date. On and
after the Distribution Date in December 2008, the Class II-A-4 Notional Amount
will be zero.
Class II-A-L1 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class II-A-L2 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class A Certificate: Any of the Group I-A Certificates or Group II-A
Certificates.
Class A Certificateholder: The registered holder of a Class A Certificate.
Class A Interest Percentage: As to any Distribution Date and any Class of
Class A Certificates, the percentage calculated by dividing the Interest Accrual
Amount of such Class (determined without regard to clause (ii) of the definition
thereof) by the sum of (a) the Group I-A Interest Accrual Amount and (b) the
Group II-A Interest Accrual Amount.
Class A Pass-Through Rate: As to the Class I-A-1 Certificates, (a) for each
Distribution Date prior to the Distribution Date in January 2007, the lesser of
(i) 5.500% per annum and (ii) the Net WAC of the Group I Mortgage Loans and (b)
for each Distribution Date on and after the Distribution Date in January 2007,
the Net WAC for the Group I Mortgage Loans. As to the Class I-A-2, Class I-A-4,
Class I-A-6, Class I-A-R and Class I-A-LR Certificates, the Net WAC for the
Group I Mortgage Loans. As to the Class I-A-3 Certificates, (a) for each
Distribution Date prior to the Distribution Date in January 2007, the lesser of
(i) 5.020% per annum and (ii) the Net WAC of the Group I Mortgage Loans and (b)
for each Distribution Date on and after the Distribution Date in January 2007,
the Net WAC for the Group I Mortgage Loans. As to the Class I-A-5 Certificates,
(a) for each Distribution Date prior to the Distribution Date in January 2007,
the lesser of (i) 5.250% per annum and (ii) the Net WAC of the Group I Mortgage
Loans and (b) for each Distribution Date on and after the Distribution Date in
January 2007, the Net WAC for the Group I Mortgage Loans. As to the Class II-A-1
and Class II-A-3 Certificates, (a) for each Distribution Date prior to the
Distribution Date in December 2008, 5.650% per annum and (b) for each
Distribution Date on and after the Distribution Date in December 2008, the Net
WAC for the Group II Mortgage Loans. As to the Class II-A-2 Certificates, (a)
for each Distribution Date prior to the Distribution Date in December 2008,
0.000% per annum and (b) for each Distribution Date on and after the
Distribution Date in December 2008, the Net WAC for the Group II Mortgage Loans.
As to the Class II-A-4 Certificates, (a) prior to the Distribution Date in
December 2008, a per annum rate equal to the excess of (i) the weighted average
of the Net Mortgage Interest Rates of the Group II Premium Mortgage Loans (based
upon the Scheduled Principal Balance on the first day of the month preceding the
month of such Distribution Date or, in the case of the first Distribution Date,
based on the aggregate Cut-Off Date Principal Balance of the Group II Premium
Mortgage Loans) over (ii) 5.650% and (b) on and after the Distribution Date in
December 2008, 0.00%.
Class A Unpaid Interest Shortfall: As to any Distribution Date and Class of
Class A Certificates, the amount, if any, by which the aggregate of the Group
I-A Interest Shortfall Amounts or Group II-A Interest Shortfall Amounts for such
Class for prior Distribution Dates is in excess of the amounts distributed in
respect of such Class on prior Distribution Dates pursuant to Paragraph second
of Section 4.01(a)(i).
Class B Certificate: Any one of the Class B-1 Certificates, Class B-2
Certificates, Class B-3 Certificates, Class B-4 Certificates, Class B-5
Certificates or Class B-6 Certificates.
Class B Certificateholder: The registered holder of a Class B Certificate.
Class B Distribution Amount: Any of the Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Distribution Amounts.
Class B Interest Accrual Amount: With respect to any Distribution Date, the
sum of the Interest Accrual Amounts for the Classes of Class B Certificates with
respect to such Distribution Date.
Class B Interest Percentage: With respect to any Distribution Date and any
Class of Class B Certificates, the percentage calculated by dividing the
Interest Accrual Amount of such Class (determined without regard to clause (ii)
of the definition thereof) by the Class B Interest Accrual Amount (determined
without regard to clause (ii) of the definition of each Interest Accrual
Amount).
Class B Interest Shortfall Amount: Any of the Class B-1 Interest Shortfall
Amount, Class B-2 Interest Shortfall Amount, Class B-3 Interest Shortfall
Amount, Class B-4 Interest Shortfall Amount, Class B-5 Interest Shortfall Amount
or Class B-6 Interest Shortfall Amount.
Class B Loan Group I Optimal Principal Amount: Any of the Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5 or Class B-6 Loan Group I Optimal Principal
Amounts.
Class B Loan Group II Optimal Principal Amount: Any of the Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5 or Class B-6 Loan Group II Optimal
Principal Amounts.
Class B Loan Group Optimal Principal Amount: Either of the Class B Loan
Group I Optimal Principal Amount or Class B Loan Group II Optimal Principal
Amount.
Class B Loss Percentage: With respect to any Determination Date and any
Class of Class B Certificates then outstanding, the percentage calculated by
dividing the Principal Balance of such Class B by the Class B Principal Balance
(determined without regard to any Principal Balance of any Class of Class B
Certificates not then outstanding), in each case determined as of the preceding
Determination Date.
Class B Optimal Principal Amount: Any of the Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 or Class B-6 Optimal Principal Amounts.
Class B Pass-Through Rate: (a) For each Distribution Date prior to the
Distribution Date in December 2008, the per annum rate equal to the weighted
average (based on the Group Subordinate Amount for each Loan Group) of (i) for
Loan Group I, the Net WAC for Group I and (ii) for Loan Group II, 5.650% per
annum and (b) for each Distribution Date on and after the Distribution Date in
December 2008, the per annum rate equal to the weighted average (based on the
Group Subordinate Amount for each Loan Group) of the Net WAC for each Loan
Group.
Class B Principal Balance: As of any date, an amount equal to the sum of
the Class B-1 Principal Balance, Class B-2 Principal Balance, Class B-3
Principal Balance, Class B-4 Principal Balance, Class B-5 Principal Balance and
Class B-6 Principal Balance.
Class B Principal Distribution Amount: Any of the Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5 or Class B-6 Principal Distribution Amounts.
Class B Unpaid Interest Shortfall: Any of the Class B-1 Unpaid Interest
Shortfall, Class B-2 Unpaid Interest Shortfall, Class B-3 Unpaid Interest
Shortfall, Class B-4 Unpaid Interest Shortfall, Class B-5 Unpaid Interest
Shortfall or Class B-6 Unpaid Interest Shortfall.
Class B-1 Certificate: Any one of the Certificates executed by the Trustee
and authenticated by the Trustee or the Authenticating Agent in substantially
the form set forth in Exhibit B-1 and Exhibit C hereto.
Class B-1 Certificateholder: The registered holder of a Class B-1
Certificate.
Class B-1 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-1 Certificates pursuant to
Paragraphs first, second and third of Section 4.01(a)(ii).
Class B-1 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-1 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-1 Certificates on such Distribution Date pursuant to Paragraph first
of Section 4.01(a)(ii).
Class B-1 Optimal Principal Amount: As to any Distribution Date, an amount
equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of the
product of (x) the Non-PO Fraction with respect to such Mortgage Loan and (y)
the sum of:
(i) the Group I Class B-1 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-1 Percentage (with respect to each
such Group II Mortgage Loan) of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Group I Class B-1 Prepayment Percentage (with respect to each
such Group I Mortgage Loan) or Group II Class B-1 Prepayment Percentage
(with respect to each such Group II Mortgage Loan) of all Unscheduled
Principal Receipts (other than Recoveries) that were received by a Servicer
with respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Group I Class B-1 Prepayment Percentage (with respect to
each such Group I Mortgage Loan) or Group II Class B-1 Prepayment
Percentage (with respect to each such Group II Mortgage Loan) of the
Scheduled Principal Balance of such Mortgage Loan which, during the one
month period ending on the day preceding the Determination Date for such
Distribution Date, was repurchased by the Seller pursuant to Sections 2.02
or 2.03; and
(iv) the Group I Class B-1 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-1 Percentage (with respect to each
such Group II Mortgage Loan) of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Group I Class B-1 Prepayment Percentage or Group II Class B-1
Prepayment Percentage, as applicable, of the Recovery for Loan Group I and
the Non-PO Recovery for Loan Group II for such Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-1 Optimal Principal Amount
will equal the lesser of (A) the Class B-1 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-1 Certificates.
Class B-1 Principal Balance: As to the first Determination Date, the
Original Class B-1 Principal Balance. As of any subsequent Determination Date,
the Original Class B-1 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-1 Certificates on prior Distribution Dates
(A) pursuant to Paragraph third of Section 4.01(a)(ii) and (B) as a result of a
Principal Adjustment; provided, however, if the Class B-1 Certificates are the
most subordinate Certificates outstanding, the Class B-1 Principal Balance will
equal the difference, if any, between the Aggregate Adjusted Pool Amount as of
the preceding Distribution Date less the Aggregate Class A Principal Balance as
of such Determination Date.
Class B-1 Principal Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-1 Certificates pursuant to
Paragraph third of Section 4.01(a)(ii).
Class B-1 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-1 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-1 Certificates on prior Distribution Dates pursuant to
Paragraph second of Section 4.01(a)(ii).
Class B-2 Certificate: Any one of the Certificates executed by the Trustee
and authenticated by the Trustee or the Authenticating Agent in substantially
the form set forth in Exhibit B-2 and Exhibit C hereto.
Class B-2 Certificateholder: The registered holder of a Class B-2
Certificate.
Class B-2 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-2 Certificates pursuant to
Paragraphs fourth, fifth and sixth of Section 4.01(a)(ii).
Class B-2 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-2 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-2 Certificates on such Distribution Date pursuant to Paragraph
fourth of Section 4.01(a)(ii).
Class B-2 Optimal Principal Amount: As to any Distribution Date, an amount
equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of the
product of (x) the Non-PO Fraction with respect to such Mortgage Loan and (y)
the sum of:
(i) the Group I Class B-2 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-2 Percentage (with respect to each
such Group II Mortgage Loan) of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Group I Class B-2 Prepayment Percentage (with respect to each
such Group I Mortgage Loan) or Group II Class B-2 Prepayment Percentage
(with respect to each such Group II Mortgage Loan) of all Unscheduled
Principal Receipts (other than Recoveries) that were received by a Servicer
with respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Group I Class B-2 Prepayment Percentage (with respect to
each such Group I Mortgage Loan) or Group II Class B-2 Prepayment
Percentage (with respect to each such Group II Mortgage Loan) of the
Scheduled Principal Balance of such Mortgage Loan which, during the one
month period ending on the day preceding the Determination Date for such
Distribution Date, was repurchased by the Seller pursuant to Sections 2.02
or 2.03; and
(iv) the Group I Class B-2 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-2 Percentage (with respect to each
such Group II Mortgage Loan) of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Group I Class B-2 Prepayment Percentage or Group II Class B-2
Prepayment Percentage, as applicable, of the Recovery for Loan Group I and
the Non-PO Recovery for Loan Group II for such Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-2 Optimal Principal Amount
will equal the lesser of (A) the Class B-2 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-2 Certificates.
Class B-2 Principal Balance: As to the first Determination Date, the
Original Class B-2 Principal Balance. As of any subsequent Determination Date,
the Original Class B-2 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-2 Certificates on prior Distribution Dates
(A) pursuant to Paragraph sixth of Section 4.01(a)(ii) and (B) as a result of a
Principal Adjustment; provided, however, if the Class B-2 Certificates are the
most subordinate Certificates outstanding, the Class B-2 Principal Balance will
equal the difference, if any, between the Aggregate Adjusted Pool Amount as of
the preceding Distribution Date less the sum of the Aggregate Class A Principal
Balance and the Class B-1 Principal Balance as of such Determination Date.
Class B-2 Principal Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-2 Certificates pursuant to
Paragraph sixth of Section 4.01(a)(ii).
Class B-2 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-2 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-2 Certificates on prior Distribution Dates pursuant to
Paragraph fifth of Section 4.01(a)(ii).
Class B-3 Certificate: Any one of the Certificates executed by the Trustee
and authenticated by the Trustee or the Authenticating Agent in substantially
the form set forth in Exhibit B-3 and Exhibit C hereto.
Class B-3 Certificateholder: The registered holder of a Class B-3
Certificate.
Class B-3 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-3 Certificates pursuant to
Paragraphs seventh, eighth and ninth of Section 4.01(a)(ii).
Class B-3 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-3 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-3 Certificates on such Distribution Date pursuant to Paragraph
seventh of Section 4.01(a)(ii).
Class B-3 Optimal Principal Amount: As to any Distribution Date, an amount
equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of the
product of (x) the Non-PO Fraction with respect to such Mortgage Loan and (y)
the sum of:
(i) the Group I Class B-3 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-3 Percentage (with respect to each
such Group II Mortgage Loan) of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Group I Class B-3 Prepayment Percentage (with respect to each
such Group I Mortgage Loan) or Group II Class B-3 Prepayment Percentage
(with respect to each such Group II Mortgage Loan) of all Unscheduled
Principal Receipts (other than Recoveries) that were received by a Servicer
with respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Group I Class B-3 Prepayment Percentage (with respect to
each such Group I Mortgage Loan) or Group II Class B-3 Prepayment
Percentage (with respect to each such Group II Mortgage Loan) of the
Scheduled Principal Balance of such Mortgage Loan which, during the one
month period ending on the day preceding the Determination Date for such
Distribution Date, was repurchased by the Seller pursuant to Sections 2.02
or 2.03; and
(iv) the Group I Class B-3 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-3 Percentage (with respect to each
such Group II Mortgage Loan) of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Group I Class B-3 Prepayment Percentage or Group II Class B-3
Prepayment Percentage, as applicable, of the Recovery for Loan Group I and
the Non-PO Recovery for Loan Group II for such Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-3 Optimal Principal Amount
will equal the lesser of (A) the Class B-3 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-3 Certificates.
Class B-3 Principal Balance: As to the first Determination Date, the
Original Class B-3 Principal Balance. As of any subsequent Determination Date,
the Original Class B-3 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-3 Certificates on prior Distribution Dates
(A) pursuant to Paragraph ninth of Section 4.01(a)(ii) and (B) as a result of a
Principal Adjustment; provided, however, if the Class B-3 Certificates are the
most subordinate Certificates outstanding, the Class B-3 Principal Balance will
equal the difference, if any, between the Aggregate Adjusted Pool Amount as of
the preceding Distribution Date less the sum of the Aggregate Class A Principal
Balance, the Class B-1 Principal Balance and the Class B-2 Principal Balance as
of such Determination Date.
Class B-3 Principal Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-3 Certificates pursuant to
Paragraph ninth of Section 4.01(a)(ii).
Class B-3 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-3 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-3 Certificates on prior Distribution Dates pursuant to
Paragraph eighth of Section 4.01(a)(ii).
Class B-4 Certificate: Any one of the Certificates executed by the Trustee
and authenticated by the Trustee or the Authenticating Agent in substantially
the form set forth in Exhibit B-4 and Exhibit C hereto.
Class B-4 Certificateholder: The registered holder of a Class B-4
Certificate.
Class B-4 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-4 Certificates pursuant to
Paragraphs tenth, eleventh and twelfth of Section 4.01(a)(ii).
Class B-4 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-4 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-4 Certificates on such Distribution Date pursuant to Paragraph tenth
of Section 4.01(a)(ii).
Class B-4 Optimal Principal Amount: As to any Distribution Date, an amount
equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of the
product of (x) the Non-PO Fraction with respect to such Mortgage Loan and (y)
the sum of:
(i) the Group I Class B-4 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-4 Percentage (with respect to each
such Group II Mortgage Loan) of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Group I Class B-4 Prepayment Percentage (with respect to each
such Group I Mortgage Loan) or Group II Class B-4 Prepayment Percentage
(with respect to each such Group II Mortgage Loan) of all Unscheduled
Principal Receipts (other than Recoveries) that were received by a Servicer
with respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Group I Class B-4 Prepayment Percentage (with respect to
each such Group I Mortgage Loan) or Group II Class B-4 Prepayment
Percentage (with respect to each such Group II Mortgage Loan) of the
Scheduled Principal Balance of such Mortgage Loan which, during the one
month period ending on the day preceding the Determination Date for such
Distribution Date, was repurchased by the Seller pursuant to Sections 2.02
or 2.03; and
(iv) the Group I Class B-4 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-4 Percentage (with respect to each
such Group II Mortgage Loan) of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for Distribution
Date over the unpaid principal balance of such Mortgage Loan, less the
amount allocable to the principal portion of any unreimbursed Periodic
Advances previously made by the applicable Servicer, the Master Servicer or
the Trustee in respect of such Mortgage Loan;
(II) the Group I Class B-4 Prepayment Percentage or Group II Class B-4
Prepayment Percentage, as applicable, of the Recovery for Loan Group I and
the Non-PO Recovery for Loan Group II for such Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-4 Optimal Principal Amount
will equal the lesser of (A) the Class B-4 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-4 Certificates.
Class B-4 Principal Balance: As to the first Determination Date, the
Original Class B-4 Principal Balance. As of any subsequent Determination Date,
the Original Class B-4 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-4 Certificates on prior Distribution Dates
(A) pursuant to Paragraph twelfth of Section 4.01(a)(ii) and (B) as a result of
a Principal Adjustment; provided, however, if the Class B-4 Certificates are the
most subordinate Certificates outstanding, the Class B-4 Principal Balance will
equal the difference, if any, between the Aggregate Adjusted Pool Amount as of
the preceding Distribution Date less the sum of the Aggregate Class A Principal
Balance, the Class B-1 Principal Balance, the Class B-2 Principal Balance and
the Class B-3 Principal Balance as of such Determination Date.
Class B-4 Principal Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-4 Certificates pursuant to
Paragraph twelfth of Section 4.01(a)(ii).
Class B-4 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-4 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-4 Certificates on prior Distribution Dates pursuant to
Paragraph eleventh of Section 4.01(a)(ii).
Class B-5 Certificate: Any one of the Certificates executed by the Trustee
and authenticated by the Trustee or the Authenticating Agent in substantially
the form set forth in Exhibit B-5 and Exhibit C hereto.
Class B-5 Certificateholder: The registered holder of a Class B-5
Certificate.
Class B-5 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-5 Certificates pursuant to
Paragraphs thirteenth, fourteenth and fifteenth of Section 4.01(a)(ii).
Class B-5 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-5 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-5 Certificates on such Distribution Date pursuant to Paragraph
thirteenth of Section 4.01(a)(ii).
Class B-5 Optimal Principal Amount: As to any Distribution Date, an amount
equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of the
product of (x) the Non-PO Fraction with respect to such Mortgage Loan and (y)
the sum of:
(i) the Group I Class B-5 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-5 Percentage (with respect to each
such Group II Mortgage Loan) of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Group I Class B-5 Prepayment Percentage (with respect to each
such Group I Mortgage Loan) or Group II Class B-5 Prepayment Percentage
(with respect to each such Group II Mortgage Loan) of all Unscheduled
Principal Receipts (other than Recoveries) that were received by a Servicer
with respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Group I Class B-5 Prepayment Percentage (with respect to
each such Group I Mortgage Loan) or Group II Class B-5 Prepayment
Percentage (with respect to each such Group II Mortgage Loan) of the
Scheduled Principal Balance of such Mortgage Loan which, during the one
month period ending prior to the day preceding the Determination Date for
such Distribution Date, was repurchased by the Seller pursuant to Sections
2.02 or 2.03; and
(iv) the Group I Class B-5 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-5 Percentage (with respect to each
such Group II Mortgage Loan) of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending prior to the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Group I Class B-5 Prepayment Percentage or Group II Class B-5
Prepayment Percentage, as applicable, of the Recovery for Loan Group I and
the Non-PO Recovery for Loan Group II for such Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-5 Optimal Principal Amount
will equal the lesser of (A) the Class B-5 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-5 Certificates.
Class B-5 Principal Balance: As to the first Determination Date, the
Original Class B-5 Principal Balance. As of any subsequent Determination Date,
the Original Class B-5 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-5 Certificates on prior Distribution Dates
(A) pursuant to Paragraph fifteenth of Section 4.01(a)(ii) and (B) as a result
of a Principal Adjustment; provided, however, if the Class B-5 Certificates are
the most subordinate Certificates outstanding, the Class B-5 Principal Balance
will equal the difference, if any, between the Aggregate Adjusted Pool Amount as
of the preceding Distribution Date less the sum of the Aggregate Class A
Principal Balance, the Class B-1 Principal Balance, the Class B-2 Principal
Balance, the Class B-3 Principal Balance and the Class B-4 Principal Balance as
of such Determination Date.
Class B-5 Principal Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-5 Certificates pursuant to
Paragraph fifteenth of Section 4.01(a)(ii).
Class B-5 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-5 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-5 Certificates on prior Distribution Dates pursuant to
Paragraph fourteenth of Section 4.01(a)(ii).
Class B-6 Certificate: Any one of the Certificates executed by the Trustee
and authenticated by the Trustee or the Authenticating Agent in substantially
the form set forth in Exhibit B-6 and Exhibit C hereto.
Class B-6 Certificateholder: The registered holder of a Class B-6
Certificate.
Class B-6 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-6 Certificates pursuant to
Paragraphs sixteenth, seventeenth and eighteenth of Section 4.01(a)(ii).
Class B-6 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-6 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-6 Certificates on such Distribution Date pursuant to Paragraph
sixteenth of Section 4.01(a)(ii).
Class B-6 Optimal Principal Amount: As to any Distribution Date, an amount
equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of the
product of (x) the Non-PO Fraction with respect to such Mortgage Loan and (y)
the sum of:
(i) the Group I Class B-6 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-6 Percentage (with respect to each
such Group II Mortgage Loan) of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Group I Class B-6 Prepayment Percentage (with respect to each
such Group I Mortgage Loan) or Group II Class B-6 Prepayment Percentage
(with respect to each such Group II Mortgage Loan) of all Unscheduled
Principal Receipts (other than Recoveries) that were received by a Servicer
with respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Group I Class B-6 Prepayment Percentage (with respect to
each such Group I Mortgage Loan) or Group II Class B-6 Prepayment
Percentage (with respect to each such Group II Mortgage Loan) of the
Scheduled Principal Balance of such Mortgage Loan which, during the one
month period ending on the day preceding the Determination Date for such
Distribution Date, was repurchased by the Seller pursuant to Sections 2.02
or 2.03; and
(iv) the Group I Class B-6 Percentage (with respect to each such Group
I Mortgage Loan) or Group II Class B-6 Percentage (with respect to each
such Group II Mortgage Loan) of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Group I Class B-6 Prepayment Percentage or Group II Class B-6
Prepayment Percentage, as applicable, of the Recovery for Loan Group I and
the Non-PO Recovery for Loan Group II for such Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-6 Optimal Principal Amount
will equal the lesser of (A) the Class B-6 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-6 Certificates.
Class B-6 Principal Balance: As to the first Determination Date, the
Original Class B-6 Principal Balance. As of any subsequent Determination Date,
the Original Class B-6 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-6 Certificates on prior Distribution Dates
pursuant to Paragraph eighteenth of Section 4.01(a)(ii); provided, however, if
the Class B-6 Certificates are outstanding, the Class B-6 Principal Balance will
equal the difference, if any, between the Aggregate Adjusted Pool Amount as of
the preceding Distribution Date less the sum of the Aggregate Class A Principal
Balance, the Class B-1 Principal Balance, the Class B-2 Principal Balance, the
Class B-3 Principal Balance, the Class B-4 Principal Balance and the Class B-5
Principal Balance as of such Determination Date.
Class B-6 Principal Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-6 Certificates pursuant to
Paragraph eighteenth of Section 4.01(a)(ii).
Class B-6 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-6 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-6 Certificates on prior Distribution Dates pursuant to
Paragraph seventeenth of Section 4.01(a)(ii).
Class B-L1 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class B-L2 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class B-L3 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class B-L4 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class B-L5 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Class B-L6 Interest: A regular interest in the Lower-Tier REMIC which is
held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(iii) hereof.
Clearing Agency: An organization registered as a "clearing agency" pursuant
to Section 17A of the Securities Exchange Act of 1934, as amended. The initial
Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, financial institution
or other Person for whom a Clearing Agency effects book-entry transfers of
securities deposited with the Clearing Agency.
Closing Date: The date of initial issuance of the Certificates, as set
forth in Section 11.16.
Code: The Internal Revenue Code of 1986, as it may be amended from time to
time, any successor statutes thereto, and applicable U.S. Department of the
Treasury temporary or final regulations promulgated thereunder.
Compensating Interest: With respect to any Distribution Date, the least of
(a) the aggregate Prepayment Interest Shortfall on the Mortgage Loans for such
Distribution Date, (b) the product of (i) 1/12th of 0.20% and (ii) the Pool
Scheduled Principal Balance for such Distribution Date and (c) the Available
Master Servicing Compensation for such Distribution Date.
Co-op Shares: Shares issued by private non-profit housing corporations.
Corporate Trust Office: The principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which
office, at the date of the execution of this instrument, is located at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
Corresponding Upper-Tier Class or Classes: As to the following
Uncertificated Lower-Tier Interests, the Corresponding Upper-Tier Class or
Classes as follows:
Uncertificated Lower-Tier Interest Corresponding Upper-Tier Class or
Classes
Class I-A-L1 Interest Class I-A-1 Certificates
Class I-A-L2 Interest Class I-A-2 Certificates,
Class I-A-4 Certificates and
Class I-A-6 Certificates
Class I-A-L3 Interest Class I-A-3 Certificates
Class I-A-L5 Interest Class I-A-5 Certificates
Class I-A-LUR Interest Class I-A-R Certificate
Class II-A-L1 Interest Class II-A-1 Certificates,
Class II-A-3 Certificates and
Class II-A-4 Certificates
Class II-A-L2 Interest Class II-A-2 Certificates
Class B-L1 Interest Class B-1 Certificates
Class B-L2 Interest Class B-2 Certificates
Class B-L3 Interest Class B-3 Certificates
Class B-L4 Interest Class B-4 Certificates
Class B-L5 Interest Class B-5 Certificates
Class B-L6 Interest Class B-6 Certificates
Current Group I-A Interest Distribution Amount: As to any Distribution
Date, the amount distributed in respect of the Classes of Group I-A Certificates
pursuant to Paragraph first Clause (A) of Section 4.01(a)(i) on such
Distribution Date.
Current Group II-A Interest Distribution Amount: As to any Distribution
Date, the amount distributed in respect of the Classes of Group II-A
Certificates pursuant to Paragraph first Clause (B) of Section 4.01(a)(i) on
such Distribution Date.
Current Class B Interest Distribution Amount: As to any Distribution Date,
the amount distributed in respect of the Classes of Class B Certificates
pursuant to Paragraphs first, fourth, seventh, tenth, thirteenth and sixteenth
of Section 4.01(a)(ii) on such Distribution Date.
Current Class B-1 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the sum of the Principal Balances of the Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates by the Aggregate Principal Balance. As to the
first Distribution Date, the Original Class B-1 Fractional Interest.
Current Class B-2 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the sum of the Principal Balances of the Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates by the Aggregate Principal Balance. As to the first
Distribution Date, the Original Class B-2 Fractional Interest.
Current Class B-3 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the sum of the Principal Balances of the Class B-4, Class B-5 and Class B-6
Certificates by the Aggregate Principal Balance. As to the first Distribution
Date, the Original Class B-3 Fractional Interest.
Current Class B-4 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the sum of the Principal Balances of the Class B-5 and Class B-6 Certificates by
the Aggregate Principal Balance. As to the first Distribution Date, the Original
Class B-4 Fractional Interest.
Current Class B-5 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the Principal Balance of the Class B-6 Certificates by the Aggregate Principal
Balance. As to the first Distribution Date, the Original Class B-5 Fractional
Interest.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Prepayment in Full.
Curtailment Interest Shortfall: On any Distribution Date with respect to a
Mortgage Loan which was the subject of a Curtailment:
(A) in the case where the Applicable Unscheduled Principal Receipt Period
is the Mid-Month Receipt Period and such Curtailment is received by
the Servicer on or after the Determination Date in the month preceding
the month of such Distribution Date but prior to the first day of the
month of such Distribution Date, the amount of interest that would
have accrued at the Net Mortgage Interest Rate on the amount of such
Curtailment from the day of its receipt or, if earlier, its
application by the Servicer through the last day of the month
preceding the month of such Distribution Date; and
(B) in the case where the Applicable Unscheduled Principal Receipt Period
is the Prior Month Receipt Period and such Curtailment is received by
the Servicer during the month preceding the month of such Distribution
Date, the amount of interest that would have accrued at the Net
Mortgage Interest Rate on the amount of such Curtailment from the day
of its receipt or, if earlier, its application by the Servicer through
the last day of the month in which such Curtailment is received.
Custodial Agreement: The Custodial Agreement, dated as of August 29, 2002,
among the Custodian, the Seller, the Master Servicer and the Trustee, which is
attached hereto as Exhibit E, as the same may be amended or modified from time
to time in accordance with the terms thereof.
Custodial P&I Account: The Custodial P&I Account, as defined in each of the
Servicing Agreements, with respect to the Mortgage Loans. In determining whether
the Custodial P&I Account under any Servicing Agreement is "acceptable" to the
Master Servicer (as may be required by the definition of "Eligible Account"
contained in the Servicing Agreements), the Master Servicer shall require that
any such account shall be acceptable to each of the Rating Agencies.
Custodian: Xxxxx Fargo Bank Minnesota, National Association, or its
successor in interest under the Custodial Agreement.
Cut-Off Date: The first day of the month of initial issuance of the
Certificates as set forth in Section 11.01.
Cut-Off Date Aggregate Principal Balance: The aggregate of the Cut-Off Date
Principal Balances of the Mortgage Loans is as set forth in Section 11.02.
Cut-Off Date Principal Balance: As to each Mortgage Loan, its unpaid
principal balance as of the close of business on the Cut-Off Date (but without
giving effect to any Unscheduled Principal Receipts received or applied on the
Cut-Off Date), reduced by all payments of principal due on or before the Cut-Off
Date and not paid, and increased by scheduled monthly payments of principal due
after the Cut-Off Date but received by the related Servicer on or before the
Cut-Off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction in
the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then-outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any scheduled Monthly
Payment that results in a permanent forgiveness of principal, which valuation or
reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificates: As defined in Section 5.01(b).
Denomination: The amount, if any, specified on the face of each Certificate
(other than the Class I-A-7 and Class II-A-4 Certificates) representing the
principal portion of the Cut-Off Date Aggregate Principal Balance evidenced by
such Certificate. As to the Class I-A-7 and Class II-A-4 Certificates, the
amount specified on the face of such Certificate representing the portion of the
Original Notional Amount.
Determination Date: The 17th day of the month in which the related
Distribution Date occurs, or if such 17th day is not a Business Day, the
Business Day preceding such 17th day.
Discount Mortgage Loan: A Group II Mortgage Loan with a Net Mortgage
Interest Rate of less than 5.650%.
Distribution Date: The 25th day of any month, beginning in the month
following the month of initial issuance of the Certificates, or if such 25th day
is not a Business Day, the Business Day following such 25th day.
Due Date: With respect to any Mortgage Loan, the day of the month in which
the Monthly Payment on such Mortgage Loan is scheduled to be paid.
Eligible Account: One or more accounts (i) that are maintained with a
depository institution (which may be the Master Servicer) whose long-term debt
obligations (or, in the case of a depository institution which is part of a
holding company structure, the long-term debt obligations of such parent holding
company) at the time of deposit therein are rated at least "AA" (or the
equivalent) by each of the Rating Agencies, (ii) the deposits in which are fully
insured by the FDIC through either the Bank Insurance Fund or the Savings
Association Insurance Fund, (iii) the deposits in which are insured by the FDIC
through either the Bank Insurance Fund or the Savings Association Insurance Fund
(to the limit established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured, as evidenced by an Opinion of Counsel delivered
to the Trustee, such that the Trustee, on behalf of the Certificateholders has a
claim with respect to the funds in such accounts or a perfected first security
interest against any collateral securing such funds that is superior to claims
of any other depositors or creditors of the depository institution with which
such accounts are maintained, (iv) that are trust accounts maintained with the
trust department of a federal or state chartered depository institution or trust
company acting in its fiduciary capacity or (v) such other account that is
acceptable to each Rating Agency and would not cause the Trust Estate to fail to
qualify as two separate REMICs or result in the imposition of any federal tax on
either of the Upper-Tier REMIC or the Lower-Tier REMIC.
Eligible Investments: At any time, any one or more of the following
obligations and securities which shall mature not later than the Business Day
preceding the Distribution Date next succeeding the date of such investment,
provided that such investments continue to qualify as "cash flow investments" as
defined in Code Section 860G(a)(6):
(i) obligations of the United States of America or any agency thereof,
provided such obligations are backed by the full faith and credit of the
United States of America;
(ii) general obligations of or obligations guaranteed by any state of
the United States of America or the District of Columbia receiving the
highest short-term or highest long-term rating of each Rating Agency, or
such lower rating as would not result in the downgrading or withdrawal of
the rating then assigned to any of the Certificates by either Rating Agency
or result in any of such rated Certificates being placed on credit review
status (other than for possible upgrading) by either Rating Agency;
(iii) commercial or finance company paper which is then rated in the
highest long-term commercial or finance company paper rating category of
each Rating Agency or the highest short-term rating category of each Rating
Agency, or such lower rating category as would not result in the
downgrading or withdrawal of the rating then assigned to any of the
Certificates by either Rating Agency or result in any of such rated
Certificates being placed on credit review status (other than for possible
upgrading) by either Rating Agency;
(iv) certificates of deposit, demand or time deposits, federal funds
or banker's acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any state
thereof and subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or debt
obligations of such depository institution or trust company (or in the case
of the principal depository institution in a holding company system, the
commercial paper or debt obligations of such holding company) are then
rated in the highest short-term or the highest long-term rating category
for such securities of each of the Rating Agencies, or such lower rating
categories as would not result in the downgrading or withdrawal of the
rating then assigned to any of the Certificates by either Rating Agency or
result in any of such rated Certificates being placed on credit review
status (other than for possible upgrading) by either Rating Agency;
(v) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation acceptable to each Rating Agency at the time
of the issuance of such agreements;
(vi) repurchase agreements on obligations with respect to any security
described in clauses (i) or (ii) above or any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
in either case entered into with a depository institution or trust company
(acting as principal) described in (iv) above;
(vii) securities (other than stripped bonds or stripped coupon
securities) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any state thereof which, at the time of such investment or contractual
commitment providing for such investment, are then rated in the highest
short-term or the highest long-term rating category by each Rating Agency,
or in such lower rating category as would not result in the downgrading or
withdrawal of the rating then assigned to any of the Certificates by either
Rating Agency or result in any of such rated Certificates being placed on
credit review status (other than for possible upgrading) by either Rating
Agency;
(viii) such other investments acceptable to each Rating Agency as
would not result in the downgrading of the rating then assigned to the
Certificates by either Rating Agency or result in any of such rated
Certificates being placed on credit review status (other than for possible
upgrading) by either Rating Agency; and
(ix) any mutual fund, money market fund, common trust fund or
other pooled investment vehicle, the assets of which are limited to
instruments that otherwise would constitute Eligible Investments hereunder,
including any such fund that is managed by the Trustee or any affiliate of
the Trustee or for which the Trustee or any of its affiliates acts as an
adviser as long as such fund is rated in at least the highest rating
category by each Rating Agency.
In no event shall an instrument be an Eligible Investment if such
instrument evidences either (i) a right to receive only interest payments with
respect to the obligations underlying such instrument, or (ii) 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 the date of investment of greater than 120% of the yield to
maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Prohibited Holder: As defined in Section 5.02(d).
Errors and Omissions Policy: As defined in each of the Servicing
Agreements.
Event of Default: Any of the events specified in Section 7.01.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
Fidelity Bond: As defined in each of the Servicing Agreements.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates is made pursuant to Section 9.01.
Final Liquidation Proceeds: Liquidation Proceeds received by a Servicer
during the Unscheduled Principal Receipt Period in which the related Mortgage
Loan became a Liquidated Loan.
Final Scheduled Maturity Date: The Final Scheduled Maturity Date for each
Class of Class A Certificates and Class B Certificates is September 25, 2032,
which corresponds to the "latest possible maturity date" for purposes of Section
860G(a)(1) of the Internal Revenue Code of 1986, as amended.
Full Unscheduled Principal Receipt: Any Unscheduled Principal Receipt with
respect to a Mortgage Loan (i) in the amount of the outstanding principal
balance of such Mortgage Loan and resulting in the full satisfaction of such
Mortgage Loan or (ii) representing Liquidation Proceeds other than Partial
Liquidation Proceeds.
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth in
the related Mortgage Note and indicated in the Mortgage Loan Schedule as the
"Gross Margin," which percentage is added to the Index on each Adjustment Date
to determine (subject to rounding, the Periodic Cap and the Rate Ceiling) the
Mortgage Interest Rate on such Mortgage Loan until the next Adjustment Date.
Group: The Group I-A Certificates or Group II-A Certificates.
Group Subordinate Amount: Any of the Group I Subordinate Amount or Group II
Subordinate Amount.
Group A Principal Balance: Any of the Group I-A Principal Balance or Group
II-A Principal Balance.
Group I Adjusted Pool Amount: With respect to any Distribution Date, the
aggregate of the Cut-Off Date Principal Balances of the Group I Mortgage Loans
minus the sum of (i) all amounts in respect of principal received in respect of
the Group I Mortgage Loans (including, without limitation, amounts received as
Monthly Payments, Periodic Advances, Unscheduled Principal Receipts and
Substitution Principal Amounts) and distributed to Holders of the Certificates
on such Distribution Date and all prior Distribution Dates, (ii) the principal
portion of all Liquidated Loan Losses incurred on such Group I Mortgage Loans
for which the Liquidation Proceeds were received from the Cut-Off Date through
the end of the Applicable Unscheduled Principal Receipt Period with respect to
Full Unscheduled Principal Receipts for such Distribution Date and (iii) the
principal portion of all Bankruptcy Losses (other than Debt Service Reductions)
incurred on the Group I Mortgage Loans from the Cut-Off Date through the end of
the period corresponding to the Applicable Unscheduled Principal Receipt Period
with respect to Full Unscheduled Principal Receipts for such Distribution Date.
Group I Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date, zero.
Group I Apportioned Principal Balance: As to any Distribution Date and any
Class of Class B Certificates, an amount equal to the product of (i) the
Principal Balance of the Class of Class B Certificates and (ii) a fraction, the
numerator of which is the Group I Subordinate Amount and the denominator of
which is the sum of the Group I Subordinate Amount and the Group II Subordinate
Amount.
Group I Class B Percentage: Any one of the Group I Class B-1 Percentage,
Group I Class B-2 Percentage, Group I Class B-3 Percentage, Group I Class B-4
Percentage, Group I Class B-5 Percentage or Group I Class B-6 Percentage.
Group I Class B Prepayment Percentage: Any of the Group I Class B-1
Prepayment Percentage, Group I Class B-2 Prepayment Percentage, Group I Class
B-3 Prepayment Percentage, Group I Class B-4 Prepayment Percentage, Group I
Class B-5 Prepayment Percentage or Group I Class B-6 Prepayment Percentage.
Group I Class B-1 Percentage: As to any Distribution Date, the percentage
calculated by multiplying the Group I Subordinated Percentage by a fraction, the
numerator of which is the Class B-1 Principal Balance (determined as of the
Determination Date preceding such Distribution Date) and the denominator of
which is the Class B Principal Balance.
Group I Class B-1 Prepayment Percentage: As to any Distribution Date, the
percentage calculated by multiplying the Group I Subordinated Prepayment
Percentage by either (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-1 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions (i) if any Class B Certificates (other than the Class
B-1 Certificates) are eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with Section 4.01(d), a
fraction, the numerator of which is the Class B-1 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d) or (ii) except as set forth in Section 4.01(d)(ii), in the event
that the Class B Certificates (other than the Class B-1 Certificates) are not
eligible to receive such unscheduled principal distributions in accordance with
Section 4.01(d)(i), one.
Group I Class B-2 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group I Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-2 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group I Class B-2 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group I Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-2 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-2 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-2 Certificates are not eligible to receive such unscheduled
principal distributions in accordance with Section 4.01(d)(i), the Group I Class
B-2 Prepayment Percentage for such unscheduled principal distributions for such
Distribution Date will be zero.
Group I Class B-3 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group I Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-3 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group I Class B-3 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group I Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-3 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-3 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-3 Certificates are not eligible to receive such unscheduled
principal distributions in accordance with Section 4.01(d)(i), the Group I Class
B-3 Prepayment Percentage for such unscheduled principal distributions for such
Distribution Date will be zero.
Group I Class B-4 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group I Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-4 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group I Class B-4 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group I Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-4 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-4 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-4 Certificates are not eligible to receive such unscheduled
principal distributions in accordance with Section 4.01(d)(i), the Group I Class
B-4 Prepayment Percentage for such unscheduled principal distributions for such
Distribution Date will be zero.
Group I Class B-5 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group I Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-5 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group I Class B-5 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group I Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-5 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-5 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-5 Certificates are not eligible to receive such unscheduled
principal distributions in accordance with Section 4.01(d)(i), the Group I Class
B-5 Prepayment Percentage for such unscheduled principal distributions for such
Distribution Date will be zero.
Group I Class B-6 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group I Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-6 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group I Class B-6 Prepayment Percentage: As to any Distribution Date, the
percentage calculated by multiplying (i) the Group I Subordinated Prepayment
Percentage by (ii) a fraction, the numerator of which is the Class B-6 Principal
Balance (determined as of the Determination Date preceding such Distribution
Date) and the denominator of which is (a) for the purpose of allocating
Liquidation Proceeds (other than Partial Liquidation Proceeds), a fraction the
numerator of which is the Class B-6 Principal Balance (determined as of the
Determination Date preceding such Distribution Date) and the denominator of
which is the Class B Principal Balance and (b) for the purpose of allocating all
other unscheduled principal distributions the sum of the Principal Balances of
the Classes of Class B Certificates eligible to receive such unscheduled
principal distributions for such Distribution Date in accordance with the
provisions of Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in
the event that the Class B-6 Certificates are not eligible to receive such
unscheduled principal distributions in accordance with Section 4.01(d)(i), the
Group I Class B-6 Prepayment Percentage for such unscheduled principal
distributions for such Distribution Date will be zero.
Group I Mortgage Loans: Those Mortgage Loans listed on Exhibits F-1A and
F-2A attached hereto.
Group I Pool Balance: As to any Distribution Date, the aggregate Scheduled
Principal Balances of all Group I Mortgage Loans that were Outstanding Mortgage
Loans on the Due Date in the month preceding the month of such Distribution
Date.
Group I Pool Distribution Amount: As of any Distribution Date, the funds
eligible for distribution to the Group I-A Certificates and Class B Certificates
on such Distribution Date, which shall be the sum of (i) all previously
undistributed payments or other receipts on account of principal and interest on
or in respect of the Group I Mortgage Loans (including, without limitation, the
proceeds of any repurchase of a Group I Mortgage Loan by the Seller and any
Substitution Principal Amount) received by the Master Servicer with respect to
the applicable Remittance Date in the month of such Distribution Date and any
Unscheduled Principal Receipts received by the Master Servicer on or prior to
the Business Day preceding such Distribution Date, (ii) all Periodic Advances
made with respect to Group I Mortgage Loans by a Servicer pursuant to the
related Servicing Agreement or Periodic Advances with respect to Group I
Mortgage Loans made by the Master Servicer or the Trustee pursuant to Section
3.03, and (iii) all other amounts (including any Insurance Proceeds and
Compensating Interest) with respect to a Group I Mortgage Loan required to be
placed in the Certificate Account by the Servicer on or before the applicable
Remittance Date or by the Master Servicer or the Trustee on or prior to the
Distribution Date, but excluding the following:
(a) amounts received as late payments of principal or interest with
respect to a Group I Mortgage Loan and respecting which the Master Servicer
or the Trustee has made one or more unreimbursed Periodic Advances;
(b) the portion of Liquidation Proceeds used to reimburse any
unreimbursed Periodic Advances with respect to a Group I Mortgage Loan by
the Master Servicer or the Trustee;
(c) that portion of each payment of interest on a particular Group I
Mortgage Loan which represents (i) the applicable Servicing Fee and (ii)
the Master Servicing Fee;
(d) all amounts representing scheduled payments of principal and
interest on Group I Mortgage Loans due after the Due Date occurring in the
month in which such Distribution Date occurs;
(e) all Unscheduled Principal Receipts received by the Servicers with
respect to Group I Mortgage Loans after the Applicable Unscheduled
Principal Receipt Period relating to the Distribution Date for the
applicable type of Unscheduled Principal Receipt, and all related payments
of interest on such amounts;
(f) all repurchase proceeds with respect to Group I Mortgage Loans
repurchased by the Seller pursuant to Sections 2.02, 2.03 or 3.08 on or
following the Determination Date in the month in which such Distribution
Date occurs and the difference between the unpaid principal balance of a
Group I Mortgage Loan substituted for a Group I Mortgage Loan pursuant to
Sections 2.02, 2.03 or 2.06 on or following the Determination Date in the
month in which such Distribution Date occurs and the unpaid principal
balance of such Group I Mortgage Loan;
(g) that portion of Liquidation Proceeds and REO Proceeds with respect
to any Group I Mortgage Loan which represents any unpaid Servicing Fee or
Master Servicing Fee;
(h) all income from Eligible Investments that is held in the
Certificate Account for the account of the Master Servicer;
(i) Liquidation Profits in respect of Group I Mortgage Loans;
(j) Month End Interest in respect of Group I Mortgage Loans;
(k) all amounts reimbursable to a Servicer for PMI Advances in respect
of Group I Mortgage Loans; and
(l) all other amounts permitted to be withdrawn from the Certificate
Account in respect of the Group I Mortgage Loans, to the extent not covered
by clauses (a) through (k) above, or not required to be deposited in the
Certificate Account under this Agreement.
Group I Subordinate Amount: As to any Distribution Date, the excess of (i)
the Group I Pool Balance over (ii) the Group I-A Principal Balance.
Group I Subordinated Percentage: As to any Distribution Date, the
percentage which is the difference between 100% and the Group I-A Percentage for
such date.
Group I Subordinated Prepayment Percentage: As to any Distribution Date,
the percentage which is the difference between 100% and the Group I-A Prepayment
Percentage for such date.
Group II Adjusted Pool Amount: With respect to any Distribution Date, the
aggregate of the Cut-Off Date Principal Balances of the Group II Mortgage Loans
minus the sum of (i) all amounts in respect of principal received in respect of
the Group II Mortgage Loans (including, without limitation, amounts received as
Monthly Payments, Periodic Advances, Unscheduled Principal Receipts and
Substitution Principal Amounts) and distributed to Holders of the Certificates
on such Distribution Date and all prior Distribution Dates, (ii) the principal
portion of all Liquidated Loan Losses incurred on such Group II Mortgage Loans
for which the Liquidation Proceeds were received from the Cut-Off Date through
the end of Applicable Unscheduled Principal Receipt Period with respect to Full
Unscheduled Principal Receipts for such Distribution Date and (iii) the
principal portion of all Bankruptcy Losses (other than Debt Service Reductions)
incurred on the Group II Mortgage Loans from the Cut-Off Date through the end of
the period corresponding to the Applicable Unscheduled Principal Receipt Period
with respect to Full Unscheduled Principal Receipts for such Distribution Date.
Group II Adjusted Pool Amount (PO Portion): With respect to any
Distribution Date prior to the Distribution Date in 2008, the sum of the
amounts, calculated as follows, with respect to all Outstanding Mortgage Loans
that are Group II Mortgage Loans: the product of (i) the PO Fraction for each
such Group II Mortgage Loan and (ii) the remainder of (A) the Cut-Off Date
Principal Balance of such Group II Mortgage Loan minus (B) the sum of (x) all
amounts in respect of principal received in respect of such Group II Mortgage
Loan (including, without limitation, amounts received as Monthly Payments,
Periodic Advances, Unscheduled Principal Receipts and Substitution Principal
Amounts) and distributed to Holders of the Certificates on such Distribution
Date and all prior Distribution Dates, (y) the principal portion of any
Liquidated Loan Losses incurred on such Group II Mortgage Loans for which
Liquidation Proceeds were received from the Cut-Off Date through the end of the
Applicable Unscheduled Principal Receipt Period with respect to Full Unscheduled
Principal Receipts for such Distribution Date and (z) the principal portion of
all Bankruptcy Losses (other than Debt Service Reductions) incurred on the Group
II Mortgage Loans from the Cut-Off Date through the end of the period
corresponding to the Applicable Unscheduled Principal Receipt Period with
respect to Full Unscheduled Principal Receipts for such Distribution Date. On
and after the Distribution Date in December 2008, the Group II Adjusted Pool
Amount (PO Portion) will be zero.
Group II Apportioned Principal Balance: As to any Distribution Date and any
Class of Class B Certificates, an amount equal to the product of (i) the
Principal Balance of the Class of Class B Certificates and (ii) a fraction, the
numerator of which is the Group II Subordinate Amount and the denominator of
which is the sum of the Group I Subordinate Amount and Group II Subordinate
Amount.
Group II Class B Percentage: Any one of the Group II Class B-1 Percentage,
Group II Class B-2 Percentage, Group II Class B-3 Percentage, Group II Class B-4
Percentage, Group II Class B-5 Percentage or Group II Class B-6 Percentage.
Group II Class B Prepayment Percentage: Any of the Group II Class B-1
Prepayment Percentage, Group II Class B-2 Prepayment Percentage, Group II Class
B-3 Prepayment Percentage, Group II Class B-4 Prepayment Percentage, Group II
Class B-5 Prepayment Percentage or Group II Class B-6 Prepayment Percentage.
Group II Class B-1 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group II Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-1 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group II Class B-1 Prepayment Percentage: As to any Distribution Date, the
percentage calculated by multiplying the Group II Subordinated Prepayment
Percentage by either (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-1 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purposes of allocating all other unscheduled
principal distributions (i) if any Class B Certificates (other than the Class
B-1 Certificates) are eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with Section 4.01(d), a
fraction, the numerator of which is the Class B-1 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d) or (ii) except as set forth in Section 4.01(d)(ii), in the event
that the Class B Certificates (other than the Class B-1 Certificates) are not
eligible to receive such unscheduled principal distributions in accordance with
Section 4.01(d)(i), one.
Group II Class B-2 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group II Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-2 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group II Class B-2 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group II Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-2 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-2 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-2 Certificates are not eligible to receive such unscheduled
principal distributions in accordance with Section 4.01(d)(i), the Group II
Class B-2 Prepayment Percentage for such unscheduled principal distributions for
such Distribution Date will be zero.
Group II Class B-3 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group II Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-3 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group II Class B-3 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group II Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-3 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-3 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-3 Certificates are not eligible to receive such unscheduled
principal distributions in accordance with Section 4.01(d)(i), the Group II
Class B-3 Prepayment Percentage for such unscheduled principal distributions for
such Distribution Date will be zero.
Group II Class B-4 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group II Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-4 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group II Class B-4 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group II Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-4 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-4 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-4 Certificates are not eligible to receive such unscheduled
principal distributions in accordance with Section 4.01(d)(i), the Group II
Class B-4 Prepayment Percentage for such unscheduled principal distributions for
such Distribution Date will be zero.
Group II Class B-5 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group II Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-5 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group II Class B-5 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group II Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-5 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-5 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purposes of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-5 Certificates are not eligible to receive certain unscheduled
principal distributions in accordance with Section 4.01(d)(i), the Group II
Class B-5 Prepayment Percentage for such unscheduled principal distributions for
such Distribution Date will be zero.
Group II Class B-6 Percentage: As to any Distribution Date, the percentage
calculated by multiplying (i) the Group II Subordinated Percentage by (ii) a
fraction, the numerator of which is the Class B-6 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the Class B Principal Balance.
Group II Class B-6 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Group II Subordinated Prepayment Percentage by (ii) a
fraction, the numerator of which is the Class B-6 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is (a) for the purpose of allocating Liquidation Proceeds
(other than Partial Liquidation Proceeds), a fraction the numerator of which is
the Class B-6 Principal Balance (determined as of the Determination Date
preceding such Distribution Date) and the denominator of which is the Class B
Principal Balance and (b) for the purpose of allocating all other unscheduled
principal distributions, the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive such unscheduled principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-6 Certificates are not eligible to receive such unscheduled
principal distributions of principal in accordance with Section 4.01(d)(i), the
Group II Class B-6 Prepayment Percentage for such unscheduled principal
distributions for such Distribution Date will be zero.
Group II Mortgage Loans: Those Mortgage Loans listed on Exhibits F-1B and
F-2B attached hereto.
Group II Pool Balance (Non-PO Portion): As of any Distribution Date, the
sum of the amounts for each Group II Mortgage Loan that is an Outstanding
Mortgage Loan of the product of (i) the Non-PO Fraction for such Mortgage Loan
and (ii) the Scheduled Principal Balance of such Mortgage Loan.
Group II Pool Balance (PO Portion): As of any Distribution Date, the sum of
the amounts for each Group II Mortgage Loan that is an Outstanding Mortgage Loan
of the product of (i) the PO Fraction for such Mortgage Loan and (ii) the
Scheduled Principal Balance of such Mortgage Loan.
Group II Pool Distribution Amount: As of any Distribution Date, the funds
eligible for distribution to the Group II-A Certificates and Class B
Certificates on such Distribution Date, which shall be the sum of (i) all
previously undistributed payments or other receipts on account of principal and
interest on or in respect of the Group II Mortgage Loans (including, without
limitation, the proceeds of any repurchase of a Group II Mortgage Loan by the
Seller and any Substitution Principal Amount) received by the Master Servicer
with respect to the applicable Remittance Date in the month of such Distribution
Date and any Unscheduled Principal Receipts received by the Master Servicer on
or prior to the Business Day preceding such Distribution Date, (ii) all Periodic
Advances made with respect to Group II Mortgage Loans by a Servicer pursuant to
the related Servicing Agreement or Periodic Advances with respect to Group II
Mortgage Loans made by the Master Servicer or the Trustee pursuant to Section
3.03 and (iii) all other amounts (including any Insurance Proceeds and
Compensating Interest) with respect to a Group II Mortgage Loan required to be
placed in the Certificate Account by the Servicer on or before the applicable
Remittance Date or by the Master Servicer or the Trustee on or prior to the
Distribution Date, but excluding the following:
(a) amounts received as late payments of principal or interest with
respect to a Group II Mortgage Loan and respecting which the Master
Servicer or the Trustee has made one or more unreimbursed Periodic
Advances;
(b) the portion of Liquidation Proceeds used to reimburse any
unreimbursed Periodic Advances with respect to a Group II Mortgage Loan by
the Master Servicer or the Trustee;
(c) that portion of each payment of interest on a particular Group II
Mortgage Loan which represents (i) the applicable Servicing Fee and (ii)
the Master Servicing Fee;
(d) all amounts representing scheduled payments of principal and
interest on Group II Mortgage Loans due after the Due Date occurring in the
month in which such Distribution Date occurs;
(e) all Unscheduled Principal Receipts received by the Servicers with
respect to Group II Mortgage Loans after the Applicable Unscheduled
Principal Receipt Period relating to the Distribution Date for the
applicable type of Unscheduled Principal Receipt, and all related payments
of interest on such amounts;
(f) all repurchase proceeds with respect to Group II Mortgage Loans
repurchased by the Seller pursuant to Sections 2.02, 2.03 or 3.08 on or
following the Determination Date in the month in which such Distribution
Date occurs and the difference between the unpaid principal balance of a
Group II Mortgage Loan substituted for a Group II Mortgage Loan pursuant to
Sections 2.02, 2.03 or 2.06 on or following the Determination Date in the
month in which such Distribution Date occurs and the unpaid principal
balance of such Group II Mortgage Loan;
(g) that portion of Liquidation Proceeds and REO Proceeds with respect
to any Group II Mortgage Loan which represents any unpaid Servicing Fee and
Master Servicing Fee;
(h) all income from Eligible Investments that is held in the
Certificate Account for the account of the Master Servicer;
(i) Liquidation Profits in respect of Group II Mortgage Loans;
(j) Month End Interest in respect of Group II Mortgage Loans;
(k) all amounts reimbursable to a Servicer for PMI Advances in respect
of Group II Mortgage Loans; and
(l) all other amounts permitted to be withdrawn from the Certificate
Account in respect of the Group II Mortgage Loans, to the extent not
covered by clauses (a) through (k) above, or not required to be deposited
in the Certificate Account under this Agreement.
Group II Subordinate Amount: As to any Distribution Date, the excess of (i)
the Group II Pool Balance over (ii) the Group II-A Non-PO Principal Balance.
Group II Subordinated Percentage: As to any Distribution Date, the
percentage which is the difference between 100% and the Group II-A Percentage
for such date.
Group II Subordinated Prepayment Percentage: As to any Distribution Date,
the percentage which is the difference between 100% and the Group II-A
Prepayment Percentage for such date.
Group I-A Certificate: Any Class I-A-1, Class I-A-2, Class I-A-3, Class
I-A-4, Class I-A-5, Class I-A-6, Class I-A-7, Class I-A-R or Class I-A-LR
Certificate.
Group I-A Distribution Amount: As to any Distribution Date and any Class of
Group I-A Certificates (other than the Class I-A-7 Certificates), the amount
distributable to such Class of Group I-A Certificates pursuant to Paragraphs
first Clause (A), second Clause (A) and third Clause (A) of Section 4.01(a)(i).
As to the Class I-A-7 Certificates prior to the Distribution Date in January
2007, the amount distributable to such Class pursuant to Paragraphs first and
second of Section 4.01(a)(i). On and after the Distribution Date in January
2007, the amount distributable to the Class I-A-7 Certificates will be zero.
Group I-A Interest Accrual Amount: As to any Distribution Date, the sum of
the Interest Accrual Amounts for the Group I-A Certificates with respect to such
Distribution Date.
Group I-A Interest Percentage: As to any Distribution Date and any Class of
Group I-A Certificates, the percentage calculated by dividing the Interest
Accrual Amount of such Class (determined without regard to clause (ii) of the
definition thereof) by the Group I-A Interest Accrual Amount (determined without
regard to clause (ii) of the definition of each Interest Accrual Amount).
Group I-A Interest Shortfall Amount: As to any Distribution Date and any
Class of Group I-A Certificates, any amount by which the Interest Accrual Amount
of such Class with respect to such Distribution Date exceeds the amount
distributed in respect of such Class on such Distribution Date pursuant to
Paragraph first Clause (A) of Section 4.01(a)(i).
Group I-A Loss Denominator: As to any Determination Date, an amount equal
to the Group I-A Principal Balance.
Group I-A Loss Percentage: As to any Determination Date and any Class of
Group I-A Certificates, the percentage calculated by dividing the Principal
Balance of such Class by the Group I-A Loss Denominator (determined without
regard to any such Principal Balance of any Class of Group I-A Certificates not
then outstanding), in each case determined as of the preceding Determination
Date.
Group I-A Non-PO Principal Balance: As of any date, an amount equal to the
Group I-A Principal Balance.
Group I-A Optimal Amount: As to any Distribution Date, the sum for such
Distribution Date of (i) the Group I-A Interest Accrual Amount, (ii) the
Aggregate Group I-A Unpaid Interest Shortfall and (iii) the Group I-A Optimal
Principal Amount.
Group I-A Optimal Principal Amount: As to any Distribution Date, an amount
equal to the sum of (I) the sum, as to each Group I Mortgage Loan that is an
Outstanding Mortgage Loan, of:
(i) the Group I-A Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Group I-A Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled Principal
Receipt Period relating to such Distribution Date for each applicable type
of Unscheduled Principal Receipt;
(iii) the Group I-A Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending on
the day preceding the Determination Date such Distribution Date, was
repurchased by the Seller pursuant to Sections 2.02 or 2.03; and
(iv) the Group I-A Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such Mortgage
Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable Servicer,
the Master Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Group I-A Prepayment Percentage of the Recovery for Loan
Group I for such Distribution Date.
Group I-A Percentage: As to any Distribution Date occurring on or prior to
the Subordination Depletion Date, the lesser of (i) 100% and (ii) the percentage
obtained by dividing the Group I-A Principal Balance (determined as of the
Determination Date preceding such Distribution Date) by the Group I Pool
Balance. As to any Distribution Date occurring subsequent to the Subordination
Depletion Date, 100% or such lesser percentage which will cause the Group I-A
Principal Balance to decline to zero following the distribution made on such
Distribution Date.
Group I-A Prepayment Percentage: As to any Distribution Date to and
including the Distribution Date in August 2007, 100%. As to any Distribution
Date subsequent to August 2007 to and including the Distribution Date in August
2008, the Group I-A Percentage as of such Distribution Date plus 70% of the
Group I Subordinated Percentage as of such Distribution Date. As to any
Distribution Date subsequent to August 2008 to and including the Distribution
Date in August 2009, the Group I-A Percentage as of such Distribution Date plus
60% of the Group I Subordinated Percentage as of such Distribution Date. As to
any Distribution Date subsequent to August 2009 to and including the
Distribution Date in August 2010, the Group I-A Percentage as of such
Distribution Date plus 40% of the Group I Subordinated Percentage as of such
Distribution Date. As to any Distribution Date subsequent to August 2010 to and
including the Distribution Date in August 2011, the Group I-A Percentage as of
such Distribution Date plus 20% of the Group I Subordinated Percentage as of
such Distribution Date. As to any Distribution Date subsequent to August 2011,
the Group I-A Percentage as of such Distribution Date.
No reduction of the level of the Group I-A Prepayment Percentage shall
occur on any Distribution Date unless, as of such Distribution Date, (A) the
average outstanding principal balance on such Distribution Date and for the
preceding five Distribution Dates of the Mortgage Loans in both Loan Groups that
were delinquent 60 days or more (including for this purpose any Mortgage Loans
in foreclosure and Mortgage Loans with respect to which the related Mortgaged
Property has been acquired by the Trust Estate) does not exceed 50% of the Class
B Principal Balance; and (B) cumulative Realized Losses on the Mortgage Loans in
both Loan Groups do not exceed the following percentages of the Original
Subordinated Principal Amount: (1) 30%, if such Distribution Date occurs between
and including September 2007 and August 2008 (2) 35%, if such Distribution Date
occurs between and including September 2008 and August 2009, (3) 40%, if such
Distribution Date occurs between and including September 2009 and August 2010,
(4) 45%, if such Distribution Date occurs between and including September 2010
and August 2011, and (5) 50%, if such Distribution Date occurs during or after
September 2011.
Notwithstanding the foregoing, with respect to any Distribution Date on
which the preceding criteria are not met, the reduction of the Group I-A
Prepayment Percentage described in the second through sixth sentences of this
definition of Group I-A Prepayment Percentage shall not be applicable with
respect to such Distribution Date. In such event, the Group I-A Prepayment
Percentage for such Distribution Date will be determined in accordance with the
applicable provision, as set forth in the first through fifth sentences of this
definition, which was actually used to determine the Group I-A Prepayment
Percentage for the Distribution Date occurring in the August preceding such
Distribution Date (it being understood that for the purposes of the
determination of the Group I-A Prepayment Percentage for the current
Distribution Date, the current Group I-A Percentage and Group I Subordinated
Percentage shall be utilized).
In addition, if on any Distribution Date, prior to giving effect to any
distributions on such Distribution Date, (i) the Aggregate Subordinate
Percentage is equal to or greater than twice the Aggregate Subordinate
Percentage as of the Cut-Off Date, (ii) the average outstanding principal
balance on such Distribution Date and for the preceding five Distribution Dates
of the Mortgage Loans in both Loan Groups that were delinquent 60 days or more
(including for this purpose any Mortgage Loans in foreclosure and Mortgage Loans
with respect to which the related Mortgaged Property has been acquired by the
Trust Estate) does not exceed 50% of the Class B Principal Balance and (iii)(A)
prior to the Distribution Date in September 2005, cumulative Realized Losses on
the Mortgage Loans in both Loan Groups do not exceed 20% of the Original
Subordinated Principal Amount, then the Group I-A Prepayment Percentage for such
Distribution Date will equal the Group I-A Percentage for such Distribution Date
plus 50% of the Group I Subordinated Percentage for such Distribution Date or
(B) on or after the Distribution Date in September 2005, cumulative Realized
Losses on the Mortgage Loans in both Loan Groups do not exceed 30% of the
Original Subordinated Principal Amount, then the Group I-A Prepayment Percentage
for such Distribution Date will equal the Group I-A Percentage for such
Distribution Date.
Notwithstanding the foregoing, if on any Distribution Date, the Aggregate
Class A Percentage exceeds such percentage as of the Cut-Off Date, then the
Group I-A Prepayment Percentage will equal 100%.
If on any Distribution Date the allocation to the Group I-A Certificates of
Unscheduled Principal Receipts and other amounts in the percentage required
above would reduce the Group I-A Principal Balance below zero, the Group I-A
Prepayment Percentage for such Distribution Date will be limited to the
percentage necessary to reduce the Group I-A Principal Balance to zero. In
addition, once the Group I-A Principal Balance has been reduced to zero, the
Group I-A Prepayment Percentage will be 0%.
With respect to any Distribution Date on which the Group I-A Prepayment
Percentage is reduced below the Group I-A Prepayment Percentage for the prior
Distribution Date, the Master Servicer shall certify to the Trustee, based upon
information provided by each Servicer as to the Mortgage Loans serviced by it
that the criteria set forth in this definition are met.
Group I-A Principal Balance: As of any date, an amount equal to the sum of
the Principal Balances for the Class I-A-1, Class I-A-2, Class I-A-3, Class
I-A-4, Class I-A-5, Class I-A-6, Class I-A-R and Class I-A-LR Certificates.
Group I-A Principal Distribution Amount: As to any Distribution Date, the
aggregate amount distributed in respect of the Classes of Group I-A Certificates
pursuant to Paragraph third Clause (A) of Section 4.01(a)(i).
Group I-A Shortfall Percentage: As to any Distribution Date and any Class
of Group I-A Certificates, the percentage calculated by dividing the Class A
Unpaid Interest Shortfall for such Class by the Aggregate Group I-A Unpaid
Interest Shortfall, in each case determined as of the day preceding the
applicable Distribution Date.
Group II-A Certificate: Any Class II-A-1, Class II-A-2, Class II-A-3 or
Class II-A-4 Certificate.
Group II-A Distribution Amount: As to any Distribution Date prior to the
Distribution Date in December 2008 and any Class of Group II-A Certificates
(other than the Class II-A-2 and Class II-A-4 Certificates), the amount
distributable to such Class of Group II-A Certificates pursuant to Paragraphs
first Clause (B), second Clause (B) and third Clause (B) of Section 4.01(a)(i).
As to any Distribution Date prior to the Distribution Date in December 2008 and
the Class II-A-2 Certificates, the amount distributable to the Class II-A-2
Certificates pursuant to Paragraphs third clause (I)(B) and fourth of Section
4.01(a)(i) on such Distribution Date. On and after the Distribution Date in
December 2008, the amount distributable to the of Class II-A-2 Certificates
pursuant to Paragraphs first Clause (B), second Clause (B) and third clause
(B)(II) of Section 4.01(a)(i). As to the Class II-A-4 Certificates prior to the
Distribution Date in December 2008, the amount distributable to such Class
pursuant to Paragraphs first and second of Section 4.01(a)(i). On and after the
Distribution Date in December 2008, the amount distributable to the Class II-A-4
Certificates will be zero.
Group II-A Interest Accrual Amount: As to any Distribution Date, the sum of
the Interest Accrual Amounts for the Classes of Group II-A Certificates with
respect to such Distribution Date.
Group II-A Interest Percentage: As to any Distribution Date and any Class
of Group II-A Certificates, the percentage calculated by dividing the Interest
Accrual Amount of such Class (determined without regard to clause (ii) of the
definition thereof) by the Group II-A Interest Accrual Amount (determined
without regard to clause (ii) of the definition of each Interest Accrual
Amount).
Group II-A Interest Shortfall Amount: As to any Distribution Date and any
Class of Group II-A Certificates, any amount by which the Interest Accrual
Amount of such Class with respect to such Distribution Date exceeds the amount
distributed in respect of such Class on such Distribution Date pursuant to
Paragraph first Clause (B) of Section 4.01(a)(i).
Group II-A Loss Denominator: As to any Determination Date, an amount equal
to the Group II-A Non-PO Principal Balance.
Group II-A Loss Percentage: As to any Determination Date and any Class of
Group II-A Certificates (other than the Class II-A-2 Certificates prior to the
Distribution Date in December 2008), the percentage calculated by dividing the
Principal Balance of such Class by the Group II-A Loss Denominator (determined
without regard to any such Principal Balance of any Class of Group II-A
Certificates not then outstanding), in each case determined as of the preceding
Determination Date.
Group II-A Non-PO Optimal Amount: As to any Distribution Date, the sum for
such Distribution Date of (i) the Group II-A Interest Accrual Amount, (ii) the
Aggregate Group II-A Unpaid Interest Shortfall and (iii) the Group II-A Non-PO
Optimal Principal Amount.
Group II-A Non-PO Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of (I) the sum, as to each Group II Mortgage Loan that
is an Outstanding Mortgage Loan, of the product of (x) the Non-PO Fraction with
respect to such Mortgage Loan, and (y) the sum of:
(i) the Group II-A Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Group II-A Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled Principal
Receipt Period relating to such Distribution Date for each applicable type
of Unscheduled Principal Receipt;
(iii) the Group II-A Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending on
the day preceding the Determination Date for such Distribution Date, was
repurchased by the Seller pursuant to Sections 2.02 or 2.03; and
(iv) the Group II-A Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such Mortgage
Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable Servicer,
the Master Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Group II-A Prepayment Percentage of the Non-PO Recovery for
Loan Group II for such Distribution Date.
Group II-A Non-PO Principal Balance: As of any date prior to the
Distribution Date in December 2008, an amount equal to the Group II-A Principal
Balance less the Principal Balance of the Class II-A-2 Certificates. On and
after the Distribution Date in December 2008, the Group II-A Principal Balance.
Group II-A Non-PO Principal Distribution Amount: As to any Distribution
Date, the aggregate amount distributed in respect of the Classes of Group II-A
Certificates pursuant to Paragraph third clauses (B)(I)(a) and (B)(II) of
Section 4.01(a)(ii).
Group II-A Percentage: As to any Distribution Date occurring on or prior to
the Subordination Depletion Date, the lesser of (i) 100% and (ii) the percentage
obtained by dividing the Group II-A Non-PO Principal Balance (determined as of
the Determination Date preceding such Distribution Date) by the Group II Pool
Balance (Non-PO Portion). As to any Distribution Date occurring subsequent to
the Subordination Depletion Date, 100% or such lesser percentage which will
cause the Group II-A Non-PO Principal Balance to decline to zero following the
distribution made on such Distribution Date.
Group II-A Prepayment Percentage: As to any Distribution Date to and
including the Distribution Date in August 2007, 100%. As to any Distribution
Date subsequent to August 2007 to and including the Distribution Date in August
2008, the Group II-A Percentage as of such Distribution Date plus 70% of the
Group II Subordinated Percentage as of such Distribution Date. As to any
Distribution Date subsequent to August 2008 to and including the Distribution
Date in August 2009, the Group II-A Percentage as of such Distribution Date plus
60% of the Group II Subordinated Percentage as of such Distribution Date. As to
any Distribution Date subsequent to August 2009 to and including the
Distribution Date in August 2010, the Group II-A Percentage as of such
Distribution Date plus 40% of the Group II Subordinated Percentage as of such
Distribution Date. As to any Distribution Date subsequent to August 2010 to and
including the Distribution Date in August 2011, the Group II-A Percentage as of
such Distribution Date plus 20% of the Group II Subordinated Percentage as of
such Distribution Date. As to any Distribution Date subsequent to August 2011,
the Group II-A Percentage as of such Distribution Date.
No reduction of the level of the Group II-A Prepayment Percentage shall
occur on any Distribution Date unless, as of such Distribution Date, (A) the
average outstanding principal balance on such Distribution Date and for the
preceding five Distribution Dates of the Mortgage Loans in both Loan Groups that
were delinquent 60 days or more (including for this purpose any Mortgage Loans
in foreclosure and Mortgage Loans with respect to which the related Mortgaged
Property has been acquired by the Trust Estate) does not exceed 50% of the Class
B Principal Balance; and (B) cumulative Realized Losses on the Mortgage Loans in
both Loan Groups do not exceed the following percentages of the Original
Subordinated Principal Amount: (1) 30%, if such Distribution Date occurs between
and including September 2007 and August 2008 (2) 35%, if such Distribution Date
occurs between and including September 2008 and August 2009, (3) 40%, if such
Distribution Date occurs between and including September 2009 and August 2010,
(4) 45%, if such Distribution Date occurs between and including September 2011
and August 2011, and (5) 50%, if such Distribution Date occurs during or after
September 2011.
Notwithstanding the foregoing, with respect to any Distribution Date on
which the preceding criteria are not met, the reduction of the Group II-A
Prepayment Percentage described in the second through sixth sentences of this
definition of Group II-A Prepayment Percentage shall not be applicable with
respect to such Distribution Date. In such event, the Group II-A Prepayment
Percentage for such Distribution Date will be determined in accordance with the
applicable provision, as set forth in the first through fifth sentences of this
definition, which was actually used to determine the Group II-A Prepayment
Percentage for the Distribution Date occurring in the August preceding such
Distribution Date (it being understood that for the purposes of the
determination of the Group II-A Prepayment Percentage for the current
Distribution Date, the current Group II-A Percentage and Group II Subordinated
Percentage shall be utilized).
In addition, if on any Distribution Date, prior to giving effect to any
distributions on such Distribution Date, (i) the Aggregate Subordinate
Percentage is equal to or greater than twice the Aggregate Subordinate
Percentage as of the Cut-Off Date, (ii) the average outstanding principal
balance on such Distribution Date and for the preceding five Distribution Dates
of the Mortgage Loans in both Loan Groups that were delinquent 60 days or more
(including for this purpose any Mortgage Loans in foreclosure and Mortgage Loans
with respect to which the related Mortgaged Property has been acquired by the
Trust Estate) does not exceed 50% of the Class B Principal Balance and (iii)(A)
prior to the Distribution Date in September 2005, cumulative Realized Losses on
the Mortgage Loans in both Loan Groups do not exceed 20% of the Original
Subordinated Principal Amount, then the Group II-A Prepayment Percentage for
such Distribution Date will equal the Group II-A Percentage for such
Distribution Date plus 50% of the Group II Subordinated Percentage for such
Distribution Date or (B) on or after the Distribution Date in September 2005,
cumulative Realized Losses on the Mortgage Loans in both Loan Groups do not
exceed 30% of the Original Subordinated Principal Amount, then the Group II-A
Prepayment Percentage for such Distribution Date will equal the Group II-A
Percentage for such Distribution Date.
Notwithstanding the foregoing, if on any Distribution Date, the Aggregate
Class A Percentage exceeds such percentage as of the Cut-Off Date, then the
Group II-A Prepayment Percentage will equal 100%.
The foregoing is subject to the following: (i) if the aggregate
distribution to Holders of Group II-A Certificates (other than the Class II-A-2
Certificates prior to the Distribution Date in December 2008) on any
Distribution Date of the Group II-A Prepayment Percentage provided above of
Unscheduled Principal Receipts distributable on such Distribution Date would
reduce the Group II-A Non-PO Principal Balance below zero, the Group II-A
Prepayment Percentage for such Distribution Date shall be the percentage
necessary to bring the Group II-A Non-PO Principal Balance to zero and
thereafter the Group II-A Prepayment Percentage shall be zero and (ii) if the
Aggregate Class A Percentage as of any Distribution Date is greater than the
Original Aggregate Class A Percentage, the Group II-A Prepayment Percentage for
such Distribution Date shall be 100%.
With respect to any Distribution Date on which the Group II-A Prepayment
Percentage is reduced below the Group II-A Prepayment Percentage for the prior
Distribution Date, the Master Servicer shall certify to the Trustee, based upon
information provided by each Servicer as to the Mortgage Loans serviced by it
that the criteria set forth in this definition are met.
Group II-A Principal Balance: As of any date, an amount equal to the sum of
the Principal Balances for the Class II-A-1, Class II-A-2 and Class II-A-3
Certificates.
Group II-A Shortfall Percentage: As to any Distribution Date and any Class
of Group II-A Certificates, the percentage calculated by dividing the Class A
Unpaid Interest Shortfall for such Class by the Aggregate Group II-A Unpaid
Interest Shortfall, in each case determined as of the day preceding the
applicable Distribution Date.
Holder: See "Certificateholder."
Independent: When used with respect to any specified Person, such Person
who (i) is in fact independent of the Seller, the Master Servicer and any
Servicer, (ii) does not have any direct financial interest or any material
indirect financial interest in the Seller or the Master Servicer or any Servicer
or in an affiliate of either, and (iii) is not connected with the Seller, the
Master Servicer or any Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Index: As to any Mortgage Loan and Adjustment Date, a rate per annum that
is defined to be the weekly average yield on United States Treasury Securities
adjusted to a constant maturity of one year, as made available by the Federal
Reserve Board, published in Federal Reserve Statistical Release H.15 (519) and
most recently available as of the date 45 days before the applicable Adjustment
Date. In the event such Index is no longer available, the applicable Servicer
will select a substitute Index in accordance with the terms of the related
Mortgage Note and in compliance with federal and state law.
Insurance Policy: Any insurance or performance bond relating to a Mortgage
Loan or the Mortgage Loans, including any hazard insurance, special hazard
insurance, flood insurance, primary mortgage insurance, mortgagor bankruptcy
bond or title insurance.
Insurance Proceeds: Proceeds paid by any insurer pursuant to any Insurance
Policy covering a Mortgage Loan.
Insured Expenses: Expenses covered by any Insurance Policy covering a
Mortgage Loan.
Interest Accrual Amount: As to any Distribution Date and any Class of Class
A Certificates (other than the Class I-A-7 Certificates and the Class II-A-2
Certificates prior to the Distribution Date in December 2008), (i) the product
of (a) 1/12th of the Class A Pass-Through Rate for such Class and (b) the
Principal Balance or, in the case of the Class II-A-4 Certificates, the Notional
Amount, of such Class as of the Determination Date immediately preceding such
Distribution Date minus (ii) the sum of (A) the Group I-A Interest Percentage or
Group II-A Interest Percentage of the interest portion of any Realized Losses
allocated to the Group I-A Certificates or the Group II-A Certificates, as
applicable, on or after the Subordination Depletion Date pursuant to Section
4.02(e) and (B) the Class A Interest Percentage of such Class of the sum of any
Non-Supported Interest Shortfall and any Relief Act Shortfall allocated to the
Class A Certificates with respect to such Distribution Date.
As to any Distribution Date prior to the Distribution Date in January 2007
and the Class I-A-7 Certificates, (a) the sum of (i) the product of (A) 1/12th,
(B) the greater of (I) zero and (II) the Net WAC for Loan Group I less 5.500%
and (C) the Principal Balance of the Class I-A-1 Certificates, (ii)the product
of (A) 1/12th (B) the greater of (I) zero and (II) the Net WAC for Loan Group I
less 5.020% and (C) the Principal Balance of the Class I-A-3 Certificates and
(iii) the product of (A) 1/12th (B) the greater of (I) zero and (II) the Net WAC
for Loan Group I less 5.250% and (C) the Principal Balance of the Class I-A-5
Certificates, minus (b) the sum of (i) the Class I-A-7 Interest Percentage of
the interest portion of any Realized Losses allocated to the Class 1-A-7
Certificates on or after the Subordination Depletion Date pursuant to Section
4.02(e) and (B) the Class I-A-7 Interest Percentage of the sum of any
Non-Supported Interest Shortfall and any Relief Act Shortfall allocated to the
Class I-A-7 Certificates with respect to such Distribution Date. On and after
the Distribution Date in January 2007, the Class I-A-7 Certificates have no
Interest Accrual Amount.
Prior to the Distribution Date in December 2008, the Class II-A-2
Certificates have no Interest Accrual Amount. On and after the Distribution Date
in December 2008, the Class II-A-4 Certificates have no Interest Accrual Amount.
As to any Distribution Date and any Class of Class B Certificates, an
amount equal to (i) the product of 1/12th of the Class B Pass-Through Rate and
the Principal Balance of such Class as of the Determination Date preceding such
Distribution Date minus (ii) the Class B Interest Percentage of such Class of
the sum of any Non-Supported Interest Shortfall and any Relief Act Shortfall
allocated to the Class B Certificates with respect to such Distribution Date.
Letter of Credit: As defined in the WFHM Servicing Agreement.
Liquidated Loan: A Mortgage Loan with respect to which the related
Mortgaged Property has been acquired, liquidated or foreclosed and with respect
to which the applicable Servicer determines that all Liquidation Proceeds which
it expects to recover have been recovered.
Liquidated Loan Loss: With respect to any Distribution Date, the aggregate
of the amount of losses with respect to each Mortgage Loan which became a
Liquidated Loan during the Applicable Unscheduled Principal Receipt Period with
respect to Full Unscheduled Principal Receipts for such Distribution Date, equal
to the excess of (i) the unpaid principal balance of each such Liquidated Loan,
plus accrued interest thereon in accordance with the amortization schedule at
the time applicable thereto at the applicable Net Mortgage Interest Rate from
the Due Date as to which interest was last paid with respect thereto through the
last day of the month preceding the month in which such Distribution Date
occurs, over (ii) Net Liquidation Proceeds with respect to such Liquidated Loan.
Liquidation Expenses: Expenses incurred by a Servicer in connection with
the liquidation of any defaulted Mortgage Loan or property acquired in respect
thereof (including, without limitation, legal fees and expenses, committee or
referee fees, and, if applicable, brokerage commissions and conveyance taxes),
any unreimbursed advances expended by such Servicer pursuant to its Servicing
Agreement or the Master Servicer or Trustee pursuant hereto respecting the
related Mortgage Loan, including any unreimbursed advances for real property
taxes or for property restoration or preservation of the related Mortgaged
Property. Liquidation Expenses shall not include any previously incurred
expenses in respect of an REO Mortgage Loan which have been netted against
related REO Proceeds.
Liquidation Proceeds: Amounts received by a Servicer (including Insurance
Proceeds) or PMI Advances made by a Servicer in connection with the liquidation
of defaulted Mortgage Loans or property acquired in respect thereof, whether
through foreclosure, sale or otherwise, including payments in connection with
such Mortgage Loans received from the Mortgagor, other than amounts required to
be paid to the Mortgagor pursuant to the terms of the applicable Mortgage or to
be applied otherwise pursuant to law.
Liquidation Profits: As to any Distribution Date and any Mortgage Loan that
became a Liquidated Loan during the Applicable Unscheduled Principal Receipt
Period with respect to Full Unscheduled Principal Receipts for such Distribution
Date, the excess, if any, of (i) Net Liquidation Proceeds in respect of such
Liquidated Loan over (ii) the unpaid principal balance of such Liquidated Loan
plus accrued interest thereon in accordance with the amortization schedule at
the time applicable thereto at the applicable Net Mortgage Interest Rate from
the Due Date to which interest was last paid with respect thereto through the
last day of the month preceding the month in which such Distribution Date
occurs.
Loan Group I: The Group I Mortgage Loans.
Loan Group II: The Group II Mortgage Loans.
Loan Group: Any of Loan Group I or Loan Group II.
Loan-to-Value Ratio: The ratio, expressed as a percentage, the numerator of
which is the principal balance of a particular Mortgage Loan at origination and
the denominator of which is the lesser of (x) the appraised value of the related
Mortgaged Property determined in the appraisal used by the originator at the
time of origination of such Mortgage Loan, and (y) if the Mortgage is originated
in connection with a sale of the Mortgaged Property, the sale price for such
Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 4.01(a)(iii).
Lower-Tier REMIC: One of two separate REMICs comprising the Trust Estate,
the assets of which consist of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account, the insurance policies, if any,
relating to a Mortgage Loan and property which secured a Mortgage Loan and which
has been acquired by foreclosure or deed in lieu of foreclosure.
Master Servicer: Xxxxx Fargo Bank Minnesota, National Association, or its
successor in interest.
Master Servicing Fee: With respect to any Mortgage Loan and any
Distribution Date, the fee payable monthly to the Master Servicer pursuant to
Section 6.05 equal to a fixed percentage (expressed as a per annum rate) of the
unpaid principal balance of such Mortgage Loan.
Master Servicing Fee Rate: As set forth in Section 11.21.
MERS: As defined in Section 2.01.
Mid-Month Receipt Period: With respect to each Distribution Date, the one
month period beginning on the Determination Date (or, in the case of the first
Distribution Date, from and including the Cut-Off-Date) occurring in the
calendar month preceding the month in which such Distribution Date occurs and
ending on the day preceding the Determination Date immediately preceding such
Distribution Date.
Month End Interest: As defined in each Servicing Agreement.
Monthly Payment: As to any Mortgage Loan (including any REO Mortgage Loan)
and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization schedule at the time applicable thereto (after
adjustment for any Curtailments and Deficient Valuations occurring prior to such
Due Date but before any adjustment to such amortization schedule, other than for
Deficient Valuations, by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period).
Moody's: Xxxxx'x Investors Service, Inc., or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on Mortgaged Property securing a Mortgage Note together with any Mortgage
Loan Rider, if applicable.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate of
interest at which interest accrues on the unpaid principal balance of such
Mortgage Loan, as adjusted from time to time in accordance with the provisions
of the related Mortgage Note, which rate is (a) prior to the first Adjustment
Date for each such Mortgage Loan, the initial Mortgage Interest Rate for such
Mortgage Loan indicated on the Mortgage Loan Schedule and (b) from and after
such first Adjustment Date, the sum of the Index, as of the Adjustment Date
applicable to such Due Date, and the Gross Margin, rounded as set forth in such
Mortgage Note, subject to the Periodic Cap and the Rate Ceiling applicable to
such Mortgage Loan at any time during the life of such Mortgage Loan.
Mortgage Loan Purchase Agreement: The mortgage loan purchase agreement
dated as of August 29, 2002 between WFHM, as seller, and the Seller, as
purchaser.
Mortgage Loan Rider: The standard Xxxxxx Xxx/Xxxxxxx Mac riders to the
Mortgage Note and/or Mortgage riders required when the Mortgaged Property is a
condominium unit or a unit in a planned unit development.
Mortgage Loan Schedule: The list of the Mortgage Loans transferred to the
Trustee on the Closing Date as part of the Trust Estate and attached hereto as
Exhibits F-1A, F-1B, F-2A and F-2B, which list may be amended following the
Closing Date upon conveyance of a Substitute Mortgage Loan pursuant to Sections
2.02, 2.03 or 2.06 and which list shall set forth at a minimum the following
information of the close of business on the Cut-Off Date (or, with respect to
Substitute Mortgage Loans, as of the close of business on the day of
substitution) as to each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the city, state and zip code of the Mortgaged Property;
(iii) the type of property;
(iv) the Mortgage Interest Rate;
(v) the Net Mortgage Interest Rate;
(vi) the Monthly Payment;
(vii) the original number of months to maturity;
(viii) the scheduled maturity date;
(ix) the Cut-Off Date Principal Balance;
(x) the Loan-to-Value Ratio at origination;
(xi) whether such Mortgage Loan is covered by primary mortgage
insurance;
(xii) the applicable Servicing Fee Rate;
(xiii) the Master Servicing Fee Rate;
(xiv) the Index;
(xv) the Gross Margin;
(xvi) the Periodic Cap;
(xvii) the first Adjustment Date;
(xviii) the Rate Ceiling; and
(xix) for each Other Servicer Mortgage Loan, the name of the Servicer
with respect thereto.
Such schedule may consist of multiple reports that collectively set forth
all of the information required.
Mortgage Loans: Each of the mortgage loans transferred and assigned to the
Trustee on the Closing Date pursuant to Section 2.01 and any mortgage loans
substituted therefor pursuant to Sections 2.02, 2.03 and 2.06, in each case as
from time to time are included in the Trust Estate as identified in the Mortgage
Loan Schedule.
Mortgage Note: The note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan together with any related
Mortgage Loan Riders, if applicable.
Mortgaged Property: The property subject to a Mortgage, which may include
Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: As to any defaulted Mortgage Loan, Liquidation
Proceeds net of Liquidation Expenses.
Net Mortgage Interest Rate: With respect to each Mortgage Loan, a rate
equal to (i) the Mortgage Interest Rate on such Mortgage Loan minus (ii) the sum
of (a) the applicable Servicing Fee Rate, as set forth in Section 11.20 with
respect to such Mortgage Loan, (b) the Master Servicing Fee Rate, as set forth
in Section 11.21 with respect to such Mortgage Loan. Any regular monthly
computation of interest at such rate shall be based upon annual interest at such
rate on the applicable amount divided by twelve.
Net REO Proceeds: As to any REO Mortgage Loan, REO Proceeds net of any
related expenses of the Servicer.
Net WAC: With respect to either Loan Group and any Distribution Date, the
weighted average of the Net Mortgage Interest Rates of the Mortgage Loans in
such Loan Group (based on the Scheduled Principal Balance of such Mortgage Loans
on the first day of the month preceding the month of such Distribution Date).
Non-permitted Foreign Holder: As defined in Section 5.02(d).
Non-PO Fraction: With respect to (i) any Group I Mortgage Loan, 1.00 and
(ii) any Group II Mortgage Loan prior to the Distribution Date in December 2008,
the lesser of (a) 1.00 and (ii) the quotient obtained by dividing the Net
Mortgage Interest Rate for such Group II Mortgage Loan by 5.650%. On and after
the Distribution Date in December 2008, the Non-PO Fraction with respect to each
Group II Mortgage Loan will be 1.00.
Non-PO Recovery: As to any Distribution Date and Loan Group II, the amount
of all Recoveries received during the Applicable Unscheduled Principal Receipt
Periods for such Distribution Date less the PO Recovery for such Distribution
Date.
Nonrecoverable Advance: Any portion of a Periodic Advance previously made
or proposed to be made in respect of a Mortgage Loan which has not been
previously reimbursed to the Servicer, the Master Servicer or the Trustee, as
the case may be, and which the Servicer, the Master Servicer or the Trustee
determines will not, or in the case of a proposed Periodic Advance would not, be
ultimately recoverable from Liquidation Proceeds or other recoveries in respect
of the related Mortgage Loan. The determination by the Servicer, the Master
Servicer or the Trustee (i) that it has made a Nonrecoverable Advance or (ii)
that any proposed Periodic Advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officer's Certificate of the Servicer
delivered to the Master Servicer for redelivery to the Trustee or, in the case
of a Master Servicer determination, an Officer's Certificate of the Master
Servicer delivered to the Trustee, in each case detailing the reasons for such
determination.
Non-Supported Interest Shortfall: With respect to any Distribution Date,
the sum of (i) the excess, if any, of the aggregate Prepayment Interest
Shortfall on the Mortgage Loans over the aggregate Compensating Interest with
respect to such Distribution Date and (ii) Curtailment Interest Shortfalls. With
respect to each Distribution Date occurring on or after the Subordination
Depletion Date, the Non-Supported Interest Shortfall determined pursuant to the
preceding sentence will be increased by the amount of any Subordination
Depletion Date Interest Shortfall for such Distribution Date. Any Non-Supported
Interest Shortfall will be allocated to (a) the Group I-A Certificates and Group
II-A Certificates according to the percentage obtained by dividing the sum of
the Group I-A Principal Balance and Group II-A Non-PO Principal Balance, as
applicable, by the Aggregate Non-PO Principal Balance and (b) the Class B
Certificates according to the percentage obtained by dividing the Class B
Principal Balance by the Aggregate Non-PO Principal Balance.
Non-U.S. Person: As defined in Section 4.01(g).
Notional Amount: The Class I-A-7 Notional Amount and the Class II-A-4
Notional Amount, as applicable.
Officers' Certificate: With respect to any Person, a certificate signed by
the Chairman of the Board, the President or a Vice President, and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of such Person (or, in the case of a Person which is not a
corporation, signed by the person or persons having like responsibilities), and
delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, who may be outside or
salaried counsel for the Seller, a Servicer or the Master Servicer, or any
affiliate of the Seller, a Servicer or the Master Servicer, acceptable to the
Trustee; provided, however, that with respect to REMIC matters, matters relating
to the determination of Eligible Accounts or matters relating to transfers of
Certificates, such counsel shall be Independent.
Optimal Adjustment Event: With respect to any Class of Class B Certificates
and any Distribution Date, an Optimal Adjustment Event will occur with respect
to such Class if: (i) the Principal Balance of such Class on the Determination
Date succeeding such Distribution Date would have been reduced to zero
(regardless of whether such Principal Balance was reduced to zero as a result of
principal distribution or the allocation of Realized Losses) and (ii) (a) the
Principal Balance of any Class of Class A Certificates would be subject to
further reduction as a result of the third or fifth sentences of the definition
of Principal Balance or (b) the Principal Balance of a Class of Class B
Certificates with a lower numerical designation would be reduced with respect to
such Distribution Date as a result of the application of the proviso in the
definition of Class B-1 Principal Balance, Class B-2 Principal Balance, Class
B-3 Principal Balance, Class B-4 Principal Balance, Class B-5 Principal Balance
or Class B-6 Principal Balance.
Original Aggregate Subordinate Percentage: The Aggregate Subordinate
Percentage as of the Cut-Off Date, as set forth in Section 11.07.
Original Group I Subordinated Principal Balance: The aggregate of the Group
I Apportioned Principal Balances of the Class B Certificates as of the Cut-Off
Date, as set forth in Section 11.09(a).
Original Group II Subordinated Principal Balance: The aggregate of the
Group II Apportioned Principal Balances of the Class B Certificates as of the
Cut-Off Date, as set forth in Section 11.09(b).
Original Group I-A Percentage: The Group I-A Percentage as of the Cut-Off
Date, as set forth in Section 11.03(a).
Original Group II-A Percentage: The Group II-A Percentage as of the Cut-Off
Date, as set forth in Section 11.03(b).
Original Class B Principal Balance: The sum of the Original Class B-1
Principal Balance, Original Class B-2 Principal Balance, Original Class B-3
Principal Balance, Original Class B-4 Principal Balance, Original Class B-5
Principal Balance and Original Class B-6 Principal Balance, as set forth in
Section 11.08.
Original Class B-1 Fractional Interest: As to the first Distribution Date,
the percentage obtained by dividing the sum of the Original Class B-2 Principal
Balance, the Original Class B-3 Principal Balance, the Original Class B-4
Principal Balance, the Original Class B-5 Principal Balance and the Original
Class B-6 Principal Balance by the Cut-Off Date Aggregate Principal Balance. The
Original Class B-1 Fractional Interest is specified in Section 11.11.
Original Class B-2 Fractional Interest: As to the first Distribution Date,
the percentage obtained by dividing the sum of the Original Class B-3 Principal
Balance, the Original Class B-4 Principal Balance, the Original Class B-5
Principal Balance and the Original Class B-6 Principal Balance by the Cut-Off
Date Aggregate Principal Balance. The Original Class B-2 Fractional Interest is
specified in Section 11.12.
Original Class B-3 Fractional Interest: As to the first Distribution Date,
the percentage obtained by dividing the sum of the Original Class B-4 Principal
Balance, the Original Class B-5 Principal Balance and the Original Class B-6
Principal Balance by the Cut-Off Date Aggregate Principal Balance. The Original
Class B-3 Fractional Interest is specified in Section 11.13.
Original Class B-4 Fractional Interest: As to the first Distribution Date,
the percentage obtained by dividing the sum of the Original Class B-5 Principal
Balance and the Original Class B-6 Principal Balance by the Cut-Off Date
Aggregate Principal Balance. The Original Class B-4 Fractional Interest is
specified in Section 11.14.
Original Class B-5 Fractional Interest: As to the first Distribution Date,
the percentage obtained by dividing the Original Class B-6 Principal Balance by
the Cut-Off Date Aggregate Principal Balance. The Original Class B-5 Fractional
Interest is specified in Section 11.15.
Original Class B-1 Principal Balance: The Class B-1 Principal Balance as of
the Cut-Off Date, as set forth in Section 11.10.
Original Class B-2 Principal Balance: The Class B-2 Principal Balance as of
the Cut-Off Date, as set forth in Section 11.10.
Original Class B-3 Principal Balance: The Class B-3 Principal Balance as of
the Cut-Off Date, as set forth in Section 11.10.
Original Class B-4 Principal Balance: The Class B-4 Principal Balance as of
the Cut-Off Date, as set forth in Section 11.10.
Original Class B-5 Principal Balance: The Class B-5 Principal Balance as of
the Cut-Off Date, as set forth in Section 11.10.
Original Class B-6 Principal Balance: The Class B-6 Principal Balance as of
the Cut-Off Date, as set forth in Section 11.10.
Original Notional Amount: With respect to the Class I-A-7 or Class II-A-4
Certificates, the Original Notional Amount for each such Class, as set forth in
Section 11.05.
Original Principal Balance: Any of the Original Principal Balances of the
Classes of Class A Certificates as set forth in Section 11.04; the Original
Class B-1 Principal Balance, Original Class B-2 Principal Balance, Original
Class B-3 Principal Balance, Original Class B-4 Principal Balance, Original
Class B-5 Principal Balance or Original Class B-6 Principal Balance as set forth
in Section 11.10.
Original Subordinated Principal Amount: The Class B Principal Balance as
of the Cut-Off Date.
Other Servicer: Any of the Servicers other than WFHM.
Other Servicer Mortgage Loan: Any Mortgage Loan serviced under an Other
Servicing Agreement. As of the Closing Date, there are no Other Servicer
Mortgage Loans.
Other Servicing Agreements: The Servicing Agreements other than the WFHM
Servicing Agreement.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan (including
an REO Mortgage Loan) which was not the subject of a Full Unscheduled Principal
Receipt prior to such Due Date and which was not repurchased by the Seller prior
to such Due Date pursuant to Sections 2.02 or 2.03.
Owner Mortgage Loan File: A file maintained by the Trustee (or the
Custodian, if any) for each Mortgage Loan that contains the documents specified
in the Servicing Agreements under their respective "Owner Mortgage Loan File"
definition or similar definition and/or other provisions requiring delivery of
specified documents to the owner of the Mortgage Loan in connection with the
purchase thereof, and any additional documents required to be added to the Owner
Mortgage Loan File pursuant to this Agreement.
Partial Liquidation Proceeds: Liquidation Proceeds received by a Servicer
prior to the Unscheduled Principal Receipt Period in which the related Mortgage
Loan became a Liquidated Loan.
Partial Unscheduled Principal Receipt: An Unscheduled Principal Receipt
which is not a Full Unscheduled Principal Receipt.
Paying Agent: The Person authorized on behalf of the Trustee, as agent for
the Master Servicer, to make distributions to Certificateholders with respect to
the Certificates and to forward to Certificateholders the periodic and annual
statements required by Section 4.04. The Paying Agent may be any Person directly
or indirectly controlling or controlled by or under common control with the
Master Servicer and may be the Trustee. The initial Paying Agent is appointed in
Section 4.03(a).
Payment Account: The account maintained pursuant to Section 4.03(b).
Percentage Interest: With respect to a Class A Certificate (other than the
Class I-A-7 and Class II-A-4 Certificates) of a Class, the undivided percentage
interest obtained by dividing the original principal balance of such Certificate
by the Original Principal Balance of such Class of Class A Certificates. With
respect to a Class I-A-7 and Class II-A-4 Certificates, the undivided percentage
interest obtained by dividing the original notional amount evidenced by such
Certificate by the Original Notional Amount. With respect to a Class B
Certificate of a Class, the undivided percentage interest obtained by dividing
the original principal balance of such Certificate by the Original Principal
Balance of such Class of Class B Certificates.
Periodic Advance: The aggregate of the advances required to be made by a
Servicer on any Distribution Date pursuant to its Servicing Agreement or by the
Master Servicer or the Trustee hereunder, the amount of any such advances being
equal to the total of all Monthly Payments (adjusted, in each case (i) in
respect of interest, to the applicable Mortgage Interest Rate less the
applicable Servicing Fee in the case of Periodic Advances made by a Servicer and
to the applicable Net Mortgage Interest Rate in the case of Periodic Advances
made by the Master Servicer or Trustee and (ii) by the amount of any related
Debt Service Reductions or reductions in the amount of interest collectable from
the Mortgagor pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended, or similar legislation or regulations then in effect) on the
Mortgage Loans, that (x) were delinquent as of the close of business on the
related Determination Date, (y) were not the subject of a previous Periodic
Advance by such Servicer or of a Periodic Advance by the Master Servicer or the
Trustee, as the case may be and (z) have not been determined by the Master
Servicer, such Servicer or Trustee to be Nonrecoverable Advances.
Periodic Cap: For each Mortgage Loan, the applicable limit on adjustment of
the Mortgage Interest Rate for each Adjustment Date specified in the applicable
Mortgage Note and designated as such in the Mortgage Loan Schedule.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan: As defined in Section 5.02(c).
Pledge Holder: As defined in the WFHM Servicing Agreement.
Pledged Asset Mortgage Loans: The Mortgage Loans listed on Exhibit P for
which Letters of Credit have been issued.
PMI Advance: As defined in the related Servicing Agreement, if applicable.
PO Deferred Amount: For any Distribution Date prior to the earlier to occur
of the Distribution Date in December 2008 and the Subordination Depletion Date,
the difference between (A) the sum of (x) the amount by which the sum of the PO
Optimal Principal Amount for all prior Distribution Dates exceeded the amounts
distributed on the Class II-A-2 Certificates on such prior Distribution Dates
pursuant to Paragraph third clause (B)(I)(b) of Section 4.01(a)(i) and (y) the
sum of the product for each Discount Mortgage Loan in Loan Group I which became
a Liquidated Loan at any time on or prior to the last day of the Applicable
Unscheduled Principal Receipt Period for Full Unscheduled Principal Receipts for
the current Distribution Date of (a) the PO Fraction for such Discount Mortgage
Loan and (b) an amount equal to the principal portion of Realized Losses (other
than Bankruptcy Losses due to Debt Service Reductions) incurred with respect to
such Group II Mortgage Loan and (B) the sum of (x) the sum of the PO Recoveries
for such Distribution Date and prior Distribution Dates and (y) amounts
distributed on the Class II-A-2 Certificates on prior Distribution Dates
pursuant to Paragraph fourth of Section 4.01(a)(i). On and after the earlier to
occur of the Distribution Date in December 2008 and the Subordination Depletion
Date, the PO Deferred Amount will be zero. No interest will accrue on any PO
Deferred Amount.
PO Fraction: With respect to (i) any Group I Mortgage Loan, zero, (ii) any
Discount Mortgage Loan that is a Group II Mortgage Loan, prior to the
Distribution Date in December 2008, the difference between 1.0 and the Non-PO
Fraction for such Group II Mortgage Loan and (iii) any Discount Mortgage Loan
that is a Group II Mortgage Loan, on and after the Distribution Date in December
2008, zero.
PO Optimal Principal Amount: As to any Distribution Date, an amount equal
to the sum of (I) the sum as to each Outstanding Mortgage Loan that is a Group
II Mortgage Loan, of the product of (x) the PO Fraction with respect to such
Group II Mortgage Loan and (y) the sum of:
(i) the principal portion of the Monthly Payment due on the Due Date
occurring in the month of such Distribution Date on such Group II Mortgage
Loan;
(ii) all Unscheduled Principal Receipts (other than Recoveries) that
were received by a Servicer with respect to such Group II Mortgage Loan
during the Applicable Unscheduled Principal Receipt Period relating to such
Distribution Date for each applicable type of Unscheduled Principal
Receipt;
(iii) the Scheduled Principal Balance of each Group II Mortgage Loan
which, during the one month period ending on the day preceding the
Determination Date for such Distribution Date, was repurchased by the
Seller pursuant to Sections 2.02 or 2.03; and
(iv) the excess of the unpaid principal balance of such Group II
Mortgage Loan substituted for a Group II Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Group II
Mortgage Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable Servicer,
the Master Servicer or the Trustee in respect of such Group II Mortgage
Loan; and
(II) the PO Recovery for such Distribution Date.
PO Recovery: As to any Distribution Date prior to the earlier to occur of
the Distribution Date in December 2008 or the Subordination Depletion Date, the
lesser of (a) the PO Deferred Amount for such Distribution Date (calculated
without regard to the PO Recovery for such Distribution Date) and (b) an amount
equal to the sum as to each Group II Mortgage Loan as to which there has been a
Recovery during the Applicable Unscheduled Principal Receipt Period, of the
product of (x) the PO Fraction with respect to such Group II Mortgage Loan and
(y) the amount of the Recovery with respect to such Group II Mortgage Loan. As
to any Distribution Date on or after the Subordination Depletion Date but prior
to the Distribution Date in December 2008, the amount determined in accordance
with clause (b) above. On and after the Distribution Date in December 2008,
zero.
Pool Balance: Any of the Group I Pool Balance or Group II Pool Balance.
Pool Scheduled Principal Balance: The sum of the Group I Pool Balance and
Group II Pool Balance.
Premium Mortgage Loan: A Group II Mortgage Loan with a Net Mortgage
Interest Rate of greater than or equal to 5.650%.
Prepayment In Full: With respect to any Mortgage Loan, a Mortgagor payment
consisting of a Principal Prepayment in the amount of the outstanding principal
balance of such loan and resulting in the full satisfaction of such obligation.
Prepayment Interest Shortfall: On any Distribution Date, the amount of
interest, if any, that would have accrued on any Mortgage Loan which was the
subject of a Prepayment in Full at the Net Mortgage Interest Rate for such
Mortgage Loan from the date of its Prepayment in Full (but in the case of a
Prepayment in Full where the Applicable Unscheduled Principal Receipt Period is
the Mid-Month Receipt Period, only if the date of the Prepayment in Full is on
or after the Determination Date in the month prior to the month of such
Distribution Date and prior to the first day of the month of such Distribution
Date) through the last day of the month prior to the month of such Distribution
Date.
Principal Adjustment: In the event that the Class B-1 Optimal Principal
Amount, Class B-2 Optimal Principal Amount, Class B-3 Optimal Principal Amount,
Class B-4 Optimal Principal Amount, Class B-5 Optimal Principal Amount or Class
B-6 Optimal Principal Amount is calculated in accordance with the proviso in
such definition with respect to any Distribution Date, the Principal Adjustment
for such Class of Class B Certificates shall equal the difference between (i)
the amount that would have been distributed to such Class as principal in
accordance with Section 4.01(a)(i) for such Distribution Date, calculated
without regard to such proviso and assuming there are no Principal Adjustments
for such Distribution Date and (ii) the Adjusted Principal Balance for such
Class.
Principal Balance: As of the first Determination Date and as to any Class
of Class A Certificates (other than the Class I-A-7 and Class II-A-4
Certificates), the Original Principal Balance of such Class. As of any
subsequent Determination Date prior to the Subordination Depletion Date and as
to any Class of Class A Certificates (other than the Class II-A-2 Certificates),
the Original Principal Balance of such Class less the sum of all amounts
previously distributed in respect of such Class on prior Distribution Dates (i)
pursuant to Paragraph third clauses (A), (B) and (C) of Section 4.01(a)(i) and
(ii) as a result of a Principal Adjustment. After the Subordination Depletion
Date, each such Principal Balance of a Class of Class A Certificates (other than
the Class II-A-2 Certificates prior to the Determination Date in January 2009)
will also be reduced (if clause (i) is greater than clause (ii)) or increased
(if clause (i) is less than clause (ii)) on each Determination Date by an amount
equal to the product of the Group I-A Loss Percentage or Group II-A Loss
Percentage, as applicable, of such Class and the difference, if any, between (i)
the Group I-A Principal Balance or Group II-A Non-PO Principal Balance, as
applicable, as of such Determination Date without regard to this sentence and
(ii) the difference between (A) the Group I Adjusted Pool Amount or Group II
Adjusted Pool Amount, as applicable, for the preceding Distribution Date and (B)
the Group I Adjusted Pool Amount (PO Portion) or Group II Adjusted Pool Amount
(PO Portion), as applicable, for the preceding Distribution Date; provided,
however, that the amount of any such reduction for the Class I-A-2 and Class
I-A-3 Certificates will be decreased by the Class I-A-4 Loss Allocation Amount.
After the Subordination Depletion Date, the Principal Balance for the Class
I-A-4 Certificates will additionally be reduced by the Class I-A-4 Loss
Allocation Amount. In addition, any increase allocated to the Class I-A-2 or
Class I-A-3 Certificates pursuant to the third sentence above will instead
increase the Principal Balances of the Class I-A-4 Certificates.
As of any subsequent Determination Date prior to the Subordination
Depletion Date and as to the Class II-A-2 Certificates, the Original Principal
Balance of such Class less the sum of all amounts previously distributed in
respect of the Class II-A-2 Certificates on prior Distribution Dates pursuant to
Paragraphs third clauses (B)(I)(b) and (B)(II) and fourth of Section 4.01(a)(i).
After the Subordination Depletion Date but prior to the Determination Date in
January 2009, the Group II Adjusted Pool Amount (PO Portion) for the preceding
Distribution Date.
The Class I-A-7 and Class II-A-4 Certificates are interest only
Certificates and have no Principal Balance.
As to the Class B Certificates, the Class B-1 Principal Balance, Class B-2
Principal Balance, Class B-3 Principal Balance, Class B-4 Principal Balance,
Class B-5 Principal Balance and Class B-6 Principal Balance, respectively.
Notwithstanding the foregoing, no Principal Balance of a Class will be
increased on any Determination Date such that the Principal Balance of such
Class exceeds its Original Principal Balance less all amounts previously
distributed in respect of such Class on prior Distribution Dates pursuant to
Paragraph third Clauses (A), (B) or (C) of Section 4.01(a)(i) or Paragraphs
third, sixth, ninth, twelfth, fifteenth or eighteenth of Section 4.01(a)(ii).
Principal Prepayment: Any Mortgagor payment on a Mortgage Loan which is
received in advance of its Due Date and is not accompanied by an amount
representing scheduled interest for any period subsequent to the date of
prepayment.
Prior Month Receipt Period: With respect to each Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
Prohibited Transaction Tax: Any tax imposed under Section 860F of the Code.
Prospectus: The prospectus dated August 13, 2002 as supplemented by the
prospectus supplement dated August 26, 2002, relating to the Class A, Class B-1,
Class B-2 and Class B-3 Certificates.
Prudent Servicing Practices: The standard of care set forth in each
Servicing Agreement.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted under
the related Mortgage Note.
Rating Agency: Any nationally recognized statistical credit rating agency,
or its successor, that rated one or more Classes of the Certificates at the
request of the Seller at the time of the initial issuance of the Certificates.
The Rating Agencies for the Class A Certificates are S&P and Xxxxx'x. The Rating
Agency for the Class B-1 Certificates, the Class B-2 Certificates, Class B-3
Certificates, Class B-4 Certificates and Class B-5 Certificates is S&P. If any
such agency or a successor is no longer in existence, "Rating Agency" shall be
such statistical credit rating agency, or other comparable Person, designated by
the Seller, notice of which designation shall be given to the Trustee and the
Master Servicer. References herein to the highest short-term rating category of
a Rating Agency shall mean A-1 in the case of S&P, P-1 in the case of Xxxxx'x
and in the case of any other Rating Agency shall mean its equivalent of such
ratings. References herein to the highest long-term rating categories of a
Rating Agency shall mean AAA in the case of S&P and Aaa in the case of Xxxxx'x,
and in the case of any other Rating Agency shall mean its equivalent of such
ratings without any plus or minus.
Realized Losses: With respect to any Distribution Date, (i) Liquidated Loan
Losses incurred on Liquidated Loans for which the Liquidation Proceeds were
received during the Applicable Unscheduled Principal Receipt Period with respect
to Full Unscheduled Principal Receipts with respect to such Distribution Date
and (ii) Bankruptcy Losses incurred during the period corresponding to the
Applicable Unscheduled Principal Receipt Period with respect to Full Unscheduled
Principal Receipts for such Distribution Date.
Record Date: The last Business Day of the month preceding the month of the
related Distribution Date.
Recovery: As to any Distribution Date and each Loan Group, the sum of all
amounts received for Group I Mortgage Loans or Group II Mortgage Loans, as
applicable, subsequent to any such Mortgage Loan being determined to be a
Liquidated Loan received during the Applicable Unscheduled Principal Receipt
Periods for such Distribution Date.
Relief Act Shortfall: Any interest shortfalls arising as a result of the
reduction in the amount of monthly interest payments on any Mortgage Loans as a
result of the application of the Soldiers' and Sailors' Civil Relief Act of
1940, as amended. Any Relief Act Shortfall will be allocated to (a) the Group
I-A Certificates and Group II-A Certificates according to the percentage
obtained by dividing the sum of the Group I-A Principal Balance and Group II-A
Non-PO Principal Balance by the Aggregate Non-PO Principal Balance and (b) the
Class B Certificates according to the percentage obtained by dividing the Class
B Principal Balance by the Aggregate Non-PO Principal Balance.
REMIC: A "real estate mortgage investment conduit" as defined in Code
Section 860D.
REMIC Provisions: Provisions of the federal income tax law relating to
REMICs, which appear at Sections 860A through 860G of Part IV of Subchapter M of
Chapter 1 of Subtitle A of the Code, and related provisions, and U.S. Department
of the Treasury temporary, proposed or final regulations promulgated thereunder,
as the foregoing are in effect (or with respect to proposed regulations, are
proposed to be in effect) from time to time.
Remittance Date: As defined in each of the Servicing Agreements.
REO Mortgage Loan: Any Mortgage Loan which is not a Liquidated Loan and as
to which the indebtedness evidenced by the related Mortgage Note is discharged
and the related Mortgaged Property is held as part of the Trust Estate.
REO Proceeds: Proceeds received in respect of any REO Mortgage Loan
(including, without limitation, proceeds from the rental of the related
Mortgaged Property).
Request for Release: A request for release in substantially the form
attached as Exhibit G hereto.
Responsible Officer: When used with respect to the Trustee, the Chairman or
Vice-Chairman of the Board of Directors or Trustees, the Chairman or
Vice-Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the Chairman of the Committee on Trust Matters, any
Vice President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, the Cashier, any Assistant Cashier, any Trust Officer or
Assistant Trust Officer, the Controller and any Assistant Controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Rule 144A: Rule 144A promulgated under the Securities Act of 1933, as
amended.
Scheduled Principal Balance: As to any Mortgage Loan and Distribution Date,
the principal balance of such Mortgage Loan as of the Due Date in the month
preceding the month of such Distribution Date as specified in the amortization
schedule at the time relating thereto (before any adjustment to such
amortization schedule by reason of any bankruptcy (other than Deficient
Valuations) or similar proceeding or any moratorium or similar waiver or grace
period) after giving effect to (A) Unscheduled Principal Receipts received or
applied by the applicable Servicer during the related Unscheduled Principal
Receipt Period for each applicable type of Unscheduled Principal Receipt related
to the Distribution Date occurring in the month preceding such Distribution
Date, (B) Deficient Valuations incurred prior to such Due Date and (C) the
payment of principal due on such Due Date and irrespective of any delinquency in
payment by the related Mortgagor. Accordingly, the Scheduled Principal Balance
of a Mortgage Loan which becomes a Liquidated Loan at any time through the last
day of such related Unscheduled Principal Receipt Period shall be zero.
Seller: Xxxxx Fargo Asset Securities Corporation, or its successor in
interest.
Servicer Mortgage Loan File: As defined in each of the Servicing
Agreements.
Servicers: WFHM, as Servicer under the related Servicing Agreement.
Servicing Agreements: Each of the Servicing Agreements executed with
respect to a portion of the Mortgage Loans by one of the Servicers, which
agreements are attached hereto, collectively, as Exhibit L.
Servicing Fee: With respect to any Servicer, as defined in its Servicing
Agreement.
Servicing Fee Rate: With respect to a Mortgage Loan, as set forth in
Section 11.20.
Servicing Officer: Any officer of a Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans.
Single Certificate: A Certificate of any Class that evidences the smallest
permissible Denomination for such Class, as set forth in Section 11.19.
Startup Day: As defined in Section 2.05.
Subordination Depletion Date: The Distribution Date preceding the first
Distribution Date on which each of the Group I-A Percentage and Group II-A
Percentage (in each case, determined pursuant to clause (ii) of the definition
thereof) equals or exceeds 100%.
Subordination Depletion Date Interest Shortfall: With respect to any
Distribution Date that occurs on or after the Subordination Depletion Date with
respect to any Unscheduled Principal Receipt (other than a Prepayment in Full or
Curtailment):
(A) in the case where the Applicable Unscheduled Principal Receipt Period
is the Mid-Month Receipt Period and such Unscheduled Principal Receipt
is received by the Servicer on or after the Determination Date in the
month preceding the month of such Distribution Date but prior to the
first day of the month of such Distribution Date, the amount of
interest that would have accrued at the Net Mortgage Interest Rate on
the amount of such Unscheduled Principal Receipt from the day of its
receipt or, if earlier, its application by the Servicer through the
last day of the month preceding the month of such Distribution Date;
and
(B) in the case where the Applicable Unscheduled Principal Receipt Period
is the Prior Month Receipt Period and such Unscheduled Principal
Receipt is received by the Servicer during the month preceding the
month of such Distribution Date, the amount of interest that would
have accrued at the Net Mortgage Interest Rate on the amount of such
Unscheduled Principal Receipt from the day of its receipt or, if
earlier, its application by the Servicer through the last day of the
month in which such Unscheduled Principal Receipt is received.
Subsidy Account: If the Trust Estate contains any Subsidy Loans, the
deposit account or accounts created and maintained by the Servicer for deposit
of Subsidy Funds and amounts payable under interest subsidy agreements relating
to mortgage Loans other than the Mortgage Loans.
Subsidy Funds: If the Trust Estate contains any Subsidy Loans, funds
contributed by the employer of a Mortgagor in order to reduce the payments
required from the Mortgagor for a specified period in specified amounts.
Subsidy Loan: Any Mortgage Loan subject to a temporary interest subsidy
agreement pursuant to which the monthly interest payments made by the related
Mortgagor will be less than the scheduled monthly interest payments on such
Mortgage Loan, with the resulting difference in interest payments being provided
by the employer of the Mortgagor. Each Subsidy Loan will be identified as such
in the Mortgage Loan Schedule.
Substitute Mortgage Loan: As defined in Section 2.02
Substitution Principal Amount: With respect to any Mortgage Loan
substituted in accordance with Section 2.02 or pursuant to Sections 2.03 or
2.06, the excess of (x) the unpaid principal balance of the Mortgage Loan which
is substituted for over (y) the unpaid principal balance of the Substitute
Mortgage Loan, each balance being determined as of the date of substitution.
Trust Estate: The corpus of the trust created by this Agreement, consisting
of the Mortgage Loans, such amounts as may be held from time to time in the
Certificate Account, the rights of the Trustee to receive the proceeds of all
insurance policies and performance bonds, if any, required to be maintained
hereunder or under the related Servicing Agreement, property which secured a
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure and all other property and rights described in the first paragraph
of Section 2.01.
Trustee: Wachovia Bank, National Association, a national banking
association with its principal office located in Charlotte, North Carolina, or
any successor trustee appointed as herein provided.
Type 1 Mortgage Loan: Any of the Group I Mortgage Loans identified in
Exhibit F-1A hereto and any of the Group II Mortgage Loans identified in Exhibit
F-1B hereto, as such Exhibit may be amended from time to time in connection with
a substitution pursuant to Sections 2.02 or 2.06, serviced under the WFHM
Servicing Agreement and having a Mid-Month Receipt Period with respect to all
types of Unscheduled Principal Receipts.
Type 2 Mortgage Loan: Any of the Group I Mortgage Loans identified in
Exhibit F-2A hereto and any of the Group II Mortgage Loans identified in Exhibit
F-2B hereto, as such Exhibit may be amended from time to time in connection with
a substitution pursuant to Sections 2.02 or 2.06, serviced under the WFHM
Servicing Agreement and having a Prior Month Receipt Period with respect to all
types of Unscheduled Principal Receipts.
Uncertificated Lower-Tier Interest: Any of the Class I-A-L1 Interest, the
Class I-A-L2 Interest, Class I-A-L3 Interest, the Class I-A-L5 Interest, the
Class I-A-LUR Interest, Class II-A-L1 Interest, the Class II-A-L2 Interest, the
Class B-L1 Interest, the Class B-L2 Interest, the Class B-L3 Interest, the Class
B-L4 Interest, the Class B-L5 Interest and the Class B-L6 Interest.
Unpaid Interest Shortfalls: Each of the Class A Unpaid Interest Shortfalls,
the Class B-1 Unpaid Interest Shortfall, the Class B-2 Unpaid Interest
Shortfall, the Class B-3 Unpaid Interest Shortfall, the Class B-4 Unpaid
Interest Shortfall, the Class B-5 Unpaid Interest Shortfall and the Class B-6
Unpaid Interest Shortfall.
Unscheduled Principal Receipt: Any Principal Prepayment or other recovery
of principal on a Mortgage Loan, including, without limitation, Liquidation
Proceeds, Net REO Proceeds, Recoveries and proceeds received from any
condemnation award or proceeds in lieu of condemnation other than that portion
of such proceeds released to the Mortgagor in accordance with the terms of the
Mortgage or Prudent Servicing Practices, but excluding any Liquidation Profits
and proceeds of a repurchase of a Mortgage Loan by the Seller and any
Substitution Principal Amounts.
Unscheduled Principal Receipt Period: Either a Mid-Month Receipt Period or
a Prior Month Receipt Period.
Upper-Tier Certificate: Any one of the Class A Certificates (other than the
Class A-LR Certificate) and the Class B Certificates.
Upper-Tier Certificate Account: The trust account established and
maintained pursuant to Section 4.01(e).
Upper-Tier REMIC: One of the two separate REMICs comprising the Trust
Estate, the assets of which consist of the Uncertificated Lower-Tier Interests
and such amounts as shall from time to time be held in the Upper-Tier
Certificate Account.
U.S. Person: As defined in Section 4.01(g).
Voting Interest: With respect to any provisions hereof providing for the
action, consent or approval of the Holders of all Certificates evidencing
specified Voting Interests in the Trust Estate, the Class I-A-7 and Class II-A-4
Certificates will each be entitled to 1% of the aggregate Voting Interest
represented by all Certificates each remaining Class of Certificates will be
entitled to a pro rata portion of the Voting Interest equal to the ratio
obtained by dividing the Principal Balance of such Class by the sum of the Group
I-A Principal Balance, Group II-A Principal Balance and the Class B Principal
Balance. Each Certificateholder of a Class will have a Voting Interest equal to
the product of the Voting Interest to which such Class is collectively entitled
and the Percentage Interest in such Class represented by such Holder's
Certificates. With respect to any provisions hereof providing for action,
consent or approval of each Class of Certificates or specified Classes of
Certificates, each Certificateholder of a Class will have a Voting Interest in
such Class equal to such Holder's Percentage Interest in such Class.
Weighted Average Net Mortgage Interest Rate: As to any Distribution Date, a
rate per annum equal to the average, expressed as a percentage of the Net
Mortgage Interest Rates of all Mortgage Loans that were Outstanding Mortgage
Loans as of the Due Date in the month preceding the month of such Distribution
Date, weighted on the basis of the respective Scheduled Principal Balances of
such Mortgage Loans.
WFHM: Xxxxx Fargo Home Mortgage, Inc., or its successor in interest.
WFHM Correspondents: The entities listed on the Mortgage Loan Schedule,
from which WFHM purchased the Mortgage Loans.
WFHM Servicing Agreement: The Servicing Agreement providing for the
servicing of the Type 1 Mortgage Loans and Type 2 Mortgage Loans initially by
WFHM.
Section 1.02 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee, if made in the manner provided in this Section 1.02. The
Trustee shall promptly notify the Master Servicer in writing of the receipt of
any such instrument or writing.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. When such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the individual executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee and the Authenticating Agent)
shall be proved by the Certificate Register, and neither the Trustee, the Seller
nor the Master Servicer shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Seller or the Master Servicer in reliance thereon, whether or not notation of
such action is made upon such Certificate.
Section 1.03 Effect of Headings and Table of Contents.
The Article and Section headings in this Agreement and the Table of
Contents are for convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
Section 1.04 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or implied, shall
give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates any benefit or any
legal or equitable right, power, remedy or claim under this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF THE CERTIFICATES
SECTION 2.01 CONVEYANCE OF MORTGAGE LOANS.
The Seller, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee, without recourse all the right, title and interest
of the Seller in and to (a) the Trust Estate, including all interest and
principal received by the Seller on or with respect to the Mortgage Loans after
the Cut-Off Date (and including scheduled payments of principal and interest due
after the Cut-Off Date but received by the Seller on or before the Cut-Off Date
and Unscheduled Principal Receipts received or applied on the Cut-Off Date, but
not including payments of principal and interest due on the Mortgage Loans on or
before the Cut-Off Date), (b) the Insurance Policies, (c) the obligations of the
Servicers under the Servicing Agreements with respect to the Mortgage Loans, (d)
all of the Seller's rights, title and interest in and to the proceeds of the
Letters of Credit and (e) proceeds of all the foregoing.
In connection with such assignment, the Seller shall, with respect to each
Mortgage Loan, deliver, or cause to be delivered, to the Custodian, on or before
the Closing Date, an Owner Mortgage Loan File. If any Mortgage or an assignment
of a Mortgage to the Trustee or any prior assignment is in the process of being
recorded on the Closing Date, the Seller shall deliver a copy thereof, certified
by WFHM or the applicable WFHM Correspondent to be a true and complete copy of
the document sent for recording, and the Seller shall use its best efforts to
cause each such original recorded document or certified copy thereof to be
delivered to the Custodian promptly following its recordation, but in no event
later than one (1) year following 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 Master Servicer shall take
all actions as are necessary to cause the Trust Estate 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. The Seller shall also cause to be delivered to the Custodian any other
original mortgage loan document to be included in the Owner Mortgage Loan File
if a copy thereof has been delivered. The Seller shall pay from its own funds,
without any right of reimbursement therefor, the amount of any costs,
liabilities and expenses incurred by the Trust Estate by reason of the failure
of the Seller to cause to be delivered to the Custodian within one (1) year
following the Closing Date any original Mortgage or assignment of a Mortgage
(except with respect to any Mortgage recorded in the name of MERS) not delivered
to the Custodian on the Closing Date.
In lieu of recording an assignment of any Mortgage the Seller may, to the
extent set forth in the applicable Servicing Agreement, deliver or cause to be
delivered to the Custodian the assignment of the Mortgage Loan from the Seller
to the Trustee in a form suitable for recordation, if (i) with respect to a
particular state the Trustee has received an Opinion of Counsel acceptable to it
that such recording is not required to make the assignment effective against the
parties to the Mortgage or subsequent purchasers or encumbrancers of the
Mortgaged Property or (ii) the Seller has been advised by each Rating Agency
that non-recordation in a state will not result in a reduction of the rating
assigned by that Rating Agency at the time of the initial issuance of the
Certificates. In the event that the Custodian receives notice that recording is
required to protect the right, title and interest of the Trustee in and to any
such Mortgage Loan for which recordation of an assignment has not previously
been required, the Custodian shall promptly notify the Trustee and the Custodian
shall within five Business Days (or such other reasonable period of time
mutually agreed upon by the Custodian and the Trustee) of its receipt of such
notice deliver each previously unrecorded assignment to the related Servicer for
recordation.
SECTION 2.02 ACCEPTANCE BY TRUSTEE.
Subject to the provisions of the following paragraph, pursuant to the
Custodial Agreement, the Custodian, on behalf of the Trustee, will declare that
it holds and will hold the documents delivered to it pursuant to Section 2.01
above and the other documents constituting a part of the Owner Mortgage Loan
Files delivered to it in trust, upon the trusts herein set forth, for the use
and benefit of all present and future Certificateholders. Upon execution of this
Agreement, the Custodian will deliver to the Seller and the Trustee an initial
certification in the form of Exhibit N hereto, to the effect that, except as may
be specified in a list of exceptions attached thereto, it has received the
original Mortgage Notes relating to each Mortgage Loan on the Mortgage Loan
Schedule.
The Custodian will review each Owner Mortgage Loan File within 45 days
after execution of this Agreement and will deliver to the Seller and the Trustee
a final certification in the form of Exhibit O hereto to the effect that, except
as may be specified in a list of exceptions attached thereto, all required
documents set forth in Section 2.01 have been executed and received and appear
regular on their face, and that such documents relate to the Mortgage Loans
identified in the Mortgage Loan Schedule based on a comparison of the Mortgage
Loan identifying number, Mortgagor name and street address, and in so doing the
Custodian may rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon.
If within such 45 day period the Custodian finds any document constituting
a part of an Owner Mortgage Loan File not to have been executed or received or
to be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
or not to appear regular on its face, the Trustee shall promptly (and in no
event more than 30 days after the final certification) notify the Seller, which
shall have a period of 60 days after the date of such notice within which to
correct or cure any such defect. The Seller hereby covenants and agrees that, if
any material defect is not so corrected or cured, the Seller will, not later
than 60 days after the Trustee's notice to it referred to above respecting such
defect, either (i) repurchase the related Mortgage Loan or any property acquired
in respect thereof from the Trust Estate at a price equal to (a) 100% of the
unpaid principal balance of such Mortgage Loan plus (b) accrued interest at the
Mortgage Interest Rate through the last day of the month in which such
repurchase takes place or (ii) if within two years of the Startup Day, or such
other period permitted by the REMIC Provisions, substitute for any Mortgage Loan
to which such material defect relates, a new mortgage loan (a "Substitute
Mortgage Loan") having such characteristics so that the representations and
warranties of the Seller set forth in Section 2.03(b) hereof (other than Section
2.03(b)(i)) would not have been incorrect had such Substitute Mortgage Loan
originally been a Mortgage Loan. In no event shall any Substitute Mortgage Loan
have an unpaid principal balance, as of the date of substitution, greater than
the Scheduled Principal Balance (reduced by the scheduled payment of principal
due on the Due Date in the month of substitution) of the Mortgage Loan for which
it is substituted. In addition, such Substitute Mortgage Loan shall have a
Loan-to-Value Ratio less than or equal to and a Mortgage Interest Rate equal to
that of the Mortgage Loan for which it is substituted.
In the case of a repurchased Mortgage Loan or property, the purchase price
shall be deposited by the Seller in the Certificate Account maintained by the
Master Servicer pursuant to Section 3.01. In the case of a Substitute Mortgage
Loan, the Owner Mortgage Loan File relating thereto shall be delivered to the
Custodian and the Substitution Principal Amount, together with (i) interest on
such Substitution Principal Amount at the applicable Net Mortgage Interest Rate
to the following Due Date of such Mortgage Loan which is being substituted for
and (ii) an amount equal to the aggregate amount of unreimbursed Periodic
Advances in respect of interest previously made by the Servicer, the Master
Servicer or the Trustee with respect to such Mortgage Loan, shall be deposited
in the Certificate Account. The Monthly Payment on the Substitute Mortgage Loan
for the Due Date in the month of substitution shall not be part of the Trust
Estate. Upon receipt by the Custodian of a Request for Release signed by an
officer of the Seller, the Custodian shall release to the Seller the related
Owner Mortgage Loan File. The Trustee execute and deliver such instrument of
transfer or assignment (or, in the case of a Mortgage Loan registered in the
name of MERS or its designee, the Master Servicer shall take all necessary
action to reflect such assignment on the records of MERS), in each case without
recourse, as shall be necessary to vest in the Seller legal and beneficial
ownership of such substituted or repurchased Mortgage Loan or property. It is
understood and agreed that the obligation of the Seller to substitute a new
Mortgage Loan for or repurchase any Mortgage Loan or property as to which such a
material defect in a constituent document exists shall constitute the sole
remedy respecting such defect available to the Certificateholders or the Trustee
on behalf of the Certificateholders. The failure of the Custodian to give the
final certification or the Trustee to give any notice within the required time
periods shall not affect or relieve the Seller's obligation to repurchase any
Mortgage Loan pursuant to this Section 2.02.
SECTION 2.03 REPRESENTATIONS AND WARRANTIES OF THE MASTER SERVICER AND THE
SELLER.
(a) The Master Servicer hereby represents and warrants to the Trustee for
the benefit of Certificateholders that, as of the date of execution of this
Agreement:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States;
(ii) The execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not violate the Master Servicer's corporate charter or
by-laws 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 contract, agreement or other instrument to which the
Master Servicer is a party or which may be applicable to the Master
Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Seller, constitutes a valid, legal and
binding obligation of the Master Servicer, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Master Servicer 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, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or its properties
or might have consequences that would affect its performance hereunder; and
(v) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit its
entering into this Agreement or performing its obligations under this
Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(a) shall survive delivery of the respective Owner
Mortgage Loan Files to the Trustee or the Custodian.
(b) The Seller hereby represents and warrants to the Trustee for the
benefit of Certificateholders that, as of the date of execution of this
Agreement, with respect to the Mortgage Loans, or each Mortgage Loan, as the
case may be:
(i) The information set forth in the Mortgage Loan Schedule was true
and correct in all material respects at the date or dates respecting which
such information is furnished as specified in the Mortgage Loan Schedule;
(ii) Immediately prior to the transfer and assignment contemplated
herein, the Seller was the sole owner and holder of the Mortgage Loan free
and clear of any and all liens, pledges, charges or security interests of
any nature and has full right and authority to sell and assign the same;
(iii) The Mortgage is a valid, subsisting and enforceable first lien
on the property therein described, and the Mortgaged Property is free and
clear of all encumbrances and liens having priority over the first lien of
the Mortgage except for liens for real estate taxes and special assessments
not yet due and payable and liens or interests arising under or as a result
of any federal, state or local law, regulation or ordinance relating to
hazardous wastes or hazardous substances, and, if the related Mortgaged
Property is a condominium unit, any lien for common charges permitted by
statute or homeowners association fees; and if the Mortgaged Property
consists of shares of a cooperative housing corporation, any lien for
amounts due to the cooperative housing corporation for unpaid assessments
or charges or any lien of any assignment of rents or maintenance expenses
secured by the real property owned by the cooperative housing corporation;
and any security agreement, chattel mortgage or equivalent document related
to, and delivered to the Trustee or to the Custodian with, any Mortgage
establishes in the Seller a valid and subsisting first lien on the property
described therein and the Seller has full right to sell and assign the same
to the Trustee;
(iv) Neither the Seller nor any prior holder of the Mortgage or the
related Mortgage Note has modified the Mortgage or the related Mortgage
Note in any material respect, satisfied, canceled or subordinated the
Mortgage in whole or in part, released the Mortgaged Property in whole or
in part from the lien of the Mortgage, or executed any instrument of
release, cancellation, modification or satisfaction, except in each case as
is reflected in an agreement delivered to the Trustee or the Custodian
pursuant to Section 2.01;
(v) All taxes, governmental assessments, insurance premiums, and
water, sewer and municipal charges, which previously became due and owing
have been paid, or an escrow of funds has been established, to the extent
permitted by law, in an amount sufficient to pay for every such item which
remains unpaid; and the Seller has not advanced funds, or received any
advance of funds by a party other than the Mortgagor, directly or
indirectly (except pursuant to any Subsidy Loan arrangement) for the
payment of any amount required by the Mortgage, except for interest
accruing from the date of the Mortgage Note or date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the day which precedes by
thirty days the first Due Date under the related Mortgage Note;
(vi) The Mortgaged Property is undamaged by water, fire, earthquake,
earth movement other than earthquake, windstorm, flood, tornado or similar
casualty (excluding casualty from the presence of hazardous wastes or
hazardous substances, as to which the Seller makes no representations), 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 to
the best of the Seller's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the Mortgaged Property;
(vii) The Mortgaged Property is free and clear of all mechanics' and
materialmen's liens or liens in the nature thereof; provided, however, that
this warranty shall be deemed not to have been made at the time of the
initial issuance of the Certificates if a title policy affording, in
substance, the same protection afforded by this warranty is furnished to
the Trustee by the Seller;
(viii) Except for Mortgage Loans secured by Co-op Shares and Mortgage
Loans secured by residential long-term leases, the Mortgaged Property
consists of a fee simple estate in real property; all of the improvements
which are included for the purpose of determining the appraised value of
the Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property and no improvements on adjoining
properties encroach upon the Mortgaged Property (unless insured against
under the related title insurance policy); and to the best of the Seller's
knowledge, the Mortgaged Property and all improvements thereon comply with
all requirements of any applicable zoning and subdivision laws and
ordinances;
(ix) The Mortgage Loan meets, or is exempt from, applicable state or
federal laws, regulations and other requirements, pertaining to usury, and
the Mortgage Loan is not usurious;
(x) To the best of the Seller's knowledge, 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;
(xi) All payments required to be made up to the Due Date immediately
preceding the Cut-Off Date for such Mortgage Loan under the terms of the
related Mortgage Note have been made and no Mortgage Loan had more than one
delinquency in the 12 months preceding the Cut-Off Date;
(xii) The Mortgage Note, the related Mortgage and other agreements
executed in connection therewith are genuine, and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law); and, to the best of the Seller's knowledge, all parties to the
Mortgage Note and the Mortgage had legal capacity to execute the Mortgage
Note and the Mortgage and each Mortgage Note and Mortgage has been duly and
properly executed by the Mortgagor;
(xiii) Any and all requirements of any federal, state or local law
with respect to the origination of the Mortgage Loans including, without
limitation, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure laws applicable
to the Mortgage Loans have been complied with;
(xiv) The proceeds of the Mortgage Loans have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds therefor have been complied with
(except for escrow funds for exterior items which could not be completed
due to weather and escrow funds for the completion of swimming pools); and
all costs, fees and expenses incurred in making, closing or recording the
Mortgage Loan have been paid, except recording fees with respect to
Mortgages not recorded as of the Closing Date;
(xv) The Mortgage Loan (except any Mortgage Loan secured by a
Mortgaged Property located in any jurisdiction, as to which an opinion of
counsel of the type customarily rendered in such jurisdiction in lieu of
title insurance is instead received) is covered by an American Land Title
Association mortgagee title insurance policy or other generally acceptable
form of policy or insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued
by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac insuring the
originator, its successors and assigns, as to the first priority lien of
the Mortgage in the original principal amount of the Mortgage Loan and
subject only to (A) the lien of current real property taxes and assessments
not yet due and payable, (B) covenants, conditions and restrictions, rights
of way, easements and other matters of public record as of the date of
recording of such Mortgage acceptable to mortgage lending institutions in
the area in which the Mortgaged Property is located or specifically
referred to in the appraisal performed in connection with the origination
of the related Mortgage Loan, (C) liens created pursuant to any federal,
state or local law, regulation or ordinance affording liens for the costs
of clean-up of hazardous substances or hazardous wastes or for other
environmental protection purposes and (D) such other matters to which like
properties are commonly subject which do not individually, or in the
aggregate, materially interfere with the benefits of the security intended
to be provided by the Mortgage; the Seller is the sole insured of such
mortgagee title insurance policy, the assignment to the Trustee of the
Seller's interest in such mortgagee title insurance policy does not require
any consent of or notification to the insurer which has not been obtained
or made, such mortgagee title insurance policy is in full force and effect
and will be in full force and effect and inure to the benefit of the
Trustee, no claims have been made under such mortgagee title insurance
policy, and no prior holder of the related Mortgage, including the Seller,
has done, by act or omission, anything which would impair the coverage of
such mortgagee title insurance policy;
(xvi) The Mortgaged Property securing each Mortgage Loan is insured by
an insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire and
such hazards as are covered under a standard extended coverage endorsement,
in an amount which is not less than the lesser of 100% of the insurable
value of the Mortgaged Property and the outstanding principal balance of
the Mortgage Loan, but in no event less than the minimum amount necessary
to fully compensate for any damage or loss on a replacement cost basis; if
the Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the project; if upon origination
of the Mortgage Loan, the improvements on the Mortgaged Property were in an
area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards, a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier,
in an amount representing coverage not less than the least of (A) the
outstanding principal balance of the Mortgage Loan, (B) the full insurable
value of the Mortgaged Property and (C) the maximum amount of insurance
which was available under the National Flood Insurance Act of 1968, as
amended; and each Mortgage obligates the Mortgagor thereunder to maintain
all such insurance at the Mortgagor's cost and expense;
(xvii) To the best of the Seller's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage or
the related 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 of acceleration; the
Seller has not waived any default, breach, violation or event of
acceleration; and no foreclosure action is currently threatened or has been
commenced with respect to the Mortgage Loan;
(xviii) No Mortgage Note or Mortgage is subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note or
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or Mortgage unenforceable, in whole or in part, or subject it to any right
of rescission, set-off, counterclaim or defense, including the defense of
usury, and no such right of rescission, set-off, counterclaim or defense
has been asserted with respect thereto;
(xix) Each Mortgage Note is payable in monthly payments, resulting in
complete amortization of the Mortgage Loan over a term of not more than 360
months;
(xx) Each 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,
including realization by judicial foreclosure (subject to any limitation
arising from any bankruptcy, insolvency or other law for the relief of
debtors), and there is no homestead or other exemption available to the
Mortgagor which would interfere with such right of foreclosure;
(xxi) To the best of the Seller's knowledge, no Mortgagor is a debtor
in any state or federal bankruptcy or insolvency proceeding;
(xxii) Each Mortgaged Property is located in the United States and
consists of a one- to four-unit residential property, which may include a
detached home, townhouse, condominium unit or a unit in a planned unit
development or, in the case of Mortgage Loans secured by Co-op Shares,
leases or occupancy agreements;
(xxiii) The Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code;
(xxiv) With respect to each Mortgage where a lost note affidavit has
been delivered to the Trustee in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence;
(xxv) In the event that the Mortgagor is an inter vivos "living"
trust, (i) such trust is in compliance with Xxxxxx Xxx or Xxxxxxx Mac
standards for inter vivos trusts and (ii) holding title to the Mortgaged
Property in such trust will not diminish any rights as a creditor including
the right to full title to the Mortgaged Property in the event foreclosure
proceedings are initiated; and
(xxvi) If the Mortgage Loan is secured by a long-term residential
lease, (1) the lessor under the lease holds a fee simple interest in the
land; (2) 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; (3) 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; (4) the original term of such lease is not less than 15
years; (5) the term of such lease does not terminate earlier than five
years after the maturity date of the Mortgage Note; and (6) 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.
Notwithstanding the foregoing, no representations or warranties are made by
the Seller as to the environmental condition of any Mortgaged Property; the
absence, presence or effect of hazardous wastes or hazardous substances on any
Mortgaged Property; any casualty resulting from the presence or effect of
hazardous wastes or hazardous substances on, near or emanating from any
Mortgaged Property; the impact on Certificateholders of any environmental
condition or presence of any hazardous substance on or near any Mortgaged
Property; or the compliance of any Mortgaged Property with any environmental
laws, nor is any agent, person or entity otherwise affiliated with the Seller
authorized or able to make any such representation, warranty or assumption of
liability relative to any Mortgaged Property. In addition, no representations or
warranties are made by the Seller with respect to the absence or effect of fraud
in the origination of any Mortgage Loan.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(b) shall survive delivery of the respective Owner
Mortgage Loan Files to the Custodian and shall inure to the benefit of the
Trustee notwithstanding any restrictive or qualified endorsement or assignment.
(c) Upon discovery by either the Seller, the Master Servicer, the Trustee
or the Custodian that any of the representations and warranties made in
subsection (b) above is not accurate (referred to herein as a "breach") and,
except for a breach of the representation and warranty set forth in subsection
(b)(i), where such breach is a result of the Cut-Off Date Principal Balance of a
Mortgage Loan being greater, by $5,000 or greater, than the Cut-Off Date
Principal Balance of such Mortgage Loan indicated on the Mortgage Loan Schedule,
that such breach materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement). Within 60 days of the earlier
of its discovery or its receipt of notice of any such breach, the Seller shall
cure such breach in all material respects or shall either (i) repurchase the
Mortgage Loan or any property acquired in respect thereof from the Trust Estate
at a price equal to (A) 100% of the unpaid principal balance of such Mortgage
Loan plus (B) accrued interest at the Net Mortgage Interest Rate for such
Mortgage Loan through the last day of the month in which such repurchase took
place or (ii) if within two years of the Startup Day, or such other period
permitted by the REMIC Provisions, substitute for such Mortgage Loan in the
manner described in Section 2.02. The purchase price of any repurchase described
in this paragraph and the Substitution Principal Amount, if any, plus accrued
interest thereon and the other amounts referred to in Section 2.02, shall be
deposited in the Certificate Account. It is understood and agreed that the
obligation of the Seller to repurchase or substitute for any Mortgage Loan or
property as to which such a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to
Certificateholders or the Trustee on behalf of the Certificateholders, and such
obligation shall survive until termination of the Trust Estate hereunder.
SECTION 2.04 EXECUTION AND DELIVERY OF CERTIFICATES.
The Trustee acknowledges (i) the assignment to it of the Mortgage Loans and
(ii) the issuance of and hereby declares that it holds the Uncertificated
Lower-Tier Interests on behalf of the Upper-Tier REMIC and Certificateholders.
The Trustee acknowledges the delivery of the Owner Mortgage Loan Files to it,
and, concurrently with such delivery has executed and delivered to or upon the
order of the Seller, in exchange for the Mortgage Loans and Uncertificated
Lower-Tier Interests, together with all other assets included in the definition
of "Trust Estate", receipt of which is hereby acknowledged, Certificates in
authorized denominations which, together with the Uncertificated Lower-Tier
Interests, evidence ownership of the entire Trust Estate.
SECTION 2.05 DESIGNATION OF CERTIFICATES; DESIGNATION OF STARTUP DAY AND
LATEST POSSIBLE MATURITY DATE.
The Seller hereby designates the Classes of Class A Certificates (other
than the Class I-A-R Certificate) and the Classes of Class B Certificates as
classes of "regular interests" and the Class I-A-R Certificate as the single
class of "residual interest" in the Upper-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2), respectively. The Seller hereby further
designates the Class I-A-L1 Interest, Class I-A-L2 Interest, Class I-A-L3
Interest, Class I-A-L5 Interest, Class I-A-LUR Interest, Class II-A-L1 Interest,
Class II-A-L2 Interest, Class B-L1 Interest, Class B-L2 Interest, Class B-L3
Interest, Class B-L4 Interest, Class B-L5 Interest and Class B-L6 Interest, as
classes of "regular interests" and the Class I-A-LR Certificate as the single
class of "residual interest" in the Lower-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2), respectively. The Closing Date is hereby
designated as the "Startup Day" of each of the Upper-Tier REMIC and Lower-Tier
REMIC within the meaning of Code Section 860G(a)(9). The "latest possible
maturity date" of the regular interests in the Upper-Tier REMIC and Lower-Tier
REMIC is September 25, 2032 for purposes of Code Section 860G(a)(1).
Section 2.06 Optional Substitution of Mortgage Loans.
During the three-month period beginning on the Startup Date, the Seller
shall have the right, but not the obligation, in its sole discretion for any
reason, to substitute for any Group I or Group II Mortgage Loan, a Substitute
Mortgage Loan meeting the requirements of Section 2.02. Any such substitution
shall be carried out in the manner described in Section 2.02. The Substitution
Principal Amount, if any, plus accrued interest thereon and the other amounts
referred to in Section 2.02, shall be deposited in the Certificate Account.
ARTICLE III
ADMINISTRATION OF THE TRUST ESTATE; SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01 CERTIFICATE ACCOUNT.
(a) The Master Servicer shall establish and maintain a Certificate Account
for the deposit of funds received by the Master Servicer with respect to the
Mortgage Loans serviced by each Servicer pursuant to each of the Servicing
Agreements. Such account shall be maintained as an Eligible Account. The Master
Servicer shall give notice to each Servicer and the Seller of the location of
the Certificate Account and of any change in the location thereof.
(b) The Master Servicer shall deposit into the Certificate Account on the
day of receipt thereof all amounts received by it from any Servicer pursuant to
any of the Servicing Agreements and amounts received from draws on any Letters
of Credit and shall, in addition, deposit into the Certificate Account the
following amounts, in the case of amounts specified in clause (i), not later
than the Distribution Date on which such amounts are required to be distributed
to Certificateholders and, in the case of the amounts specified in clause (ii),
not later than the Business Day next following the day of receipt and posting by
the Master Servicer:
(i) Periodic Advances pursuant to Section 3.03(a) made by the Master
Servicer or the Trustee, if any and any amounts deemed received by the
Master Servicer pursuant to Section 3.01(d); and
(ii) in the case of any Mortgage Loan that is repurchased by the
Seller pursuant to Sections 2.02, 2.03 or 3.08 or that is auctioned by the
Master Servicer pursuant to Section 3.08 or purchased by the Master
Servicer pursuant to Section 3.08 or 9.01, the purchase price therefor or,
where applicable, any Substitution Principal Amount and any amounts
received in respect of the interest portion of unreimbursed Periodic
Advances.
(c) The Master Servicer shall cause the funds in the Certificate Account to
be invested in Eligible Investments. No such Eligible Investments will be sold
or disposed of at a gain prior to maturity unless the Master Servicer has
received an Opinion of Counsel or other evidence satisfactory to it that such
sale or disposition will not cause the Trust Estate to be subject to Prohibited
Transactions Tax, otherwise subject the Trust Estate to tax, or cause either of
the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC while any
Certificates are outstanding. Any amounts deposited in the Certificate Account
prior to the Distribution Date shall be invested for the account of the Master
Servicer and any investment income thereon shall be additional compensation to
the Master Servicer for services rendered under this Agreement. The amount of
any losses incurred in respect of any such investments shall be deposited in the
Certificate Account by the Master Servicer out of its own funds immediately as
realized.
(d) For purposes of this Agreement, the Master Servicer will be deemed to
have received from a Servicer on the applicable Remittance Date for such funds
all amounts deposited by such Servicer into the Custodial Account for P&I
maintained in accordance with the applicable Servicing Agreement, if such
Custodial Account for P&I is not an Eligible Account as defined in this
Agreement, to the extent such amounts are not actually received by the Master
Servicer on such Remittance Date as a result of the bankruptcy, insolvency,
receivership or other financial distress of the depository institution in which
such Custodial Account for P&I is being held. To the extent that amounts so
deemed to have been received by the Master Servicer are subsequently remitted to
the Master Servicer, the Master Servicer shall be entitled to retain such
amounts.
SECTION 3.02 PERMITTED WITHDRAWALS FROM THE CERTIFICATE ACCOUNT.
(a) The Master Servicer may, from time to time, make withdrawals from the
Certificate Account for the following purposes (limited, in the case of Servicer
reimbursements, to cases where funds in the respective Custodial P&I Account are
not sufficient therefor):
(i) to reimburse the Master Servicer, the Trustee or any Servicer for
Periodic Advances made by the Master Servicer or the Trustee pursuant to
Section 3.03(a) or any Servicer pursuant to any Servicing Agreement with
respect to previous Distribution Dates, such right to reimbursement
pursuant to this subclause (i) being limited to amounts received on or in
respect of particular Mortgage Loans (including, for this purpose,
Liquidation Proceeds, REO Proceeds and proceeds from the purchase, sale,
repurchase or substitution of Mortgage Loans pursuant to Sections 2.02,
2.03, 2.06, 3.08 or 9.01) respecting which any such Periodic Advance was
made;
(ii) to reimburse any Servicer, the Master Servicer or the Trustee for
any Periodic Advances determined in good faith to have become
Nonrecoverable Advances;
(iii) to reimburse the Master Servicer or any Servicer from
Liquidation Proceeds for Liquidation Expenses and for amounts expended by
the Master Servicer or any Servicer pursuant hereto or to any Servicing
Agreement, respectively, in good faith in connection with the restoration
of damaged property or for foreclosure expenses;
(iv) from any Mortgagor payment on account of interest or other
recovery (including Net REO Proceeds) with respect to a particular Mortgage
Loan, to pay the Master Servicing Fee with respect to such Mortgage Loan to
the Master Servicer;
(v) to reimburse the Master Servicer, any Servicer or the Trustee (or,
in certain cases, the Seller) for expenses incurred by it (including taxes
paid on behalf of the Trust Estate) and recoverable by or reimbursable to
it pursuant to Section 3.03(c), 3.03(d) or 6.03 or the second sentence of
Section 8.14(a) or pursuant to such Servicer's Servicing Agreement,
provided such expenses are "unanticipated" within the meaning of the REMIC
Provisions;
(vi) to pay to the Seller or other purchaser with respect to each
Mortgage Loan or property acquired in respect thereof that has been
repurchased or replaced pursuant to Sections 2.02, 2.03 or 2.06 or
auctioned pursuant to Section 3.08 or to pay to the Master Servicer with
respect to each Mortgage Loan or property acquired in respect thereof that
has been purchased pursuant to Section 3.08 or 9.01, all amounts received
thereon and not required to be distributed as of the date on which the
related repurchase or purchase price or Scheduled Principal Balance was
determined;
(vii) to remit funds to the Paying Agent in the amounts and in the
manner provided for herein;
(viii) to pay to the Master Servicer any interest earned on or
investment income with respect to funds in the Certificate Account;
(ix) to pay to the Master Servicer or any Servicer out of Liquidation
Proceeds allocable to interest the amount of any unpaid Master Servicing
Fee or Servicing Fee (as adjusted pursuant to the related Servicing
Agreement) and any unpaid assumption fees, late payment charges or other
Mortgagor charges on the related Mortgage Loan;
(x) to pay to the Master Servicer as additional master servicing
compensation any Liquidation Profits which a Servicer is not entitled to
pursuant to the applicable Servicing Agreement;
(xi) to withdraw from the Certificate Account any amount deposited in
the Certificate Account that was not required to be deposited therein; and
(xii) to clear and terminate the Certificate Account pursuant to
Section 9.01.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any payment
to and withdrawal from the Certificate Account.
SECTION 3.03 ADVANCES BY MASTER SERVICER AND TRUSTEE.
(a) In the event an Other Servicer fails to make any required Periodic
Advances of principal and interest on a Mortgage Loan as required by the related
Other Servicing Agreement prior to the Distribution Date occurring in the month
during which such Periodic Advance is due, the Master Servicer shall make
Periodic Advances to the extent provided hereby. In the event WFHM fails to make
any required Periodic Advances of principal and interest on a Mortgage Loan as
required by the WFHM Servicing Agreement prior to the Distribution Date
occurring in the month during which such Periodic Advance is due, the Trustee
shall, to the extent required by Section 8.15, make such Periodic Advance to the
extent provided hereby, provided that the Trustee has previously received the
certificate of the Master Servicer described in the following sentence. The
Master Servicer shall certify to the Trustee with respect to any such
Distribution Date (i) the amount of Periodic Advances required of WFHM or such
Other Servicer, as the case may be, (ii) the amount actually advanced by WFHM or
such Other Servicer, (iii) the amount that the Trustee or Master Servicer is
required to advance hereunder and (iv) whether the Master Servicer has
determined that it reasonably believes that such Periodic Advance is a
Nonrecoverable Advance. Amounts advanced by the Trustee or Master Servicer shall
be deposited in the Certificate Account on the related Distribution Date.
Notwithstanding the foregoing, neither the Master Servicer nor the Trustee will
be obligated to make a Periodic Advance that it reasonably believes to be a
Nonrecoverable Advance. The Trustee may conclusively rely for any determination
to be made by it hereunder upon the determination of the Master Servicer as set
forth in its certificate.
(b) To the extent an Other Servicer fails to make an advance on account of
the taxes or insurance premiums with respect to a Mortgage Loan required
pursuant to the related Other Servicing Agreement, the Master Servicer shall, if
the Master Servicer knows of such failure of the Servicer, advance such funds
and take such steps as are necessary to pay such taxes or insurance premiums. To
the extent WFHM fails to make an advance on account of the taxes or insurance
premiums with respect to a Mortgage Loan required pursuant to the WFHM Servicing
Agreement, the Master Servicer shall, if the Master Servicer knows of such
failure of WFHM, certify to the Trustee that such failure has occurred. Upon
receipt of such certification, the Trustee shall advance such funds and take
such steps as are necessary to pay such taxes or insurance premiums.
(c) The Master Servicer and the Trustee shall each be entitled to be
reimbursed from the Certificate Account for any Periodic Advance made by it
under Section 3.03(a) to the extent described in Section 3.02(a)(i) and (a)(ii).
The Master Servicer and the Trustee shall be entitled to be reimbursed pursuant
to Section 3.02(a)(v) for any advance by it pursuant to Section 3.03(b). The
Master Servicer shall diligently pursue restoration of such amount to the
Certificate Account from the related Servicer. The Master Servicer shall, to the
extent it has not already done so, upon the request of the Trustee, withdraw
from the Certificate Account and remit to the Trustee any amounts to which the
Trustee is entitled as reimbursement pursuant to Section 3.02 (a)(i), (ii) and
(v).
(d) Except as provided in Section 3.03(a) and (b), neither the Master
Servicer nor the Trustee shall be required to pay or advance any amount which
any Servicer was required, but failed, to deposit in the Certificate Account.
SECTION 3.04 CUSTODIAN TO COOPERATE; RELEASE OF OWNER MORTGAGE LOAN FILES.
In connection with the deposit by a Servicer into the Certificate Account
of the proceeds from a Liquidated Loan or of a Prepayment in Full, the Master
Servicer or applicable Servicer shall confirm to the Trustee that all amounts
required to be remitted to the Certificate Account in connection with such
Mortgage Loan have been so deposited, and the Master Servicer or applicable
Servicer shall deliver two copies of such Request for Release to the Custodian.
The Custodian shall, within five Business Days of its receipt of such a Request
for Release, release the related Owner Mortgage Loan File to the Master Servicer
or such Servicer, as requested by the Master Servicer or such Servicer. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account.
From time to time and as appropriate for the servicing or foreclosure of
any Mortgage Loan, including but not limited to, collection under any insurance
policies, or to effect a partial release of any Mortgaged Property from the lien
of the Mortgage, the Servicer of such Mortgage Loan shall deliver to the Master
Servicer or Custodian two copies of a Request for Release in hard copy or in
electronic format acceptable to the Custodian. Upon the Master Servicer's
receipt of any such Request for Release, the Master Servicer shall promptly
forward such request in hard copy or in electronic format acceptable to the
Custodian to the Custodian. The Custodian shall, within five Business Days,
release the related Owner Mortgage Loan File to the Master Servicer or such
Servicer. Any such Request for Release shall obligate the Master Servicer or
such Servicer, as the case may be, to return the Owner Mortgage Loan File to the
Custodian by the twenty-first day following the release thereof, unless (i) the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to the
Mortgage Loan have been deposited in the Certificate Account or (ii) the Owner
Mortgage Loan 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. Upon receipt of two
copies of a Request for Release stating that such Mortgage Loan was liquidated
and that all amounts received or to be received in connection with such
liquidation which are required to be deposited into the Certificate Account have
been so deposited, or that such Mortgage Loan has become an REO Mortgage Loan,
the Custodian shall amend its records.
Upon written certification of the Master Servicer or the Servicer pursuant
to clause (ii) of the preceding paragraph, the Trustee shall execute and deliver
to the Master Servicer or such Servicer, as directed by the Master Servicer,
court pleadings, requests for trustee's sale or other documents 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. 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 proceeding or trustee's sale.
SECTION 3.05 REPORTS TO THE TRUSTEE; ANNUAL COMPLIANCE STATEMENTS.
(a) Not later than 15 days after each Distribution Date, the Master
Servicer shall deliver to the Trustee a statement setting forth the status of
the Certificate Account as of the close of business on such Distribution Date
stating that all distributions required to be made by the Master Servicer under
this Agreement have been made (or, if any required distribution has not been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate amount of
deposits into and withdrawals from such account for each category of deposit and
withdrawal specified in Sections 3.01 and 3.02. Such statement may be in the
form of the then current Xxxxxx Xxx monthly accounting report for its Guaranteed
Mortgage Pass-Through Program with appropriate additions and changes, and shall
also include information as to the aggregate unpaid principal balance of all of
the Mortgage Loans as of the close of business as of the last day of the
calendar month immediately preceding such Distribution Date. Copies of such
statement shall be provided by the Trustee to any Certificateholder upon written
request, provided such statement is delivered, or caused to be delivered, by the
Master Servicer to the Trustee. Not later than 15 days after each Distribution
Date, the Master Servicer shall deliver to the Trustee a report identifying (i)
all requests made by Servicers for the release of documents by the Custodian
during the immediately preceding calendar month and (ii) all documents released
by the Custodian during the immediately preceding calendar month.
(b) The Master Servicer shall deliver to the Trustee on or before April 30
of each year, a certificate signed by an officer of the Master Servicer,
certifying that (i) such officer has reviewed the activities of the Master
Servicer during the preceding calendar year or portion thereof and its
performance under this agreement and (ii) to the best of such officer's
knowledge, based on such review, the Master Servicer has performed and fulfilled
its duties, responsibilities and obligations under this agreement in all
material respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying each
such default known to such officer and the nature and status thereof, and, (iii)
(A) the Master Servicer has received from each Servicer any financial
statements, officer's certificates, accountant's statements or other information
required to be provided to the Master Servicer pursuant to the related Servicing
Agreement and (B) to the best of such officer's knowledge, based on a review of
the information provided to the Master Servicer by each Servicer as described in
(iii)(A) above, each Servicer has performed and fulfilled its duties,
responsibilities and obligations under the related Servicing Agreement in all
material respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying each
such default known to such officer and the nature and status thereof. Copies of
such officers' certificate shall be provided by the Trustee to any
Certificateholder upon written request provided such certificate is delivered,
or caused to be delivered, by the Master Servicer to the Trustee.
SECTION 3.06 TITLE, MANAGEMENT AND DISPOSITION OF ANY REO MORTGAGE LOAN.
The Master Servicer shall ensure that each REO Mortgage Loan is
administered by the related Servicer at all times so that it qualifies as
"foreclosure property" under the REMIC Provisions and that it does not earn any
"net income from foreclosure property" which is subject to tax under the REMIC
Provisions. In the event that a Servicer is unable to dispose of any REO
Mortgage Loan within the period mandated by each of the Servicing Agreements,
the Master Servicer shall monitor such Servicer to verify that such REO Mortgage
Loan is auctioned to the highest bidder within the period so specified. In the
event of any such sale of REO Mortgage Loan, the Custodian shall, at the written
request of the Master Servicer and upon being supported with appropriate forms
therefor, within five Business Days of the deposit by the Master Servicer of the
proceeds of such sale or auction into the Certificate Account, release or cause
to be released to the entity identified by the Master Servicer the related Owner
Mortgage Loan File and Servicer Mortgage Loan File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be necessary to vest in the auction purchaser title to the REO Mortgage
Loan and the Custodian shall have no further responsibility with regard to such
Owner Mortgage Loan File or Servicer Mortgage Loan File. Neither the Trustee,
the Master Servicer nor any Servicer, acting on behalf of the Trust Estate,
shall provide financing from the Trust Estate to any purchaser of an REO
Mortgage Loan.
SECTION 3.07 AMENDMENTS TO SERVICING AGREEMENTS, MODIFICATION OF STANDARD
PROVISIONS.
(a) Subject to the prior written consent of the Trustee pursuant to Section
3.07(b), the Master Servicer from time to time may, to the extent permitted by
the applicable Servicing Agreement, make such modifications and amendments to
such Servicing Agreement as the Master Servicer deems necessary or appropriate
to confirm or carry out more fully the intent and purpose of such Servicing
Agreement and the duties, responsibilities and obligations to be performed by
the Servicer thereunder. Such modifications may only be made if they are
consistent with the REMIC Provisions, as evidenced by an Opinion of Counsel.
Prior to the issuance of any modification or amendment, the Master Servicer
shall deliver to the Trustee such Opinion of Counsel and an Officer's
Certificate setting forth (i) the provision that is to be modified or amended,
(ii) the modification or amendment that the Master Servicer desires to issue and
(iii) the reason or reasons for such proposed amendment or modification.
(b) The Trustee shall consent to any amendment or supplement to a Servicing
Agreement proposed by the Master Servicer pursuant to Section 3.07(a), which
consent and amendment shall not require the consent of any Certificateholder if
it is (i) for the purpose of curing any mistake or ambiguity or to further
effect or protect the rights of the Certificateholders or (ii) for any other
purpose, provided such amendment or supplement for such other purpose cannot
reasonably be expected to adversely affect Certificateholders. The lack of
reasonable expectation of an adverse effect on Certificateholders may be
established through the delivery to the Trustee of (i) an Opinion of Counsel to
such effect or (ii) written notification from each Rating Agency to the effect
that such amendment or supplement will not result in reduction of the current
rating assigned by that Rating Agency to the Certificates. Notwithstanding the
two immediately preceding sentences, the Trustee may, in its discretion, decline
to enter into or consent to any such supplement or amendment if its own rights,
duties or immunities shall be adversely affected.
(c)(i) Notwithstanding anything to the contrary in this Section 3.07, the
Master Servicer from time to time may, without the consent of any
Certificateholder or the Trustee, enter into an amendment (A) to an Other
Servicing Agreement for the purpose of (i) eliminating or reducing Month End
Interest and (ii) providing for the remittance of Full Unscheduled Principal
Receipts by the applicable Servicer to the Master Servicer not later than the
24th day of each month (or if such day is not a Business Day, on the previous
Business Day) or (B) to the WFHM Servicing Agreement for the purpose of changing
the applicable Remittance Date to the 18th day of each month (or if such day is
not a Business Day, on the previous Business Day).
(ii) The Master Servicer may direct WFHM to enter into an amendment to the
WFHM Servicing Agreement for the purposes described in Sections 3.07(c)(i)(B)
and 10.01(b)(iii).
SECTION 3.08 OVERSIGHT OF SERVICING.
The Master Servicer shall supervise, monitor and oversee the servicing of
the Mortgage Loans by each Servicer and the performance by each Servicer of all
services, duties, responsibilities and obligations (including the obligation to
maintain an Errors and Omissions Policy and Fidelity Bond) that are to be
observed or performed by the Servicer under its respective Servicing Agreement.
In performing its obligations hereunder, the Master Servicer shall act in a
manner consistent with Accepted Master Servicing Practices and with the
Trustee's and the Certificateholders' reliance on the Master Servicer, and in a
manner consistent with the terms and provisions of any insurance policy required
to be maintained by the Master Servicer or any Servicer pursuant to this
Agreement or any Servicing Agreement. The Master Servicer acknowledges that
prior to taking certain actions required to service the Mortgage Loans, each
Servicing Agreement provides that the Servicer thereunder must notify, consult
with, obtain the consent of or otherwise follow the instructions of the Master
Servicer. The Master Servicer is also given authority to waive compliance by a
Servicer with certain provisions of its Servicing Agreement. In each such
instance, the Master Servicer shall promptly instruct such Servicer or otherwise
respond to such Servicer's request. In no event will the Master Servicer
instruct such Servicer to take any action, give any consent to action by such
Servicer or waive compliance by such Servicer with any provision of such
Servicer's Servicing Agreement if any resulting action or failure to act would
be inconsistent with the requirements of the Rating Agencies that rated the
Certificates or would otherwise have an adverse effect on the
Certificateholders. Any such action or failure to act shall be deemed to have an
adverse effect on the Certificateholders if such action or failure to act either
results in (i) the downgrading of the rating assigned by any Rating Agency to
the Certificates, (ii) the loss by the Upper-Tier REMIC or the Lower-Tier REMIC
status for federal income tax purposes or (iii) the imposition of any Prohibited
Transaction Tax or any federal taxes on either the Upper-Tier REMIC, the
Lower-Tier REMIC or the Trust Estate. The Master Servicer shall have full power
and authority in its sole discretion to take any action with respect to the
Trust Estate as may be necessary or advisable to avoid the circumstances
specified including clause (ii) or (iii) of the preceding sentence.
For the purposes of determining whether any modification of a Mortgage Loan
shall be permitted by the Master Servicer, such modification shall be construed
as a substitution of the modified Mortgage Loan for the Mortgage Loan originally
deposited in the Trust Estate if it would be a "significant modification" within
the meaning of Section 1.860G-2(b) of the regulations of the U.S. Department of
the Treasury. No modification shall be approved unless (i) the modified Mortgage
Loan would qualify as a Substitute Mortgage Loan under Section 2.02 and (ii)
with respect to any modification that occurs more than three months after the
Closing Date and is not the result of a default or a reasonably foreseeable
default under the Mortgage Loan, there is delivered to the Trustee an Opinion of
Counsel (at the expense of the party seeking to modify the Mortgage Loan) to the
effect that such modification would not be treated as giving rise to a new debt
instrument for federal income tax purposes as described in the preceding
sentence; provided however that no such Opinion of Counsel need be delivered if
the sole purpose of the modification is to reduce the Monthly Payment on a
Mortgage Loan as a result of a Curtailment such that the Mortgage Loan is fully
amortized by its original maturity date.
During the term of this Agreement, the Master Servicer shall consult fully
with each Servicer as may be necessary from time to time to perform and carry
out the Master Servicer's obligations hereunder and otherwise exercise
reasonable efforts to encourage such Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by it under
its Servicing Agreement.
The relationship of the Master Servicer to the Trustee under this Agreement
is intended by the parties to be that of an independent contractor and not that
of a joint venturer, partner or agent.
The Master Servicer shall administer the Trust Estate on behalf of the
Trustee and shall have full power and authority, acting alone or (subject to
Section 6.06) through one or more subcontractors, to do any and all things in
connection with such administration which it may deem necessary or desirable.
Upon the execution and delivery of this Agreement, and from time to time as may
be required thereafter, the Trustee shall furnish the Master Servicer or its
subcontractors with any powers of attorney and such other documents as may be
necessary or appropriate to enable the Master Servicer to carry out its
administrative duties hereunder.
The Seller shall have a limited option to repurchase any defaulted Mortgage
Loan or REO Mortgage Loan during the following time periods: (i) beginning on
the first day of the second month following the month in which the Master
Servicer has reported that a Servicer has initiated foreclosure proceedings with
respect to such a defaulted Mortgage Loan, with such repurchase option expiring
on the last day of such second following month; (ii) beginning on the first day
of the second month following the month in which the Master Servicer has
reported that such defaulted Mortgage Loan has become an REO Mortgage Loan, with
such repurchase option expiring on the last day of such second following month;
and (iii) beginning on the day on which a Servicer accepts a contractual
commitment by a third party to purchase the Mortgaged Property related to the
defaulted Mortgage Loan or REO Mortgage Loan, with such repurchase option
expiring on the earlier of the last day of the month in which such contractual
commitment was accepted by the Servicer or the day immediately prior to the day
on which the closing occurs with respect to such third party purchase of the
Mortgaged Property related to the defaulted Mortgage Loan or REO Mortgage Loan.
The Seller shall be entitled to repurchase at its option any Mortgage Loan in
the Trust Estate which, pursuant to paragraph 5(b) of the Mortgage Loan Purchase
Agreement, WFHM requests the Seller to repurchase and to sell to WFHM to
facilitate the exercise of WFHM's rights against the originator or a prior
holder of such Mortgage Loan. The purchase price for any Mortgage Loan
repurchased pursuant to this paragraph shall be 100% of the unpaid principal
balance of such Mortgage Loan plus accrued interest thereon at the Mortgage
Interest Rate for such Mortgage Loan, through the last day of the month in which
such repurchase occurs. Upon the receipt of such purchase price, the Master
Servicer shall provide to the Trustee the certification required by Section 3.04
and the Trustee and the Custodian, if any, shall promptly release to the Seller
the Owner Mortgage Loan File relating to the Mortgage Loan being repurchased.
In the event that (i) the Master Servicer determines at any time that,
notwithstanding the representations and warranties set forth in Section 2.03(b),
any Mortgage Loan is not a "qualified mortgage" within the meaning of Section
860G of the Code and (ii) the Master Servicer is unable to enforce the
obligation of the Seller to purchase such Mortgage Loan pursuant to Section 2.02
within two months of such determination, the Master Servicer shall cause such
Mortgage Loan to be auctioned to the highest bidder and sold out of the Trust
Estate no later than the date 90 days after such determination. In the event of
any such sale of a Mortgage Loan, the Custodian shall, at the written request of
the Master Servicer and upon being supported with appropriate forms therefor,
within five Business Days of the deposit by the Master Servicer of the proceeds
of such auction into the Certificate Account, release or cause to be released to
the entity identified by the Master Servicer the related Owner Mortgage Loan
File and Servicer Mortgage Loan File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the auction purchaser title to the Mortgage Loan and the
Custodian shall have no further responsibility with regard to such Owner
Mortgage Loan File or Servicer Mortgage Loan File. Neither the Trustee, the
Custodian, the Master Servicer nor any Servicer, acting on behalf of the
Trustee, shall provide financing from the Trust Estate to any purchaser of a
Mortgage Loan.
The Master Servicer, on behalf of the Trustee, shall, pursuant to the
Servicing Agreements, object to the foreclosure upon, or other related
conversion of the ownership of, any Mortgaged Property by the related Servicer
if (i) the Master Servicer believes such Mortgaged Property may be contaminated
with or affected by hazardous wastes or hazardous substances or (ii) such
Servicer does not agree to administer such Mortgaged Property, once the related
Mortgage Loan becomes an REO Mortgage Loan, in a manner which would not result
in a federal tax being imposed upon the Trust Estate or the Upper-Tier REMIC or
the Lower-Tier REMIC.
The Master Servicer may enter into a special servicing agreement with an
unaffiliated holder of 100% Percentage Interest of a Class of Class B
Certificates or a holder of a class of securities representing interests in the
Class B Certificates and/or other subordinated mortgage pass-through
certificates, such agreement to be substantially in the form of Exhibit M hereto
or subject to each Rating Agency's acknowledgment that the ratings of the
Certificates in effect immediately prior to the entering into of such agreement
would not be qualified, downgraded or withdrawn and the Certificates would not
be placed on credit review status (except for possible upgrading) as a result of
such agreement. Any such agreement may contain provisions whereby such holder
may instruct the Master Servicer to instruct a Servicer to the extent provided
in the applicable Servicing Agreement to commence or delay foreclosure
proceedings with respect to delinquent Mortgage Loans and will contain
provisions for the deposit of cash by the holder that would be available for
distribution to Certificateholders if Liquidation Proceeds are less than they
otherwise may have been had the Servicer acted in accordance with its normal
procedures.
Section 3.09 TERMINATION AND SUBSTITUTION OF SERVICING AGREEMENTS.
Upon the occurrence of any event for which a Servicer may be terminated
pursuant to its Servicing Agreement, the Master Servicer shall promptly deliver
to the Seller and the Trustee an Officer's Certificate certifying that an event
has occurred which may justify termination of such Servicing Agreement,
describing the circumstances surrounding such event and recommending what action
should be taken by the Trustee with respect to such Servicer. If the Master
Servicer recommends that such Servicing Agreement be terminated, the Master
Servicer's certification must state that the breach is material and not merely
technical in nature. Upon written direction of the Master Servicer, based upon
such certification, the Trustee shall promptly terminate such Servicing
Agreement. Notwithstanding the foregoing, in the event that (i) WFHM fails to
make any advance, as a consequence of which the Trustee is obligated to make an
advance pursuant to Section 3.03 and (ii) the Trustee provides WFHM written
notice of the failure to make such advance and such failure shall continue
unremedied for a period of 15 days after receipt of such notice, the Trustee
shall terminate the WFHM Servicing Agreement without the recommendation of the
Master Servicer. The Master Servicer shall indemnify the Trustee and hold it
harmless from and against any and all claims, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees) arising out of, or
assessed against the Trustee in connection with termination of such Servicing
Agreement at the direction of the Master Servicer. If the Trustee terminates
such Servicing Agreement, the Trustee may enter into a substitute Servicing
Agreement with the Master Servicer or, at the Master Servicer's nomination, with
another mortgage loan service company acceptable to the Trustee, the Master
Servicer and each Rating Agency under which the Master Servicer or such
substitute servicer, as the case may be, shall assume, satisfy, perform and
carry out all liabilities, duties, responsibilities and obligations that are to
be, or otherwise were to have been, satisfied, performed and carried out by such
Servicer under such terminated Servicing Agreement. Until such time as the
Trustee enters into a substitute servicing agreement with respect to the
Mortgage Loans previously serviced by such Servicer, the Master Servicer shall
assume, satisfy, perform and carry out all obligations which otherwise were to
have been satisfied, performed and carried out by such Servicer under its
terminated Servicing Agreement. However, in no event shall the Master Servicer
be deemed to have assumed the obligations of a Servicer to advance payments of
principal and interest on a delinquent Mortgage Loan in excess of the Master
Servicer's independent Periodic Advance obligation under Section 3.03 of this
Agreement. As compensation for the Master Servicer of any servicing obligations
fulfilled or assumed by the Master Servicer, the Master Servicer shall be
entitled to any servicing compensation to which a Servicer would have been
entitled if the Servicing Agreement with such Servicer had not been terminated.
SECTION 3.10 APPLICATION OF NET LIQUIDATION PROCEEDS.
For all purposes under this agreement, Net Liquidation Proceeds received
from a Servicer shall be allocated first to accrued and unpaid interest on the
related Mortgage Loan and then to the unpaid principal balance thereof.
SECTION 3.11 ACT REPORTS.
The Master Servicer shall, on behalf of the Seller, make all filings
required to be made by the Seller with respect to the Class A Certificates and
the Class B-1, Class B-2 and Class B-3 Certificates pursuant to the Securities
Exchange Act of 1934, as amended.
ARTICLE IV
DISTRIBUTIONS IN RESPECT OF CERTIFICATES;
PAYMENTS TO CERTIFICATEHOLDERS;
STATEMENTS AND REPORTS
SECTION 4.01 DISTRIBUTIONS.
(a) On each Distribution Date, the Group I Pool Distribution Amount and
Group II Pool Distribution Amount will be applied in the following amounts, to
the extent the Group I Pool Distribution Amount and Group II Pool Distribution
Amount are sufficient therefor, in the manner and in the order of priority as
follows:
(i) with respect to the Group I-A Certificates and Group II-A
Certificates, from the Group I Pool Distribution Amount and Group II Pool
Distribution Amount, respectively, as follows:
first, (A) to the Classes of Group I-A Certificates, pro rata, based upon
their respective Interest Accrual Amounts, in an aggregate amount up to the
Group I-A Interest Accrual Amount with respect to such Distribution Date; or (B)
to the Classes of Group II-A Certificates (other than the Class II-A-2
Certificates prior to the Distribution Date in December 2008), pro rata, based
upon their respective Interest Accrual Amounts, in an aggregate amount up to the
Group II-A Interest Accrual Amount with respect to such Distribution Date;
second, (A) to the Classes of Group I-A Certificates, pro rata, based upon
their respective Class A Unpaid Interest Shortfalls, in an aggregate amount up
to the Aggregate Group I-A Unpaid Interest Shortfall; or (B) to the Classes of
Group II-A Certificates (other than the Class II-A-2 Certificates prior to the
Distribution Date in December 2008), pro rata, based upon their respective Class
A Unpaid Interest Shortfalls, in an aggregate amount up to the Aggregate Group
II-A Unpaid Interest Shortfall;
third, (A) to the Group I-A Certificates in an aggregate amount up to the
Group I-A Optimal Principal Amount, such distribution to be allocated among such
Classes in accordance with Section 4.01(b)(i); or (B) (I) prior to the
Distribution Date in December 2008, concurrently, to the Group II-A Certificates
(other than the Class II-A-2 Certificates) and the Class II-A-2 Certificates,
pro rata, based on their respective Group II-A Non-PO Optimal Principal Amount
and PO Optimal Principal Amount, (a) to the Group II-A Certificates (other than
the Class II-A-2 Certificates), in an aggregate amount up to the Group II-A
Non-PO Optimal Principal Amount, such distribution to be allocated among such
Classes in accordance with Section 4.01(b)(ii) or Section 4.01(c), as
applicable, and (b) to the Class II-A-2 Certificates in an amount up to the PO
Optimal Principal Amount and, (II) on and after the Distribution Date in
December 2008, to the Group II-A Certificates, in an aggregate amount up to the
Group II-A Non-PO Optimal Principal Amount, such distribution to be allocated
among such Classes in accordance with Section 4.01(b)(iii) or Section 4.01(c),
as applicable;
fourth, prior to the Distribution Date in December 2008, to the Class
II-A-2 Certificates in an amount up to the PO Deferred Amount from amounts
otherwise distributable (without regard to this Paragraph fourth) first to the
Class B-6 Certificates pursuant to Paragraph eighteenth below, second to the
Class B-5 Certificates pursuant to Paragraph fifteenth below, third to the Class
B-4 Certificates pursuant to Paragraph twelfth below, fourth to the Class B-3
Certificates pursuant to Paragraph ninth below, fifth to the Class B-2
Certificates pursuant to Paragraph sixth below, and sixth to the Class B-1
Certificates pursuant to Paragraph third below;
(ii) to the Class B Certificates, from the Group I Pool Distribution
Amount and Group II Pool Distribution Amount, as follows:
first, to the Class B-1 Certificates in an amount up to the Interest
Accrual Amount for the Class B-1 Certificates with respect to such Distribution
Date;
second, to the Class B-1 Certificates in an amount up to the Class B-1
Unpaid Interest Shortfall;
third, to the Class B-1 Certificates in an amount up to the Class B-1
Optimal Principal Amount; provided, however, that the amount distributable to
the Class B-1 Certificates pursuant to this Paragraph third will be reduced by
the amount, if any, that would have been distributable to the Class B-1
Certificates hereunder used to pay the PO Deferred Amount as provided in
Paragraph fourth above;
fourth, to the Class B-2 Certificates in an amount up to the Interest
Accrual Amount for the Class B-2 Certificates with respect to such Distribution
Date;
fifth, to the Class B-2 Certificates in an amount up to the Class B-2
Unpaid Interest Shortfall;
sixth, to the Class B-2 Certificates in an amount up to the Class B-2
Optimal Principal Amount; provided, however, that the amount distributable to
the Class B-2 Certificates pursuant to this Paragraph sixth will be reduced by
the amount, if any, that would have been distributable to the Class B-2
Certificates hereunder used to pay the PO Deferred Amount as provided in
Paragraph fourth above;
seventh, to the Class B-3 Certificates in an amount up to the Interest
Accrual Amount for the Class B-3 Certificates with respect to such Distribution
Date;
eighth, to the Class B-3 Certificates in an amount up to the Class B-3
Unpaid Interest Shortfall;
ninth, to the Class B-3 Certificates in an amount up to the Class B-3
Optimal Principal Amount; provided, however, that the amount distributable to
the Class B-3 Certificates pursuant to this Paragraph ninth will be reduced by
the amount, if any, that would have been distributable to the Class B-3
Certificates hereunder used to pay the PO Deferred Amount as provided in
Paragraph fourth above;
tenth, to the Class B-4 Certificates in an amount up to the Interest
Accrual Amount for the Class B-4 Certificates with respect to such Distribution
Date;
eleventh, to the Class B-4 Certificates in an amount up to the Class B-4
Unpaid Interest Shortfall;
twelfth, to the Class B-4 Certificates in an amount up to the Class B-4
Optimal Principal Amount; provided, however, that the amount distributable to
the Class B-4 Certificates pursuant to this Paragraph twelfth will be reduced by
the amount, if any, that would have been distributable to the Class B-4
Certificates hereunder used to pay the PO Deferred Amount as provided in
Paragraph fourth above;
thirteenth, to the Class B-5 Certificates in an amount up to the Interest
Accrual Amount for the Class B-5 Certificates with respect to such Distribution
Date;
fourteenth, to the Class B-5 Certificates in an amount up to the Class B-5
Unpaid Interest Shortfall;
fifteenth, to the Class B-5 Certificates in an amount up to the Class B-5
Optimal Principal Amount; provided, however, that the amount distributable to
the Class B-5 Certificates pursuant to this Paragraph fifteenth will be reduced
by the amount, if any, that would have been distributable to the Class B-5
Certificates hereunder used to pay the PO Deferred Amount as provided in
Paragraph fourth above;
sixteenth, to the Class B-6 Certificates in an amount up to the Interest
Accrual Amount for the Class B-6 Certificates with respect to such Distribution
Date;
seventeenth, to the Class B-6 Certificates in an amount up to the Class B-6
Unpaid Interest Shortfall;
eighteenth, to the Class B-6 Certificates in an amount up to the Class B-6
Optimal Principal Amount; provided, however, that the amount distributable to
the Class B-6 Certificates pursuant to this Paragraph eighteenth will be reduced
by the amount, if any, that would have been distributable to the Class B-6
Certificates hereunder used to pay the PO Deferred Amount as provided in
Paragraph fourth above; and
nineteenth, to the Holder of the Class I-A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Account, and to the Holder of the Class
I-A-LR Certificate, any amounts remaining in the Payment Account.
Notwithstanding the foregoing, after the Principal Balance or Notional
Amount of any Class (other than the Class I-A-R or Class I-A-LR Certificate) has
been reduced to zero, such Class will be entitled to no further distributions of
principal or interest (including, without limitation, any Unpaid Interest
Shortfalls).
With respect to any Distribution Date, the amount of the Principal
Adjustment, if any, attributable to any Class of Class B Certificates will be
allocated to the Classes of Class A Certificates (other than the Class II-A-2
Certificates prior to the Distribution Date in December 2008) and any Class of
Class B Certificates with a lower numerical designation pro rata based on their
outstanding Principal Balances.
Distributions on the Uncertificated Lower-Tier Interests. On each Distribution
Date, each Uncertificated Lower-Tier Interest shall receive distributions in
respect of principal in an amount equal to the amount of principal distributed
to its respective Corresponding Upper-Tier Class or Classes as provided herein.
On each Distribution Date, each Uncertificated Lower-Tier Interest (other than
the Class I-A-L1 Interest, Class I-A-L3 Interest and Class I-A-L5 Interest)
shall receive distributions in respect of interest in an amount equal to the
Interest Accrual Amounts and Unpaid Interest Shortfalls, as the case may be, in
respect of its Corresponding Upper-Tier Class or Classes, in each case to the
extent actually distributed thereon. On each Distribution Date, the Class I-A-L1
Interest shall receive a distribution in respect of interest in an amount equal
to the sum of (i) the Interest Accrual Amount and any distribution in respect of
Class A Unpaid Interest Shortfalls in each case actually distributed on the
Class I-A-1 Certificates and (ii) the Interest Accrual Amount and any
distribution in respect of Class A Unpaid Interest Shortfalls in each case
actually distributed pursuant to clause (a)(i) of the definition of Interest
Accrual Amount with respect to the Class I-A-7 Certificates. On each
Distribution Date, the Class I-A-L3 Interest shall receive a distribution in
respect of interest in an amount equal to the sum of (i) the Interest Accrual
Amount and any distribution in respect of Class A Unpaid Interest Shortfalls in
each case actually distributed on the Class I-A-3 Certificates and (ii) the
Interest Accrual Amount and any distribution in respect of Class A Unpaid
Interest Shortfalls in each case actually distributed pursuant to clause (a)(ii)
of the definition of Interest Accrual Amount with respect to the Class I-A-7
Certificates. On each Distribution Date, the Class I-A-L5 Interest shall receive
a distribution in respect of interest in an amount equal to the sum of (i) the
Interest Accrual Amount and any distribution in respect of Class A Unpaid
Interest Shortfalls in each case actually distributed on the Class I-A-5
Certificates and (ii) the Interest Accrual Amount and any distribution in
respect of Class A Unpaid Interest Shortfalls in each case actually distributed
pursuant to clause (a)(iii) of the definition of Interest Accrual Amount with
respect to the Class I-A-7 Certificates. Such amounts distributed to the
Uncertificated Lower-Tier Interests in respect of principal and interest with
respect to any Distribution Date are referred to herein collectively as the
"Lower-Tier Distribution Amount."
As of any date, the principal balance of each Uncertificated Lower-Tier
Interest equals the Principal Balances of the respective Corresponding
Upper-Tier Class or Classes. The initial principal balance of each
Uncertificated Lower-Tier Interest equals the Original Principal Balances of the
respective Corresponding Upper-Tier Class or Classes.
The pass-through rate with respect to the Class I-A-L1 Interest, Class
I-A-L2 Interest, Class I-A-L3 Interest, Class I-A-L5 Interest and Class I-A-LUR
Interest shall be Net WAC of Loan Group I. The pass-through rate with respect to
the Class II-A-L1 Interest shall be (i) with respect to each Distribution Date
prior to the Distribution Date in December 2008, the weighted average of (A)
with respect to the Discount Mortgage Loans, 5.650% and (B) with respect to the
Premium Mortgage Loans, the weighted average of the Net Mortgage Interest Rates
of the Premium Mortgage Loans (based upon the Scheduled Principal Balance on the
first day of the month preceding the month of such Distribution Date or, in the
case of the first Distribution Date, based on the aggregate Cut-Off Date
Principal Balance of the Premium Mortgage Loans) and (ii) with respect to each
Distribution Date on and after the Distribution Date in December 2008, the Net
WAC of Loan Group II. The pass-through rate with respect to the Class II-A-L2
Interest shall be (i) with respect to each Distribution Date prior to the
Distribution Date in December 2008, 0.00% per annum and (ii) with respect to
each Distribution Date on and after the Distribution Date in December 2008, the
Net WAC of Loan Group II. The pass-through rate with respect to the Class B-L1
Interest, Class B-L2 Interest, Class B-L3 Interest, Class B-L4 Interest, Class
B-L5 Interest and Class B-L6 Interest shall be equal to the Class B Pass-Through
Rate. Any Non-Supported Interest Shortfalls and Relief Act Shortfalls will be
allocated to each Uncertificated Lower-Tier Interest in the same relative
proportions as interest is allocated to such Uncertificated Lower-Tier Interest.
(b) (i) The Class I-A-7 Certificates are interest only Certificates
and are not entitled to distributions in respect of principal.
On each Distribution Date prior to the Subordination Depletion Date,
the Group I-A Principal Distribution Amount will be allocated among and
distributed in reduction of the Principal Balances of the Classes of Group
I-A Certificates sequentially as follows:
first, concurrently, to the Class I-A-R and Class I-A-LR Certificates,
pro rata; and
second, concurrently, as follows:
(i) 45.4570036529%, concurrently, to the Class I-A-1, Class
I-A-2, Class I-A-3 and Class I-A-4 Certificates, pro rata; and
(ii) 54.5429963471%, sequentially, to the Class I-A-5 and Class
I-A-6 Certificates.
(ii) The Class II-A-4 Certificates are interest only Certificates
and are not entitled to distributions in respect of principal.
On each Distribution Date prior to the Distribution Date in December
2008 and prior to the Subordination Depletion Date, the Group II-A Non-PO
Principal Distribution Amount will be distributed concurrently to the Class
II-A-1 and Class II-A-3 Certificates, pro rata.
(iii) On each Distribution Date on and after the Distribution
Date in December 2008 and prior to the Subordination Depletion Date,
the Group II-A Non-PO Principal Distribution Amount will be
distributed concurrently to the Class II-A-1, Class II-A-2 and Class
II-A-3 Certificates, pro rata.
(iv) Notwithstanding the foregoing, (X) on any Distribution Date
occurring prior to the Subordination Depletion Date but on or after
the date on which the Principal Balances of the Group I-A Certificates
or Group II-A Certificates have been reduced to zero and on which (a)
the Aggregate Subordinate Percentage for such Distribution Date is
less than 3.00% or (b) the average outstanding principal balance of
the Mortgage Loans delinquent 60 days or more over the preceding six
months as a percentage of the Class B Principal Balance is greater
than or equal to 100%, the remaining Group of Class A Certificates
(other than the Class II-A-2 Certificates prior to the Distribution
Date in December 2008) will be entitled to receive as principal, in
addition to any principal payments described in Section 4.01(a) above,
in accordance with the priorities set forth in Section 4.01(b)(i),
(ii) or (iii) above and until the aggregate Principal Balance of each
such Group of Class A Certificates has been reduced to zero, amounts
representing Unscheduled Principal Receipts (other than Final
Liquidation Proceeds) otherwise distributable (without regard to this
Clause (iv)) first to the Class B-6 Certificates pursuant to Paragraph
eighteenth of 4.01(a)(ii) above, second to the Class B-5 Certificates
pursuant to Paragraph fifteenth of 4.01(a)(ii) above, third to the
Class B-4 Certificates pursuant to Paragraph twelfth of 4.01(a)(ii)
above, fourth to the Class B-3 Certificates pursuant to Paragraph
ninth of 4.01(a)(ii) above, fifth to the Class B-2 Certificates
pursuant to Paragraph sixth of 4.01(a)(ii) above and sixth to the
Class B-1 Certificates pursuant to Paragraph third of 4.01(a)(ii)
above but in each case only from the applicable Apportioned Class B
Principal Distribution Amount for such Class of Class B Certificates
and (Y) if on any Distribution Date the Group I-A Principal Balance or
Group II-A Non-PO Principal Balance (after giving effect to all
distributions on such Distribution Date) is greater than the Group I
Pool Balance or Group II Pool Balance (Non-PO Portion), respectively
(the Group I-A Certificates or Group II-A Certificates, as applicable,
in such instance, the "Undercollateralized Group"), the Class A
Certificates (other than the Class II-A-2 Certificates prior to the
Distribution Date in December 2008) of the Undercollateralized Group
will be entitled to receive first in respect of any Class A Unpaid
Interest Shortfalls therefor (including any Group I Interest Shortfall
Amount or Group II Interest Shortfall Amount, as applicable, arising
on such Distribution Date) and second as principal, in addition to any
principal payments described in Section 4.01(a)(i) above, in
accordance with the priorities set forth in Section 4.01(b)(i), (ii)
or (iii) above and until the aggregate Principal Balance of the Class
A Certificates (other than the Class II-A- 2 Certificates prior to the
Distribution Date in December 2008) of the Undercollateralized Group
equals the Group I Pool Balance or Group II Pool Balance (Non-PO
Portion), as applicable, all amounts otherwise distributable (without
regard to this Clause (iv)) first to the Class B-6 Certificates
pursuant to Paragraph eighteenth of 4.01(a)(ii) above, second to the
Class B-5 Certificates pursuant to Paragraph fifteenth of 4.01(a)(ii)
above, third to the Class B-4 Certificates pursuant to Paragraph
twelfth of 4.01(a)(ii) above, fourth to the Class B-3 Certificates
pursuant to Paragraph ninth of 4.01(a)(ii) above, fifth to the Class
B-2 Certificates pursuant to Paragraph sixth of 4.01(a)(ii) above and
sixth to the Class B-1 Certificates pursuant to Paragraph third of
4.01(a)(ii) above (such amount, the "Undercollateralized Amount").
(c) Notwithstanding the foregoing, on each Distribution Date occurring on
or subsequent to the Subordination Depletion Date, (I) the Group I-A Principal
Distribution Amount shall be distributed among the Classes of Group I-A
Certificates and (II) the Group II-A Non-PO Principal Distribution Amount shall
be distributed among the Classes of Group II-A Certificates (other than the
Class II-A-2 Certificates prior to the Distribution Date in December 2008) pro
rata in accordance with their outstanding Principal Balances without regard to
either the proportions or the priorities set forth in Section 4.01(b)(i), (ii)
or (iii).
(d) (i) For purposes of determining whether the Classes of Class B
Certificates are eligible to receive unscheduled principal distributions (other
than Final Liquidation Proceeds) with respect to any Distribution Date, the
following tests shall apply:
(A) if the Current Class B-1 Fractional Interest is less than the
Original Class B-1 Fractional Interest and the Class B-1 Principal Balance
is greater than zero, the Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates shall not be eligible to receive distributions of
such unscheduled principal; or
(B) if the Current Class B-2 Fractional Interest is less than the
Original Class B-2 Fractional Interest and the Class B-2 Principal Balance
is greater than zero, the Class B-3, Class B-4, Class B-5 and Class B-6
Certificates shall not be eligible to receive distributions of such
unscheduled principal; or
(C) if the Current Class B-3 Fractional Interest is less than the
Original Class B-3 Fractional Interest and the Class B-3 Principal Balance
is greater than zero, the Class B-4, Class B-5 and Class B-6 Certificates
shall not be eligible to receive distributions of such unscheduled
principal; or
(D) if the Current Class B-4 Fractional Interest is less than the
Original Class B-4 Fractional Interest and the Class B-4 Principal Balance
is greater than zero, the Class B-5 and Class B-6 Certificates shall not be
eligible to receive distributions of such unscheduled principal; or
(E) if the Current Class B-5 Fractional Interest is less than the
Original Class B-5 Fractional Interest and the Class B-5 Principal Balance
is greater than zero, the Class B-6 Certificates shall not be eligible to
receive distributions of such unscheduled principal.
(ii) Notwithstanding the foregoing, if on any Distribution Date the
aggregate principal distributions to Holders of the Classes of Class B
Certificates would reduce the Principal Balances of the Classes of Class B
Certificates entitled to receive distributions of principal below zero, first
the Group I Class B Prepayment Percentage and Group II Class B Prepayment
Percentage of any affected Class of Class B Certificates for such Distribution
Date beginning with the affected Class with the lowest numerical Class
designation and then, if necessary, the Group I Class B Percentage and Group II
Class B Percentage of such Class of the Class B Certificates for such
Distribution Date shall be reduced to the respective percentages necessary to
bring the Principal Balance of such Class of Class B Certificates to zero. The
Class B Prepayment Percentages and the Class B Percentages of the remaining
Classes of Class B Certificates will be recomputed substituting for the Group I
Subordinated Prepayment Percentage and Group II Subordinated Prepayment
Percentage and Group I Subordinated Percentage and Group II Subordinated
Percentage in such computations the difference between (A) the Group I
Subordinated Prepayment Percentage or Group II Subordinated Prepayment
Percentage or Group I Subordinated Percentage or Group II Subordinated
Percentage, as the case may be, and (B) the percentages determined in accordance
with the preceding sentence necessary to bring the Principal Balances of the
affected Classes of Class B Certificates to zero; provided, however, that if the
Principal Balances of all the Classes of Class B Certificates eligible to
receive unscheduled principal distributions (other than Final Liquidation
Proceeds) shall be reduced to zero on such Distribution Date, the Group I Class
B Prepayment Percentage and Group II Class B Prepayment Percentage of the Class
of Class B Certificates with the lowest numerical Class designation which would
otherwise be ineligible to receive distributions of Unscheduled Principal
Receipts (other than Final Liquidation Proceeds) in accordance with this Section
shall equal the remainder of the Group I Subordinated Prepayment Percentage and
Group II Subordinated Prepayment Percentage for such Distribution Date minus the
sum of the Group I Class B Prepayment Percentages and Group II Class B
Prepayment Percentages of the Classes of Class B Certificates having lower
numerical Class designations, if any. Any entitlement of any Class of Class B
Certificates to principal payments solely pursuant to this clause (ii) shall not
cause such Class to be regarded as being eligible to receive Unscheduled
Principal Receipts (other than Final Liquidation Proceeds) for the purpose of
applying the definition of its Group I Class B Prepayment Percentage and Group
II Class B Prepayment Percentage.
(e) The Trustee shall establish and maintain the Upper-Tier Certificate
Account, which shall be a separate trust account and an Eligible Account. On
each Distribution Date other than the Final Distribution Date (if such Final
Distribution Date is in connection with a purchase of the assets of the Trust
Estate by the Seller), the Paying Agent shall, on behalf of the Master Servicer,
from funds available on deposit in the Payment Account, (i) deposit, in
immediately available funds, by wire transfer or otherwise, into the Upper-Tier
Certificate Account the Lower-Tier Distribution Amount and (ii) distribute to
the Class I-A-LR Certificateholder (other than as provided in Section 9.01
respecting the final distribution to Certificateholders) by check mailed to such
Holder at the address of such Holder appearing in the Certificate Register, the
Group I-A Distribution Amount with respect to the Class I-A-LR Certificate and
all other amounts distributable to the Class I-A-LR Certificate. The Trustee may
clear and terminate the Upper-Tier Certificate Account pursuant to Section 9.01.
(f) On each Distribution Date other than the Final Distribution Date (if
such Final Distribution Date is in connection with a purchase of the assets of
the Trust Estate by the Seller), the Paying Agent shall, on behalf of the Master
Servicer, from funds remitted to it by the Master Servicer, distribute to each
Certificateholder of record on the preceding Record Date (other than as provided
in Section 9.01 respecting the final distribution to Certificateholders or in
the last paragraph of this Section 4.01(f) respecting the final distribution in
respect of any Class) either in immediately available funds by wire transfer to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder holds Certificates
having a Denomination at least equal to that specified in Section 11.18, and has
so notified the Master Servicer or, if applicable, the Paying Agent at least
seven Business Days prior to the Distribution Date or, if such Holder holds
Certificates having, in the aggregate, a Denomination less than the requisite
minimum Denomination or if such Holder holds the Class I-A-R Certificate or has
not so notified the Paying Agent, by check mailed to such Holder at the address
of such Holder appearing in the Certificate Register, such Holder's share of the
Group I-A Distribution Amount or Group II-A Distribution Amount, as applicable,
with respect to each Class of Class A Certificates and the Class B Distribution
Amount with respect to each Class of Class B Certificates.
In the event that, on any Distribution Date prior to the Final Distribution
Date, the Principal Balance or Notional Amount (in the case of the Class I-A-7
and Class II-A-4 Certificates) of any Class of Class A Certificates (other than
the Class I-A-R and Class I-A-LR Certificates) or the Principal Balance of any
Class of Class B Certificates would be reduced to zero, the Master Servicer
shall, as soon as practicable after the Determination Date relating to such
Distribution Date, send a notice to the Trustee. The Trustee will then send a
notice to each Certificateholder of such Class with a copy to the Certificate
Registrar, specifying that the final distribution with respect to such Class
will be made on such Distribution Date only upon the presentation and surrender
of such Certificateholder's Certificates at the office or agency of the Trustee
therein specified; provided, however, that the failure to give such notice will
not entitle a Certificateholder to any interest beyond the interest payable with
respect to such Distribution Date in accordance with Section 4.01(a)(i).
(g) The Paying Agent (or if no Paying Agent is appointed by the Master
Servicer, the Master Servicer) shall withhold or cause to be withheld such
amounts as may be required by the Code (giving full effect to any exemptions
from withholding and related certifications required to be furnished by
Certificateholders and any reductions to withholding by virtue of any bilateral
tax treaties and any applicable certification required to be furnished by
Certificateholders with respect thereto) from distributions to be made to
Persons other than U.S. Persons ("Non-U.S. Persons"). Amounts withheld pursuant
to this Section 4.01(g) shall be treated as having been distributed to the
related Certificateholder for all purposes of this Agreement. For the purposes
of this paragraph, a "U.S. Person" is a citizen or resident of the United
States, a corporation or partnership (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise) created or organized in
or under the laws of the United States, any state thereof or the District of
Columbia, including an entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
SECTION 4.02 ALLOCATION OF REALIZED LOSSES.
(a) With respect to any Distribution Date, the principal portion of
Realized Losses occurring with respect to Group I Mortgage Loans and Group II
Mortgage Loans will be allocated as follows:
first, to the Class B-6 Certificates until the Class B-6 Principal Balance
has been reduced to zero;
second, to the Class B-5 Certificates until the Class B-5 Principal Balance
has been reduced to zero;
third, to the Class B-4 Certificates until the Class B-4 Principal Balance
has been reduced to zero;
fourth, to the Class B-3 Certificates until the Class B-3 Principal Balance
has been reduced to zero;
fifth, to the Class B-2 Certificates until the Class B-2 Principal Balance
has been reduced to zero;
sixth, to the Class B-1 Certificates until the Class B-1 Principal Balance
has been reduced to zero; and
seventh, (i) with respect to such losses occurring with respect to Group I
Mortgage Loans, to the Group I-A Certificates; and (ii) with respect to such
losses occurring with respect to Group II Mortgage Loans, to the Group II-A
Certificates (other than the Class II-A-2 Certificates prior to the Distribution
Date in December 2008) and Class II-A-2 Certificates prior to the Distribution
Date in December 2008, pro rata, based on the Non-PO Fraction and the PO
Fraction, respectively.
This allocation of Realized Losses will be effected through the reduction
of the applicable Class's Principal Balance.
(b) [Intentionally Left Blank]
(c) Any Realized Losses allocated to a Class of Class A Certificates or
Class B Certificates pursuant to Section 4.02(a) shall be allocated among the
Certificates of such Class based on their Percentage Interests.
(d) [Intentionally Left Blank]
(e) With respect to any Distribution Date, the interest portion of Realized
Losses occurring with respect to Group I Mortgage Loans and Group II Mortgage
Loans will be allocated after the Subordination Depletion Date among the
outstanding Classes of Group I-A and Group II-A, respectively, based on their
Group I-A Interest Percentage and Group II-A Interest Percentage.
(f) Realized Losses allocated in accordance with this Section 4.02 will be
allocated as follows: (i) Liquidated Loan Losses on Liquidated Loans for which
the Liquidation Proceeds were received during, and Bankruptcy Losses incurred in
a period corresponding to, an Unscheduled Principal Receipt Period for Full
Unscheduled Principal Receipts that is a Mid-Month Receipt Period will be
allocated on the Determination Date in the month following the month in which
such Mid-Month Receipt Period ended and (ii) Liquidated Loan Losses on
Liquidated Loans for which the Liquidation Proceeds were received during, and
Bankruptcy Losses incurred in a period corresponding to, an Unscheduled
Principal Receipt Period for Full Unscheduled Principal Receipts that is a Prior
Month Receipt Period will be allocated on the Determination Date in the second
month following the month which is such Prior Month Receipt Period.
(g) With respect to any Distribution Date, the principal portion of
Realized Losses and recoveries attributable to previously allocated Realized
Losses allocated pursuant to this Section 4.02 will be allocated to each
Uncertificated Lower-Tier Interest in an amount equal to the amount allocated to
its respective Corresponding Upper-Tier Class or Classes as provided above.
(h) With respect to any Distribution Date, the interest portion of Realized
Losses allocated pursuant to this Section 4.02 will be allocated to each
Uncertificated Lower-Tier Interest in the same relative proportions as interest
is allocated to such Uncertificated Lower-Tier Interest.
SECTION 4.03 PAYING AGENT.
(a) The Master Servicer hereby appoints the Trustee as initial Paying Agent
to make distributions to Certificateholders and to forward to Certificateholders
the periodic statements and the annual statements required by Section 4.04 as
agent of the Master Servicer.
The Master Servicer may, at any time, remove or replace the Paying Agent.
The Master Servicer shall cause any Paying Agent that is not the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
agrees with the Trustee that such Paying Agent shall:
(i) hold all amounts remitted to it by the Master Servicer for
distribution to Certificateholders in trust for the benefit of
Certificateholders until such amounts are distributed to Certificateholders
or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Master Servicer in
remitting any required amount; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all amounts
held in trust by such Paying Agent.
(b) The Paying Agent shall establish and maintain a Payment Account, which
shall be a separate trust account and an Eligible Account, in which the Master
Servicer shall cause to be deposited from funds in the Certificate Account or,
to the extent required hereunder, from its own funds (i) at or before 10:00
a.m., New York time, on the Business Day preceding each Distribution Date, by
wire transfer of immediately available funds, any Periodic Advance for such
Distribution Date, pursuant to Section 3.03 and (ii) at or before 10:00 a.m.,
New York time, on the Business Day preceding each Distribution Date, by wire
transfer of immediately available funds, an amount equal to the Pool
Distribution Amount. The Master Servicer may cause the Paying Agent to invest
the funds in the Payment Account. Any such investment shall be in Eligible
Investments, which shall mature not later than the Business Day preceding the
related Distribution Date (unless the Eligible Investments are obligations of
the Trustee, in which case such Eligible Investments shall mature not later than
the Distribution Date), and shall not be sold or disposed of prior to maturity.
All income and gain realized from any such investment shall be for the benefit
of the Master Servicer and shall be subject to its withdrawal or order from time
to time. The amount of any losses incurred in respect of any such investments
shall be deposited in the Payment Account by the Master Servicer out of its own
funds immediately as realized. The Paying Agent may withdraw from the Payment
Account any amount deposited in the Payment Account that was not required to be
deposited therein and may clear and terminate the Payment Account pursuant to
Section 9.01.
SECTION 4.04 STATEMENTS TO CERTIFICATEHOLDERS; REPORTS TO THE TRUSTEE AND
THE SELLER.
Concurrently with each distribution pursuant to Section 4.01(f), the Master
Servicer, or the Paying Agent appointed by the Master Servicer (upon receipt of
such statement from the Master Servicer), shall forward or cause to be forwarded
by mail to each Holder of a Certificate and the Seller a statement setting
forth:
(i) the amount of such distribution to Holders of each Class of Class
A Certificates allocable to principal, separately identifying the aggregate
amount of any Unscheduled Principal Receipts included therein;
(ii) (a) the amount of such distribution to Holders of each Class of
Class A Certificates allocable to interest, (b) the amount of the Current
Group I-A Interest Distribution Amount allocated to each Class of Group I-A
Certificates and Current Group II-A Interest Distribution Amount allocated
to each Class of Group II-A Certificates, (c) any Group I Interest
Shortfall Amounts or Group II Interest Shortfall Amounts arising with
respect to such Distribution Date and any remaining Class A Unpaid Interest
Shortfall with respect to each Class after giving effect to such
distribution, (d) the amount of any Non-Supported Interest Shortfall
allocated to each Class of Class A Certificates for such Distribution Date
and (e) the amount of any Relief Act Shortfall allocated to each Class of
Class A Certificates for such Distribution Date;
(iii) the amount of such distribution to Holders of each Class of
Class B Certificates allocable to principal, separately identifying the
aggregate amount of any Unscheduled Principal Receipts included therein;
(iv) (a) the amount of such distribution to Holders of each Class of
Class B Certificates allocable to interest, (b) the amount of the Current
Class B Interest Distribution Amount allocated to each Class of Class B
Certificates, (c) any Class B Interest Shortfall Amounts arising with
respect to such Distribution Date and any remaining Class B Unpaid Interest
Shortfall with respect to each Class of Class B Certificates after giving
effect to such distribution, (d) the amount of any Non-Supported Interest
Shortfall allocated to each Class of Class B Certificates for such
Distribution Date and (e) the amount of any Relief Act Shortfall allocated
to each Class of Class B Certificates for such Distribution Date;
(v) the amount of any Periodic Advance by any Servicer, the Master
Servicer or the Trustee pursuant to the Servicing Agreements or this
Agreement;
(vi) the number of Group I Mortgage Loans and Group II Mortgage Loans
outstanding as of the preceding Determination Date; (vii) the Group I-A
Principal Balance, Group II-A Principal Balance, the Principal Balance of
each Class of Class A Certificates, the Class B Principal Balance and the
Principal Balance of each Class of Class B Certificates as of the following
Determination Date after giving effect to the distributions of principal
made, and the principal portion of Realized Losses, if any, allocated with
respect to such Distribution Date;
(viii) the Group I Adjusted Pool Amount, the Group II Adjusted Pool
Amount, the Group II Adjusted Pool Amount (PO Portion), the Group I Pool
Balance of the Group I Mortgage Loans for such Distribution Date and the
Group II Pool Balance of the Group II Mortgage Loans for such Distribution
Date;
(ix) the aggregate Scheduled Principal Balances of the Group I
Mortgage Loans and Group II Mortgage Loans serviced by WFHM and,
collectively, by the Other Servicers as of such Distribution Date;
(x) the Group I-A Percentage and Group II-A Percentage for such
Distribution Date;
(xi) the Group I-A Prepayment Percentage and Group II-A Prepayment
Percentage for such Distribution Date;
(xii) the Group I Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Percentages; and Group II Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 and Class B-6 Percentages;
(xiii) the Group I Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Prepayment Percentages and Group II Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5 and Class B-6 Prepayment Percentages for
such Distribution Date;
(xiv) the number and aggregate principal balances of Group I Mortgage
Loans and Group II Mortgage Loans delinquent (a) one month, (b) two months
and (c) three months or more;
(xv) the number and aggregate principal balances of the Group I
Mortgage Loans and Group II Mortgage Loans in foreclosure as of the
preceding Determination Date;
(xvi) the book value of any real estate with respect to Group I
Mortgage Loans or Group II Mortgage Loans acquired through foreclosure or
grant of a deed in lieu of foreclosure;
(xvii) the principal and interest portions of Realized Losses with
respect to Group I Mortgage Loans and Group II Mortgage Loans allocated as
of such Distribution Date;
(xviii) the amount by which the Principal Balance of each Class of
Class B Certificates has been reduced as a result of Realized Losses with
respect to Group I Mortgage Loans and Group II Mortgage Loans allocated as
of such Distribution Date;
(xix) the unpaid principal balance of any Group I Mortgage Loan or
Group II Mortgage Loan as to which the Servicer of such Mortgage Loan has
determined not to foreclose because it believes the related Mortgaged
Property may be contaminated with or affected by hazardous wastes or
hazardous substances;
(xx) the amount of the aggregate Servicing Fees and Master Servicing
Fees paid (and not previously reported) with respect to the related
Distribution Date and the amount by which the aggregate Available Master
Servicing Compensation has been reduced by the Prepayment Interest
Shortfall for the related Distribution Date;
(xxi) in the case of the Class I-A-7 and Class II-A-4 Certificates,
the Notional Amount, if any;
(xxii) the PO Deferred Amount if any;
(xxiii) the amount of PMI Advances made by a Servicer, if any with
respect to each Loan Group;
(xxiv) such other customary information as the Master Servicer deems
necessary or desirable to enable Certificateholders to prepare their tax
returns;
and shall deliver a copy of each type of statement to the Trustee, who
shall provide copies thereof to Persons making written request therefor at the
Corporate Trust Office.
In the case of information furnished with respect to a Class of Class A
Certificates pursuant to clauses (i) and (ii) above and with respect to a Class
of Class B Certificates pursuant to clauses (iii) and (iv) above, the amounts
shall be expressed as a dollar amount per Class A or Class B Certificate (other
than the Class I-A-R and Class I-A-LR Certificates) with a $1,000 Denomination,
and as a dollar amount per Class I-A-R and Class I-A-LR Certificates with a $50
Denomination.
Within a reasonable period of time after the end of each calendar year, the
Master Servicer shall furnish or cause to be furnished to each Person who at any
time during the calendar year was the Holder of a Certificate a statement
containing the information set forth in clauses (i) and (ii)(a) above in the
case of a Class A Certificateholder and the information set forth in clauses
(iii) and (iv)(a) above in the case of a Class B Certificateholder aggregated
for such calendar year or applicable portion thereof during which such Person
was a Certificateholder. Such obligation of the Master Servicer shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Master Servicer pursuant to any requirements of the
Code from time to time in force.
Prior to the close of business on the third Business Day preceding each
Distribution Date, the Master Servicer shall furnish a statement to the Trustee,
any Paying Agent and the Seller (the information in such statement to be made
available to Certificateholders by the Master Servicer on written request)
setting forth the Group I-A Distribution Amount or Group II-A Distribution
Amount, as applicable, with respect to each Class of Class A Certificates and
the Class B Distribution Amount with respect to each Class of Class B
Certificates. The determination by the Master Servicer of such amounts shall, in
the absence of obvious error, be presumptively deemed to be correct for all
purposes hereunder and the Trustee and the Paying Agent shall be protected in
relying upon the same without any independent check or verification.
In addition to the reports required pursuant to this Section 4.04, the
Paying Agent shall make available upon request to each Holder and each proposed
transferee of a Class B-4, Class B-5 or Class B-6 Certificate such additional
information, if any, as may be required to permit the proposed transfer to be
effected pursuant to Rule 144A, which information shall be provided on a timely
basis to the Paying Agent by the Master Servicer.
SECTION 4.05 REPORTS TO MORTGAGORS AND THE INTERNAL REVENUE SERVICE.
The Master Servicer shall, in each year beginning after the Cut-Off Date,
make the reports of foreclosures and abandonments of any Mortgaged Property as
required by Code Section 6050J. In order to facilitate this reporting process,
the Master Servicer shall request that each Servicer, on or before January 15th
of each year, shall provide to the Internal Revenue Service, with copies to the
Master Servicer, reports relating to each instance occurring during the previous
calendar year in which such Servicer (i) on behalf of the Trustee acquires an
interest in a Mortgaged Property through foreclosure or other comparable
conversion in full or partial satisfaction of a Mortgage Loan serviced by such
Servicer, or (ii) knows or has reason to know that a Mortgaged Property has been
abandoned. Reports from the Servicers shall be in form and substance sufficient
to meet the reporting requirements imposed by Code Section 6050J. In addition,
each Servicer shall provide the Master Servicer with sufficient information to
allow the Master Servicer to, for each year ending after the Cut-Off Date,
provide, or cause to be provided, to the Internal Revenue Service and the
Mortgagors such information as is required under Code Sections 6050H (regarding
payment of interest) and 6050P (regarding cancellation of indebtedness).
SECTION 4.06 CALCULATION OF AMOUNTS; BINDING EFFECT OF INTERPRETATIONS AND
ACTIONS OF MASTER SERVICER.
The Master Servicer will compute the amount of all distributions to be made
on the Certificates and all losses to be allocated to the Certificates. In the
event that the Master Servicer concludes that any ambiguity or uncertainty
exists in any provisions of this Agreement relating to distributions to be made
on the Certificates, the allocation of losses to the Certificates or otherwise,
the interpretation of such provisions and any actions taken by the Master
Servicer in good faith to implement such interpretation shall be binding upon
Certificateholders.
ARTICLE V
THE CERTIFICATES
SECTION 5.01 THE CERTIFICATES.
(a) The Class A and Class B Certificates shall be issued only in minimum
Denominations of a Single Certificate and, except for the Class I-A-R and Class
I-A-LR Certificates, integral multiples of $1,000 in excess thereof (except, if
necessary, for one Certificate of each Class (other than the Class I-A-R and
Class I-A-LR Certificates) that evidences one Single Certificate plus such
additional principal portion or notional amount as is required in order for all
Certificates of such Class to equal the aggregate Original Principal Balance or
Original Notional Amount of such Class, as the case may be), and shall be
substantially in the respective forms set forth as Exhibits X-X-X-0, X-X-X-0,
X-X-X-0, X-X-X-0, X-X-X-0, X-X-X-0, X-X-X-0, A-II-A-1, A-II-A-2, A-II-A-3,
A-II-A-4, A-I-A-R, A-I-A-LR, X-0, X-0, X-0, X-0, X-0, B-6 and C (reverse side of
Certificates) hereto. On original issue the Certificates shall be executed and
delivered by the Trustee to or upon the order of the Seller upon receipt by the
Trustee or the Custodian of the documents specified in Section 2.01. The
aggregate principal portion or notional amount evidenced by the Class A and
Class B Certificates shall be the sum of the amounts specifically set forth in
the respective Certificates. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trustee by any Responsible Officer thereof.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Trustee shall bind the Trustee
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless manually countersigned by a Responsible Officer of the Trustee, or unless
there appears on such Certificate a certificate of authentication executed by
the Authenticating Agent by manual signature, and such countersignature or
certificate upon a Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Until such time as Definitive Certificates are issued pursuant to Section
5.07, each Book-Entry Certificate shall bear the following legend:
"Unless this certificate is presented by an authorized representative of
[the Clearing Agency] to the Seller or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
[the Clearing Agency] or such other name as requested by an authorized
representative of [the Clearing Agency] and any payment is made to [the Clearing
Agency], any transfer, pledge or other use hereof for value or otherwise by or
to any person is wrongful since the registered owner hereof, [the Clearing
Agency], has an interest herein."
(b) Upon original issuance, the Book-Entry Certificates shall be issued in
the form of one or more typewritten certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Seller or to, and deposited with the Certificate Custodian, on behalf of The
Depository Trust Company, if directed to do so pursuant instructions from The
Depository Trust Company. Such Certificates shall initially be registered in the
Certificate Register in the name of the nominee of the initial Clearing Agency,
and no Beneficial Owner will receive a definitive certificate representing such
Beneficial Owner's interest in the Book-Entry Certificates, except as provided
in Section 5.07. Unless and until definitive, fully registered certificates
("Definitive Certificates") have been issued to Beneficial Owners pursuant to
Section 5.07:
(i) the provisions of this Section 5.01(b) shall be in full force and
effect;
(ii) the Seller, the Master Servicer, the Certificate Registrar and
the Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Book-Entry Certificates and the taking
of actions by the Holders of Book-Entry Certificates) as the authorized
representative of the Beneficial Owners;
(iii) to the extent that the provisions of this Section 5.01(b)
conflict with any other provisions of this Agreement, the provisions of
this Section 5.01(b) shall control;
(iv) the rights of Beneficial Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law, the
rules, regulations and procedures of the Clearing Agency and agreements
between such Beneficial Owners and the Clearing Agency and/or the Clearing
Agency Participants, and all references in this Agreement to actions by
Certificateholders shall, with respect to the Book-Entry Certificates,
refer to actions taken by the Clearing Agency upon instructions from the
Clearing Agency Participants, and all references in this Agreement to
distributions, notices, reports and statements to Certificateholders shall,
with respect to the Book-Entry Certificates, refer to distributions,
notices, reports and statements to the Clearing Agency or its nominee, as
registered holder of the Book-Entry Certificates, as the case may be, for
distribution to Beneficial Owners in accordance with the procedures of the
Clearing Agency; and
(v) the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit distributions of
principal and interest on the Certificates to the Clearing Agency
Participants, for distribution by such Clearing Agency Participants to the
Beneficial Owners or their nominees.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of Book-Entry
Certificates evidencing specified Voting Interests, such direction or consent
shall be given by Beneficial Owners having the requisite Voting Interests,
acting through the Clearing Agency.
Unless and until Definitive Certificates have been issued to Beneficial
Owners pursuant to Section 5.07, copies of the reports or statements referred to
in Section 4.04 shall be available to Beneficial Owners upon written request to
the Trustee at the Corporate Trust Office.
Section 5.02 REGISTRATION OF CERTIFICATES.
(a) The Trustee shall cause to be kept at one of the offices or agencies to
be maintained in accordance with the provisions of Section 5.06 a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee shall act as, or
shall appoint, a Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency maintained for such purpose pursuant to Section 5.06 (and
subject to the provisions of this Section 5.02) the Trustee shall execute, and
shall date, authenticate (or cause the Authenticating Agent to authenticate) and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of a like aggregate principal portion or Percentage Interest
and of the same Class.
At the option of the Certificateholders, Certificates may be exchanged for
other Certificates of authorized Denominations of a like aggregate principal
portion or Percentage Interest and of the same Class upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute, and
shall date, authenticate (or cause the Authenticating Agent to authenticate) and
deliver, the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar or the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee 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 Certificates.
All Certificates surrendered for transfer and exchange shall be canceled by
the Certificate Registrar, the Trustee or the Authenticating Agent in accordance
with their standard procedures.
(b) No transfer of a Class B-4, Class B-5 or Class B-6 Certificate shall be
made unless the registration requirements of the Securities Act of 1933, as
amended, and any applicable State securities laws are complied with, or such
transfer is exempt from the registration requirements under said Act and laws.
In the event that a transfer is to be made in reliance upon an exemption from
said Act or laws, (i) unless such transfer is made in reliance on Rule 144A, the
Trustee or the Seller may, if such transfer is to be made within three years
after the later of (i) the date of the initial sale of Certificates or (ii) the
last date on which the Seller or any affiliate thereof was a Holder of the
Certificates proposed to be transferred, require a Class B-4, Class B-5 or Class
B-6 Certificateholder to deliver a written Opinion of Counsel acceptable to and
in form and substance satisfactory to the Trustee and the Seller, to the effect
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from said Act and laws or is being
made pursuant to said Act and laws, which Opinion of Counsel shall not be an
expense of the Trustee, the Seller or the Master Servicer, and (ii) the Trustee
shall require the transferee (other than an affiliate of the Seller on the
Closing Date) to execute an investment letter in the form of Exhibit J hereto
certifying to the Seller and the Trustee the facts surrounding such transfer,
which investment letter shall not be an expense of the Trustee, the Seller or
the Master Servicer. The Holder of a Class B-4, Class B-5 or Class B-6
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Seller, the Master Servicer and any Paying Agent
acting on behalf of the Trustee against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws. Neither the Seller nor the Trustee is under an obligation to
register the Class B-4, Class B-5 or Class B-6 Certificates under said Act or
any other securities law.
(c) No transfer of a Class B-4, Class B-5 or Class B-6 Certificate shall be
made unless the Trustee and the Seller shall have received (i) a representation
letter from the transferee in the form of Exhibit J hereto, to the effect that
either (a) such transferee is not an employee benefit plan or other retirement
arrangement subject to Title I of ERISA or Code Section 4975, or a governmental
plan, as defined in Section 3(32) of ERISA, subject to any federal, state or
local law ("Similar Law") which is to a material extent similar to the foregoing
provisions of ERISA or the Code (collectively, a "Plan") and is not a person
acting on behalf of or using the assets of any such Plan, which representation
letter shall not be an expense of the Trustee, the Seller or the Master Servicer
or (b) if such transferee is an insurance company, (A) the source of funds used
to purchase the Class B-4, Class B-5 or Class B-6 Certificate is an "insurance
company general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12,
1995)), (B) there is no Plan with respect to which the amount of such general
account's reserves and liabilities for the contract(s) held by or on behalf of
such Plan and all other Plans maintained by the same employer (or affiliate
thereof as defined in Section V(a)(1) of PTE 95-60) or by the same employee
organization exceeds 10% of the total of all reserves and liabilities of such
general account (as such amounts are determined under Section I(a) of PTE 95-60)
at the date of acquisition and (C) the purchase and holding of such Class B-4,
Class B-5 or Class B-6 Certificate is covered by Sections I and III of PTE 95-60
or (ii) in the case of any such Class B-4, Class B-5 or Class B-6 Certificate
presented for registration in the name of a Plan, or a trustee of any such Plan,
(A) an Opinion of Counsel satisfactory to the Trustee and the Seller to the
effect that the purchase or holding of such Class B-4, Class B-5 or Class B-6
Certificate will not result in the assets of the Trust Estate being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA, the
Code or Similar Law and will not subject the Trustee, the Seller or the Master
Servicer to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Seller or
the Master Servicer and (B) such other opinions of counsel, officer's
certificates and agreements as the Seller or the Master Servicer may require in
connection with such transfer, which opinions of counsel, officers' certificates
and agreements shall not be an expense of the Trustee, the Seller or the Master
Servicer. The Class B-4, Class B-5 and Class B-6 Certificates shall bear a
legend referring to the foregoing restrictions contained in this paragraph.
(d) No legal or beneficial interest in all or any portion of the Class
I-A-R or Class I-A-LR Certificate may be transferred directly or indirectly to a
"disqualified organization" within the meaning of Code Section 860E(e)(5) or an
agent of a disqualified organization (including a broker, nominee, or
middleman), to a Plan or a Person acting on behalf of or investing the assets of
a Plan (such Plan or Person, an "ERISA Prohibited Holder") or to an individual,
corporation, partnership or other person unless such transferee (i) is not a
Non-U.S. Person or (ii) is a Non-U.S. Person that holds the Class I-A-R or Class
I-A-LR Certificate in connection with the conduct of a trade or business within
the United States and has furnished the transferor and the Trustee with an
effective Internal Revenue Service Form 4224 or (iii) is a Non-U.S. Person that
has delivered to both the transferor and the Trustee an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class I-A-R or
Class I-A-LR Certificate to it is in accordance with the requirements of the
Code and the regulations promulgated thereunder and that such transfer of the
Class I-A-R or Class I-A-LR Certificate will not be disregarded for federal
income tax purposes (any such person who is not covered by clauses (i), (ii) or
(iii) above being referred to herein as a "Non-permitted Foreign Holder"), and
any such purported transfer shall be void and have no effect. The Trustee shall
not execute, and shall not authenticate (or cause the Authenticating Agent to
authenticate) and deliver, a new Class I-A-R or Class I-A-LR Certificate in
connection with any such transfer to a disqualified organization or agent
thereof (including a broker, nominee or middleman), an ERISA Prohibited Holder
or a Non-permitted Foreign Holder, and neither the Certificate Registrar nor the
Trustee shall accept a surrender for transfer or registration of transfer, or
register the transfer of, the Class I-A-R or Class I-A-LR Certificate, unless
the transferor shall have provided to the Trustee an affidavit, substantially in
the form attached as Exhibit H hereto, signed by the transferee, to the effect
that the transferee is not such a disqualified organization, an agent (including
a broker, nominee, or middleman) for any entity as to which the transferee has
not received a substantially similar affidavit, an ERISA Prohibited Holder or a
Non-permitted Foreign Holder, which affidavit shall contain the consent of the
transferee to any such amendments of this Agreement as may be required to
further effectuate the foregoing restrictions on transfer of the Class I-A-R or
Class I-A-LR Certificate to disqualified organizations, ERISA Prohibited Holders
or Non-permitted Foreign Holders. Such affidavit shall also contain the
statement of the transferee that (i) the transferee has historically paid its
debts as they have come due and intends to do so in the future, (ii) the
transferee understands that it may incur liabilities in excess of cash flows
generated by the residual interest, (iii) the transferee intends to pay taxes
associated with holding the residual interest as they become due, (iv) the
transferee will not cause income from the Class I-A-R or Class I-A-LR
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable tax treaty of such transferee or any
other person, and (v) the transferee will not transfer the Class I-A-R or Class
I-A-LR Certificate to any Person who does not provide an affidavit substantially
in the form attached as Exhibit H hereto.
The affidavit described in the preceding paragraph, if not executed in
connection with the initial issuance of the Class I-A-R and Class I-A-LR
Certificates, shall be accompanied by a written statement in the form attached
as Exhibit I hereto, signed by the transferor, to the effect that as of the time
of the transfer, the transferor has no actual knowledge that the transferee is a
disqualified organization, ERISA Prohibited Holder or Non-permitted Foreign
Holder, and has no knowledge or reason to know that the statements made by the
transferee with respect to clauses (i) and (iii) of the last sentence of the
preceding paragraph are not true. The Class I-A-R and Class I-A-LR Certificates
shall bear a legend referring to the foregoing restrictions contained in this
paragraph and the preceding paragraph.
Upon notice to the Master Servicer that any legal or beneficial interest in
any portion of the Class I-A-R or Class I-A-LR Certificate has been transferred,
directly or indirectly, to a disqualified organization or agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, (i) such transferee shall be deemed to hold the Class I-A-R or
Class I-A-LR Certificate in constructive trust for the last transferor who was
not a disqualified organization or agent thereof, and such transferor shall be
restored as the owner of such Class I-A-R or Class I-A-LR Certificate as
completely as if such transfer had never occurred, provided that the Master
Servicer may, but is not required to, recover any distributions made to such
transferee with respect to the Class I-A-R or Class I-A-LR Certificate, and (ii)
the Master Servicer agrees to furnish to the Internal Revenue Service and to any
transferor of the Class I-A-R or Class I-A-LR Certificate or such agent (within
60 days of the request therefor by the transferor or agent) such information
necessary to the application of Code Section 860E(e) as may be required by the
Code, including but not limited to the present value of the total anticipated
excess inclusions with respect to the Class I-A-R or Class I-A-LR Certificate
(or portion thereof) for periods after such transfer. At the election of the
Master Servicer, the cost to the Master Servicer of computing and furnishing
such information may be charged to the transferor or such agent referred to
above; however, the Master Servicer shall in no event be excused from furnishing
such information.
Section 5.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Trustee or the
Authenticating Agent, or the Trustee or the Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee or the Authenticating
Agent such security or indemnity as may be required by them to hold each of them
harmless, then, in the absence of notice to the Trustee or the Authenticating
Agent that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and authenticate (or cause the Authenticating Agent to
authenticate) and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
principal portion or Percentage Interest and of the same Class. Upon the
issuance of any new Certificate under this Section, the Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expense (including the fees and expenses of the Trustee or the
Authenticating Agent) in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust Estate, 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.
Prior to the due presentation of a Certificate for registration of
transfer, the Seller, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Seller, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.01, and for all other purposes whatsoever,
and neither the Seller, the Master Servicer, the Trustee, the Certificate
Registrar nor any agent of the Seller, the Master Servicer, the Trustee or the
Certificate Registrar shall be affected by notice to the contrary.
SECTION 5.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
(a) If the Trustee is not acting as Certificate Registrar, the Certificate
Registrar shall furnish or cause to be furnished to the Trustee, within 15 days
after receipt by the Certificate Registrar of a request by the Trustee in
writing, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Certificateholders of each Class as of the most
recent Record Date.
(b) If five or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days following the
receipt of such application, afford such applicants access during normal
business hours to the most recent list of Certificateholders held by the
Trustee. If such a list is as of the date more than 90 days prior to the date of
receipt of such applicants' request and the Trustee is not the Certificate
Registrar, the Trustee shall promptly request from the Certificate Registrar a
current list as provided in paragraph (a) hereof, and shall afford such
applicants access to such list promptly upon receipt.
(c) Every Certificateholder, by receiving and holding a Certificate, agrees
with the Seller, the Master Servicer, the Certificate Registrar and the Trustee
that neither the Seller, the Master Servicer, the Certificate Registrar nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names, addresses and Percentage Interests of the
Certificateholders hereunder, regardless of the source from which such
information was delivered.
SECTION 5.06 MAINTENANCE OF OFFICE OR AGENCY.
The Trustee will maintain, at its expense, an office or agency where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Certificate Registrar in respect of the
Certificates and this Agreement may be served. The Trustee initially designates
the Corporate Trust Office and the principal corporate trust office of the
Authenticating Agent, if any, as its offices and agencies for said purposes.
SECTION 5.07 DEFINITIVE CERTIFICATES.
If (i)(A) the Master Servicer advises the Trustee in writing that the
Clearing Agency is no longer willing or able properly to discharge its
responsibilities as depository with respect to the Book-Entry Certificates, and
(B) the Master Servicer is unable to locate a qualified successor, (ii) the
Master Servicer, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of dismissal or resignation of the Master Servicer, Beneficial Owners
representing aggregate Voting Interests of not less than 51% of the aggregate
Voting Interests of each outstanding Class of Book-Entry Certificates advise the
Trustee through the Clearing Agency and Clearing Agency Participants in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Beneficial Owners, the Trustee shall notify
the Beneficial Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Certificates to Beneficial
Owners requesting the same. Upon surrender to the Trustee by the Clearing Agency
of the Certificates held of record by its nominee, accompanied by reregistration
instructions and directions to execute and authenticate new Certificates from
the Master Servicer, the Trustee shall execute and authenticate Definitive
Certificates for delivery at its Corporate Trust Office. The Master Servicer
shall arrange for, and will bear all costs of, the printing and issuance of such
Definitive Certificates. Neither the Seller, the Master Servicer nor the Trustee
shall be liable for any delay in delivery of such instructions by the Clearing
Agency and may conclusively rely on, and shall be protected in relying on, such
instructions.
SECTION 5.08 NOTICES TO CLEARING AGENCY.
Whenever notice or other communication to the Holders of Book-Entry
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to Beneficial Owners pursuant to Section
5.07, the Trustee shall give all such notices and communications specified
herein to be given to Holders of Book-Entry Certificates to the Clearing Agency.
ARTICLE VI
THE SELLER AND THE MASTER SERVICER
SECTION 6.01 LIABILITY OF THE SELLER AND THE MASTER SERVICER.
The Seller and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically imposed by this
Agreement and undertaken hereunder by the Seller and the Master Servicer.
SECTION 6.02 MERGER OR CONSOLIDATION OF THE SELLER OR THE MASTER SERVICER.
Subject to the following paragraph, the Seller and the Master Servicer each
will keep in full effect its existence, rights and franchises as a corporation
under the laws of the jurisdiction of its incorporation, and will 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, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
The Seller or the Master Servicer may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Seller or Master Servicer shall be a party, or any Person succeeding
to the business of the Seller or Master Servicer, shall be the successor of the
Seller or Master Servicer 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, in the case of
the Master Servicer, any such successor or resulting Person shall be qualified
to service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac.
SECTION 6.03 LIMITATION ON LIABILITY OF THE SELLER, THE MASTER SERVICER AND
OTHERS.
Neither the Seller nor the Master Servicer nor any subcontractor nor any of
the partners, directors, officers, employees or agents of any of them shall be
under any liability to the Trust Estate or the Certificateholders and all such
Persons shall be held harmless 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 any such
Person against any breach of warranties or representations made herein or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Seller,
the Master Servicer, any subcontractor, and any partner, director, officer,
employee or agent of any of them shall be entitled to indemnification by the
Trust Estate and will be held harmless against any loss, liability or expense
incurred in connection with the performance of its duties and obligations and
any legal action relating to this Agreement or the Certificates, including,
without limitation, any legal action against the Trustee in its capacity as
Trustee hereunder, other than any loss, liability or expense (including, without
limitation, expenses payable by the Master Servicer under Section 8.06) incurred
by reason of willful misfeasance, bad faith or gross negligence in the
performance of his or its duties hereunder or by reason of reckless disregard of
his or its obligations and duties hereunder. The Seller, the Master Servicer and
any of the directors, officers, employees or agents of either may rely in good
faith on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. Neither the
Seller nor the Master Servicer shall be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and which in its opinion does not involve
it in any expense or liability; provided, however, that the Seller or the Master
Servicer may in its discretion undertake any such action which it may deem
necessary or desirable with respect to this Agreement and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder if
the Certificateholders offer to the Seller or the Master Servicer, as the case
may be, reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby. 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 Estate, and the Seller or the
Master Servicer shall be entitled to be reimbursed therefor out of the
Certificate Account, and such amounts shall, on the following Distribution Date
or Distribution Dates, be allocated in reduction of distributions on the Class A
Certificates and Class B Certificates in the same manner as Realized Losses are
allocated pursuant to Section 4.02(a).
SECTION 6.04 RESIGNATION OF THE MASTER SERVICER.
The Master Servicer shall not resign from the obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities, duties,
liabilities and obligations hereunder.
SECTION 6.05 COMPENSATION TO THE MASTER SERVICER.
The Master Servicer shall be entitled to receive a monthly fee equal to the
Master Servicing Fee, as compensation for its services rendered by the Master
Servicer under the Agreement. The Master Servicer also will be entitled to any
late reporting fees paid by a Servicer pursuant to its Servicing Agreement, any
investment income on funds on deposit in the Certificate Account and any
Liquidation Profits to which a Servicer is not entitled under its Servicing
Agreement.
SECTION 6.06 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER.
The Master Servicer shall not assign or transfer any of its rights,
benefits or privileges under this Agreement to any other Person, or delegate to
or subcontract with, or authorize or appoint any other Person to perform any of
the duties, covenants or obligations to be performed by the Master Servicer
without the prior written consent of the Trustee, and any agreement, instrument
or act purporting to effect any such assignment, transfer, delegation or
appointment shall be void. Notwithstanding the foregoing, the Master Servicer
shall have the right without the prior written consent of the Trustee (i) to
assign its rights and delegate its duties and obligations hereunder; provided,
however, that (a) the purchaser or transferee accepting such assignment or
delegation is qualified to service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac,
is satisfactory to the Trustee, in the exercise of its reasonable judgment, and
executes and delivers to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
purchaser or transferee of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Master Servicer
hereunder from and after the date of such agreement; and (b) each applicable
Rating Agency's rating of any Certificates in effect immediately prior to such
assignment, sale or transfer is not reasonably likely to be qualified,
downgraded or withdrawn as a result of such assignment, sale or transfer and the
Certificates are not reasonably likely to be placed on credit review status by
any such Rating Agency; and (ii) to delegate to, subcontract with, authorize, or
appoint an affiliate of the Master Servicer to perform and carry out any duties,
covenants or obligations to be performed and carried out by the Master Servicer
under this Agreement and hereby agrees so to delegate, subcontract, authorize or
appoint to an affiliate of the Master Servicer any duties, covenants or
obligations to be performed and carried out by the Master Servicer to the extent
that such duties, covenants or obligations are to be performed in any state or
states in which the Master Servicer is not authorized to do business as a
foreign corporation but in which the affiliate is so authorized. In no case,
however, shall any permitted assignment and delegation relieve the Master
Servicer of any liability to the Trustee or the Seller under this Agreement,
incurred by it prior to the time that the conditions contained in clause (i)
above are met.
Section 6.07 INDEMNIFICATION OF TRUSTEE AND SELLER BY MASTER SERVICER.
The Master Servicer shall indemnify and hold harmless the Trustee and the
Seller and any director, officer or agent thereof against any loss, liability or
expense, including reasonable attorney's fees, arising out of, in connection
with or incurred by reason of willful misfeasance, bad faith or negligence in
the performance of duties of the Master Servicer under this Agreement or by
reason of reckless disregard of its obligations and duties under this Agreement.
Any payment pursuant to this Section made by the Master Servicer to the Trustee
or the Seller shall be from such entity's own funds, without reimbursement
therefor. The provisions of this Section 6.07 shall survive the termination of
this Agreement.
ARTICLE VII
DEFAULT
SECTION 7.01 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Master
Servicer shall occur and be continuing, that is to say:
(i) any failure by the Master Servicer (a) to remit any funds to the
Paying Agent as required by Section 4.03 or (b) to distribute or cause to
be distributed to Certificateholders any payment required to be made by the
Master Servicer under the terms of this Agreement which, in either case,
continues unremedied for a period of three business days after the date
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee or to
the Master Servicer and the Trustee by the holders of Certificates
evidencing in the aggregate not less than 25% of the aggregate Voting
Interest represented by all Certificates;
(ii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Master Servicer in the Certificates or in this Agreement
which continues unremedied for a period of 60 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 Trustee, or to the Master
Servicer and the Trustee by the holders of Certificates evidencing in the
aggregate not less than 25% of the aggregate Voting Interest represented by
all Certificates;
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged and unstayed for a period of 60
days;
(iv) the Master Servicer shall consent to the appointment of a
trustee, conservator, receiver or liquidator or liquidating committee in
any bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
the Master Servicer, or of or relating to all or substantially all of its
property;
(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, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment
of its obligations;
(vi) the Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets; or consolidate with or merge into
another entity or shall permit another entity to consolidate or merge into
it, such that the resulting entity does not meet the criteria for a
successor servicer, as specified in Section 6.02 hereof; or
(vii) the Master Servicer and any subservicer appointed by it becomes
ineligible to service for both Xxxxxx Mae and Xxxxxxx Mac, which
ineligibility continues unremedied for a period of 90 days.
then, and in each and every such case, subject to applicable law, so long as an
Event of Default shall not have been remedied, either the Trustee or the holders
of Certificates evidencing in the aggregate not less than 66 2/3% of the
aggregate Voting Interest represented by all Certificates, by notice in writing
to the Master Servicer (and to the Trustee if given by the Certificateholders)
may terminate all of the rights and obligations of the Master Servicer under
this Agreement and in and to the Mortgage Loans, but without prejudice to any
rights which the Master Servicer may have to the aggregate Master Servicing Fees
due prior to the date of transfer of the Master Servicer's responsibilities
hereunder, reimbursement of expenses to the extent permitted by this Agreement,
Periodic Advances and other advances of its own funds. Upon receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section, subject to the provisions of Section 7.05; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master 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. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder and shall promptly provide the
Trustee all documents and records reasonably requested by it to enable it to
assume the Master Servicer's functions hereunder and shall promptly also
transfer to the Trustee, all amounts which then have been or should have been
deposited in the Certificate Account by the Master Servicer or which are
thereafter received by the Master Servicer with respect to the Mortgage Loans.
SECTION 7.02 OTHER REMEDIES OF TRUSTEE.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name as trustee of
an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filing of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
SECTION 7.03 DIRECTIONS BY CERTIFICATEHOLDERS AND DUTIES OF TRUSTEE DURING
EVENT OF DEFAULT.
During the continuance of any Event of Default, Holders of Certificates
evidencing in the aggregate not less than 25% of the aggregate Voting Interest
represented by all Certificates may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the rights or powers vested in it by this
agreement (including, without limitation, (i) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto and (ii) the
terminating of the Master Servicer from its rights and duties as servicer
hereunder) at the request, order or direction of any of the Certificateholders,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which may be
incurred therein or thereby and, provided further, that, subject to the
provisions of Section 8.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee, in accordance with an Opinion of
Counsel, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the nonassenting Certificateholders.
SECTION 7.04 ACTION UPON CERTAIN FAILURES OF THE MASTER SERVICER AND UPON
EVENT OF DEFAULT.
In the event that the Trustee shall have knowledge of any failure of the
Master Servicer specified in Section 7.01(i) or (ii) which would become an Event
of Default upon the Master Servicer's failure to remedy the same after notice,
the Trustee may, but need not if the Trustee deems it not in the
Certificateholders' best interest, give notice thereof to the Master Servicer.
For all purposes of this Agreement, in the absence of actual knowledge by a
corporate trust officer of the Trustee, the Trustee shall not be deemed to have
knowledge of any failure of the Master Servicer as specified in Section 7.01(i)
and (ii) or any Event of Default unless notified thereof in writing by the
Master Servicer or by a Certificateholder.
SECTION 7.05 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
When the Master Servicer receives notice of termination pursuant to Section
7.01 or the Trustee receives the resignation of the Master Servicer evidenced by
an Opinion of Counsel pursuant to Section 6.04, the Trustee shall be the
successor in all respects to the Master Servicer in its capacity as master
servicer under this Agreement and the transactions set forth or provided for
herein and shall have the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and in its capacity as such
successor shall have the same limitation of liability herein granted to the
Master Servicer. In the event that the Trustee is succeeding to the Master
Servicer as the Master Servicer, as compensation therefor, the Trustee shall be
entitled to receive monthly such portion of the Master Servicing Fee, together
with such other servicing compensation as is agreed to at such time by the
Trustee and the Master Servicer, but in no event more than 25% thereof until the
date of final cessation of the Master Servicer's servicing activities hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act or to obtain a qualifying bid as described
below, appoint, or petition a court of competent jurisdiction to appoint, any
housing and home finance institution, bank or mortgage servicing institution
having a net worth of not less than $10,000,000 and meeting such other standards
for a successor servicer as are set forth herein, as the successor to the Master
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Master Servicer hereunder; provided, however, that
until such a successor master servicer is appointed and has assumed the
responsibilities, duties and liabilities of the Master Servicer hereunder, the
Trustee shall continue as the successor to the Master Servicer as provided
above. The compensation of any successor master servicer so appointed shall not
exceed the compensation specified in Section 6.05 hereof. In the event the
Trustee is required to solicit bids as provided above, the Trustee shall
solicit, by public announcement, bids from housing and home finance
institutions, banks and mortgage servicing institutions meeting the
qualifications set forth in the preceding sentence for the purchase of the
master servicing functions. Such public announcement shall specify that the
successor master servicer shall be entitled to the full amount of the Master
Servicing Fee as compensation together with the other servicing compensation in
the form of late reporting fees or otherwise as provided in Section 6.05. Within
30 days after any such public announcement, the Trustee shall negotiate and
effect the sale, transfer and assignment of the master servicing rights and
responsibilities hereunder to the qualified party submitting the highest
qualifying bid. The Trustee shall deduct all costs and expenses of any public
announcement and of any sale, transfer and assignment of the servicing rights
and responsibilities hereunder from any sum received by the Trustee from the
successor to the Master Servicer in respect of such sale, transfer and
assignment. After such deductions, the remainder of such sum shall be paid by
the Trustee to the Master Servicer at the time of such sale, transfer and
assignment to the Master Servicer's successor. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. The Master Servicer agrees to cooperate with the
Trustee and any successor servicer in effecting the termination of the Master
Servicer's servicing responsibilities and rights hereunder and shall promptly
provide the Trustee or such successor master servicer, as applicable, all
documents and records reasonably requested by it to enable it to assume the
Master Servicer's function hereunder and shall promptly also transfer to the
Trustee or such successor master servicer, as applicable, all amounts which then
have been or should have been deposited in the Certificate Account by the Master
Servicer or which are thereafter received by the Master Servicer with respect to
the Mortgage Loans. 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 caused by
(i) the failure of the Master Servicer to deliver, or any delay in delivering,
cash, documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. Notwithstanding anything
to the contrary contained in Section 7.01 above or this Section 7.05, the Master
Servicer shall retain all of its rights and responsibilities hereunder, and no
successor (including the Trustee) shall succeed thereto, if the assumption
thereof by such successor would cause the rating assigned to any Certificates to
be revoked, downgraded or placed on credit review status (other than for
possible upgrading) by either Rating Agency and the retention thereof by the
Master Servicer would avert such revocation, downgrading or review.
SECTION 7.06 NOTIFICATION TO CERTIFICATEHOLDERS.
Upon any termination of the Master Servicer or appointment of a successor
master servicer, in each case as provided herein, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register. The Trustee shall also, within 45 days
after the occurrence of any Event of Default known to the Trustee, give written
notice thereof to Certificateholders at their respective addresses appearing in
the Certificate Register, unless such Event of Default shall have been cured or
waived within said 45 day period.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 DUTIES OF TRUSTEE.
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured),
the Trustee, subject to the provisions of Sections 7.01, 7.03, 7.04 and 7.05,
shall exercise such of the rights and powers vested in it by this Agreement, and
use the same degree of care and skill in its exercise as a prudent investor
would exercise or use under the circumstances in the conduct of such investor's
own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any certificate, statement,
instrument, report, notice or other document furnished by the Master Servicer or
the Servicers pursuant to Articles III, IV and IX.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee, and conforming
to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of holders of Certificates which evidence in
the aggregate not less than 25% of the Voting Interest represented by all
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Agreement; and
(iii) The Trustee shall not be liable for any error of judgment made
in good faith by any of its Responsible Officers, unless it shall be proved
that the Trustee or such Responsible Officer, as the case may be, was
negligent in ascertaining the pertinent facts.
None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if there is reasonable ground for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION 8.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the manner of obtaining
consents and evidencing the authorization of the execution thereof shall be
subject to such reasonable regulations as the Trustee may prescribe;
(ii) The Trustee may consult with counsel, and any written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) Subject to Section 7.04, the Trustee shall not be accountable,
shall have no liability and makes no representation as to any acts or
omissions hereunder of the Master Servicer until such time as the Trustee
may be required to act as Master Servicer pursuant to Section 7.05 and
thereupon only for the acts or omissions of the Trustee as successor Master
Servicer; and
(v) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
Section 8.03 TRUSTEE NOT REQUIRED TO MAKE INVESTIGATION.
Prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default 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, appraisal, bond, Mortgage, Mortgage Note or other paper
or document (provided the same appears regular on its face), unless requested in
writing to do so by holders of Certificates evidencing in the aggregate not less
than 51% of the Voting Interest represented by all Certificates; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding. The reasonable expense of every such investigation
shall be paid by the Master Servicer or, if paid by the Trustee shall be repaid
by the Master Servicer upon demand.
SECTION 8.04 TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS.
The recitals contained herein and in the Certificates (other than the
certificate of authentication on the Certificates) shall be taken as the
statements of the Seller, and the Trustee assumes no responsibility as to the
correctness of the same. The Trustee makes no representation for the correctness
of the same. The Trustee makes no representation as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document. Subject to Section 2.04, the Trustee shall not be accountable
for the use or application by the Seller of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Master Servicer in respect of the Mortgage Loans deposited into the
Certificate Account by the Master Servicer or, in its capacity as trustee, for
investment of any such amounts.
SECTION 8.05 TRUSTEE MAY OWN CERTIFICATES.
The Trustee, and any agent thereof, in its individual or any other
capacity, may become the owner or pledgee of Certificates with the same rights
it would have if it were not Trustee or such agent and may transact banking
and/or trust business with the Seller, the Master Servicer or their Affiliates.
SECTION 8.06 THE MASTER SERVICER TO PAY FEES AND EXPENSES.
The Master Servicer covenants and agrees to pay to the Trustee from time to
time, from its own funds, and the Trustee shall be entitled to receive,
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee and,
except as otherwise agreed by the Master Servicer and the Trustee, the Master
Servicer will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement, or advance as
may arise from its negligence or bad faith. The Trustee shall have no right of
reimbursement from the Trust Estate for any such expenses, disbursements and
advances not paid or reimbursed to it by the Master Servicer.
SECTION 8.07 ELIGIBILITY REQUIREMENTS.
The Trustee hereunder shall at all times (i) be a corporation or
association having its principal office in a state and city acceptable to the
Seller, organized and doing business under the laws of such state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, or shall
be a member of a bank holding system, the aggregate combined capital and surplus
of which is at least $50,000,000, provided that its separate capital and surplus
shall at all times be at least the amount specified in Section 310(a)(2) of the
Trust Indenture Act of 1939, (ii) be subject to supervision or examination by
federal or state authority and (iii) have a credit rating or be otherwise
acceptable to the Rating Agencies such that neither of the Rating Agencies would
reduce their respective then current ratings of the Certificates (or have
provided such security from time to time as is sufficient to avoid such
reduction) as evidenced in writing by each Rating Agency. If such corporation or
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.08.
SECTION 8.08 RESIGNATION AND REMOVAL.
The Trustee may at any time resign and be discharged from the trust hereby
created by giving written notice of resignation to the Master Servicer, such
resignation to be effective upon the appointment of a successor trustee. Upon
receiving such notice of resignation, the Master Servicer shall promptly appoint
a successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning entity and one copy to its
successor. If no successor trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.07 and shall fail to resign after written request
for its resignation by the Master Servicer, or if at any time the Trustee shall
become incapable of acting, or an order for relief shall have been entered in
any bankruptcy or insolvency proceeding with respect to such entity, or a
receiver of such entity or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of the property or
affairs of the Trustee for the purpose of rehabilitation, conversion or
liquidation, or the Master Servicer shall deem it necessary in order to change
the situs of the Trust Estate for state tax reasons, then the Master Servicer
shall remove the Trustee and appoint a successor trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
The Holders of Certificates evidencing in the aggregate not less than 51%
of the Voting Interests represented by all Certificates (except that any
Certificate registered in the name of the Seller, the Master Servicer or any
affiliate thereof will not be taken into account in determining whether the
requisite Voting Interests has been obtained) may at any time remove the Trustee
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 Master Servicer, one complete
set of which shall be delivered to the entity or entities so removed and one
complete set of which shall be delivered to the successor so appointed.
Any resignation or removal of the Trustee and appointment of a successor
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor as provided in Section 8.09.
SECTION 8.09 SUCCESSOR.
Any successor trustee appointed as provided in Section 8.08 shall execute,
acknowledge and deliver to the Master Servicer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective, and such
successor, without any further act, deed or reconveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to its successor all documents and statements
held by it hereunder, and the Seller, the Master Servicer and the predecessor
entity 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 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 8.07.
Upon acceptance of appointment by a successor as provided in this Section,
the Master Servicer shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Master Servicer fails to mail such notice within
ten days after acceptance of the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Master Servicer.
SECTION 8.10 MERGER OR CONSOLIDATION.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, to which it may sell or transfer its corporate trust
business and assets as a whole or substantially as a whole or any Person
resulting from any merger, sale, transfer, conversion or consolidation to which
the Trustee shall be a party, or any Person succeeding to the business of such
entity, shall be the successor of the Trustee hereunder; provided, however, that
(i) such Person shall be eligible under the provisions of Section 8.07, 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, and (ii)
the Trustee shall deliver an Opinion of Counsel to the Seller and the Master
Servicer to the effect that such merger, consolidation, sale or transfer will
not subject either the Upper-Tier REMIC or the Lower-Tier REMIC to federal,
state or local tax or cause either the Upper-Tier REMIC or the Lower-Tier REMIC
to fail to qualify as a REMIC, which Opinion of Counsel shall be at the sole
expense of the Trustee.
SECTION 8.11 AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent, which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Wherever
reference is made in this Agreement to the authentication of Certificates by the
Trustee or the Trustee's countersignature, such reference shall be deemed to
include authentication on behalf of the Trustee by the Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by the
Authenticating Agent. The Authenticating Agent must be acceptable to the Seller
and the Master Servicer and must be a corporation organized and doing business
under the laws of the United States of America or of any state, having a
principal office and place of business in a state and city acceptable to the
Seller and the Master Servicer, having a combined capital and surplus of at
least $15,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities.
Any corporation into which the Authenticating Agent 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 Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee, the Seller and the Master
Servicer. The Trustee may at any time terminate the agency of the Authenticating
Agent by giving written notice thereof to the Authenticating Agent, the Seller
and the Master Servicer. Upon receiving a notice of resignation or upon such a
termination, or in case at any time the Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.11, the Trustee
promptly shall appoint a successor Authenticating Agent, which shall be
acceptable to the Master Servicer, and shall give written notice of such
appointment to the Seller, and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.11.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee. Any reasonable
compensation paid to the Authenticating Agent shall be a reimbursable expense
under Section 8.06.
SECTION 8.12 SEPARATE TRUSTEES AND CO-TRUSTEES.
The Trustee shall have the power from time to time to appoint one or more
persons or corporations to act either as co-trustees jointly with the Trustee,
or as separate trustees, for the purpose of holding title to, foreclosing or
otherwise taking action with respect to any Mortgage Loan outside the state
where the Trustee has its principal place of business, where such separate
trustee or co-trustee is necessary or advisable (or the Trustee is advised by
the Master Servicer that such separate trustee or co-trustee is necessary or
advisable) under the laws of any state in which a Mortgaged Property is located
or for the purpose of otherwise conforming to any legal requirement, restriction
or condition in any state in which a Mortgaged Property is located or in any
state in which any portion of the Trust Estate is located. The Master Servicer
shall advise the Trustee when, in its good faith opinion, a separate trustee or
co-trustee is necessary or advisable as aforesaid. The separate trustees or
co-trustees so appointed shall be trustees for the benefit of all of the
Certificateholders and shall have such powers, rights and remedies as shall be
specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee. The Seller and the Master Servicer shall join in any such
appointment, but such joining shall not be necessary for the effectiveness of
such appointment.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee, in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other 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 (whether as Trustee
hereunder or as successor to the Master 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 Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee;
(iii) no separate trustee or co-trustee hereunder shall be personally
liable by reason of any act or omission of any other separate trustee or
co-trustee hereunder; and
(iv) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee so appointed by it, if such resignation
or removal does not violate the other terms of this Agreement.
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, co-trustee, or custodian shall refer to this Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee, or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be furnished to the Trustee.
Any separate trustee, co-trustee, or custodian 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.
No separate trustee or co-trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 8.07 hereunder and no
notice to Certificateholders of the appointment thereof shall be required under
Section 8.09 hereof.
The Trustee agrees to instruct its co-trustees, if any, to the extent
necessary to fulfill such entity's obligations hereunder.
The Master Servicer shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 8.06 hereof.
SECTION 8.13 TAX MATTERS; COMPLIANCE WITH REMIC PROVISIONS.
(a) Each of the Trustee and the Master Servicer covenants and agrees that
it shall perform its duties hereunder in a manner consistent with the REMIC
Provisions and shall not knowingly take any action or fail to take any other
action that would (i) affect the determination of the Trust Estate's status as
two separate REMICs; or (ii) cause the imposition of any federal, state or local
income, prohibited transaction, contribution or other tax on either the
Upper-Tier REMIC, the Lower-Tier REMIC or the Trust Estate. The Master Servicer,
or, in the case of any tax return or other action required by law to be
performed directly by the Trustee, the Trustee, shall (i) prepare or cause to be
prepared, timely cause to be signed by the Trustee and file or cause to be filed
annual federal and applicable state and local income tax returns for each of the
Upper-Tier REMIC and the Lower-Tier REMIC using a calendar year as the taxable
year and the accrual method of accounting; (ii) in the first such federal tax
return, make, or cause to be made, elections satisfying the requirements of the
REMIC Provisions, on behalf of the Trust Estate, to treat each of the Upper-Tier
REMIC and the Lower-Tier REMIC as a REMIC; (iii) prepare, execute and forward,
or cause to be prepared, executed and forwarded, to the Certificateholders all
information reports or tax returns required with respect to the Trust Estate, as
and when required to be provided to the Certificateholders, and to the Internal
Revenue Service and any other relevant governmental taxing authority in
accordance with the REMIC Provisions and any other applicable federal, state or
local laws, including without limitation information reports relating to
"original issue discount" and "market discount" as defined in the Code based
upon the issue prices, prepayment assumption and cash flows provided by the
Seller to the Trustee and calculated on a monthly basis by using the issue
prices of the Certificates; (iv) make available information necessary for the
application of any tax imposed on transferors of residual interests to
"disqualified organizations" (as defined in the REMIC Provisions); (v) file Form
8811 and apply for an Employee Identification Number with a Form SS-4 or any
other permissible method and respond to inquiries by Certificateholders or their
nominees concerning information returns, reports or tax returns; (vi) maintain
(or cause to be maintained by the Servicers) such records relating to the
Upper-Tier REMIC and the Lower-Tier REMIC, including but not limited to the
income, expenses, individual Mortgage Loans (including REO Mortgage Loans, other
assets and liabilities of each REMIC, and the fair market value and adjusted
basis of the property of each REMIC determined at such intervals as may be
required by the Code, as may be necessary to prepare the foregoing returns or
information reports; (vii) exercise reasonable care not to allow the creation of
any "interests" in either the Upper-Tier REMIC or the Lower-Tier REMIC within
the meaning of Code Section 860D(a)(2) other than the interests in the
Upper-Tier REMIC represented by the Class I-A-1, Class I-A-2, Class I-A-3, Class
I-A-4, Class I-A-5, Class I-A-6, Class I-A-7, Class I-A-R, Class II-A-1, Class
II-A-2, Class II-A-3 and Class II-A-4 Certificates and the Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5 and Class B-6 Certificates and the interests in
the Lower-Tier REMIC represented by the Class I-A-L1, Class I-A-L2, Class
I-A-L3, Class I-A-L5, Class I-A-LUR, Class II-A-L1, Class II-A-L2, Class B-L1,
Class B-L2, Class B-L3, Class B-L4, Class B-L5 and Class B-L6 Interests and the
Class I-A-LR Certificate; (viii) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" within the meaning of Code Section
860F(a), unless the Master Servicer shall have provided an Opinion of Counsel to
the Trustee that such occurrence would not (a) result in a taxable gain, (b)
otherwise subject any of the Upper-Tier REMIC, Lower-Tier REMIC or the Trust
Estate to tax or (c) cause the Trust Estate to fail to qualify as two separate
REMICs; (ix) exercise reasonable care not to allow either the Upper-Tier REMIC
or the Lower-Tier REMIC to receive income from the performance of services or
from assets not permitted under the REMIC Provisions to be held by a REMIC; (x)
pay (on behalf of the Upper-Tier REMIC or the Lower-Tier REMIC) the amount of
any federal income tax, including, without limitation, prohibited transaction
taxes, taxes on net income from foreclosure property, and taxes on certain
contributions to a REMIC after the Startup Day, imposed on the Upper-Tier REMIC
or the Lower-Tier REMIC, as the case may be, when and as the same shall be due
and payable (but such obligation shall not prevent the Master Servicer or any
other appropriate Person from contesting any such tax in appropriate proceedings
and shall not prevent the Master Servicer from withholding or depositing payment
of such tax, if permitted by law, pending the outcome of such proceedings); and
(xi) if required or permitted by the Code and applicable law, act as "tax
matters person" for the Upper-Tier REMIC and the Lower-Tier REMIC within the
meaning of Treasury Regulations Section 1.860F-4(d), and the Master Servicer is
hereby designated as agent of the Class I-A-R and Class I-A-LR
Certificateholders for such purpose (or if the Master Servicer is not so
permitted, the Holders of the Class I-A-R and Class I-A-LR Certificates shall be
tax matters persons for the Upper-Tier REMIC and the Lower-Tier REMIC,
respectively, in accordance with the REMIC Provisions). The Master Servicer
shall be entitled to be reimbursed pursuant to Section 3.02 for any taxes paid
by it pursuant to clause (x) of the preceding sentence, except to the extent
that such taxes are imposed as a result of the bad faith, willful misfeasance or
gross negligence of the Master Servicer in the performance of its obligations
hereunder. The Trustee shall sign the tax returns referred to in clause (i) of
the second preceding sentence.
In order to enable the Master Servicer or the Trustee, as the case may be,
to perform its duties as set forth above, the Seller shall provide, or cause to
be provided, to the Master Servicer within ten days after the Closing Date all
information or data that the Master Servicer determines to be relevant for tax
purposes to the valuations and offering prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flows of each Class of Certificates and the Mortgage Loans in the aggregate.
Thereafter, the Seller shall provide to the Master Servicer or the Trustee, as
the case may be, promptly upon request therefor, any such additional information
or data that the Master Servicer or the Trustee, as the case may be, may from
time to time request in order to enable the Master Servicer to perform its
duties as set forth above. The Seller hereby indemnifies the Master Servicer or
the Trustee, as the case may be, for any losses, liabilities, damages, claims or
expenses of the Master Servicer or the Trustee arising from any errors or
miscalculations by the Master Servicer or the Trustee pursuant to this Section
that result from any failure of the Seller to provide, or to cause to be
provided, accurate information or data to the Master Servicer or the Trustee, as
the case may be, on a timely basis. The Master Servicer hereby indemnifies the
Seller and the Trustee for any losses, liabilities, damages, claims or expenses
of the Seller or the Trustee arising from the Master Servicer's willful
misfeasance, bad faith or gross negligence in preparing any of the federal,
state and local tax returns of either REMIC as described above. In the event
that the Trustee prepares any of the federal, state and local tax returns of
either REMIC as described above, the Trustee hereby indemnifies the Seller and
the Master Servicer for any losses, liabilities, damages, claims or expenses of
the Seller or the Master Servicer arising from the Trustee's willful
misfeasance, bad faith or negligence in connection with such preparation.
(b) Notwithstanding anything in this Agreement to the contrary, each of the
Master Servicer, the Trustee shall pay from its own funds, without any right of
reimbursement therefor, the amount of any costs, liabilities and expenses
incurred by the Trust Estate (including, without limitation, any and all
federal, state or local taxes, including taxes imposed on "prohibited
transactions" within the meaning of the REMIC Provisions) if and to the extent
that such costs, liabilities and expenses arise from a failure of the Master
Servicer or the Trustee, respectively, to perform its obligations under this
Section 8.13.
SECTION 8.14 MONTHLY ADVANCES.
In the event that WFHM fails to make a Periodic Advance required to be made
pursuant to the WFHM Servicing Agreement on or before the Distribution Date, the
Trustee shall make a Periodic Advance as required by Section 3.03 hereof;
provided, however, the Trustee shall not be required to make such Periodic
Advances if prohibited by law or if it determines that such Periodic Advance
would be a Nonrecoverable Advance. With respect to those Periodic Advances which
should have been made by WFHM, the Trustee shall be entitled, pursuant to
Section 3.02(a)(i), (ii) or (v) hereof, to be reimbursed from the Certificate
Account for Periodic Advances and Nonrecoverable Advances made by it.
ARTICLE IX
TERMINATION
SECTION 9.01 TERMINATION UPON PURCHASE BY THE SELLER OR LIQUIDATION OF ALL
MORTGAGE LOANS.
Subject to Section 9.02, the respective obligations and responsibilities of
the Seller, the Master Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments after the Final Distribution
Date to Certificateholders and the obligation of the Master Servicer to send
certain notices as hereinafter set forth and the tax reporting obligations under
Sections 4.05 and 8.14 hereof) shall terminate upon the last action required to
be taken by the Trustee on the Final Distribution Date pursuant to this Article
IX following the earlier of (i) the purchase by the Seller of all Mortgage Loans
and all property acquired in respect of any Mortgage Loan remaining in the Trust
Estate at a price equal to the sum of (x) 100% of the unpaid principal balance
of each Mortgage Loan (other than any REO Mortgage Loan) as of the Final
Distribution Date, and (y) the fair market value of the Mortgaged Property
related to any REO Mortgage Loan (as determined by the Master Servicer 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 Certificateholders pursuant to
the third paragraph of this Section 9.01), plus any accrued and unpaid interest
through the last day of the month preceding the month of such purchase at the
applicable Mortgage Interest Rate and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Estate (including for this purpose the discharge of any
Mortgagor under a defaulted Mortgage Loan on which a Servicer is not obligated
to foreclose due to environmental impairment) or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
The right of the Seller to purchase all the assets of the Trust Estate
pursuant to clause (i) of the preceding paragraph are subject to Section 9.02
and conditioned upon the Pool Scheduled Principal Balance of the Mortgage Loans
as of the Final Distribution Date being less than the amount set forth in
Section 11.17. In the case of any purchase by the Seller pursuant to said clause
(i), the Seller shall provide to the Trustee the certification required by
Section 3.04 and the Trustee and the Custodian shall, promptly following payment
of the purchase price, release to the Seller the Owner Mortgage Loan Files
pertaining to the Mortgage Loans being purchased.
Notice of any termination, specifying the Final Distribution Date (which
shall be a date that would otherwise be a Distribution Date) upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 15th day of
the month preceding the month of such final distribution and not later than the
twentieth day of the month of such final distribution specifying (A) the Final
Distribution Date upon which final payment of the Certificates will be made upon
presentation and surrender of Certificates at the office or agency of the
Trustee therein designated, (B) the amount of any such final payment and (C)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made (except in the case of any Class A Certificate
surrendered on a prior Distribution Date pursuant to Section 4.01) only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. If the Seller is exercising its right to purchase,
the Seller shall deposit in the Certificate Account on or before the Final
Distribution Date in immediately available funds an amount equal to the purchase
price for the assets of the Trust Estate computed as above provided. Failure to
give notice of termination as described herein shall not entitle a
Certificateholder to any interest beyond the interest payable on the Final
Distribution Date.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to Certificateholders on the Final Distribution Date in
proportion to their respective Percentage Interests an amount equal to (i) as to
the Classes of Class A Certificates, the respective Principal Balance together
with any related Class A Unpaid Interest Shortfall and one month's interest in
an amount equal to the respective Interest Accrual Amount, (ii) as to the
Classes of Class B Certificates, the respective Principal Balance together with
any related Class B Unpaid Interest Shortfall and one month's interest in an
amount equal to the respective Interest Accrual Amount and (iii) as to the Class
I-A-R and Class I-A-LR Certificates, the amounts, if any, which remain on
deposit in the Upper-Tier Certificate Account and the Certificate Account,
respectively (other than amounts retained to meet claims) after application
pursuant to clauses (i), (ii) and (iii) above and payment to the Master Servicer
of any amounts it is entitled as reimbursement or otherwise hereunder. Such
amount shall be distributed in respect of interest and principal in respect of
the Uncertificated Lower-Tier Interests in the same amounts as distributed to
their Corresponding Upper-Tier Class or Classes in the manner specified in
Section 4.01(a)(iii). Notwithstanding the foregoing, if the price paid pursuant
to clause (i) of the first paragraph of this Section 9.01, after reimbursement
to the Servicers, the Master Servicer and the Trustee of any Periodic Advances,
is insufficient to pay in full the amounts set forth in clauses (i), (ii) and
(iii) of this paragraph, then any shortfall in the amount available for
distribution to Certificateholders shall be allocated in reduction of the
amounts otherwise distributable on the Final Distribution Date in the same
manner as Realized Losses are allocated pursuant to Sections 4.02(a) and (e)
hereof. Such distribution on the Final Distribution Date shall be in lieu of the
distribution otherwise required to be made on such Distribution Date in respect
of each Class of Certificates.
In the event that all of the Certificateholders shall not surrender their
Certificates for final payment and cancellation within three months following
the Final Distribution Date, the Trustee shall on such date cause all funds, if
any, in the Certificate Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate escrow account for the
benefit of such Certificateholders. The Trustee 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
three months after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds on deposit in such escrow account.
SECTION 9.02 ADDITIONAL TERMINATION REQUIREMENTS.
In the event of a termination of the Trust Estate upon the exercise by the
Seller of its purchase option as provided in Section 9.01, the Trust Estate
shall be terminated in accordance with the following additional requirements,
unless the Trustee has received an Opinion of Counsel to the effect that any
other manner of termination (i) will constitute a "qualified liquidation" of the
Trust Estate within the meaning of Code Section 860F(a)(4)(A) and (ii) will not
subject either the Upper-Tier REMIC or the Lower-Tier REMIC to federal tax or
cause the Trust Estate to fail to qualify as two separate REMICs at any time
that any Certificates are outstanding:
(ii) The notice given by the Trustee under Section 9.01 shall provide
that such notice constitutes the adoption of a plan of complete liquidation
of the Upper-Tier REMIC and the Lower-Tier REMIC as of the date of such
notice (or, if earlier, the date on which the first such notice is mailed
to Certificateholders). The Master Servicer shall also specify such date in
a statement attached to the final tax returns of the Upper-Tier REMIC and
the Lower-Tier REMIC; and
(iii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the Final Distribution Date, the Trustee
shall sell all of the assets of the Trust Estate to the Seller for cash at
the purchase price specified in Section 9.01 and shall distribute such cash
within 90 days of such adoption in the manner specified in Section 9.01.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 AMENDMENT.
(a) This Agreement or the Custodial Agreement may be amended from time to
time by the Seller, the Master Servicer and the Trustee, without the consent of
any of the Certificateholders, (i) to cure any ambiguity or mistake, (ii) to
correct or supplement any provisions herein or therein which may be inconsistent
with any other provisions herein or therein or in the related Prospectus, (iii)
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust Estate as two separate
REMICs at all times that any Certificates are outstanding or to avoid or
minimize the risk of the imposition of any federal tax on the Trust Estate, the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Estate, provided that (a) the Trustee has received an
Opinion of Counsel to the effect that such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the imposition
of any such tax and (b) such action shall not, as evidenced by such Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, (iv) to change the timing and/or nature of deposits into the
Upper-Tier Certificate Account and the Certificate Account provided that such
change shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder, (v) to modify,
eliminate or add to the provisions of Section 5.02 or any other provisions
hereof restricting transfer of the Certificates, provided that the Master
Servicer for purposes of Section 5.02 has determined in its sole discretion that
any such modifications to this Agreement will neither adversely affect the
rating on the Certificates nor give rise to a risk that either the Upper-Tier
REMIC or the Lower-Tier REMIC or any of the Certificateholders will be subject
to a tax caused by a transfer to a non-permitted transferee and (vi) to make any
other provisions with respect to matters or questions arising under this
Agreement or such Custodial Agreement which shall not be materially inconsistent
with the provisions of this Agreement, provided that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder. Notwithstanding the foregoing, any amendment
pursuant to clause (iv) or (vi) shall not be deemed to adversely affect in any
material respect the interest of Certificateholders and no Opinion of Counsel to
that effect shall be required if the person requesting the amendment instead
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.
This Agreement or the Custodial Agreement may also be amended from time to
time by the Seller, the Master Servicer and the Trustee, with the consent of the
Holders of Certificates evidencing in the aggregate not less than 66-2/3% of the
aggregate Voting Interests of each Class of Certificates affected thereby, for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or such Custodial Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which are
required to be distributed on any Certificate without the consent of the Holder
of such Certificate, (ii) adversely affect in any material respect the interest
of the Holders of Certificates of any Class in a manner other than as described
in clause (i) hereof without the consent of Holders of Certificates of such
Class evidencing, as to such Class, Voting Interests aggregating not less than
66-2/3% or (iii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, without the
consent of the Holders of all Certificates of such Class then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel to the effect that such amendment will not
subject either the Upper-Tier REMIC or the Lower-Tier REMIC to tax or cause
either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment requiring the consent of
Certificateholders, the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01(a) 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.
(b) Notwithstanding any contrary provision of this Agreement, the Master
Servicer may, from time to time, amend Schedule I hereto without the consent of
any Certificateholder or the Trustee; provided, however, (i) that such amendment
does not conflict with any provisions of the related Servicing Agreement, (ii)
that the related Servicing Agreement provides for the remittance of each type of
Unscheduled Principal Receipts received by such Servicer during the Applicable
Unscheduled Principal Receipt Period (as so amended) related to each
Distribution Date to the Master Servicer no later than the 24th day of the month
in which such Distribution Date occurs and (iii) that such amendment is for the
purpose of:
(1) changing the Applicable Unscheduled Principal Receipt Period for Type
2 Mortgage Loans to a Mid-Month Receipt Period with respect to all
Unscheduled Principal Receipts; or
(2) changing the Applicable Unscheduled Principal Receipt Period for all
Mortgage Loans serviced by any Servicer to a Mid-Month Receipt Period
with respect to Full Unscheduled Principal Receipts and to a Prior
Month Receipt Period with respect to Partial Unscheduled Principal
Receipts.
A copy of any amendment to Schedule I pursuant to this Section 10.01(b)
shall be promptly forwarded to the Trustee.
Section 10.02 RECORDATION OF AGREEMENT.
This Agreement (or an abstract hereof, if acceptable to the applicable
recording office) is subject to recordation in all appropriate public offices
for real property records in all the towns or other comparable jurisdictions in
which any or all of the Mortgaged Properties are situated, and in any other
appropriate public office or elsewhere, such recordation to be effected by the
Master Servicer and at its expense on direction by the Trustee, but only upon
direction accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
SECTION 10.03 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Estate, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust Estate, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
Except as otherwise expressly provided herein, no Certificateholder, solely
by virtue of its status as a Certificateholder, shall have any right to vote or
in any manner otherwise control the operation and management of the Trust
Estate, or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association, nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder, solely by virtue of its status as Certificateholder,
shall have any right by virtue or by availing of any provision of this Agreement
to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Agreement, unless such Holder previously shall have given
to the Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates evidencing
not less than 25% of the Voting Interest represented by all Certificates shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the cost, 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 of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 10.04 GOVERNING LAW; JURISDICTION.
This Agreement shall be construed in accordance with the laws of the State
of New York (without regard to conflicts of laws principles), and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
SECTION 10.05 NOTICES.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed by
certified or registered mail, return receipt requested (i) in the case of the
Seller, to Xxxxx Fargo Asset Securities Corporation, 0000 Xxx Xxxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Vice President, or such other address as
may hereafter be furnished to the Master Servicer and the Trustee in writing by
the Seller, (ii) in the case of the Master Servicer, to Xxxxx Fargo Bank
Minnesota, National Association, 0000 Xxx Xxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Vice President or such other address as may hereafter be
furnished to the Seller and the Trustee in writing by the Master Servicer and
(iii) in the case of the Trustee, to the Corporate Trust Office, or such other
address as may hereafter be furnished to the Seller and the Master Servicer in
writing by the Trustee, in each case Attention: Corporate Trust Department Any
notice required or permitted to be mailed to a Certificateholder shall be given
by first class mail, postage prepaid, at the address of such Holder as shown in
the Certificate Register. Any notice mailed or transmitted within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the addressee receives such notice; provided, however,
that any demand, notice or communication to or upon the Seller, the Master
Servicer or the Trustee shall not be effective until received.
For all purposes of this Agreement, in the absence of actual knowledge by
an officer of the Master Servicer, the Master Servicer shall not be deemed to
have knowledge of any act or failure to act of any Servicer unless notified
thereof in writing by the Trustee, the Servicer or a Certificateholder.
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 Special Notices to Rating Agencies.
(a) The Trustee shall give prompt notice to each Rating Agency of the
occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 10.01(a);
(ii) any sale or transfer of the Class B Certificates pursuant to
Section 5.02 to an affiliate of the Seller;
(iii) any assignment by the Master Servicer of its rights and
delegation of its duties pursuant to Section 6.06;
(iv) any resignation of the Master Servicer pursuant to Section 6.04;
(v) the occurrence of any of the Events of Default described in
Section 7.01;
(vi) any notice of termination given to the Master Servicer pursuant
to Section 7.01;
(vii) the appointment of any successor to the Master Servicer pursuant
to Section 7.05; or
(viii) the making of a final payment pursuant to Section 9.01.
(b) The Master Servicer shall give prompt notice to each Rating Agency of
the occurrence of any of the following events:
(i) the resignation of the Custodian or the appointment of a successor
Custodian pursuant to the Custodial Agreement;
(ii) the resignation or removal of the Trustee pursuant to Section
8.08;
(iii) the appointment of a successor trustee pursuant to Section 8.09;
or
(iv) the sale, transfer or other disposition in a single transaction
of 50% or more of the equity interests in the Master Servicer.
(c) The Master Servicer shall deliver to each Rating Agency:
(i) reports prepared pursuant to Section 3.05; and
(ii) statements prepared pursuant to Section 4.04.
Section 10.08 COVENANT OF SELLER.
The Seller shall not amend Article Third of its Certificate of
Incorporation without the prior written consent of each Rating Agency rating the
Certificates.
Section 10.09 RECHARACTERIZATION.
The Parties intend the conveyance by the Seller to the Trustee of all of
its right, title and interest in and to the Mortgage Loans pursuant to this
Agreement to constitute a purchase and sale and not a loan. Notwithstanding the
foregoing, to the extent that such conveyance is held not to constitute a sale
under applicable law, it is intended that this Agreement shall constitute a
security agreement under applicable law and that the Seller shall be deemed to
have granted to the Trustee a first priority security interest in all of the
Seller's right, title and interest in and to the Mortgage Loans.
ARTICLE XI
TERMS FOR CERTIFICATES
SECTION 11.01 CUT-OFF DATE.
The Cut-Off Date for the Certificates is August 1, 2002.
SECTION 11.02 CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE.
The Cut-Off Date Aggregate Principal Balance is
$403,357,675.81.
SECTION 11.03 ORIGINAL GROUP PERCENTAGE.
Section 11.03(a) Original Group I-A Percentage.
The Original Group I-A Percentage is 96.99983423%.
Section 11.03(b) Original Group II-A Percentage.
The Original Group II-A Percentage is 97.08067370%.
SECTION 11.04 ORIGINAL PRINCIPAL BALANCES OF THE CLASSES OF CLASS A
CERTIFICATES.
As to the following Classes of Class A Certificates, the Principal Balance
of such Class as of the Cut-Off Date, as follows:
Original
Class Principal Balance
------------ --------------------
Class I-A-1 $ 8,000,000.00
Class I-A-2 $ 32,000,000.00
Class I-A-3 $ 50,000,000.00
Class I-A-4 $ 2,460,000.00
Class I-A-5 $ 81,941,000.00
Class I-A-6 $ 29,000,000.00
Class II-A-1 $ 100,000,000.00
Class II-A-2 $ 1,263,624.00
Class II-A-3 $ 86,785,000.00
Class I-A-LR $ 50.00
Class I-A-R $ 50.00
SECTION 11.05 ORIGINAL NOTIONAL AMOUNT.
The Original Notional Amount for the Class I-A-7 Certificates is
$139,941,000.00 and the Original Notional Amount for the Class II-A-4
Certificates is $165,814,889.00.
SECTION 11.06 ORIGINAL GROUP II-A NON-PO PRINCIPAL BALANCE.
The Original Group II-A Non-PO Principal Balance is $186,785,000.00.
SECTION 11.07 ORIGINAL AGGREGATE SUBORDINATE PERCENTAGE.
The Original Aggregate Subordinate Percentage is 2.9522063761%.
SECTION 11.08 ORIGINAL CLASS B PRINCIPAL BALANCE.
The Original Class B Principal Balance is $11,907,951.48.
SECTION 11.09 ORIGINAL SUBORDINATED PRINCIPAL BALANCE.
SECTION 11.09(A) ORIGINAL GROUP I SUBORDINATED PRINCIPAL BALANCE.
The Original Group I Subordinated Principal Balance is $6,291,114.03.
SECTION 11.09(B) ORIGINAL GROUP II SUBORDINATED PRINCIPAL BALANCE.
The Original Group II Subordinated Principal Balance is $5,616,837.45.
SECTION 11.10 ORIGINAL PRINCIPAL BALANCES OF THE CLASSES OF CLASS B
CERTIFICATES.
As to the following Classes of Class B Certificate, the Principal Balance
of such Class as of the Cut-Off Date, is as follows:
Original
Class Principal Balance
--------- -----------------
Class B-1 $ 5,851,000.00
Class B-2 $ 2,209,000.00
Class B-3 $ 1,612,000.00
Class B-4 $ 806,000.00
Class B-5 $ 617,000.00
Class B-6 $ 812,951.48
SECTION 11.11 ORIGINAL CLASS B-1 FRACTIONAL INTEREST.
The Original Class B-1 Fractional Interest is 1.50163288%.
SECTION 11.12 ORIGINAL CLASS B-2 FRACTIONAL INTEREST.
The Original Class B-2 Fractional Interest is 0.95397998%.
SECTION 11.13 ORIGINAL CLASS B-3 FRACTIONAL INTEREST.
The Original Class B-3 Fractional Interest is 0.55433468%.
SECTION 11.14 ORIGINAL CLASS B-4 FRACTIONAL INTEREST.
The Original Class B-4 Fractional Interest is 0.35451203%.
SECTION 11.15 ORIGINAL CLASS B-5 FRACTIONAL INTEREST.
The Original Class B-5 Fractional Interest is 0.20154605%.
SECTION 11.16 CLOSING DATE.
The Closing Date is August 29, 2002.
SECTION 11.17 RIGHT TO PURCHASE.
The right of the Seller to purchase all of the Mortgage Loans pursuant to
Section 9.01 hereof shall be conditioned upon the aggregate Scheduled Principal
Balance of the Mortgage Loans being less than $40,335,767.58 (10% of the Cut-Off
Date Aggregate Principal Balance) at the time of any such purchase.
SECTION 11.18 WIRE TRANSFER ELIGIBILITY.
With respect to the Class A Certificates (other than the Class I-A-7, Class
II-A-4, Class I-A-R and Class I-A-LR Certificates) and the Class B Certificates,
the minimum Denomination eligible for wire transfer on each Distribution Date is
$500,000. The Class I-A-R and Class I-A-LR Certificates are not eligible for
wire transfer. With respect to the Class I-A-7 and Class II-A-4 Certificates,
the minimum Denomination eligible for wire transfer on each Distribution Date is
5% Percentage Interest.
SECTION 11.19 SINGLE CERTIFICATE.
A Single Certificate for the Class I-A-1, Class I-A-2, Class I-A-3, Class
1-A-5, Class I-A-6, Class II-A-1 and Class II-A-3 Certificates represents a
$25,000 Denomination. A Single Certificate for the Class I-A-R and Class I-A-LR
Certificates represents a $50 Denomination. A Single Certificate for the Class
I-A-7 Certificates represents a $10,764,692.00 Denomination. A Single
Certificate for the Class II-A-4 Certificates represents a $9,211,938
Denomination. A Single Certificate for the Class I-A-4, Class II-A-2, Class B-1,
Class B-2 and Class B-3 Certificates represents a $100,000 Denomination. A
Single Certificate for the Class B-4, Class B-5 and Class B-6 Certificates
represents a $250,000 Denomination.
SECTION 11.20 SERVICING FEE RATE.
The rate used to calculate the Servicing Fee is equal to such rate as is
set forth on the Mortgage Loan Schedule with respect to a Mortgage Loan.
SECTION 11.21 MASTER SERVICING FEE RATE.
The rate used to calculate the Master Servicing Fee for each Mortgage Loan
is 0.017% per annum.
IN WITNESS WHEREOF, the Seller, the Master Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
XXXXX FARGO ASSET SECURITIES
CORPORATION
as Seller
By:
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
as Master Servicer
By:
--------------------------------------
Name: Xxxxxxx X. Xxxx, III
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
as Trustee
By:
--------------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
---------------------------------
Title:
--------------------------------
STATE OF MARYLAND )
ss.:
COUNTY OF XXXXXXXXX )
On this 29th day of August, 2002, before me, a notary public in and for the
State of Maryland, personally Xxxxx X. Xxxxxx, known to me who, being by me duly
sworn, did depose and say that she resides in Potomac, Maryland; that she is
Vice President of Xxxxx Fargo Asset Securities Corporation, a Delaware
corporation, one of the parties that executed the foregoing instrument; and that
she signed her name thereto by order of the Board of Directors of said
corporation.
-------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF MARYLAND )
ss.:
COUNTY OF XXXXXXXXX )
On this 29th day of August, 2002, before me, a notary public in and for the
State of Maryland, personally appeared Xxxxxxx X. Xxxx, III known to me who,
being by me duly sworn, did depose and say that he resides at Frederick,
Maryland; that he is a Vice President of Xxxxx Fargo Bank Minnesota, National
Association, a national banking association, one of the parties that executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said association.
-------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NORTH CAROLINA )
ss.:
COUNTY OF )
On this 29th day of August, 2002, before me, a notary public in and for the
State of North Carolina, personally appeared ___________________, known to me
who, being by me duly sworn, did depose and say that s/he resides at
_________________, North Carolina; that s/he is a ____________________ of
Wachovia Bank, National Association, a national banking association, one of the
parties that executed the foregoing instrument; and that s/he signed his/her
name thereto by order of the Board of Directors of said association.
STATE OF NORTH CAROLINA )
ss.:
COUNTY OF )
On this 29th day of August, 2002, before me, a notary public in and for the
State of North Carolina, personally appeared _____________________, known to me
who, being by me duly sworn, did depose and say that he resides at
__________________, North Carolina; that he is a _____________________ of
Wachovia Bank, National Association, a national banking association, one of the
parties that executed the foregoing instrument; and that s/he signed his name
thereto by order of the Board of Directors of said association.
-------------------------
Notary Public
[NOTARIAL SEAL]
2
SCHEDULE I
Xxxxx Fargo Asset Securities Corporation,
Mortgage Pass-Through Certificates, Series 2002-D
Applicable Unscheduled Principal Receipt Period
Full Unscheduled Partial Unscheduled
Servicer Principal Receipts Principal Receipts
WFHM (Exhibit F-1A and F-1B) Mid-Month Mid-Month
WFHM (Exhibit F-2A and F-2B) Prior Month Prior Month
EXHIBIT I-A-1
[FORM OF FACE OF CLASS I-A-1 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-1
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AA 0 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class I-A-1 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group I-A
Distribution Amount for the Class I-A-1 Certificates required to be distributed
to Holders of the Class I-A-1 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group I-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class I-A-1 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
------------------------------
Authorized Officer
EXHIBIT I-A-2
[FORM OF FACE OF CLASS I-A-2 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-2
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AB 8 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class I-A-2 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group I-A
Distribution Amount for the Class I-A-2 Certificates required to be distributed
to Holders of the Class I-A-2 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group I-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class I-A-2 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------
Authorized Officer
EXHIBIT I-A-3
[FORM OF FACE OF CLASS I-A-3 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-3
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AC 6 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class I-A-3 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group I-A
Distribution Amount for the Class I-A-3 Certificates required to be distributed
to Holders of the Class I-A-3 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group I-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class I-A-3 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------
Authorized Officer
EXHIBIT I-A-4
[FORM OF FACE OF CLASS I-A-4 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-4
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
AFTER THE SUBORDINATION DEPLETION DATE, THE PRINCIPAL PORTION OF REALIZED
LOSSES ALLOCATED TO THE CLASS I-A-2 AND CLASS I-A-3 Certificates WILL BE BORNE
BY THE CLASS I-A-4 CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AD 4 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class I-A-4 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group I-A
Distribution Amount for the Class I-A-4 Certificates required to be distributed
to Holders of the Class I-A-4 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group I-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class I-A-4 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------
Authorized Officer
EXHIBIT I-A-5
[FORM OF FACE OF CLASS I-A-5 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-5
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AE 2 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class I-A-5 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group I-A
Distribution Amount for the Class I-A-5 Certificates required to be distributed
to Holders of the Class I-A-5 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group I-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class I-A-5 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT I-A-6
[FORM OF FACE OF CLASS I-A-6 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-6
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AF 9 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25,2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class I-A-6 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group I-A
Distribution Amount for the Class I-A-6 Certificates required to be distributed
to Holders of the Class I-A-6 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group I-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class I-A-6 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT I-A-7
[FORM OF FACE OF CLASS I-A-7 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-7
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN THE MANNER
DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE OUTSTANDING NOTIONAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT
REPRESENTED.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AG 7 First Distribution Date: September 25, 2002
Denomination: $___________________
(Initial notional amount)
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class I-A-7 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group I-A
Distribution Amount for the Class I-A-7 Certificates required to be distributed
to Holders of the Class I-A-7 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group I-A Certificates in
accordance with the provisions of the Agreement. The Class I-A-7 Certificates
are not entitled to distributions in respect of principal. Prior to the
Distribution Date in January 2007, interest will accrue on the Class I-A-7
Certificates as provided in the Agreement. On and after the Distribution Date in
January 2007, no further payments will be made on the Class I-A-7 Certificates.
The amount of interest which accrues on this Certificate in any month will be
subject to reduction with respect to any Non-Supported Interest Shortfall, any
Relief Act Shortfall and the interest portion of certain Realized Losses
allocated to the Class I-A-7 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
on this Certificate will be made after due notice of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency specified by the Trustee for that purpose in the notice of
final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT I-A-R
[Form of Face of Class I-A-R Certificate]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(d) OF THE
AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND
THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, IT IS NOT A DISQUALIFIED
ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), AN AGENT
(INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR A DISQUALIFIED ORGANIZATION
OR A NON-PERMITTED FOREIGN HOLDER, AS DEFINED IN SECTION 5.02(d) OF THE
AGREEMENT AND TO HAVE AGREED TO SUCH AMENDMENTS TO THE AGREEMENT AS MAY BE
REQUIRED TO FURTHER EFFECTUATE THE RESTRICTIONS ON TRANSFERS TO DISQUALIFIED
ORGANIZATIONS, AGENTS THEREOF OR NON-PERMITTED FOREIGN HOLDERS.
THE HOLDER OF THIS CLASS I-A-R CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO
HAVE AGREED TO THE DESIGNATION OF THE MASTER SERVICER AS ITS AGENT TO ACT AS
"TAX MATTERS PERSON" OF THE UPPER-TIER REMIC TO PERFORM THE FUNCTIONS OF A "TAX
MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE
CODE, OR, IF SO REQUESTED BY THE MASTER SERVICER, TO ACT AS TAX MATTERS PERSON
OF THE UPPER-TIER REMIC.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
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 CODE OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-R
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AH 5 First Distribution Date: September 25, 2002
Denomination: $___________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT __________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate in monthly distributions
to the Holder of the Class I-A-R Certificate with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group I-A
Distribution Amount for the Class I-A-R Certificate required to be distributed
to the Holder of the Class I-A-R Certificate on such Distribution Date, subject
to adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group I-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class I-A-R Certificate, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency specified by the Trustee for that
purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT I-A-LR
[Form of Face of Class I-A-LR Certificate]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(d) OF THE
AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND
THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, IT IS NOT A DISQUALIFIED
ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), AN AGENT
(INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR A DISQUALIFIED ORGANIZATION
OR A NON-PERMITTED FOREIGN HOLDER, AS DEFINED IN SECTION 5.02(d) OF THE
AGREEMENT AND TO HAVE AGREED TO SUCH AMENDMENTS TO THE AGREEMENT AS MAY BE
REQUIRED TO FURTHER EFFECTUATE THE RESTRICTIONS ON TRANSFERS TO DISQUALIFIED
ORGANIZATIONS, AGENTS THEREOF OR NON-PERMITTED FOREIGN HOLDERS.
THE HOLDER OF THIS CLASS I-A-LR CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO
HAVE AGREED TO THE DESIGNATION OF THE MASTER SERVICER AS ITS AGENT TO ACT AS
"TAX MATTERS PERSON" OF THE LOWER-TIER REMIC TO PERFORM THE FUNCTIONS OF A "TAX
MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE
CODE, OR, IF SO REQUESTED BY THE MASTER SERVICER, TO ACT AS TAX MATTERS PERSON
OF THE LOWER-TIER REMIC.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
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 CODE OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS I-A-LR
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AJ 1 First Distribution Date: September 25, 2002
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: September 25, 2032
THIS CERTIFIES THAT __________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate in monthly distributions
to the Holder of the Class I-A-LR Certificate with respect to a Trust Estate
consisting of a two pools of adjustable interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans and which may include loans secured by shares issued by cooperative
housing corporations (the "Group I Mortgage Loans," and "Group II Mortgage
Loans," respectively), formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of August 29, 2002 (the "Agreement")
among the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master
servicer (the "Master Servicer"), and Wachovia Bank, National Association, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class I-A-LR Certificate required to be distributed
to the Holder of the Class I-A-LR Certificate on such Distribution Date, subject
to adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class I-A-LR Certificate, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency specified by the Trustee for that
purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By
--------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By
---------------------------------
Authorized Officer
EXHIBIT II-A-1
[FORM OF FACE OF CLASS II-A-1 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS II-A-1
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AK 8 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class II-A-1 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group II-A
Distribution Amount for the Class II-A-1 Certificates required to be distributed
to Holders of the Class II-A-1 Certificates on such Distribution Date, subject
to adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group II-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class II-A-1 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT II-A-2
[FORM OF FACE OF CLASS II-A-2 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS II-A-2
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN AGREEMENT. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL
PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AL 6 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class II-A-2 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group II-A
Distribution Amount for the Class II-A-2 Certificates required to be distributed
to Holders of the Class II-A-2 Certificates on such Distribution Date, subject
to adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group II-A Certificates in
accordance with the provisions of the Agreement. Prior to the Distribution Date
in December 2008, the Class II-A-2 Certificates will not be entitled to
distributions of interest. The pass-through rate for the Class II-A-2
Certificates for any Distribution Date on and after the Distribution Date in
December 2008 shall be determined as provided in the Agreement. The amount of
interest which accrues on this Certificate in any month commencing November 1,
2008 will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class II-A-2 Certificates, as described in the
Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT II-A-3
[FORM OF FACE OF CLASS II-A-3 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS II-A-3
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AM 4 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class II-A-3 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group II-A
Distribution Amount for the Class II-A-3 Certificates required to be distributed
to Holders of the Class II-A-3 Certificates on such Distribution Date, subject
to adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group II-A Certificates in
accordance with the provisions of the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall, any Relief Act
Shortfall and the interest portion of certain Realized Losses allocated to the
Class II-A-3 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT II-A-4
[FORM OF FACE OF CLASS II-A-4 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS II-A-4
evidencing an interest in a pool of adjustable
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans, which may
include loans secured by shares issued by
cooperative housing corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN THE MANNER
DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE OUTSTANDING NOTIONAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT
REPRESENTED.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AN 2 First Distribution Date: September 25, 2002
Denomination: $____________________
(Initial notional amount)
Percentage Interest evidenced
by this Certificate: ______% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class II-A-4 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the Group II-A
Distribution Amount for the Class II-A-4 Certificates required to be distributed
to Holders of the Class II-A-4 Certificates on such Distribution Date, subject
to adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Group II-A Certificates in
accordance with the provisions of the Agreement. The Class II-A-4 Certificates
are not entitled to distributions in respect of principal. Prior to the
Distribution Date in December 2008, the pass-through rate for each Distribution
Date shall be determined as provided in the Agreement. On and after the
Distribution Date in December 2008, the pass-through rate shall be zero and no
further payments will be made on the Class II-A-4 Certificates. The amount of
interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall and the interest
portion of certain Realized Losses allocated to the II-A-4 Certificates, as
described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
on this Certificate will be made after due notice of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency specified by the Trustee for that purpose in the notice of
final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS B-1
evidencing an interest in two pools of adjustable
interest rate, conventional, monthly pay, fully
amortizing, first lien, one- to four-
family residential mortgage loans, which may include
loans secured by shares issued by cooperative housing
corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AP 7 First Distribution Date: September 25, 2002
Denomination: $_________________
Percentage Interest evidenced
by this Certificate: ________% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT __________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate in monthly distributions
to the Holders of the Class B-1 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and, subject to the prior
rights of the Class A Certificates as specified in the Agreement, any Class B-1
Distribution Amount required to be distributed to Holders of the Class B-1
Certificates on such Distribution Date, subject to adjustment, in certain
events, as specified in the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall and any Relief
Act Shortfall allocated to the Class B-1 Certificates, as described in the
Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CLASS A CERTIFICATES AND
THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS B-2
evidencing an interest in two pools of adjustable
interest rate, conventional, monthly pay, fully
amortizing, first lien, one- to four-
family residential mortgage loans, which may include
loans secured by shares issued by cooperative housing
corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AQ 5 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ____% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT __________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate in monthly distributions
to the Holders of the Class B-2 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and, subject to the prior
rights of the Class A and each Class of Class B Certificates bearing a lower
numerical designation as specified in the Agreement, any Class B-2 Distribution
Amount required to be distributed to Holders of the Class B-2 Certificates on
such Distribution Date, subject to adjustment, in certain events, as specified
in the Agreement. The pass-through rate for each Distribution Date shall be
determined as provided in the Agreement. The amount of interest which accrues on
this Certificate in any month will be subject to reduction with respect to any
Non-Supported Interest Shortfall and any Relief Act Shortfall allocated to the
Class B-2 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS B-3
evidencing an interest in two pools of adjustable
interest rate, conventional, monthly pay, fully
amortizing, first lien, one- to four-
family residential mortgage loans, which may include
loans secured by shares issued by cooperative housing
corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AR 3 First Distribution Date: September 25, 2002
Denomination: $________________
Percentage Interest evidenced
by this Certificate: ____% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT __________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate in monthly distributions
to the Holders of the Class B-3 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and, subject to the prior
rights of the Class A Certificates and each Class of Class B Certificates
bearing a lower numerical designation as specified in the Agreement, any Class
B-3 Distribution Amount required to be distributed to Holders of the Class B-3
Certificates on such Distribution Date, subject to adjustment, in certain
events, as specified in the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall and any Relief
Act Shortfall allocated to the Class B-3 Certificates, as described in the
Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE
CLASS B-3 CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT REFERRED TO HEREIN, THIS
CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT
DELIVERED A REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT
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 A
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS
SET FORTH IN THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS B-4
evidencing an interest in two pools of adjustable
interest rate, conventional, monthly pay, fully
amortizing, first lien, one- to four-
family residential mortgage loans, which may include
loans secured by shares issued by cooperative housing
corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AS 1 First Distribution Date: September 25, 2002
Denomination: $_______________
Percentage Interest evidenced
by this Certificate: _____% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT __________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate in monthly distributions
to the Holders of the Class B-4 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and, subject to the prior
rights of the Class A Certificates and each Class of Class B Certificates
bearing a lower numerical designation as specified in the Agreement, any Class
B-4 Distribution Amount required to be distributed to Holders of the Class B-4
Certificates on such Distribution Date, subject to adjustment, in certain
events, as specified in the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall and any Relief
Act Shortfall allocated to the Class B-4 Certificates, as described in the
Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
No transfer of a Class B-4 Certificate will be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is desired to be made by
the Holder hereof, (i) the transferee will be required to execute an investment
letter in the form described in the Agreement and (ii) if such transfer is to be
made within three years from the later of (a) the date of initial issuance of
the Certificates or (b) the last date on which the Seller or any affiliate
thereof was a Holder of the Certificates proposed to be transferred, and unless
such transfer is made in reliance on Rule 144A of the Securities Act of 1933, as
amended, the Trustee or the Seller may require the Holder to deliver an opinion
of counsel acceptable to and in form and substance satisfactory to the Trustee
and the Seller that such transfer is exempt (describing the applicable exemption
and the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state. The Holder hereof desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trustee, the Seller, the Master
Servicer, and any Paying Agent acting on behalf of the Trustee against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such Federal and state laws. In connection with any such
transfer, the Trustee will also require (i) a representation letter, in the form
as described in the Agreement, stating either (a) that the transferee is not a
Plan and is not acting on behalf of a Plan or using the assets of a Plan to
effect such purchase or (b) subject to certain conditions described in the
Agreement, that the source of funds used to purchase this Certificate is an
"insurance company general account," or (ii) if such transferee is a Plan, (a)
an opinion of counsel acceptable to and in form and substance satisfactory to
the Trustee and the Seller with respect to certain matters and (b) such other
documentation as the Seller or the Master Servicer may require, as described in
the Agreement.
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 constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS
B-3 CERTIFICATES AND THE CLASS B-4 CERTIFICATES AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT REFERRED TO HEREIN, THIS
CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT
DELIVERED A REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT
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 A
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS
SET FORTH IN THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS B-5
evidencing an interest in two pools of adjustable
interest rate, conventional, monthly pay, fully
amortizing, first lien, one- to four-
family residential mortgage loans, which may include
loans secured by shares issued by cooperative housing
corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AT 9 First Distribution Date: September 25, 2002
Denomination: $_____________
Percentage Interest evidenced
by this Certificate: _____% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT __________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate in monthly distributions
to the Holders of the Class B-5 Certificates with respect to a Trust Estate
consisting of two pools of adjustable interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans and
which may include loans secured by shares issued by cooperative housing
corporations (the "Group I Mortgage Loans," and "Group II Mortgage Loans,"
respectively), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter
called the "Seller", which term includes any successor entity under the
Agreement referred to below). The Trust Estate was created pursuant to a Pooling
and Servicing Agreement dated as of August 29, 2002 (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and, subject to the prior
rights of the Class A Certificates and each Class of Class B Certificates
bearing a lower numerical designation as specified in the Agreement, any Class
B-5 Distribution Amount required to be distributed to Holders of the Class B-5
Certificates on such Distribution Date, subject to adjustment, in certain
events, as specified in the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall and any Relief
Act Shortfall allocated to the Class B-5 Certificates, as described in the
Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
No transfer of a Class B-5 Certificate will be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is desired to be made by
the Holder hereof, (i) the transferee will be required to execute an investment
letter in the form described in the Agreement and (ii) if such transfer is to be
made within three years from the later of (a) the date of initial issuance of
the Certificates or (b) the last date on which the Seller or any affiliate
thereof was a Holder of the Certificates proposed to be transferred, and unless
such transfer is made in reliance on Rule 144A of the Securities Act of 1933, as
amended, the Trustee or the Seller may require the Holder to deliver an opinion
of counsel acceptable to and in form and substance satisfactory to the Trustee
and the Seller that such transfer is exempt (describing the applicable exemption
and the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state. The Holder hereof desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trustee, the Seller, the Master
Servicer, and any Paying Agent acting on behalf of the Trustee against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such Federal and state laws. In connection with any such
transfer, the Trustee will also require (i) a representation letter, in the form
as described in the Agreement, stating either (a) that the transferee is not a
Plan and is not acting on behalf of a Plan or using the assets of a Plan to
effect such purchase or (b) subject to certain conditions described in the
Agreement, that the source of funds used to purchase this Certificate is an
"insurance company general account," or (ii) if such transferee is a Plan, (a)
an opinion of counsel acceptable to and in form and substance satisfactory to
the Trustee and the Seller with respect to certain matters and (b) such other
documentation as the Seller or the Master Servicer may require, as described in
the Agreement.
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 constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS
B-3 CERTIFICATES, THE CLASS B-4 CERTIFICATES AND THE CLASS B-5 CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT REFERRED TO HEREIN, THIS
CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT
DELIVERED A REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT
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 A
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS
SET FORTH IN THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2002-D, CLASS B-6
evidencing an interest in two pools of adjustable
interest rate, conventional, monthly pay, fully
amortizing, first lien, one- to four-
family residential mortgage loans, which may include
loans secured by shares issued by cooperative housing
corporations, sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT
INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF
THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: August 1, 2002
CUSIP No.: 94979H AU 6 First Distribution Date: September 25, 2002
Denomination: $_______________
Percentage Interest evidenced
by this Certificate: _____% Final Scheduled Maturity Date:
September 25, 2032
THIS CERTIFIES THAT ______________________________ is the registered owner
of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class B-6 Certificates with respect to a
Trust Estate consisting of two pools of adjustable interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans and which may include loans secured by shares issued by
cooperative housing corporations (the "Group I Mortgage Loans," and "Group II
Mortgage Loans," respectively), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of August 29, 2002 (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer"), and Wachovia Bank, National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereinafter. To the extent not defined herein,
the capitalized terms used herein have the meanings ascribed to such terms in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
preceding the month of such distribution, in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and, subject to the prior
rights of the Class A Certificates and each Class of Class B Certificates
bearing a lower numerical designation as specified in the Agreement, any Class
B-6 Distribution Amount required to be distributed to Holders of the Class B-6
Certificates on such Distribution Date, subject to adjustment, in certain
events, as specified in the Agreement. The pass-through rate for each
Distribution Date shall be determined as provided in the Agreement. The amount
of interest which accrues on this Certificate in any month will be subject to
reduction with respect to any Non-Supported Interest Shortfall and any Relief
Act Shortfall allocated to the Class B-6 Certificates, as described in the
Agreement.
Distributions on this Certificate will be made on behalf of the Trustee
either by the Master Servicer or by a Paying Agent appointed by the Master
Servicer by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register, unless such Person is
entitled to receive payments by wire transfer in immediately available funds in
accordance with the Agreement and such Person has notified the Master Servicer
pursuant to the Agreement that such payments are to be made by wire transfer of
immediately available funds. Notwithstanding the above, the final distribution
in reduction of the Principal Balance of this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified by the Trustee
for that purpose in the notice of final distribution.
No transfer of a Class B-6 Certificate will be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is desired to be made by
the Holder hereof, (i) the transferee will be required to execute an investment
letter in the form described in the Agreement and (ii) if such transfer is to be
made within three years from the later of (a) the date of initial issuance of
the Certificates or (b) the last date on which the Seller or any affiliate
thereof was a Holder of the Certificates proposed to be transferred, and unless
such transfer is made in reliance on Rule 144A of the Securities Act of 1933, as
amended, the Trustee or the Seller may require the Holder to deliver an opinion
of counsel acceptable to and in form and substance satisfactory to the Trustee
and the Seller that such transfer is exempt (describing the applicable exemption
and the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state. The Holder hereof desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trustee, the Seller, the Master
Servicer, and any Paying Agent acting on behalf of the Trustee against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such Federal and state laws. In connection with any such
transfer, the Trustee will also require (i) a representation letter, in the form
as described in the Agreement, stating either (a) that the transferee is not a
Plan and is not acting on behalf of a Plan or using the assets of a Plan to
effect such purchase or (b) subject to certain conditions described in the
Agreement, that the source of funds used to purchase this Certificate is an
"insurance company general account," or (ii) if such transferee is a Plan, (a)
an opinion of counsel acceptable to and in form and substance satisfactory to
the Trustee and the Seller with respect to certain matters and (b) such other
documentation as the Seller or the Master Servicer may require, as described in
the Agreement.
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 constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized officer of
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
Wachovia Bank, National Association,
Trustee
By:
-------------------------------------
Authorized Officer
Countersigned:
Wachovia Bank, National Association,
Trustee
By:
--------------------------------
Authorized Officer
EXHIBIT C
[Form of Reverse of Series 2002-D Certificates]
XXXXX FARGO ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-D
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as Mortgage Pass-Through Certificates of the
Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event funds are advanced with respect to any
Mortgage Loan by a Servicer, the Master Servicer or the Trustee, such advances
are reimbursable to such Servicer, the Master Servicer or the Trustee to the
extent provided in the Agreement, from related recoveries on such Mortgage Loan
or from other cash that would have been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Certificate Account
created for the benefit of Certificateholders may be made by the Master Servicer
from time to time for purposes other than distributions to Certificateholders,
such purposes including reimbursement to a Servicer, the Master Servicer or the
Trustee, as applicable, of advances made by such Servicer, the Master Servicer
or the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Seller, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Seller, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Voting Interests of
each Class of Certificates affected thereby. 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 hereof or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
office or agency appointed by the Trustee, duly endorsed by, or accompanied by
an assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar, duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized Denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and 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 authorized Denominations evidencing the
same Class and 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 Trustee or the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Seller, the Master Servicer, the Trustee and the Certificate Registrar,
and any agent of the Seller, the Master Servicer, the Trustee or the Certificate
Registrar, may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Seller, the Master Servicer,
the Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement in respect of the Certificates and
the Trust Estate created thereby shall terminate upon the last action required
to be taken by the Trustee on the Final Distribution Date pursuant to the
Agreement following the earlier of (i) the payment or other liquidation (or
advance with respect thereto) of the last Mortgage Loan subject thereto or the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and (ii) the purchase by the Seller from the
Trust Estate of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans; provided, however, that the Trust Estate will in
no event continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date of the Agreement.
The Agreement permits, but does not require, the Seller to purchase all
remaining Mortgage Loans and all property acquired in respect of any Mortgage
Loan at a price determined as provided in the Agreement. The exercise of such
option will effect early retirement of the Certificates, the Seller's right to
exercise such option being subject to the Pool Scheduled Principal Balance of
the Mortgage Loans as of the Distribution Date upon which the proceeds of such
repurchase are distributed being less than ten percent of the Cut-Off Date
Aggregate Principal Balance.
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 beneficial interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Estate.
I (We) further direct the Certificate Registrar to issue a new Certificate
of a like Denomination or Percentage Interest and Class, to the above named
assignee and deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Social Security or other Identifying Number of Assignee:
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, if the assignee is eligible to receive
distributions in immediately available funds, 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
RESERVED
EXHIBIT E
CUSTODIAL AGREEMENT
(Intentionally Omitted)
EXHIBIT F-1A
[Schedule of Type 1 Mortgage Loans in Group I]
(Intentionally Omitted)
EXHIBIT F-1B
[Schedule of Type 1 Mortgage Loans in Group II]
(Intentionally Omitted)
EXHIBIT F-2A
[Schedule of Type 2 Mortgage Loans in Group I]
(Intentionally Omitted)
EXHIBIT F-2B
[Schedule of Type 2 Mortgage Loans in Group II]
(Intentionally Omitted)
EXHIBIT G
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank Minnesota, National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx., XX 00000
Attn: ________________
Re: Custodial Agreement, dated as of August 29, 2002, among Wachovia Bank
National Association, as Trustee, Xxxxx Fargo Asset Securities
Corporation, as Seller, Xxxxx Fargo Bank Minnesota, National
Association, as Master Servicer, and Xxxxx Fargo Bank Minnesota,
National Association, as Custodian, relating to the Xxxxx Fargo Asset
Securities Corporation; Mortgage Pass-Through Certificates, Series
2002-D.
----------------------------------------------------------------------
In connection with the administration of the Mortgage Loans held by you as
Custodian for the Trust Estate pursuant to the above-captioned Custodial
Agreement, we request the release, and hereby acknowledge receipt, of the
Custodian's Owner Mortgage Loan File for the Mortgage Loan described below, for
the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
_________ 1. Mortgage Paid in Full
_________ 2. Foreclosure
_________ 3. Substitution
_________ 4. Other Liquidation (Repurchases, etc.)
_________ 5. Nonliquidation
Reason:_______________________________________
By:___________________________________________
(authorized signer)
Issuer:_______________________________________
Address:______________________________________
______________________________________
Date:_________________________________________
Custodian
Xxxxx Fargo Bank Minnesota, National Association
Please acknowledge the execution of the above request by your signature and
date below:
------------------------------------ ------------------
Signature Date
Documents returned to Custodian:
------------------------------------ ------------------
Custodian Date
EXHIBIT H
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND FOR
NON-ERISA INVESTORS
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Purchaser] (the "Purchaser"),
a [description of type of entity] duly organized and existing under the laws of
the [State of ] [United States], on behalf of which he makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5),of the Internal Revenue Code of 1986, as amended
(the "Code"), or an ERISA Prohibited Holder, and will not be a "disqualified
organization" or an ERISA Prohibited Holder, as of [date of transfer], and that
the Purchaser is not acquiring Xxxxx Fargo Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2002-D, Class [I-A-R][I-A-LR] Certificate (the
"Class [I-A-R][I-A-LR] Certificate") for the account of, or as agent (including
a broker, nominee, or other middleman) for, any person or entity from which it
has not received an affidavit substantially in the form of this affidavit. For
these purposes, a "disqualified organization" means the United States, any state
or political subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the foregoing (other than
an instrumentality if all of its activities are subject to tax and a majority of
its board of directors is not selected by such governmental entity), any
cooperative organization furnishing electric energy or providing telephone
service to persons in rural areas as described in Code Section 1381(a)(2)(C), or
any organization (other than a farmers' cooperative described in Code Section
521) that is exempt from taxation under the Code unless such organization is
subject to the tax on unrelated business income imposed by Code Section 511. For
these purposes, an "ERISA Prohibited Holder" means 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 Code Section 4975 or a
governmental plan, as defined in Section 3(32) of ERISA, subject to any federal,
state or local law which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (collectively, a "Plan") or a Person acting on
behalf of or investing the assets of such a Plan.
4. That the Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the Purchaser
intends to pay taxes associated with holding the Class [I-A-R][I-A-LR]
Certificate as they become due.
5. That the Purchaser understands that it may incur tax liabilities with
respect to the Class [I-A-R][I-A-LR] Certificate in excess of cash flows
generated by the Class [I-A-R][I-A-LR] Certificate.
6. That the Purchaser will not transfer the Class [I-A-R][I-A-LR]
Certificate to any person or entity from which the Purchaser has not received an
affidavit substantially in the form of this affidavit and as to which the
Purchaser has actual knowledge that the requirements set forth in paragraph 3, 4
or 10 hereof are not satisfied or that the Purchaser has reason to know does not
satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser is aware that the Class [I-A-R][I-A-LR] Certificate
may be a "noneconomic residual interest" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
8. That the Purchaser will not cause income from the Class [I-A-R][I-A-LR]
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Purchaser or
any other person.
9. That, if the Purchaser is purchasing the Class [I-A-R][I-A-LR]
Certificate in a transfer intended to meet the safe harbor provisions of
Treasury Regulations Sections 1.860E-1(c), the Purchaser has executed and
attached Attachment A hereto.
10. That the Purchaser (i) is a U.S. Person or (ii) is a person other than
a U.S. Person (a "Non-U.S. Person") that holds the Class [I-A-R][I-A-LR]
Certificate in connection with the conduct of a trade or business within the
United States and has furnished the transferor and the Trustee with an effective
Internal Revenue Service Form W-8ECI or successor form at the time and in the
manner required by the Code or (iii) is a Non-U.S. Person that has delivered to
both the transferor and the Trustee an opinion of a nationally recognized tax
counsel to the effect that the transfer of the Class [I-A-R][I-A-LR] Certificate
to it is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of the Class [I-A-R][I-A-LR]
Certificate will not be disregarded for federal income tax purposes. "U.S.
Person" means a citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
11. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [I-A-R][I-A-LR] Certificate to such a "disqualified
organization," an agent thereof, an ERISA Prohibited Holder or a person that
does not satisfy the requirements of paragraph 4, paragraph 5 and paragraph 10
hereof.
12. That the Purchaser consents to the designation of the Master Servicer
as its agent to act as "tax matters person" of the [Upper-Tier REMIC][Lower-Tier
REMIC] pursuant to Section 8.13 of the Pooling and Servicing Agreement, and if
such designation is not permitted by the Code and applicable law, to act as tax
matters person if requested to do so.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] this ___ day of , 20__.
[Name of Purchaser]
By:
-------------------------------------
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be the [Title of Officer], of the Purchaser, 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 Purchaser.
Subscribed and sworn before me this __ day of , 20__.
Notary Public
COUNTY OF____________________
STATE OF_____________________
My commission expires the __ day of __________, 20__.
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
[-] The consideration paid to the Purchaser to acquire the Class
[I-A-R][I-A-LR] Certificate equals or exceeds the excess of (a) the present
value of the anticipated tax liabilities over (b) the present value of the
anticipated savings associated with holding such Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Purchaser.
OR
[-] The transfer of the Class [I-A-R][I-A-LR] Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Purchaser is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Class [I-A-R][I-A-LR] Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the Purchaser's two
fiscal years preceding the year of the transfer, the Purchaser had
gross assets for financial reporting purposes (excluding any
obligation of a person related to the Purchaser within the meaning of
U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of
$100 million and net assets in excess of $10 million;
(iii) the Purchaser will transfer the Class [I-A-R][I-A-LR] Certificate
only to another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that satisfies
the requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and
Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Purchaser has determined the consideration paid to it to acquire
the Class [I-A-R][I-A-LR] Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Purchaser)
that it has determined in good faith; and
(v) in the event of any transfer of the Class [I-A-R][I-A-LR] Certificate
by the Purchaser, the Purchaser will require its transferee to
complete a representation in the form of this Attachment A as a
condition of the transferee's purchase of the Class [I-A-R][I-A-LR]
Certificate.
EXHIBIT I
[Letter from Transferor of Class [I-A-R][I-A-LR] Certificate]
[Date]
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Xxxxx Fargo Asset Securities Corporation,
Series 2002-D, Class [I-A-R][I-A-LR]
-----------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has
no actual knowledge that such affidavit is not true and has no reason to know
that the information contained in paragraph 4 thereof is not true.
Very truly yours,
[Transferor]
----------------------
EXHIBIT J
XXXXX FARGO ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-D
CLASS [B-4] [B-5] [B-6] CERTIFICATES
TRANSFEREE'S LETTER
----------------- --, ----
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Asset Securities Corporation
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
The undersigned (the "Purchaser") proposes to purchase Xxxxx Fargo Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2002-D, Class
[B-4] [B-5] [B-6] Certificates (the "Class [B-4] [B-5] [B-6] Certificates") in
the principal amount of $___________. In doing so, the Purchaser hereby
acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and not otherwise
defined herein shall have the meaning ascribed to it in the Pooling and
Servicing Agreement, dated as of August 29, 2002 (the "Pooling and Servicing
Agreement") among Xxxxx Fargo Asset Securities Corporation, as seller (the
"Seller"), Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer"), and Wachovia Bank, National Association, as trustee
(the "Trustee"), of Xxxxx Fargo Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2002-D.
Section 2. Representations and Warranties of the Purchaser. In connection
with the proposed transfer, the Purchaser represents and warrants to the Seller,
the Master Servicer and the Trustee that:
(a) The Purchaser is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which the Purchaser is organized, is
authorized to invest in the Class [B-4] [B-5] [B-6] Certificates, and to enter
into this Agreement, and duly executed and delivered this Agreement.
(b) The Purchaser is acquiring the Class [B-4] [B-5] [B-6] Certificates for
its own account as principal and not with a view to the distribution thereof, in
whole or in part.
(c) [The Purchaser has knowledge of financial and business matters and is
capable of evaluating the merits and risks of an investment in the Class [B-4]
[B-5] [B-6] Certificates; the Purchaser has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Purchaser is able to bear the economic risk of an investment
in the Class [B-4] [B-5] [B-6] Certificates and can afford a complete loss of
such investment.]
[(d) The Purchaser is a "Qualified Institutional Buyer" within the meaning
of Rule 144A of the Act.]
(e) The Purchaser confirms that (a) it has received and reviewed a copy of
the Private Placement Memorandum dated _______________, relating to the Class
[B-4] [B-5] [B-6] Certificates and reviewed, to the extent it deemed
appropriate, the documents attached thereto or incorporated by reference
therein, (b) it has had the opportunity to ask questions of, and receive answers
from the Seller concerning the Class [B-4] [B-5] [B-6] Certificates and all
matters relating thereto, and obtain any additional information (including
documents) relevant to its decision to purchase the Class [B-4] [B-5] [B-6]
Certificates that the Seller possesses or can possess without unreasonable
effort or expense and (c) it has undertaken its own independent analysis of the
investment in the Class [B-4] [B-5] [B-6] Certificates. The Purchaser will not
use or disclose any information it receives in connection with its purchase of
the Class [B-4] [B-5] [B-6] Certificates other than in connection with a
subsequent sale of Class [B-4] [B-5] [B-6] Certificates.
(f) Either (i) the Purchaser is not 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 a governmental plan, as
defined in Section 3(32) of ERISA subject to any federal, state or local law
("Similar Law") which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (collectively, a "Plan"), an agent acting on
behalf of a Plan, or a person utilizing the assets of a Plan or (ii) if the
Purchaser is an insurance company, (A) the source of funds used to purchase the
Class [B-4] [B-5] [B-6] Certificate is an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995), (B) there is
no Plan with respect to which the amount of such general account's reserves and
liabilities for the contract(s) held by or on behalf of such Plan and all other
Plans maintained by the same employer (or affiliate thereof as defined in
Section V(a)(1) of PTE 95-60) or by the same employee organization exceeds 10%
of the total of all reserves and liabilities of such general account (as such
amounts are determined under Section I(a) of PTE 95-60) at the date of
acquisition and (C) the purchase and holding of such Class [B-4] [B-5] [B-6]
Certificates are covered by Sections I and III of PTE 95-60 or (iii) the
Purchaser has provided (a) a "Benefit Plan Opinion" satisfactory to the Seller
and the Trustee of the Trust Estate and (b) such other opinions of counsel,
officers' certificates and agreements as the Seller or the Master Servicer may
have required. A Benefit Plan Opinion is an opinion of counsel to the effect
that the proposed transfer will not cause the assets of the Trust Estate to be
regarded as "plan assets" and subject to the prohibited transaction provisions
of ERISA, the Code or Similar Law and will not subject the Trustee, the Seller
or the Master Servicer to any obligation in addition to those undertaken in the
Pooling and Servicing Agreement (including any liability for civil penalties or
excise taxes imposed pursuant to ERISA, Section 4975 of the Code or Similar
Law).
(g) If the Purchaser is a depository institution subject to the
jurisdiction of the Office of the Comptroller of the Currency ("OCC"), the Board
of Governors of the Federal Reserve System ("FRB"), the Federal Deposit
Insurance Corporation ("FDIC"), the Office of Thrift Supervision ("OTS") or the
National Credit Union Administration ("NCUA"), the Purchaser has reviewed the
"Supervisory Policy Statement on Securities Activities" dated January 28, 1992
of the Federal Financial Institutions Examination Council and the April 15, 1994
Interim Revision thereto as adopted by the OCC, FRB, FDIC, OTS and NCUA (with
modifications as applicable), as appropriate, other applicable investment
authority, rules, supervisory policies and guidelines of these agencies and, to
the extent appropriate, state banking authorities and has concluded that its
purchase of the Class [B-4] [B-5] [B-6] Certificates is in compliance therewith.
Section 3. Transfer of Class [B-4] [B-5] [B-6] Certificates.
(a) The Purchaser understands that the Class [B-4][B-5][B-6] Certificates
have not been registered under the Securities Act of 1933 (the "Act") or any
state securities laws and that no transfer may be made unless the Class
[B-4][B-5][B-6] Certificates are registered under the Act and applicable state
law or unless an exemption from registration is available. The Purchaser further
understands that neither the Seller, the Master Servicer nor the Trustee is
under any obligation to register the Class [B-4][B-5][B-6] Certificates or make
an exemption available. In the event that such a transfer is to be made in
reliance upon an exemption from the Act or applicable state securities laws, (i)
the Trustee shall require, in order to assure compliance with such laws, that
the Certificateholder's prospective transferee certify to the Seller and the
Trustee as to the factual basis for the registration or qualification exemption
relied upon, and (ii) unless the transferee is a "Qualified Institutional Buyer"
within the meaning of Rule 144A of the Act, the Trustee or the Seller may, if
such transfer is made within three years from the later of (a) the Closing Date
or (b) the last date on which the Seller or any affiliate thereof was a holder
of the Certificates proposed to be transferred, require an Opinion of Counsel
that such transfer may be made pursuant to an exemption from the Act and state
securities laws, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Seller. Any such Certificateholder desiring
to effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the Master Servicer, any Paying Agent acting on behalf of the Trustee and the
Seller 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.
(b) No transfer of a Class [B-4][B-5][B-6] Certificate shall be made unless
the transferee provides the Seller and the Trustee with a Transferee's Letter,
substantially in the form of this Agreement.
(c) The Purchaser acknowledges that its Class [B-4][B-5][B-6] Certificates
bear a legend setting forth the applicable restrictions on transfer.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be validly
executed by its duly authorized representative as of the day and the year first
above written.
[PURCHASER]
By:
-------------------------------------
Its:
------------------------------------
EXHIBIT K
[Reserved]
EXHIBIT L
SERVICING AGREEMENTS
WFHM Servicing Agreement
EXHIBIT M
[FORM OF SPECIAL SERVICING AGREEMENT]
SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT
This SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT (the "Agreement") is
made and entered into as of ___, between Xxxxx Fargo Bank Minnesota, National
Association (the "Company" and "Xxxxx Fargo Bank") and (the "Purchaser").
PRELIMINARY STATEMENT
___________________________ is the holder of the entire interest in Xxxxx
Fargo Asset Securities Corporation Mortgage Pass-Through Certificates, Series
2002-D, Class ____ (the "Class B Certificates"). The Class B Certificates were
issued pursuant to a Pooling and Servicing Agreement dated as of August 29, 2002
among Xxxxx Fargo Asset Securities Corporation, as seller (the "Seller"), Xxxxx
Fargo Bank Minnesota, National Association, as Master Servicer, and Wachovia
Bank, National Association, as Trustee.
___________________________ intends to resell all of the Class B
Certificates directly to the Purchaser on or promptly after the date hereof.
In connection with such sale, the parties hereto have agreed that the
Company will cause, to the extent that the Company as Master Servicer is granted
such authority in the related Servicing Agreements, the related servicers (each
a related "Servicer"), which service the Mortgage Loans which comprise the Trust
Estate related to the above referenced series under the related servicing
agreements (each a related "Servicing Agreement"), to engage in certain special
servicing procedures relating to foreclosures for the benefit of the Purchaser,
and that the Purchaser will deposit funds in a collateral fund to cover any
losses attributable to such procedures as well as all advances and costs in
connection therewith, as set forth herein.
In consideration of the mutual agreements herein contained, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
agree that the following provisions shall become effective and shall be binding
on and enforceable by the Company and the Purchaser:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of New York are required or
authorized by law or executive order to be closed.
Collateral Fund: The fund established and maintained pursuant to Section
3.01 hereof.
Collateral Fund Permitted Investments: Either (i) obligations of, or
obligations fully guaranteed as to 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 money market fund
rated in the highest rating category by Xxxxx'x Investors Service, Inc.
("Moody's) and Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
("S&P"), (iii) cash, (iv) mortgage pass-through certificates issued or
guaranteed by Government National Mortgage Association, FNMA or FHLMC, (v)
commercial paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date), the
issuer of which may be an affiliate of the Company, having at the time of such
investment a rating of at least P-1 by Moody's and at least A-1 by S&P or (vi)
demand and time deposits in, certificates of deposit of, any depository
institution or trust company (which may be an affiliate of the Company)
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 banking
authorities, so long as at the time of such investment either (x) the long-term
debt obligations of such depository institution or trust company have a rating
of at least AA by S&P and at least Aa2 by Moody's, (y) the certificate of
deposit or other unsecured short-term debt obligations of such depository
institution or trust company have a rating of at least P-1 by Moody's and A-1 by
S&P or (z) the depository institution or trust company is one that is acceptable
to Moody's and S&P and, for each of the preceding clauses (i), (iv), (v) and
(vi), the maturity thereof shall be not later than the earlier to occur of (A)
30 days from the date of the related investment and (B) the next succeeding
Distribution Date as defined in the related Pooling and Servicing Agreement.
Commencement of Foreclosure: The first official action required under local
law in order to commence foreclosure proceedings or to schedule a trustee's sale
under a deed of trust, including (i) in the case of a mortgage, any filing or
service of process necessary to commence an action to foreclose, or (ii) in the
case of a deed of trust, posting, the publishing, filing or delivery of a notice
of sale, but not including in either case (x) any notice of default, notice of
intent to foreclose or sell or any other action prerequisite to the actions
specified in (i) or (ii) above, (y) the acceptance of a deed-in-lieu of
foreclosure (whether in connection with a sale of the related property or
otherwise) or (z) initiation and completion of a short pay-off.
Current Appraisal: With respect to any Mortgage Loan as to which the
Purchaser has made an Election to Delay Foreclosure, an appraisal of the related
Mortgaged Property obtained by the Purchaser at its own expense from an
independent appraiser (which shall not be an affiliate of the Purchaser)
acceptable to the Company as nearly contemporaneously as practicable to the time
of the Purchaser's election, prepared based on the Company's customary
requirements for such appraisals.
Election to Delay Foreclosure: Any election by the Purchaser to delay the
Commencement of Foreclosure, made in accordance with Section 2.02(b).
Election to Foreclose: Any election by the Purchaser to proceed with the
Commencement of Foreclosure, made in accordance with Section 2.03(a).
Monthly Advances: Principal and interest advances and servicing advances
including costs and expenses of foreclosure.
Required Collateral Fund Balance: As of any date of determination, an
amount equal to the aggregate of all amounts previously required to be deposited
in the Collateral Fund pursuant to Section 2.02(d) (after adjustment for all
withdrawals and deposits pursuant to Section 2.02(e)) and Section 2.03(b) (after
adjustment for all withdrawals and deposits pursuant to Section 2.03(c)) and
Section 3.02 to be reduced by all withdrawals therefrom pursuant to Section
2.02(g) and Section 2.03(d).
Section 1.02 Definitions Incorporated by Reference
All capitalized terms not otherwise defined in this Agreement shall have
the meanings assigned in the Pooling and Servicing Agreement.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01 Reports and Notices
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
the Company as Master Servicer shall provide to the Purchaser the following
notices and reports:
(i) Within five Business Days after each Distribution Date (or
included in or with the monthly statements to Certificateholders pursuant
to the Pooling and Servicing Agreement), the Company, shall provide to the
Purchaser a report, using the same methodology and calculations in its
standard servicing reports, indicating for the Trust Estate the number of
Mortgage Loans that are (A) thirty days, (B) sixty days, (C) ninety days or
more delinquent or (D) in foreclosure, and indicating for each such
Mortgage Loan the loan number and outstanding principal balance.
(ii) Prior to the Commencement of Foreclosure in connection with any
Mortgage Loan, the Company shall cause (to the extent that the Company as
Master Servicer is granted such authority in the related Servicing
Agreement) the Servicer to provide the Purchaser with a notice (sent by
telecopier) of such proposed and imminent foreclosure, stating the loan
number and the aggregate amount owing under the Mortgage Loan. Such notice
may be provided to the Purchaser in the form of a copy of a referral letter
from such Servicer to an attorney requesting the institution of
foreclosure.
(b) If requested by the Purchaser, the Company shall cause the Servicer (to
the extent that the Company as Master Servicer is granted such authority in the
related Servicing Agreement) to make its servicing personnel available (during
their normal business hours) to respond to reasonable inquiries, by phone or in
writing by facsimile, electronic, or overnight mail transmission, by the
Purchaser in connection with any Mortgage Loan identified in a report under
subsection (a) (i) (B), (a) (i) (C), (a) (i) (D), or (a) (ii) which has been
given to the Purchaser; provided, that (1) the related Servicer shall only be
required to provide information that is readily accessible to its servicing
personnel and is non-confidential and (2) the related Servicer shall respond
within five Business Days orally or in writing by facsimile transmission.
(c) In addition to the foregoing, the Company shall cause the Servicer (to
the extent that the Company as Master Servicer is granted such authority in the
related Servicing Agreement) to provide to the Purchaser such information as the
Purchaser may reasonably request provided, however, that such information is
consistent with normal reporting practices, concerning each Mortgage Loan that
is at least ninety days delinquent and each Mortgage Loan which has become real
estate owned, through the final liquidation thereof; provided, that the related
Servicer shall only be required to provide information that is readily
accessible to its servicing personnel and is non-confidential provided, however,
that the Purchaser will reimburse the Company and the related Servicer for any
out of pocket expenses.
Section 2.02 Purchaser's Election to Delay Foreclosure Proceedings
(a) The Purchaser shall be deemed to direct the Company to direct (to the
extent that the Company as Master Servicer is granted such authority in the
related Servicing Agreement) the related Servicer that in the event that the
Company does not receive written notice of the Purchaser's election pursuant to
subsection (b) below within 24 hours (exclusive of any intervening non-Business
Days) of transmission of the notice provided by the Company under Section 2.01
(a) (ii) subject to extension as set forth in Section 2.02(b), the related
Servicer may proceed with the Commencement of Foreclosure in respect of such
Mortgage Loan in accordance with its normal foreclosure policies without further
notice to the Purchaser. Any foreclosure that has been initiated may be
discontinued (i) without notice to the Purchaser if the Mortgage Loan has been
brought current or if a refinancing or prepayment occurs with respect to the
Mortgage Loan (including by means of a short payoff approved by the related
Servicer) or (ii) if the related Servicer has reached the terms of a forbearance
agreement with the borrower. In the latter case, the related Servicer may
complete such forbearance agreement unless instructed otherwise by the Purchaser
within two Business Days notification.
(b) In connection with any Mortgage Loan with respect to which a notice
under Section 2.01(a)(ii) has been given to the Purchaser, the Purchaser may
elect to instruct the Company to cause, to the extent that the Company as Master
Servicer is granted such authority in the related Servicing Agreement, the
related Servicer to delay the Commencement of Foreclosure until such time as the
Purchaser determines that the related Servicer may proceed with the Commencement
of Foreclosure. Such election must be evidenced by written notice received
within 24 hours (exclusive of any intervening non-Business Days) of transmission
of the notice provided by the Company under Section 2.01(a)(ii). Such 24 hour
period shall be extended for no longer than an additional four Business Days
after the receipt of the information if the Purchaser requests additional
information related to such foreclosure; provided, however, that the Purchaser
will have at least one Business Day to respond to any requested additional
information. Any such additional information shall be provided only to the
extent it (i) is not confidential in nature and (ii) is obtainable by the
related Servicer from existing reports, certificates or statements or is
otherwise readily accessible to its servicing personnel. The Purchaser agrees
that it has no right to deal with the mortgagor during such period. However, if
such servicing activities include acceptance of a deed-in-lieu of foreclosure or
short payoff, the Purchaser will be notified and given two Business Days to
respond.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the Purchaser shall obtain a Current Appraisal as
soon as practicable, but in no event more than 15 business days thereafter, and
shall provide the Company with a copy of such Current Appraisal.
(d) Within two Business Days of making any Election to Delay Foreclosure,
the Purchaser shall remit by wire transfer to the Company, for deposit in the
Collateral Fund, an amount, as calculated by the Company, equal to the sum of
(i) 125% of the greater of the unpaid principal balance of the Mortgage Loan and
the value shown in the Current Appraisal referred to in subsection (c) above
(or, if such Current Appraisal has not yet been obtained, the Company's estimate
thereof, in which case the required deposit under this subsection shall be
adjusted upon obtaining such Current Appraisal), and (ii) three months' interest
on the Mortgage Loan at the applicable Mortgage Interest Rate. If any Election
to Delay Foreclosure extends for a period in excess of three months (such excess
period being referred to herein as the "Excess Period"), within two Business
Days the Purchaser shall remit by wire transfer in advance to the Company for
deposit in the Collateral Fund the amount of each additional month's interest,
as calculated by the Company, equal to interest on the Mortgage Loan at the
applicable Mortgage Interest Rate for the Excess Period. The terms of this
Agreement will no longer apply to the servicing of any Mortgage Loan upon the
failure of the Purchaser to deposit any of the above amounts relating to the
Mortgage Loan within two Business Days of the Election to Delay Foreclosure or
within two Business Days of the commencement of the Excess Period subject to
Section 3.01.
(e) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the Company may withdraw from the Collateral Fund
from time to time amounts necessary to reimburse the related Servicer for all
related Monthly Advances and Liquidation Expenses thereafter made by such
Servicer in accordance with the Pooling and Servicing Agreement and the related
Servicing Agreement. To the extent that the amount of any such Liquidation
Expenses is determined by the Company based on estimated costs, and the actual
costs are subsequently determined to be higher, the Company may withdraw the
additional amount from the Collateral Fund. In the event that the Mortgage Loan
is brought current by the mortgagor and the foreclosure action is discontinued,
the amounts so withdrawn from the Collateral Fund shall be redeposited if and to
the extent that reimbursement therefor from amounts paid by the mortgagor is not
prohibited pursuant to the Pooling and Servicing Agreement or the related
Servicing Agreement, applicable law or the related mortgage note. Except as
provided in the preceding sentence, amounts withdrawn from the Collateral Fund
to cover Monthly Advances and Liquidation Expenses shall not be redeposited
therein or otherwise reimbursed to the Purchaser. If and when any such Mortgage
Loan is brought current by the mortgagor, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
permitted withdrawals and deposits pursuant to this subsection) shall be
released to the Purchaser.
(f) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the related Servicer shall continue to service
the Mortgage Loan in accordance with its customary procedures (other than the
delay in Commencement of Foreclosure as provided herein). If and when the
Purchaser shall notify the Company that it believes that it is appropriate to do
so, the related Servicer may proceed with the Commencement of Foreclosure. In
any event, if the Mortgage Loan is not brought current by the mortgagor by the
time the loan becomes 6 months delinquent, the Purchaser's election shall no
longer be effective and at the Purchaser's option, either (i) the Purchaser
shall purchase the Mortgage Loan from the related Trust Estate at a purchase
price equal to the fair market value as shown on the Current Appraisal, to be
paid by (x) applying any balance in the Collateral Fund to such to such purchase
price, and (y) to the extent of any deficiency, by wire transfer of immediately
available funds from the Purchaser to the Company for deposit in the related
Certificate Account; or (ii) the related Servicer shall proceed with the
Commencement of Foreclosure.
(g) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Delay Foreclosure and as to which
the related Servicer proceeded with the Commencement of Foreclosure in
accordance with subsection (f) above, the Company shall calculate the amount, if
any, by which the value shown on the Current Appraisal obtained under subsection
(c) exceeds the actual sales price obtained for the related Mortgaged Property
(net of Liquidation Expenses and accrued interest related to the extended
foreclosure period), and the Company shall withdraw the amount of such excess
from the Collateral Fund, shall remit the same to the Trust Estate and in its
capacity as Master Servicer shall apply such amount as additional Liquidation
Proceeds pursuant to the Pooling and Servicing Agreement. After making such
withdrawal, all amounts remaining in the Collateral Fund in respect of such
Mortgage Loan (after adjustment for all permitted withdrawals and deposits
pursuant to this Agreement) shall be released to the Purchaser.
Section 2.03 Purchaser's Election to Commence Foreclosure Proceedings
(a) In connection with any Mortgage Loan identified in a report under
Section 2.01(a)(i)(B), the Purchaser may elect to instruct the Company to cause,
to the extent that the Company as Master Servicer is granted such authority in
the related Servicing Agreement, the related Servicer to proceed with the
Commencement of Foreclosure as soon as practicable. Such election must be
evidenced by written notice received by the Company by 5:00 p.m., New York City
time, on the third Business Day following the delivery of such report under
Section 2.01(a)(i).
(b) Within two Business Days of making any Election to Foreclose, the
Purchaser shall remit to the Company, for deposit in the Collateral Fund, an
amount, as calculated by the Company, equal to 125% of the current unpaid
principal balance of the Mortgage Loan and three months interest on the Mortgage
Loan at the applicable Mortgage Interest Rate. If and when any such Mortgage
Loan is brought current by the mortgagor, all amounts in the Collateral Fund in
respect of such Mortgage Loan (after adjustment for all permitted withdrawals
and deposits pursuant to this Agreement) shall be released to the Purchaser if
and to the extent that reimbursement therefor from amounts paid by the mortgagor
is not prohibited pursuant to the Pooling and Servicing Agreement or the related
Servicing Agreement, applicable law or the related mortgage note. The terms of
this Agreement will no longer apply to the servicing of any Mortgage Loan upon
the failure of the Purchaser to deposit the above amounts relating to the
Mortgage Loan within two Business Days of the Election to Foreclose subject to
Section 3.01.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Foreclose, the related Servicer shall continue to service the
Mortgage Loan in accordance with its customary procedures (other than
Commencement of Foreclosure as provided herein). In connection therewith, the
Company shall have the same rights to make withdrawals for Monthly Advances and
Liquidations Expenses from the Collateral Fund as are provided under Section
2.02(e), and the Company shall make reimbursements thereto to the limited extent
provided under such subsection in accordance with its customary procedures. The
Company shall not be required to cause, to the extent that the Company as Master
Servicer is granted such authority in the related Servicing Agreement, the
related Servicer to proceed with the Commencement of Foreclosure if (i) the same
is stayed as a result of the mortgagor's bankruptcy or is otherwise barred by
applicable law, or to the extent that all legal conditions precedent thereto
have not yet been complied with, or (ii) the Company believes there is a breach
of representations or warranties by the Company, a Servicer, or a Seller, which
may result in a repurchase or substitution of such Mortgage Loan, or (iii) the
Company or related Servicer reasonably believes the Mortgaged Property may be
contaminated with or affected by hazardous wastes or hazardous substances (and,
without limiting the related Servicer's right not to proceed with the
Commencement of Foreclosure, the Company supplies the Purchaser with information
supporting such belief). Any foreclosure that has been initiated may be
discontinued (x) without notice to the Purchaser if the Mortgage Loan has been
brought current or if a refinancing or prepayment occurs with respect to the
Mortgage Loan (including by means of a short payoff approved by the Purchaser)
or (y) with notice to the Purchaser if the related Servicer has reached the
terms of a forbearance agreement unless instructed otherwise by the Purchaser
within two Business Days of such notification. Any such instruction shall be
based upon a decision that such forbearance agreement is not in conformity with
reasonable servicing practices.
(d) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Foreclose and as to which the
related Servicer proceeded with the Commencement of Foreclosure in accordance
with subsection (c) above, the Company shall calculate the amount, if any, by
which the unpaid principal balance of the Mortgage Loan at the time of
liquidation (plus all unreimbursed interest and servicing advances and
Liquidation Expenses in connection therewith other than those paid from the
Collateral Fund) exceeds the actual sales price obtained for the related
Mortgaged Property, and the Company shall withdraw the amount of such excess
from the Collateral Fund, shall remit the same to the Trust Estate and in its
capacity as Master Servicer shall apply such amount as additional Liquidation
Proceeds pursuant to the Pooling and Servicing Agreement. After making such
withdrawal, all amounts remaining in the Collateral Fund (after adjustment for
all withdrawals and deposits pursuant to subsection (c) in respect of such
Mortgage Loan shall be released to the Purchaser.
Section 2.04 Termination
(a) With respect to all Mortgage Loans included in the Trust Estate, the
Purchaser's right to make any Election to Delay Foreclosure or any Election to
Foreclose and the Company's obligations under Section 2.01 shall terminate (i)
at such time as the Principal Balance of the Class B Certificates has been
reduced to zero, (ii) if the greater of (x) 43% (or such lower or higher
percentage that represents the related Servicer's actual historical loss
experience with respect to the Mortgage Loans in the related pool as determined
by the Company) of the aggregate principal balance of all Mortgage Loans that
are in foreclosure or are more than 90 days delinquent on a contractual basis
and REO properties or (y) the aggregate amount that the Company estimates
through the normal servicing practices of the related Servicer will be required
to be withdrawn from the Collateral Fund with respect to Mortgage Loans as to
which the Purchaser has made an Election to Delay Foreclosure or an Election to
Foreclosure, exceeds (z) the then-current principal balance of the Class B
Certificates, (iii) upon any transfer by the Purchaser of any interest (other
than the minority interest therein, but only if the transferee provides written
acknowledgment to the Company of the Purchaser's right hereunder and that such
transferee will have no rights hereunder) in the Class B Certificates (whether
or not such transfer is registered under the Pooling and Servicing Agreement),
including any such transfer in connection with a termination of the Trust Estate
or (iv) upon any breach of the terms of this Agreement by the Purchaser.
(b) Except as set forth in 2.04(a), this Agreement and the respective
rights, obligations and responsibilities of the Purchaser and the Company
hereunder shall terminate upon the later to occur of (i) the final liquidation
of the last Mortgage Loan as to which the Purchaser made any Election to Delay
Foreclosure or any Election to Foreclose and the withdrawal of all remaining
amounts in the Collateral Fund as provided herein and (ii) ten Business Days'
notice. The Purchaser's right to make an election pursuant to Section 2.02 or
Section 2.03 hereof with respect to a particular Mortgage Loan shall terminate
if the Purchaser fails to make any deposit required pursuant to Section 2.02(d)
or 2.03(b) or if the Purchaser fails to make any other deposit to the Collateral
Fund pursuant to this Agreement.
ARTICLE III
COLLATERAL FUND; SECURITY INTEREST
Section 3.01 Collateral Fund
Upon receipt from the Purchaser of the initial amount required to be
deposited in the Collateral Fund pursuant to Article II, the Company shall
establish and maintain with Bankers Trust Company as a segregated account on its
books and records an account (the "Collateral Fund"), entitled "Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, for the benefit of
registered holders of Xxxxx Fargo Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2002-D." Amounts held in the Collateral Fund
shall continue to be the property of the Purchaser, subject to the first
priority security interest granted hereunder for the benefit of the
Certificateholders, until withdrawn from the Collateral Fund pursuant to Section
2.02 or 2.03 hereof. The Collateral Fund shall be an "outside reserve fund"
within the meaning of the REMIC Provisions, beneficially owned by the Purchaser
for federal income tax purposes. All income, gain, deduction or loss with
respect to the Collateral Fund shall be that of the Purchaser. All distributions
from the Trust Fund to the Collateral Fund shall be treated as distributed to
the Purchaser as the beneficial owner thereof.
Upon the termination of this Agreement and the liquidation of all Mortgage
Loans as to which the Purchaser has made any Election to Delay Foreclosure or
any Election to Foreclose pursuant to Section 2.04 hereof, the Company shall
distribute or cause to be distributed to the Purchaser all amounts remaining in
the Collateral Fund (after adjustment for all deposits and permitted withdrawals
pursuant to this Agreement) together with any investment earnings thereon. In
the event the Purchaser has made any Election to Delay Foreclosure or any
Election to Foreclose, prior to any distribution to the Purchaser of all amounts
remaining in the Collateral Fund, funds in the Collateral Fund shall be applied
consistent with the terms of this Agreement.
Section 3.02 Collateral Fund Permitted Investments
The Company shall, at the written direction of the Purchaser, invest the
funds in the Collateral Fund in Collateral Fund Permitted Investments. Such
direction shall not be changed more frequently than quarterly. In the absence of
any direction, the Company shall select such investments in accordance with the
definition of Collateral Fund Permitted Investments in its discretion.
All income and gain realized from any investment as well as any interest
earned on deposits in the Collateral Fund (net of any losses on such
investments) and any payments of principal made in respect of any Collateral
Fund Permitted Investment shall be deposited in the Collateral Fund upon
receipt. All costs and realized losses associated with the purchase and sale of
Collateral Fund Permitted Investments shall be borne by the Purchaser and the
amount of net realized losses shall be deposited by the Purchaser in the
Collateral Fund promptly upon realization. The Company shall periodically (but
not more frequently than monthly) distribute to the Purchaser upon request an
amount of cash, to the extent cash is available therefore in the Collateral
Fund, equal to the amount by which the balance of the Collateral Fund, after
giving effect to all other distributions to be made from the Collateral Fund on
such date, exceeds the Required Collateral Fund Balance. Any amounts so
distributed shall be released from the lien and security interest of this
Agreement.
Section 3.03 Grant of Security Interest
The Purchaser hereby grants to the Company for the benefit of the
Certificateholders under the Pooling and Servicing Agreement a security interest
in and lien on all of the Purchaser's right, title and interest, whether now
owned or hereafter acquired, in and to: (1) the Collateral Fund, (2) all amounts
deposited in the Collateral Fund and Collateral Fund Permitted Investments in
which such amounts are invested (and the distributions and proceeds of such
investments) and (3) all cash and non-cash proceeds of any of the foregoing,
including proceeds of the voluntary conversion thereof (all of the foregoing
collectively, the "Collateral").
The Purchaser acknowledges the lien on and the security interest in the
Collateral for the benefit of the Certificateholders. The Purchaser shall take
all actions requested by the Company as may be reasonably necessary to perfect
the security interest created under this Agreement in the Collateral and cause
it to be prior to all other security interests and liens, including the
execution and delivery to the Company for filing of appropriate financing
statements in accordance with applicable law. The Company shall file appropriate
continuation statements, or appoint an agent on its behalf to file such
statements, in accordance with applicable law.
Section 3.04 Collateral Shortfalls
In the event that amounts on deposit in the Collateral Fund at any time are
insufficient to cover any withdrawals therefrom that the Company is then
entitled to make hereunder, the Purchaser shall be obligated to pay such amounts
to the Company immediately upon demand. Such obligation shall constitute a
general corporate obligation of the Purchaser. The failure to pay such amounts
within two Business Days of such demand (except for amounts to cover interest on
a Mortgage Loan pursuant to Sections 2.02(d) and 2.03 (b)), shall cause an
immediate termination of the Purchaser's right to make any Election to Delay
Foreclosure or Election to Foreclose and the Company's obligations under this
Agreement with respect to all Mortgage Loans to which such insufficiencies
relate, without the necessity of any further notice or demand on the part of the
Company.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01 Amendment
This Agreement may be amended from time to time by the Company and the
Purchaser by written agreement signed by the Company and the Purchaser.
Section 4.02 Counterparts
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 4.03 Governing Law
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Section 4.04 Notices
All demands, notices and direction hereunder shall be in writing or by
telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company,
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attention: Vice President, Master Servicing
Phone: 000-000-0000
Fax: 000-000-0000
(b) in the case of the Purchaser,
______________________________
______________________________
______________________________
Attention: ___________________
Section 4.05 Severability of Provisions
If any one or more of the covenants, agreements, provision or terms of this
Agreement shall be for any reason whatsoever, including regulatory, held
invalid, then such 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.
Section 4.06 Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and all
such provisions shall inure to the benefit of the Certificateholders; provided,
however, that the rights under this Agreement cannot be assigned by the
Purchaser without the consent of the Company.
Section 4.07 Article and Section Headings
The article and section headings herein are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
Section 4.08 Confidentiality
The Purchaser agrees that all information supplied by or on behalf of the
Company pursuant to Sections 2.01 or 2.02, including individual account
information, is the property of the Company and the Purchaser agrees to hold
such information confidential and not to disclose such information.
Each party hereto agrees that neither it, nor any officer, director,
employee, affiliate or independent contractor acting at such party's direction
will disclose the terms of Section 4.09 of this Agreement to any person or
entity other than such party's legal counsel except pursuant to a final,
non-appealable order of court, the pendency of such order the other party will
have received notice of at least five business days prior to the date thereof,
or pursuant to the other party's prior express written consent.
Section 4.09 Indemnification
The Purchaser agrees to indemnify and hold harmless the Company, the
Seller, and each Servicer and each person who controls the Company, the Seller,
or a Servicer and each of their respective officers, directors, affiliates and
agents acting at the Company's, the Seller's, or a Servicer's direction (the
"Indemnified Parties") against any and all losses, claims, damages or
liabilities to which they may be subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of, or are
based upon, actions taken by, or actions not taken by, the Company, the Seller,
or a Servicer, or on their behalf, in accordance with the provisions of this
Agreement and (i) which actions conflict with the Company's, the Seller's, or a
Servicer's obligations under the Pooling and Servicing Agreement or the related
Servicing Agreement, or (ii) give rise to securities law liability under federal
or state securities laws with respect to the Certificates. The Purchaser hereby
agrees to reimburse the Indemnified Parties for the reasonable legal or other
expenses incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action. The indemnification obligations of the
Purchaser hereunder shall survive the termination or expiration of this
Agreement.________
IN WITNESS WHEREOF, the Company and the Purchaser have caused their names
to be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
Xxxxx Fargo Bank Minnesota, National
Association
By:
-------------------------------------
Name:
Title:
-------------------------------------
By:
-------------------------------------
Name:
Title:
EXHIBIT N
FORM OF INITIAL CERTIFICATION OF THE CUSTODIAN
August 29 2002
Xxxxx Fargo Asset Securities Corporation
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: The Pooling and Servicing Agreement, dated August 29, 2002, among
Xxxxx Fargo Asset Securities Corporation, as Seller, Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, and Wachovia
Bank, National Association, as Trustee, relating to the Xxxxx Fargo
Asset Securities Corporation; Mortgage Pass-Through Certificates,
Series 2002-D.
----------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that,
except as specified in any list of exceptions attached hereto, it has received
the original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement in connection with this initial certification.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Custodian on behalf of the Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT O
FORM OF FINAL CERTIFICATION OF THE CUSTODIAN
[---------- --, ----]
Xxxxx Fargo Asset Securities Corporation
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: The Pooling and Servicing Agreement, dated August 29, 2002, among
Xxxxx Fargo Asset Securities Corporation, as Seller, Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, and Wachovia
Bank, National Association, as Trustee, relating to the Xxxxx Fargo
Asset Securities Corporation; Mortgage Pass-Through Certificates,
Series 2002-D.
----------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be
specified in any list of exceptions attached hereto, such Mortgage File contains
all of the items required to be delivered pursuant to Section 2.01 of the
Pooling and Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement in connection with this final certification. The
Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Custodian on behalf of the Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT P
[Schedule of Pledged Asset Mortgage Loans]
Mortgage Loan Identifying Number
1. 0000231199
