EXHIBIT 4.4
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WACHOVIA MORTGAGE LOAN TRUST, LLC
as Depositor
and
[_____________],
as Owner Trustee
________________________________________
TRUST AGREEMENT
Dated as of _____ __, 200_
________________________________________
WACHOVIA MORTGAGE LOAN TRUST, LLC [_______] TRUST
Wachovia Mortgage Loan Trust, LLC Asset-Backed Certificates,
Series [_______]
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................1
Section 1.01. Definitions.............................................1
Section 1.02. Other Definitional Provisions...........................1
ARTICLE II ORGANIZATION..................................................2
Section 2.01. Name....................................................2
Section 2.02. Office..................................................2
Section 2.03. Purposes and Powers.....................................2
Section 2.04. Appointment of Owner Trustee............................3
Section 2.05. Initial Capital Contribution of Trust Estate............3
Section 2.06. Declaration of Trust....................................3
Section 2.07. Title to Trust Property.................................4
Section 2.08. Situs of Trust..........................................4
Section 2.09. Representations and Warranties of the Depositor.........4
Section 2.10. Payment of Trust Fees...................................7
ARTICLE III CONVEYANCE OF THE MORTGAGE LOANS; CERTIFICATES................7
Section 3.01. Conveyance of the Mortgage Loans........................7
Section 3.02. Payment of Purchase Price for Subsequent Mortgage
Loans and Additional Balances...........................9
Section 3.03. Draws During Rapid Amortization Period..................9
Section 3.04. Allocation.............................................10
Section 3.05. Addition of Subsequent Mortgage Loans..................10
Section 3.06. Initial Ownership......................................11
Section 3.07. Issuance of Certificates...............................11
Section 3.08. Authentication of Certificates.........................11
Section 3.09. Registration of and Limitations on Transfer and
Exchange of Certificates...............................11
Section 3.10. Mutilated, Destroyed, Lost or Stolen Certificates......14
Section 3.11. Persons Deemed Certificateholders......................14
Section 3.12. Access to List of Certificateholders' Names and
Addresses..............................................15
Section 3.13. Maintenance of Office or Agency........................15
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Section 3.14. Certificate Paying Agent...............................15
Section 3.15. Cooperation............................................17
Section 3.16. [Reserved].............................................17
Section 3.17. Subordination..........................................17
Section 3.18. No Priority Among Certificates.........................17
ARTICLE IV AUTHORITY AND DUTIES OF OWNER TRUSTEE........................17
Section 4.01. General Authority......................................17
Section 4.02. General Duties.........................................17
Section 4.03. Action upon Instruction................................18
Section 4.04. No Duties Except as Specified under Specified
Documents or in Instructions...........................18
Section 4.05. Restrictions...........................................19
Section 4.06. Prior Notice to Certificateholders and the
Enhancer with Respect to Certain Matters...............19
Section 4.07. Action by Certificateholders with Respect to
Certain Matters........................................20
Section 4.08. Action by Certificateholders with Respect to
Bankruptcy.............................................20
Section 4.09. Restrictions on Certificateholders' Power..............20
Section 4.10. Majority Control.......................................20
Section 4.11. Doing Business in Other Jurisdictions..................20
Section 4.12. Removal of Mortgage Loans..............................20
ARTICLE V APPLICATION OF TRUST FUNDS...................................21
Section 5.01. Distributions..........................................21
Section 5.02. Method of Payment......................................21
Section 5.03. Signature on Returns...................................21
Section 5.04. Statements to Certificateholders.......................22
Section 5.05. Tax Reporting..........................................22
ARTICLE VI CONCERNING THE OWNER TRUSTEE.................................22
Section 6.01. Acceptance of Trusts and Duties........................22
Section 6.02. Furnishing of Documents................................23
Section 6.03. Representations and Warranties.........................23
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Section 6.04. Reliance; Advice of Counsel............................24
Section 6.05. Not Acting in Individual Capacity......................24
Section 6.06. Owner Trustee Not Liable for Certificates or
Related Documents......................................25
Section 6.07. Owner Trustee May Own Certificates and Notes...........25
ARTICLE VII COMPENSATION OF OWNER TRUSTEE................................26
Section 7.01. Owner Trustee's Fees and Expenses......................26
Section 7.02. Indemnification........................................26
ARTICLE VIII TERMINATION OF TRUST AGREEMENT...............................27
Section 8.01. Termination of Trust Agreement.........................27
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.......28
Section 9.01. Eligibility Requirements for Owner Trustee.............28
Section 9.02. Replacement of Owner Trustee...........................28
Section 9.03. Successor Owner Trustee................................29
Section 9.04. Merger or Consolidation of Owner Trustee...............29
Section 9.05. Appointment of Co-Trustee or Separate Trustee..........29
ARTICLE X MISCELLANEOUS................................................31
Section 10.01. Amendments.............................................31
Section 10.02. No Legal Title to Trust Estate.........................32
Section 10.03. Limitations on Rights of Others........................32
Section 10.04. Notices................................................33
Section 10.05. Severability...........................................33
Section 10.06. Separate Counterparts..................................33
Section 10.07. Successors and Assigns.................................33
Section 10.08. No Petition............................................33
Section 10.09. No Recourse............................................34
Section 10.10. Headings...............................................34
Section 10.11. GOVERNING LAW..........................................34
Section 10.12. Integration............................................34
Section 10.13. Rights of Enhancer to Exercise Rights of
Certificateholders.....................................34
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ARTICLE XI COMPLIANCE WITH REGULATION AB................................34
Section 11.01 Intent of the Parties; Reasonableness..................34
Section 11.02 Additional Representations and Warranties of the
Owner Trustee..........................................34
Section 11.03 Information to be provided by the Owner Trustee........34
Section 11.04 Indemnification; Remedies..............................34
EXHIBITS
Exhibit A - Form of Certificate......................................A-1
Exhibit B - Certificate of Trust.....................................B-1
Exhibit C - Form of Rule 144A Investment Representation..............C-1
Exhibit D - Form of Investor Representation Letter...................D-1
Exhibit E - Form of Transferor Representation Letter.................E-1
Exhibit F - Form of Certificate of Non-Foreign Status................F-1
Exhibit G - Form of ERISA Representation Letter......................G-1
Exhibit H - Form of Representation Letter............................H-1
Exhibit I - Form of Addition Notice..................................I-1
Exhibit J - Form of Transfer Agreement...............................J-1
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This trust agreement, dated as of _____ __, 200_ (as amended from time
to time, the "Trust Agreement"), is between Wachovia Mortgage Loan Trust,
LLC, a Delaware limited liability company, as depositor (the "Depositor"),
and [_____________], a Delaware banking corporation, as owner trustee (the
"Owner Trustee").
WITNESSETH:
WHEREAS, the Depositor and the Owner Trustee desire to form a Delaware
statutory trust;
NOW, THEREFORE, In consideration of the mutual agreements herein
contained, the Depositor and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in Appendix A to the indenture dated as of
_____ __, 200_ (the "Indenture"), among Wachovia Mortgage Loan Trust, LLC
[_______] Trust, as Issuer, Wachovia Bank National Association, as Paying
Agent, and [_____________], as Indenture Trustee, and such Appendix A is
hereby incorporated by reference and made are part of this Trust Agreement.
All other capitalized terms used herein shall have the meanings specified
herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Trust Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Trust Agreement or in any such
certificate or other document shall control.
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(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Trust Agreement shall refer to this Trust Agreement as a
whole and not to any particular provision of this Trust Agreement;
Section and Exhibit references contained in this Trust Agreement are
references to Sections and Exhibits in or to this Trust Agreement unless
otherwise specified; the term "including" shall mean "including without
limitation"; "or" shall include "and/or"; and the term "proceeds" shall have
the meaning ascribed thereto in the UCC.
(d) The definitions contained in this Trust Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
Organization
Section 2.01. Name. The trust created hereby shall be known as "Wachovia
Mortgage Loan Trust, LLC [_______] Trust," in which name the Owner Trustee
may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders, the Depositor, and the Enhancer.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Trust Agreement and to sell the Notes and the Certificates;
(b) to purchase the Mortgage Loans and to pay the organizational, start-up
and transactional expenses of the Trust;
(c) to assign, grant, transfer, pledge and convey the Mortgage Loans
pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to Section 5.01 any portion of the Mortgage Loans
released from the Lien of, and remitted to the Trust pursuant to, the
Indenture;
(d) to enter into and perform its obligations under the Basic Documents to
which it is to be a party;
(e) to engage in those activities, including entering into agreements, that
are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith, including, without limitation, to
accept additional contributions of equity that are not subject to the Lien of
the Indenture; and
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(f) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the Trust
Estate and the making of distributions to the Securityholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Trust
Agreement or the other Basic Documents while any Note is outstanding without
the consent of the holders of Certificates evidencing a majority of the
aggregate Certificate Percentage Interest of the Certificates, the Indenture
Trustee, the Enhancer and the holders of Notes representing a majority of the
Note Balance of the Notes; provided that any Certificate registered in the
name of the Seller or an Affiliate of the Seller will not be considered a
Certificate for purposes of such consent; provided, further, that if 100% of
the Certificates are held by the Seller or an Affiliate of the Seller, the
consent of the Certificateholders will not be required.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. In
consideration of the delivery by the Owner Trustee, on behalf of the Trust,
of the Securities to the Depositor or its designee, upon the order of the
Depositor, the Depositor, as of the Closing Date and concurrently with the
execution and delivery hereof, does hereby transfer, assign, set over and
otherwise convey to the Trust, without recourse, but subject to the other
terms and provisions of this Trust Agreement, all of the right, title and
interest of the Depositor in and to the Trust Estate. The foregoing
transfer, assignment, set over and conveyance does not, and is not intended
to, result in a creation or an assumption by the Trust of any obligation of
the Depositor or any other Person in connection with the Trust Estate or
under any agreement or instrument relating thereto, except as specifically
set forth herein.
The Owner Trustee, on behalf of the Trust, acknowledges the conveyance
to the Trust by the Depositor, as of the Closing Date, of the Trust Estate,
including all right, title and interest of the Depositor in and to the Trust
Estate. Concurrently with such conveyance and in exchange therefor, the
Trust has pledged the Trust Estate to the Indenture Trustee and has executed
the Certificates and the Notes and caused them to be duly authenticated and
delivered.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it shall hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust
constitute a statutory trust under the Statutory Trust Statute and that this
Trust Agreement constitute the governing instrument of such statutory trust.
Effective as of the date hereof, the Owner Trustee shall have all rights,
powers and duties set forth herein and in the Statutory Trust Statute with
respect to accomplishing the purposes of the Trust. It is the intention of
the parties hereto that solely for federal, state and local income and
franchise tax purposes, for so long as 100% of the Certificates are held by a
single person or entity, the Trust shall be treated as an entity wholly owned
by such person or entity, with the assets of the entity being the Trust
Estate, and the Notes being debt of the entity, and the provisions of this
Trust Agreement shall be interpreted to further this intention. If more than
one person owns the Certificates, it is the further intention of the parties
hereto that solely for federal, state and local income and franchise tax
purposes the Owner Trust shall be treated as a partnership, with the assets
of the partnership being Trust Estate, the partners of the partnership being
the Certificateholders and the Notes being debt of the partnership. The
provisions of this Trust Agreement shall be interpreted to further such
intentions. Neither the Depositor nor any Certificateholder shall have any
personal liability for any liability or obligation of the Trust, other than
the indemnification obligations as provided in Section 7.2 herein.
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Section 2.07. Title to Trust Property. Legal title to the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the
Trust Estate to be vested in a trustee or trustees, in which case title shall
be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee
on behalf of the Trust shall be located in the State of Delaware or the State
of New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of
Delaware or taking actions outside the State of Delaware in order to comply
with Section 2.03. Payments will be received by the Trust only in Delaware,
New York or the Corporate Trust Office of the Certificate Paying Agent, and
payments will be made by the Trust only from Delaware, New York or the
Corporate Trust Office of the Certificate Paying Agent. The only office of
the Trust will be at the Corporate Trust Office of the Owner Trustee in
Delaware.
Section 2.09. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee and the
Enhancer that:
(a) The Depositor has been duly formed, is validly existing in good
standing under the laws of the state of its formation, and is duly qualified
to do business and is in good standing under the laws of each jurisdiction
where the character of its property, the nature of its business or the
performance of its obligations, if any, under the Basic Documents make such
qualification necessary. The jurisdiction of organization of the Depositor
is Delaware and the Depositor is a "registered organization" (within the
meaning of Section 9-102 of the UCC in effect in Delaware).
(b) The Depositor has all requisite power and authority to own its
properties, to conduct its business, to execute and deliver each of the Basic
Documents to be executed and delivered by the Depositor and to enter into and
perform all of its obligations thereunder and any of the transactions
contemplated thereby.
(c) Each Basic Document to be executed and delivered by the Depositor has
been duly authorized, executed and delivered by the Depositor and, assuming
the due execution and delivery by the other parties thereto, constitutes a
legal, valid and binding agreement, enforceable against the Depositor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited
by general principles of equity (whether considered in a proceeding at law or
in equity).
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(d) The execution and delivery by the Depositor of the Basic Documents to
which the Depositor is a party and the performance by the Depositor of its
obligations thereunder do not (A) violate any of the provisions of the
organizational documents of the Depositor, (B) violate any provision of any
law, governmental rule or regulation currently in effect applicable to the
Depositor or to its properties or by which the Depositor or its properties
may be bound or affected, which violation would materially and adversely
affect the right of the Trust to enforce the obligations of the Depositor to
perform any of the applicable provisions of the Basic Documents, (C) violate
any judgment, decree, writ, injunction, award, determination or order
currently in effect applicable to the Depositor or to its properties or by
which the Depositor or its properties are bound or affected, which violation
would materially and adversely affect the right of the Trust to enforce the
obligations of the Depositor to perform any of the applicable provisions of
the Basic Documents, (D) conflict in any material respect with, or result in
a breach in any material respect of, or constitute a default in any material
respect under, any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which the Depositor is a party or by
which it is bound, which conflict, breach or default would materially and
adversely affect the right of the Depositor to perform any of the applicable
provisions of the Basic Documents, or (E) result in the creation or
imposition of any Lien upon any of the properties of the Depositor pursuant
to the terms of any such indenture, mortgage, deed of trust, contract or
other instrument (other than the Basic Documents).
(e) No consent, approval, order or authorization by, and no filing with or
notice to, any court or other governmental authority in respect of the
Depositor is required in connection with the authorization, execution,
delivery or performance by the Depositor of the Basic Documents to which it
is a party.
(f) There are no pending or, to the best of the Depositor's knowledge,
threatened, actions, suits, proceedings or investigations before any court,
administrative agency, arbitrator or governmental body that, if decided
adversely, would materially and adversely affect (A) the condition (financial
or otherwise), business or operations of the Depositor or (B) the ability of
the Depositor to perform its obligations under, or the validity or
enforceability of, the Basic Documents to which it is a party.
(g) The Depositor is solvent, and the Depositor does not contemplate any
pending insolvency or believe or have reason to believe that it will not be
able to pay its debts and other obligations as they become due. The
Depositor did not transfer the Transferred Property pursuant to this
Agreement with any intent to hinder, delay or defraud any of its creditors.
(h) Immediately prior to (1) the transfer hereunder, the Depositor had good
and marketable title to the interest in the Initial Transferred Property
conveyed to it, free and clear of all Liens, pledges, charges, encumbrances,
security interests or adverse claims of any nature, and this Agreement
constitutes a valid assignment and transfer to the Trust of all right, title
and interest of the Depositor in and to the Initial Transferred Property and
(2) the transfer under the related Subsequent Transfer Agreement, the
Depositor had good and marketable title to the interest in the related
Subsequent Transferred Property conveyed to it, free and clear of all liens,
pledges, charges, encumbrances, security interests or adverse claims of any
nature and this Agreement and the related Subsequent Transfer Agreement, when
executed and delivered, will constitute a valid assignment and transfer to
the Trust of all right, title and interest of the Depositor in and to the
related Subsequent Transferred Property.
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(i) The Depositor is not in default under any agreement, contract,
instrument or indenture to which such party is a party or by which such party
or its respective properties is or are bound, or with respect to any order of
any court, administrative agency, arbitrator or governmental body, that would
have a material adverse effect on the transactions contemplated under the
Basic Documents; and no event has occurred that with notice or lapse of time
or both would constitute such a default with respect to any such agreement,
contract, instrument or indenture, or with respect to any such order of any
court, administrative agency, arbitrator or governmental body.
(j) The chief executive office of the Depositor is located at the address
set forth in Section 10.04.
(k) The Depositor acquired title to its interest in the Transferred
Property in good faith, without notice of any adverse claim to the
Transferred Property.
(l) The Depositor has caused its computer and accounting records to be
marked to show that a sale of, or a security interest in, the Transferred
Property has been made or granted to the Issuer.
(m) The purchase price paid by the Depositor for the portion of the
Transferred Property relating to the Closing Date or related Subsequent
Transfer Date, as applicable, is the fair market value of such portion of the
Transferred Property.
(n) This Agreement creates a valid and continuing security interest (as
defined in the applicable UCC) in the Loan Agreements in favor of the Issuer,
which security interest is prior to all other Liens (except as expressly
permitted otherwise in this Indenture), and is enforceable as such as against
creditors of and purchasers from the Issuer.
(o) The Loan Agreements constitute "accounts," "general intangibles" or
"instruments" within the meaning of the applicable UCC.
(p) The Depositor owns and has good and marketable title to the Loan
Agreements free and clear of any Lien of any Person.
(q) The Depositor has received all consents and approvals required by the
terms of the Loan Agreements to the sale of the Loan Agreements hereunder to
the Trust.
(r) The Depositor has caused or will have caused, within ten days, the
filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Loan Agreements granted to the Trust hereunder.
(s) Other than the security interest granted to the Trust pursuant to this
Agreement, the Depositor has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Loan Agreements. The Depositor
has not authorized the filing of and is not aware of any financing statements
against the Depositor that include a description of collateral covering the
Loan Agreements other than any financing statement relating to the security
interest granted to the Depositor hereunder or any security interest that has
been terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor.
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(t) The Servicer, on behalf of the Depositor, has in its possession all
original copies of the Loan Agreements. The Loan Agreements do not have any
marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Depositor, the Trust and the
Indenture Trustee. All financing statements filed or to be filed against the
Depositor in favor of the Trust in connection herewith describing the Loan
Agreements contain a statement to the following effect: "A purchase of or
security interest in any collateral described in this financing statement
will violate the rights of the Trust."
(u) None of the Mortgage Notes that constitute or evidence the Mortgage
Loans has any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Trust.
The representations and warranties set forth in Section 2.09(n) through
(t) shall not be waived without the prior written consent of Standard and
Poor's.
Upon notice from the Enhancer, the Issuer, the Owner Trustee, the
Indenture Trustee, the Paying Agent or the Servicer, as applicable, of a
breach of the Depositor's respective representations or warranties above that
materially and adversely affects the interests of the Securityholders or the
Enhancer in any Mortgage Loan, the Depositor shall, within 90 days of its
discovery or its receipt of notice of such breach, either (i) cure such
breach in all material respects or (ii) to the extent that such breach is
with respect to a Mortgage Loan or a Related Document, either (A) repurchase
such Mortgage Loan from the Purchaser or its assignee at the Repurchase
Price, or (B) substitute one or more Eligible Substitute Loans received from
the Seller pursuant to the Purchase Agreement.
It is understood and agreed that the obligation of the Depositor to
cure any breach, or to repurchase or substitute for any Mortgage Loan as to
which such a breach has occurred and is continuing, shall constitute the sole
remedy respecting such breach available to the Enhancer (other than with
respect to the Enhancer's rights under the Insurance Agreement), the Issuer,
the Certificateholders (or the Owner Trustee on behalf of the
Certificateholders) and the Noteholders (or the Indenture Trustee on behalf
of the Noteholders) against the Depositor.
Section 2.10. Payment of Trust Fees. The Owner Trustee shall pay the
Trust's fees and expenses incurred with respect to the performance of the
Trust's duties under the Indenture.
ARTICLE III
Conveyance of the Mortgage Loans; Certificates
Section 3.01. Conveyance of the Mortgage Loans.
(a) The Depositor, by the execution and delivery of this Agreement, does
hereby sell, assign, set over, and otherwise convey to the Trust, without
recourse (except as expressly provided herein), all of its right, title and
interest, whether now owned or existing or hereafter created, arising, or
acquired, in, to and under (i) the Initial Mortgage Loans and the other
related Initial Transferred Property and (ii) the Subsequent Mortgage Loans
and other related Subsequent Transferred Property, in each case purchased by
the Depositor from the Seller pursuant to the Purchase Agreement; provided,
however, that the Trust does not assume any obligations (including any
obligations to fund Draws) arising under or related to the Related
Documents. Such conveyance shall be deemed to be made: (1) with respect to
the Cut-Off Date Principal Balances relating to the Initial Mortgage Loans,
as of the Closing Date; (2) with respect to the Cut-Off Date Principal
Balances relating to the Subsequent Mortgage Loans, as of the related
Subsequent Transfer Date; (3) with respect to the amount of each Additional
Balance created on or after the Cut-Off Date or the Subsequent Cut-Off Date,
as applicable, and prior to the commencement of the Rapid Amortization
Period, as of the later of the Closing Date or the related Subsequent Cut-Off
Date, as applicable, and the date that the corresponding Draw was made
pursuant to the related Loan Agreement, subject to the receipt by the
Depositor of consideration therefor as provided herein under Section 3.02(c).
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(b) The Depositor hereby assigns to the Trust all of the Depositor's right,
title and interest to and under the Purchase Agreement and any Subsequent
Transfer Agreement executed by the Depositor as Purchaser, including without
limitation the Depositor's right to enforce the obligations of the Seller
thereunder (including the Seller's obligation to repurchase Mortgage Loans as
the result of a breach of the Seller's representations and warranties in the
Purchase Agreement).
(c) In connection with the conveyance by the Depositor of the Initial
Mortgage Loans, the Depositor further agrees, at its own expense, on or prior
to the Closing Date, to indicate in its books and records that the Initial
Mortgage Loans have been sold to the Trust pursuant to this Agreement, and to
deliver to the Trust true and complete lists of all of the Mortgage Loans
specifying for each Mortgage Loan the information contained in the Mortgage
Loan Schedule. The Mortgage Loan Schedule is attached as Exhibit A to the
Servicing Agreement and is hereby incorporated into and made a part of this
Agreement.
(d) Upon the sale of the Initial Mortgage Loans and the Subsequent Mortgage
Loans, as applicable, the ownership of each related Loan Agreement, each
related Mortgage and the contents of the related Mortgage File shall be
vested in the Trust and the ownership of all records and documents with
respect to the Initial Mortgage Loans and the Subsequent Mortgage Loans, as
applicable, that are prepared by or that come into the possession of the
Depositor, as seller of the Initial Mortgage Loans hereunder and the
Subsequent Mortgage Loans under the related Subsequent Transfer Agreement, or
by the Servicer under this Agreement shall immediately vest in the Trust, and
shall be retained and maintained in trust by the Servicer at the will of the
Trust, in such custodial capacity only, or in trust by the Indenture Trustee
if the Mortgage Files are required to be transferred by the Servicer to the
Indenture Trustee, pursuant to the Servicing Agreement; provided, however,
that any records and documents that come into the possession of the Depositor
shall be promptly delivered to the Servicer or the Indenture, as applicable.
The Depositor's records will accurately reflect the sale of the Initial
Mortgage Loans by it to the Trust.
The Trust hereby acknowledges its acceptance of all right, title and
interest to the property conveyed to it pursuant to this Section 3.01.
(e) The parties hereto intend that the transactions set forth herein
constitute a sale, including for accounting purposes, by the Depositor to the
Trust of the Depositor's right, title and interest in and to the Mortgage
Loans and the other Transferred Property, and not a secured borrowing. In
the event the transactions set forth herein are deemed not to be a sale, the
Depositor hereby grants to the Trust a security interest in all of the
Depositor's right, title and interest, whether now owned or hereafter
acquired, in, to and under the Transferred Property to secure all of the
Depositor's obligations hereunder, and this Agreement shall and hereby does
constitute a security agreement under applicable law. Each of the Mortgage
Loan Schedules is hereby incorporated by reference and made a part of this
Trust Agreement. The Depositor agrees to take or cause to be taken such
actions and to execute such documents, including without limitation the
authorization and the filing of any continuation statements with respect to
the UCC financing statements filed with respect to the Mortgage Loans and
other Transferred Property by the Depositor on the Closing Date, if any, and
any amendments thereto required to reflect a change in the name or corporate
structure of the Depositor or the filing of any additional UCC financing
statements due to the change in the principal office or jurisdiction of
organization of the Depositor as are necessary to perfect and protect the
Trust' and its assignees' interests in the Transferred Property. The
Depositor shall file any such continuation statements on a timely basis.
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Section 3.02. Payment of Purchase Price for Subsequent Mortgage Loans and
Additional Balances.
(a) The "Purchase Price" for the Subsequent Mortgage Loans and the other
Subsequent Transferred Property to be paid by the Trust to the Depositor on
the related Subsequent Transfer Date shall be 100 percent of the related
Cut-Off Date Principal Balances thereof (as identified on the Mortgage Loan
Schedule attached to the related Subsequent Transfer Agreement provided by
the Depositor). In the case of each Additional Balance transferred hereunder
created on or after the Cut-Off Date or Subsequent Cut-Off Date, as
applicable, and prior to the commencement of the Rapid Amortization Period,
the Purchase Price thereof shall be 100 percent of the principal amount of
the related Draw under the related Loan Agreement as of the later of the
Closing Date or Subsequent Transfer Date, as applicable, and the date of
creation of such Additional Balance, adjusted to reflect such factors as the
Depositor and the Trust mutually agree will result in a Purchase Price
determined to be the fair market value of such Additional Balance and the
related Transferred Property.
(b) With respect to each Subsequent Mortgage Loan transferred pursuant to a
Subsequent Transfer Agreement and each Additional Balance transferred
hereunder or pursuant to a Subsequent Transfer Agreement with respect to any
Mortgage Loan, as applicable, the Trust shall pay or cause to be paid to the
Depositor or its designee the Purchase Price specified above in
Section 3.02(a) for such Additional Balance or Subsequent Mortgage Loan in
one of the following ways, as applicable: (i) a cash payment pursuant to
Section 3.02(a) hereof in an amount equal to the related Draw or Cut-Off Date
Principal Balance, as applicable, if then available from Principal
Collections on any Payment Date or amounts on deposit in the Funding
Account, as applicable, or (ii) with respect to an Additional Balance only,
an increase in the Additional Balance Increase Amount as of the day on which
such Additional Balance was created, equal to the amount of such Additional
Balance.
Section 3.03. Draws During Rapid Amortization Period. During the Rapid
Amortization Period, any Excluded Draws shall not be Additional Balances, and
the ownership of the related balances shall be retained by the Seller.
Payments and collections allocable pursuant to Section 3.04 to an Excluded
Draw shall not be deposited into the Custodial Account, the Distribution
Account or the Note Payment Account, and shall be distributed by the Servicer
to the Seller no less frequently than monthly in accordance with reasonable
instructions provided by the Seller.
9
Section 3.04. Allocation. The Depositor, the Trust and the Servicer
agree that all collections on the Mortgage Loans will be allocated and
applied as provided by the terms of the related Loan Agreements or by
applicable law. Except with respect to Liquidation Loss Amounts, if the Loan
Agreement or applicable law does not specify a method of allocation and
application for particular Collections, such Collections shall be allocated
and applied (i) first, to interest pro rata (based on the respective amounts
coming due on such day) among the amounts coming due on such dates, and (ii)
then, to principal in the order of the dates on which such amounts were first
incurred. If, as a result of the provisions of this Section 3.04,
Collections are allocated to Excluded Draws, such Collections shall not be
property of the Purchaser or its assignees and shall be paid by the Servicer
to the Seller as provided in Section 3.03. Liquidation Loss Amounts shall be
allocated as provided in the definition of Excluded Amount.
Section 3.05. Addition of Subsequent Mortgage Loans. The transfer by the
Depositor of any Subsequent Mortgage Loans to the Issuer, is conditioned upon
the satisfaction of each of the following conditions on or prior to the
related Subsequent Transfer Date:
(a) the Depositor shall have provided the Indenture Trustee, the Issuer,
the Paying Agent, the Enhancer and the Rating Agencies with a timely Addition
Notice substantially in the form of Exhibit I attached hereto, which notice
shall be given no later than five Business Days prior to the related
Subsequent Transfer Date, and shall designate the Subsequent Mortgage Loans
to be sold to the Issuer and the aggregate Principal Balance of such
Subsequent Mortgage Loans as of the related Subsequent Cut-Off Date;
(b) the Depositor shall have delivered to the Indenture Trustee, the Paying
Agent, the Enhancer and the Rating Agencies duly executed Subsequent Transfer
Agreement substantially in the form of Exhibit J, (A) confirming the
satisfaction of each condition precedent specified in this Section 3.05(b)
and in Section 2 of the related Subsequent Transfer Agreement and (B)
including a Mortgage Loan Schedule listing the Subsequent Mortgage Loans;
(c) as of each Subsequent Transfer Date, as evidenced by delivery to the
Indenture Trustee of the Subsequent Transfer Agreement, the Depositor shall
not be insolvent, made insolvent by such transfer or aware of any pending
insolvency;
(d) such sale and transfer shall not result in a material adverse tax
consequence to the Issuer or, due to any action or inaction on the part of
the Seller, to the Securityholders; and
(e) the Depositor shall have provided each of the Enhancer and each Rating
Agency with loan level information in the Enhancer's and each such Rating
Agency's standard format no later than five Business Days prior to the
related Subsequent Transfer Date, which shall designate the Subsequent
Mortgage Loans to be sold to the Issuer, and shall receive verbal consent
from the Enhancer and verbal confirmation from each Rating Agency that the
addition of the Subsequent Mortgage Loans will not result in a Rating Event.
Within five Business Days after each Subsequent Transfer Date, the
Depositor shall deliver to the Issuer, the Rating Agencies, the Enhancer, the
Paying Agent and the Indenture Trustee a copy of the Mortgage Loan Schedule
reflecting the Subsequent Mortgage Loans in electronic format.
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Section 3.06. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and the conveyance of
the Initial Mortgage Loans pursuant to Section 3.01 and the issuance of the
Certificates, Depositor shall be the sole Certificateholder.
Section 3.07. Issuance of Certificates. The Certificates shall be issued
in minimum denominations of a Percentage Interest of 10.0000% and integral
multiples of 0.0001% in excess thereof. The Certificates shall be issued in
substantially the form attached hereto as Exhibit A.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.08. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate
duly registered in such Person's name, pursuant to Section 3.09.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a
Certificate duly registered in such transferee's name pursuant to and upon
satisfaction of the conditions set forth in Section 3.09.
Section 3.08. Authentication of Certificates. Concurrently with the
acquisition of the Initial Mortgage Loans by the Trust, the Owner Trustee or
the Certificate Paying Agent shall cause the Certificates in an initial
Percentage Interest of 100.00% to be executed on behalf of the Trust,
authenticated by the Indenture Trustee and delivered to or upon the written
order of the Depositor, signed by its chairman of the board, its president or
any vice president, without further corporate action by the Depositor, in
authorized denominations. No Certificate shall entitle the Certificateholder
thereof to any benefit under this Trust Agreement or be valid for any purpose
unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A hereto, executed by the
Owner Trustee or the Indenture Trustee, by manual signature, and such
authentication shall constitute conclusive evidence that such Certificate has
been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
Section 3.09. Registration of and Limitations on Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.13, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. The Paying Agent shall be the initial Certificate Registrar. If
the Certificate Registrar resigns or is removed, the Owner Trustee shall
appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below, upon
surrender for registration of transfer of any Certificate at the office or
agency maintained pursuant to Section 3.13, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Indenture Trustee as its
authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or the Indenture Trustee. At the option
of a Certificateholder, Certificates may be exchanged for other Certificates
of authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.13. The initial Certificateholder agrees to not transfer any
Certificate during either the Revolving Period or the Managed Amortization
Period, unless the initial Certificateholder receives an Opinion of Counsel
stating that such transfer of the Certificate will not adversely affect the
opinion delivered on the Closing Date by such counsel regarding the transfer
of the Mortgage Loans by Seller to the Depositor.
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Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the
Certificateholder or such Certificateholder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Certificate
Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner 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.
Except as described below, each Certificateholder shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form
W-9 and the Certificate of Non-Foreign Status (in substantially the form
attached hereto as Exhibit F).
A Certificate may be transferred to a Certificateholder unable to
establish its non-foreign status as described in the preceding paragraph only
if such Certificateholder provides an Opinion of Counsel to the Depositor,
the Certificate Registrar and the Enhancer, which Opinion of Counsel shall
not be an expense of the Trust, the Owner Trustee, the Certificate Registrar,
the Enhancer or the Depositor, satisfactory to the Depositor, the Certificate
Registrar and the Enhancer, that such transfer (1) will not affect the tax
status of the Owner Trust and (2) will not adversely affect the interests of
any Securityholder or the Enhancer, including, without limitation, as a
result of the imposition of any United States federal withholding taxes on
the Owner Trust (except to the extent that such withholding taxes would be
payable solely from amounts otherwise distributable to the Certificate of the
prospective transferee). If such transfer occurs and such foreign
Certificateholder becomes subject to such United States federal withholding
taxes, any such taxes will be withheld by the Certificate Paying Agent at the
direction of the Servicer. Each Certificateholder unable to establish its
non-foreign status shall submit to the Certificate Paying Agent a copy of its
Form W-8BEN, Form W-8ECI or Form W-8IMY, or such successor forms thereto as
required by then-applicable regulations, and shall resubmit such form every
three years or with such frequency as required by then-applicable
regulations. In addition, prior to any transfer of a Certificate prior to
September of 2008 to a Certificateholder that cannot establish its
non-foreign status, the Certificateholder shall deliver to the Owner Trustee,
the Paying Agent and the Indenture Trustee, at the expense of the
Certificateholder, an Opinion of Counsel that no withholding tax would apply
to payments made under the Yield Maintenance Agreement.
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No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt
from the registration requirements of the Securities Act and any applicable
state securities laws or is made in accordance with the Securities Act and
such state laws. In the event of any such transfer, the Certificate
Registrar or the Depositor shall prior to such transfer require the
transferee to execute (A) either (i) (a) an investment letter in
substantially the form attached hereto as Exhibit C (or in such form and
substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letters shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and
which investment letter states that, among other things, such transferee (a)
is a "qualified institutional buyer" as defined under Rule 144A, acting for
its own account or the accounts of other "qualified institutional buyers" as
defined under Rule 144A, and (b) is aware that the proposed transferor
intends to rely on the exemption from registration requirements under the
Securities Act, provided by Rule 144A or (ii) (a) a written Opinion of
Counsel acceptable to and in form and substance satisfactory to the
Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the Securities Act and such state laws or is being made
pursuant to the Securities Act and such state laws, which Opinion of Counsel
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Servicer or the Depositor and (b) the transferee executes a
representation letter, substantially in the form of Exhibit D hereto, and the
transferor executes a representation letter, substantially in the form of
Exhibit E hereto, each acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor certifying the facts
surrounding such transfer, which representation letters shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and (B) the Certificate of Non-Foreign Status (in
substantially the form attached hereto as Exhibit F) acceptable to and in
form and substance reasonably satisfactory to the Certificate Registrar and
the Depositor, which certificate shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar or the Depositor. If such
Certificateholder is unable to provide a Certificate of Non-Foreign Status,
such Certificateholder must provide an Opinion of Counsel as described in the
preceding paragraph. The Certificateholder desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Certificate Registrar, the Certificate Paying Agent, the Indenture Trustee,
the Servicer, the Paying Agent, the Enhancer and the Depositor 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. No transfer of Certificates or
any interest therein shall be made to any Plan, any Person acting, directly
or indirectly, on behalf of any such Plan or any Person acquiring such
Certificates with Plan Assets unless the Depositor, the Owner Trustee, the
Certificate Registrar, the Enhancer and the Servicer are provided with an
Opinion of Counsel that establishes to the satisfaction of the Depositor, the
Owner Trustee, the Certificate Registrar, the Enhancer and the Servicer that
the purchase of Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Owner
Trustee, the Certificate Registrar, the Certificate Paying Agent, the
Indenture Trustee, the Paying Agent, the Enhancer or the Servicer to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in this Trust
Agreement, which Opinion of Counsel shall not be an expense of the Depositor,
the Owner Trustee, the Certificate Registrar, the Enhancer or the Servicer.
In lieu of such Opinion of Counsel, a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring such
Certificates with Plan Assets of a Plan may provide a certification in the
form of Exhibit G to this Trust Agreement, which the Depositor, the Owner
Trustee, the Certificate Registrar, the Certificate Paying Agent, the
Indenture Trustee, the Paying Agent, the Enhancer and the Servicer may rely
upon without further inquiry or investigation. Neither an Opinion of Counsel
nor a certification will be required in connection with the initial transfer
of any such Certificate by the Depositor to an Affiliate of the Depositor (in
which case, the Depositor or any such Affiliate shall be deemed to have
represented that such Affiliate is not a Plan or a Person investing Plan
Assets of any Plan) and the Owner Trustee shall be entitled to conclusively
rely upon a representation (which, upon the request of the Owner Trustee,
shall be a written representation) from the Depositor of the status of such
transferee as an Affiliate of the Depositor.
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In addition, no transfer of a Certificate shall be permitted, and no
such transfer shall be registered by the Certificate Registrar or be
effective hereunder, unless evidenced by an Opinion of Counsel addressed to
the Certificate Registrar, the Servicer and the Enhancer that establishes
that such transfer or the registration of such transfer would not cause the
Trust to be classified as a publicly traded partnership, by having more than
100 Certificateholders at any time during the taxable year of the Trust, an
association taxable as a corporation, a corporation or a taxable mortgage
pool for federal and relevant state income tax purposes, which Opinion of
Counsel shall not be an expense of the Certificate Registrar and shall be an
expense of the proposed transferee. No Opinion of Counsel will be required
if such transfer is made to a nominee of an existing beneficial holder of a
Certificate.
In addition, no transfer, sale, assignment, pledge or other disposition
of a Certificate shall be made unless the proposed transferee executes a
representation letter substantially in the form of Exhibit H hereto, that (1)
the transferee is acquiring such Certificate for its own behalf and is not
acting as agent or custodian for any other Person or entity in connection
with such acquisition and (2) if the transferee is a partnership, grantor
trust or S corporation for federal income tax purposes, the Certificates
acquired are not more than 50% of the assets of the partnership, grantor
trust or S corporation.
Section 3.10. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar, the Indenture Trustee and the Owner
Trustee such security or indemnity as may be required by them to save each of
them and the Issuer from harm, then in the absence of notice to the
Certificate Registrar, the Indenture Trustee or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee on
behalf of the Trust shall execute and the Owner Trustee or the Indenture
Trustee, as the Trust's authenticating agent, shall 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 denomination. In connection
with the issuance of any new Certificate under this Section 3.10, the Owner
Trustee, the Indenture 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 connection therewith. Any duplicate Certificate
issued pursuant to this Section 3.10 shall constitute conclusive evidence of
ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 3.11. Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the Person in whose name any Certificate is registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 5.02 and for all other purposes whatsoever,
and none of the Trust, the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent shall be bound by any notice to the contrary.
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Section 3.12. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor or the Owner Trustee, within 15 days after receipt by the
Certificate Registrar of a written request therefor from the Depositor or the
Owner Trustee, a list, in such form as the Depositor or the Owner Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders, or one or more Certificateholders evidencing not less
than 25% of the Certificate Percentage Interest, apply in writing to the
Owner Trustee or the Certificate Registrar, 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
such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five (5)
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of
Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar, the Certificate Paying Agent or the
Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 3.13. Maintenance of Office or Agency. The Owner Trustee, on
behalf of the Trust, shall maintain an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Owner Trustee in
respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates the Corporate Trust Office of the Certificate
Registrar (or such other office as the Certificate Registrar may specify to
the Owner Trustee) as its office for such purposes. The Owner Trustee shall
give prompt written notice to the Depositor, the Certificateholders, the
Indenture Trustee and the Enhancer of any change in the location of the
Certificate Register or any such office or agency.
Section 3.14. Certificate Paying Agent.
(a) The Certificate Paying Agent shall make distributions to
Certificateholders from the Distribution Account on behalf of the Trust in
accordance with the provisions of the Certificates and Section 5.01 hereof
from payments remitted to the Certificate Paying Agent by the Paying Agent
pursuant to Section 3.05 of the Indenture. The Trust hereby appoints the
Paying Agent as the Certificate Paying Agent. The Certificate Paying Agent
shall:
(i) hold all sums held by it for the payment of amounts due with respect to
the Certificates in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of which a
Responsible Officer of the Certificate Paying Agent has actual knowledge in
the making of any payment required to be made with respect to the
Certificates;
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(iii) at any time during the continuance of any such default, upon the
written request of the Owner Trustee, forthwith pay to the Owner Trustee on
behalf of the Trust all sums so held in trust by such Certificate Paying
Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay to the
Owner Trustee on behalf of the Trust all sums held by it in trust for the
payment of Certificates if at any time it ceases to act as Paying Agent under
the Indenture or meet the standards required to be met by the Paying Agent at
the time of its appointment under the Indenture;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; and
(vi) make available to the Owner Trustee a copy of the Servicing Certificate
prepared with respect to each Payment Date by the Servicer pursuant to
Section 4.01 of the Servicing Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent
if the Owner Trustee determines in its sole discretion that the Certificate
Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Paying Agent shall be permitted to
resign as Certificate Paying Agent upon 30 days' written notice to the Owner
Trustee and the Enhancer; provided, however, that the Paying Agent is also
resigning as Paying Agent under the Indenture at such time. In the event
that the Paying Agent shall no longer be the Certificate Paying Agent under
this Trust Agreement and Paying Agent under the Indenture, the Owner Trustee
shall appoint a successor to act as Certificate Paying Agent (which shall be
a bank or trust company) and which shall also be the successor Paying Agent
under the Indenture. The Owner Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent appointed
by the Owner Trustee to execute and deliver to the Owner Trustee an
instrument to the effect set forth in this Section 3.14 as it relates to the
Certificate Paying Agent. The Certificate Paying Agent shall return all
unclaimed funds to the Trust and upon removal of a Certificate Paying Agent
such Certificate Paying Agent shall also return all funds in its possession
to the Trust. The provisions of Sections 6.01, 6.04 and 7.01 shall apply to
the Certificate Paying Agent to the extent applicable. Any reference in this
Trust Agreement to the Certificate Paying Agent shall include any co-paying
agent unless the context requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself
the Distribution Account in which the Certificate Paying Agent shall deposit,
on the same day as it is received from the Servicer, the Indenture Trustee or
Paying Agent, each remittance received by the Certificate Paying Agent with
respect to payments made pursuant to the Indenture or the Servicing
Agreement. Pending any such distribution, funds deposited in the
Distribution Account on a Payment Date and not distributed to the
Certificateholders on such Payment Date shall be invested by the Certificate
Paying Agent in Permitted Investments selected by the Servicer (or if no
selection is made by the Servicer in Permitted Investments described in
clause (v) of the definition thereof) maturing no later than the Business Day
preceding the next succeeding Payment Date (except that any investment in the
institution with which the Distribution Account is maintained may mature or
be payable on demand on such Payment Date and shall not be sold or disposed
of prior to the maturity). All investment income earned in respect of funds
on deposit in the Distribution Account shall be credited to the Distribution
Account, except that an amount equal to one day's interest on any such
investment shall be for the benefit of the Certificate Paying Agent. A
portion of any losses incurred in respect of any such investments shall be
deposited in the Distribution Account by the Certificate Paying Agent out of
its own funds immediately as realized in an amount such that the percentage
of any such loss allocated to the Certificate Paying Agent shall equal a
fraction, the numerator of which equals one (1) and the denominator of which
equals the number of days the funds in the Distribution Account were invested
in such investment. The remainder of any such losses shall be charged
against the Distribution Account. The Certificate Paying Agent shall make
all distributions on the Certificates as provided in Section 3.05 of the
Indenture and Section 5.01(a) of this Trust Agreement from moneys on deposit
in the Distribution Account.
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Section 3.15. Cooperation. The Owner Trustee shall cooperate in all
respects with any reasonable request by the Enhancer for action to preserve
or enforce the Enhancer's rights or interest under this Trust Agreement or
the Insurance Agreement, consistent with this Trust Agreement and without
limiting the rights of the Certificateholders as otherwise expressly set
forth in this Trust Agreement.
Section 3.16. [Reserved].
Section 3.17. Subordination. Except as otherwise provided in the Basic
Documents, for so long as any Notes are outstanding or unpaid, the
Certificateholders will generally be subordinated in right of payment, under
the Certificates or otherwise, to payments to the Noteholders under, or
otherwise related to, the Indenture. If an Event of Default has occurred and
is continuing under the Indenture, the Certificates will be fully
subordinated to obligations owing by the Trust to the Noteholders and the
Enhancer under, or otherwise related to, the Indenture, and no distributions
will be made on the Certificates until the Noteholders, the Paying Agent, the
Note Registrar, the Certificate Paying Agent, the Certificate Registrar and
the Indenture Trustee and the Enhancer have been irrevocably paid in full.
Section 3.18. No Priority Among Certificates. All Certificateholders
shall rank equally as to amounts distributable upon the liquidation,
dissolution or winding up of the Trust, with no preference or priority being
afforded to any Certificateholders over any other Certificateholders.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party,
as well as any certificate that supports the factual assumptions made in any
Opinion of Counsel delivered on the Closing Date, and any amendment or other
agreement or instrument described herein, in each case, in such form as the
Owner Trustee shall approve, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
obligated to take all actions required of the Trust pursuant to the Basic
Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to
administer the Trust pursuant to the terms of this Trust Agreement and the
other Basic Documents to which the Trust is a party and in the interest of
the Certificateholders, subject to the Basic Documents and in accordance with
the provisions of this Trust Agreement.
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Section 4.03. Action upon Instruction.
(a) Subject to this Article IV and Section 10.13 of this Trust Agreement
and in accordance with the terms of the Basic Documents, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to this Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under any Basic Document if the Owner Trustee
shall have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Owner Trustee
or is contrary to the terms hereof or of any other Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Trust Agreement
or under any other Basic Document, or in the event that the Owner Trustee is
unsure as to the application of any provision of this Trust Agreement or any
other Basic Document or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Trust Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders (with a copy to the Enhancer) requesting instruction as to
the course of action to be adopted, and to the extent the Owner Trustee acts
in good faith in accordance with any written instructions received from
Certificateholders of Certificates representing a majority of the aggregate
Certificate Percentage Interest of the Certificates, the Owner Trustee shall
not be liable on account of such action to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent
with this Trust Agreement or the other Basic Documents, as it shall deem to
be in the best interests of the Certificateholders, and the Owner Trustee
shall have no liability to any Person for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or
in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided
(i) in accordance with the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Trust Agreement, (ii) in accordance with
the Basic Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 4.03; and no implied
duties or obligations shall be read into this Trust Agreement or any other
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or
file any filing with the Commission for the Trust or to record this Trust
Agreement or any other Basic Document. The Owner Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any liens on any part of the Trust Estate that result
from actions by, or claims against, the Owner Trustee that are not related to
the ownership or the administration of the Trust Estate.
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Section 4.05. Restrictions.
(a) The Owner Trustee shall not take any action (i) that is inconsistent
with the purposes of the Trust set forth in Section 2.03 or (ii) that, to the
actual knowledge of the Owner Trustee, would cause the Trust to be treated as
an association (or a publicly-traded partnership) taxable as a corporation or
a taxable mortgage pool for federal income tax purposes or at any time that
any of the Notes or Certificates are outstanding or any obligations are due
and owing to the Enhancer under the Insurance Agreement. The
Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Trust Estate, to any
person unless (i) it shall have received an Opinion of Counsel to the effect
that such transaction will not have any material adverse tax consequence to
the Trust or any Certificateholder and (ii) such conveyance or transfer shall
not violate the provisions of Section 3.16(b) of the Indenture.
Section 4.06. Prior Notice to Certificateholders and the Enhancer with
Respect to Certain Matters. With respect to the following matters, the Owner
Trustee shall not take action unless, at least 30 days before the taking of
such action, the Owner Trustee shall have notified the Certificateholders and
the Enhancer in writing of the proposed action and the Enhancer and the
Certificateholders of Certificates representing a majority of the aggregate
Certificate Percentage Interest of the Certificates shall not have notified
the Owner Trustee in writing prior to the 30th day after such notice is given
that such Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any Proceeding by the Trust (except Proceedings
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any Proceeding brought by or
against the Trust (except with respect to the aforementioned Proceedings for
collection of cash distributions due and owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Statutory
Trust Statute);
(c) the amendment of any of the Basic Documents in circumstances where the
consent of any Noteholder is required;
(d) the amendment of any of the Basic Documents in circumstances where the
consent of any Noteholder is not required and such amendment materially and
adversely affects the interest of the Certificateholders;
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(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust
Agreement of a successor Certificate Registrar or Certificate Paying Agent or
the consent to the assignment by the Note Registrar, Paying Agent, Indenture
Trustee, Certificate Registrar or Certificate Paying Agent of its obligations
under the Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the written
direction of Certificateholders evidencing not less than a majority of the
aggregate Certificate Percentage Interest of the Certificates, and with the
consent of the Enhancer, to (a) remove the Servicer under the Servicing
Agreement pursuant to Section 7.01 thereof or (b) except as expressly
provided in the Basic Documents, sell the Mortgage Loans after the
termination of the Indenture.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary Proceeding
in bankruptcy relating to the Trust without the unanimous prior approval of
all Certificateholders, and with the prior written consent of the Enhancer,
and the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that
the Trust is insolvent.
Section 4.09. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Trust Agreement or
any of the other Basic Documents or would be contrary to Section 2.03, nor
shall the Owner Trustee be obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Trust Agreement
may be taken by the Certificateholders of Certificates evidencing not less
than a majority of the aggregate Certificate Percentage Interest of the
Certificates. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be
effective if signed by the Certificateholders evidencing not less than a
majority of the aggregate Certificate Percentage Interest of the Certificates
at the time of the delivery of such notice.
Section 4.11. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither [_____________] nor the
Owner Trustee shall be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will, even after
the appointment of a co-trustee or separate trustee in accordance with
Section 9.05 hereof, (i) require the consent or approval or authorization or
order of or the giving of notice to, or the registration with or the taking
of any other action in respect of, any state or other governmental authority
or agency of any jurisdiction other than the State of Delaware; (ii) result
in any fee, tax or other governmental charge under the laws of the State of
Delaware becoming payable by [_____________], or (iii) subject
[_____________] to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by [_____________] or the Owner Trustee, as
the case may be, contemplated hereby.
Section 4.12. Removal of Mortgage Loans. Subject to and in accordance
with Section 3.22 of the Servicing Agreement, the Issuer may notify the Owner
Trustee of its direction to the Servicer to remove Mortgage Loans from the
Trust Estate. Promptly following receipt of any such request, the Owner
Trustee shall deliver to the Servicer the written notice and request required
to be delivered to the Servicer pursuant to Section 3.22 of the Servicing
Agreement. Any Mortgage Loans removed from the Trust Estate pursuant to
Section 3.22 of the Servicing Agreement shall be property of the Issuer and,
upon the written request of the Certificateholders holding 100% of the
Certificate Percentage Interests of the Certificates, be released to the
Certificateholders as a dividend and in accordance with the written
instructions of such Certificateholders.
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ARTICLE V
Application of Trust Funds
Section 5.01. Distributions.
(a) On each Payment Date and on any date on which the Trust is terminated
pursuant to Section 8.01, the Certificate Paying Agent shall distribute to
the Certificateholders all funds on deposit in the Distribution Account and
available therefor as provided in Section 3.05 of the Indenture. All
distributions made pursuant to this Section to any Certificates shall be
distributed to the Certificateholders pro rata based on the respective
Percentage Interests thereof.
(b) In the event that any withholding tax is imposed on the distributions
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to such Certificateholder in accordance with
this Section 5.01. The Certificate Paying Agent is hereby authorized and
directed to retain or cause to be retained from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of
any tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate
Proceedings, and withholding payment of such tax, if permitted by law,
pending the outcome of such Proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent and remitted to the appropriate taxing authority.
If there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders.
Section 5.02. Method of Payment. Subject to Section 8.01(c),
distributions required to be made to Certificateholders on any Payment Date
as provided in Section 5.01 shall be made to each Certificateholder of record
on the preceding Record Date by wire transfer, in immediately available
funds, to the account of each Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Payment Date.
Section 5.03. Signature on Returns. The Servicer shall sign on behalf of
the Trust the tax returns, if any, of the Trust.
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Section 5.04. Statements to Certificateholders. On each Payment Date,
the Certificate Paying Agent shall make available to each Certificateholder
the Servicing Certificate provided to the Owner Trustee and the Certificate
Paying Agent by the Servicer pursuant to Section 4.01 of the Servicing
Agreement with respect to such Payment Date.
Section 5.05. Tax Reporting. The Certificateholders by their acceptance
of a Certificate, agree to appoint the Servicer as their agent and the
Servicer, as agent for such holders under the Servicing Agreement, has agreed
to perform all duties necessary to comply with federal and state income tax
laws.
Any Certificateholder that holds 100% of the Certificates agrees by its
purchase of 100% of the Certificates to treat the Trust Estate as an entity
wholly owned by such Certificateholder for purposes of federal and state
income tax, franchise tax and any other tax measured in whole or in part by
income, with the assets of the entity being the assets held by the Trust, and
the Notes being debt of the Trust.
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all
moneys actually received by it constituting part of the Trust Estate upon the
terms of this Trust Agreement and the other Basic Documents to which each is
a party. The Owner Trustee shall not be answerable or accountable hereunder
or under any Basic Document under any circumstances, except (i) for its own
willful misconduct, negligence or bad faith or negligent failure to act or
(ii) in the case of the inaccuracy of any representation or warranty
contained in Section 6.03 expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) no provision of this Trust Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(b) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(c) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution
hereof by the Depositor for the form, character, genuineness, sufficiency,
value or validity of any of the Trust Estate, or for or in respect of the
validity or sufficiency of the Basic Documents, the Notes, the Certificates,
other than the certificate of authentication on the Certificates, if executed
by the Owner Trustee and the Owner Trustee shall in no event assume or incur
any liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein or in the
other Basic Documents;
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(d) the execution, delivery, authentication and performance by the Owner
Trustee of this Trust Agreement will not require the authorization, consent
or approval of, the giving of notice to, the filing or registration with, or
the taking of any other action with respect to, any governmental authority or
agency;
(e) the Owner Trustee shall not be liable for the default or misconduct of
the Depositor, Indenture Trustee, the Certificate Paying Agent, the Paying
Agent or the Servicer under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the
obligations of the Certificate Paying Agent, the Paying Agent, the Depositor
or the Trust under this Trust Agreement or the other Basic Documents that are
required to be performed by the Indenture Trustee or the Paying Agent under
the Indenture or the Seller under the Purchase Agreement; and
(f) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it or duties imposed by this Trust Agreement, or
to institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any other Basic Document,
at the request, order or direction of any of the Certificateholders, unless
such Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right of the
Owner Trustee to perform any discretionary act enumerated in this Trust
Agreement or in any other Basic Document shall not be construed as a duty,
and the Owner Trustee shall not be answerable for other than its negligence,
bad faith or willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents other than the Yield Maintenance Agreement.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Trust Agreement, and this Trust Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding
on it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound;
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(d) This Trust Agreement, assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal
and binding obligation of the Owner Trustee, 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;
(e) The Owner Trustee 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 Owner Trustee or its properties or might have consequences
that would materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it
to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of
determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter and such
certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) if such persons have been selected by the Owner Trustee
with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it
at the expense of the Trust. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and
not contrary to this Trust Agreement or any other Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created [_____________] acts
solely as Owner Trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Trust Agreement or any other Basic Document
shall look only to the Trust Estate for payment or satisfaction thereof.
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Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents. The recitals contained herein and in the Certificates (other than
the signatures of the Owner Trustee on the Certificates) shall be taken as
the statements of the Depositor, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Trust Agreement, of
any other Basic Document or of the Certificates (other than the signatures of
the Owner Trustee on the Certificates) or the Notes, or of any Related
Documents. The Owner Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Trust Estate or its ability
to generate the payments to be distributed to Certificateholders under this
Trust Agreement or the Noteholders under the Indenture, including, the
compliance by the Depositor or the Seller with any warranty or representation
made under any Basic Document or in any related document or the accuracy of
any such warranty or representation, or any action of the Certificate Paying
Agent, the Certificate Registrar, the Paying Agent or the Indenture Trustee
taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Depositor, the Seller,
the Certificate Paying Agent, the Certificate Registrar, the Paying Agent and
the Indenture Trustee in transactions with the same rights as it would have
if it were not Owner Trustee.
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ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof in accordance with Section 6.06
of the Servicing Agreement, and the Owner Trustee shall be reimbursed for its
reasonable expenses hereunder and under the other Basic Documents, including
the reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably
employ in connection with the exercise and performance of its rights and its
duties hereunder and under the other Basic Documents which shall be payable
by the Servicer pursuant to Section 3.11 of the Servicing Agreement.
Section 7.02. Indemnification. The Certificateholders of the majority of
the Percentage Interest of the Certificates shall indemnify, defend and hold
harmless the Owner Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by,
or asserted against the Owner Trustee or any Indemnified Party in any way
relating to or arising out of this Trust Agreement, the other Basic
Documents, the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Owner Trustee hereunder; provided, however, that:
(a) such Certificateholder shall not be liable for or required to indemnify
an Indemnified Party from and against Expenses arising or resulting from the
Owner Trustee's willful misconduct, negligence or bad faith or as a result of
any inaccuracy of a representation or warranty contained in Section 6.03
expressly made by the Owner Trustee;
(b) with respect to any such claim, the Indemnified Party shall have given
such Certificateholder written notice thereof promptly after the Indemnified
Party shall have actual knowledge thereof;
(c) while maintaining control over its own defense, such Certificateholder
shall consult with the Indemnified Party in preparing such defense; and
(d) notwithstanding anything in this Trust Agreement to the contrary, such
Certificateholder shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of such
Certificateholder, which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee or the termination of this Trust
Agreement. In the event of any Proceeding for which indemnity may be sought
pursuant to this Section 7.02, the Owner Trustee's choice of legal counsel,
if other than the legal counsel retained by the Owner Trustee in connection
with the execution and delivery of this Trust Agreement, shall be subject to
the approval of the Certificateholder of the majority of the Percentage
Interest of the Certificates, which approval shall not be unreasonably
withheld. In addition, upon written notice to the Owner Trustee and with the
consent of the Owner Trustee, which consent shall not be unreasonably
withheld, the Certificateholder of the majority of the Percentage Interest of
the Certificates shall have the right to assume the defense of any Proceeding
against the Owner Trustee.
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ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement.
(a) This Trust Agreement (other than this Article VIII) and the Trust shall
terminate and be of no further force or effect upon the final distribution of
all moneys or other property or proceeds of the Trust Estate in accordance
with the terms of the Indenture and this Trust Agreement. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall
not (i) operate to terminate this Trust Agreement or the Trust, (ii) entitle
such Certificateholder's legal representatives or heirs to claim an
accounting or to take any Proceeding in any court for a partition or winding
up of all or any part of the Trust or the Trust Estate or (iii) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date on
which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution thereon and
cancellation thereof, shall be given by the Certificate Paying Agent by
letter to the Certificateholders and the Enhancer mailed within five Business
Days of receipt of notice of such termination from the Owner Trustee, stating
(i) the Payment Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Certificate Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Certificates
at the office of the Certificate Paying Agent therein specified. The
Certificate Paying Agent shall give such notice to the Owner Trustee and the
Certificate Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Certificate Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not have
surrendered their Certificates for cancellation within six months after the
date specified in the above mentioned written notice, the Certificate Paying
Agent shall give a second written notice to the remaining Certificateholders
to surrender their Certificates for cancellation and receive the final
distribution with respect thereto. Subject to applicable laws with respect
to escheat of funds, if within one year following the Payment Date on which
final payment of the Certificates was to have been made pursuant to
Section 5.01, all the Certificates shall not have been surrendered for
cancellation, the Certificate Paying Agent may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Trust Agreement. Any funds remaining in the Distribution
Account after exhaustion of such remedies shall be distributed by the
Certificate Paying Agent to the Certificateholder of the majority of the
Percentage Interest of the Certificates with respect to which such amounts
are due.
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(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be cancelled by filing a certificate
of cancellation with the Secretary of State in accordance with the provisions
of Section 3810(c) of the Statutory Trust Statute.
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent that has) long-term debt
obligations with a rating of at least A by Moody's, Standard & Poor's or
Fitch, if rated by Fitch. If such corporation shall publish reports of
condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation 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 Owner Trustee shall cease
to be eligible in accordance with the provisions of this Section 9.01, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30
days' prior written notice thereof to the Enhancer, the Indenture Trustee,
the Paying Agent and the Depositor. Upon receiving such notice of
resignation, the Indenture Trustee shall promptly appoint a successor Owner
Trustee with the consent of the Enhancer, which consent shall not be
unreasonably withheld, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to
the successor Owner Trustee. If no successor Owner Trustee shall have been
so appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Owner Trustee may petition any
court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the Indenture Trustee (and the Indenture Trustee
shall make such request upon (i) the written direction of the Enhancer, so
long as the Enhancer is not in default under the Policy, or (ii) the written
direction of holders of Notes representing not less than a majority of the
Note Balance of the Notes if the Enhancer is in default under the Policy), or
if at any time the Owner Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Indenture Trustee may,
and, at the direction of the Enhancer, shall, remove the Owner Trustee. If
the Indenture Trustee shall remove the Owner Trustee under the authority of
the immediately preceding sentence, the Indenture Trustee shall promptly
appoint a successor Owner Trustee reasonably acceptable to the Enhancer by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee, and shall pay all fees owed to the outgoing Owner
Trustee. If the Indenture Trustee is unable to appoint a successor Owner
Trustee within 60 days after any such direction, the Indenture Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
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Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 9.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to
the Indenture Trustee, the Paying Agent and to its predecessor Owner Trustee
an instrument accepting such appointment under this Trust Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Trust Agreement, with
like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Trust Agreement; and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Paying Agent shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders, the Rating
Agencies and the Enhancer. If the Paying Agent shall fail to mail such
notice within 10 days after acceptance of such appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause such notice to be
mailed at the expense of the Paying Agent.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such Person shall be eligible pursuant to
Section 9.01; provided, further, that the Owner Trustee shall mail notice of
such merger or consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Owner
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Trust
Estate, and to vest in such Person, in such capacity, such title to the Trust
or any part thereof and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the Owner Trustee may
consider necessary or desirable. No co-trustee or separate trustee under
this Trust Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 9.01 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant
to Section 9.03.
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Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner 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 singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Trust
Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article IX. 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 Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Trust Agreement, specifically including
every provision of this Trust Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as 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 Trust 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 Owner Trustee, to the extent permitted by law, without
the appointment of a new or successor co-trustee or separate trustee.
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ARTICLE X
Miscellaneous
Section 10.01. Amendments.
(a) This Trust Agreement may be amended from time to time by the parties
hereto as specified in this Section 10.01, provided that any such amendment,
except as provided in paragraph (e) below, shall be accompanied by an Opinion
of Counsel addressed to the Owner Trustee and the Enhancer to the effect that
such amendment complies with the provisions of this Section.
(b) If the purpose of any such amendment (as detailed therein) is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered in this Trust Agreement (i.e., to give effect to
the intent of the parties), it shall not be necessary to obtain the consent
of any Certificateholders, but the Owner Trustee shall be furnished with (i)
a letter from each Rating Agency that the amendment will not result in a
Rating Event, determined without regard to the Policy and (ii) an Opinion of
Counsel to the effect that such action will not adversely affect in any
material respect the interests of any Certificateholder, and the consent of
the Enhancer shall be obtained.
(c) If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Security is outstanding (i.e.,
technical in nature), it shall not be necessary to obtain the consent of any
Certificateholder, but the Owner Trustee shall be furnished with an Opinion
of Counsel that such amendment is necessary or helpful to prevent the
imposition of such taxes and is not materially adverse to any
Certificateholder and the consent of the Enhancer shall be obtained.
(d) If the purpose of the amendment is to add or eliminate or change any
provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (i) the consent of the Enhancer and an
Opinion of Counsel to the effect that such action will not adversely affect
in any material respect the interests of any Certificateholder and
(ii) either (A) a letter from each Rating Agency that such amendment will not
cause a Rating Event, if determined without regard to the Policy or (B) the
consent of Certificateholders evidencing a majority of the aggregate
Certificate Percentage Interest and the Indenture Trustee; provided, however,
that no such amendment shall reduce in any manner the amount of, or delay the
timing of, payments received that are required to be distributed on any
Certificate without the consent of each Certificateholder affected thereby
and the Enhancer, or reduce the aforesaid percentage of Certificates the
Certificateholders of which are required to consent to any such amendment,
without the consent of the Certificateholders of all such Certificates then
outstanding; provided, further, that no Certificate registered in the name of
the Seller or an Affiliate of the Seller shall be considered a Certificate
for purposes of such consent.
(e) No amendment of this Trust Agreement may provide for the holding of any
of the Certificates in book-entry form.
(f) If the purpose of any such amendment is to provide for the issuance of
additional Certificates representing an interest in the Trust, it shall not
be necessary to obtain the consent of any Certificateholder, but the Owner
Trustee shall be furnished with (i) an Opinion of Counsel to the effect that
such action will not adversely affect in any material respect the interests
of any Certificateholders and (ii) a letter from each Rating Agency to the
effect that such amendment will not cause a Rating Event, if determined
without regard to the Policy, and the consent of the Enhancer shall be
obtained.
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(g) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee, the
Paying Agent, the Enhancer and each of the Rating Agencies. It shall not be
necessary for the consent of Certificateholders or the Indenture Trustee
pursuant to this Section 10.01 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Trust Agreement
or in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to
which the Trust is a party, other than this Trust Agreement, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
documents subject to such amendment and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
(i) The Owner Trustee may, but shall not be obligated to, execute any
amendment which adversely affects its rights, duties or immunities hereunder.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Section 10.02. No Legal Title to Trust Estate. The Certificateholders
shall not have legal title to any part of the Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles
V and VIII. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership
interest in the Trust Estate shall operate to terminate this Trust Agreement
or the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Trust Estate.
Section 10.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders, the Enhancer and, to
the extent expressly provided herein, the Paying Agent, the Indenture Trustee
and the Noteholders, and nothing in this Trust Agreement (other than
Section 2.07), whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Trust
Estate or under or in respect of this Trust Agreement or any covenants,
conditions or provisions contained herein.
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Section 10.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof,
all notices shall be in writing and shall be deemed given upon receipt: if
to the Owner Trustee, addressed to its Corporate Trust Office; if to the
Paying Agent, addressed to its Corporate Trust Office; if to the Certificate
Paying Agent, addressed to its Corporate Trust Office; if to the Depositor,
addressed to Wachovia Mortgage Loan Trust, LLC, [address], Attention: ______,
Telecopier: (___) ___-____; if to the Enhancer, addressed to [address],
Attention: ______, Telecopier: (___) ___-____; if to the Rating Agencies,
addressed to Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Structured Finance Department - MBS; or, as to each of the foregoing Persons,
at such other address as shall be designated by such Person in a written
notice to each of the other foregoing Persons.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Trust Agreement to a Certificateholder
shall be conclusively presumed to have been duly given, whether or not such
Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall
also be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be
executed by the parties hereto in any number of counterparts, each of which
when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Enhancer, the Depositor, the Owner Trustee and
its successors and each Certificateholder and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent,
waiver or other instrument or action by a Certificateholder shall bind the
successors and assigns of such Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this
Trust Agreement, and each Certificateholder, by accepting a Certificate,
hereby covenants and agrees that it will not at any time institute against
the Depositor or the Trust, or join in any institution against the Depositor
or the Trust of, any bankruptcy Proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the other Basic
Documents.
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Section 10.09. No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificate
represents a beneficial interest in the Trust only and does not represent an
interest in or obligation of the Depositor, the Seller, the Owner Trustee,
the Indenture Trustee, the Paying Agent or any Affiliate thereof, and that no
recourse may be had against such Persons or their assets, except as may be
expressly set forth or contemplated in the Certificates, this Trust Agreement
or the other Basic Documents.
Section 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof
and supersedes all prior agreements and understanding pertaining thereto.
Section 10.13. Rights of Enhancer to Exercise Rights of
Certificateholders. By accepting its Certificate, each Certificateholder
agrees that unless a Enhancer Default exists, the Enhancer shall have the
right to exercise all rights of the Certificateholders under this Trust
Agreement without any further consent of the Certificateholders. Nothing in
this Section, however, shall alter or modify in any way, the fiduciary
obligations of the Owner Trustee to the Certificateholders pursuant to this
Trust Agreement, or create any fiduciary obligation of the Owner Trustee to
the Enhancer. The Enhancer shall be an express third party beneficiary of
this Trust Agreement.
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ARTICLE XI
Compliance with Regulation AB
Section 11.01. Intent of the Parties; Reasonableness. The Depositor and
the Owner Trustee acknowledge and agree that the purpose of this Article II
is to facilitate compliance by the Depositor with the provisions of
Regulation AB and related rules and regulations of the Commission. The
Depositor shall not exercise its right to request delivery of information or
other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act and
the rules and regulations of the Commission under the Securities Act and the
Exchange Act. The Owner Trustee acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus
among participants in the mortgage-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable requests made by
the Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. The
Owner Trustee shall cooperate in good faith with any reasonable request by
the Depositor for information regarding the Owner Trustee that is necessary
or required, in the reasonable, good faith determination of the Depositor, to
permit the Depositor to comply with the provisions of Regulation AB.
Section 11.02. Additional Representations and Warranties of the Owner
Trustee.
(a) The Owner Trustee shall be deemed to represent and warrant to the
Depositor as of the date hereof and on each date on which information is
provided to the Depositor under Sections 11.01, 11.02(b) or 11.03 that,
except as disclosed in writing to the Depositor prior to such date: (i) it
is not aware and has not received notice that any default, early amortization
or other performance triggering event has occurred as to any other
Securitization Transaction due to any default of the Owner Trustee; (ii)
there are no aspects of its financial condition that could have a material
adverse effect on the performance by it of its trustee obligations under the
Trust Agreement or any other Securitization Transaction as to which it is the
trustee; (iii) there are no material legal or governmental proceedings
pending (or known to be contemplated) against it that would be material to
Noteholders; (iv) there are no relationships or transactions (as described in
Item 1119(b) of Regulation AB) relating to the Owner Trustee with respect to
the Depositor or any sponsor, issuing entity, servicer, trustee, originator,
significant obligor, enhancement or support provider or other material
transaction party (as each of such terms are used in Regulation AB) relating
to the Securitization Transaction contemplated by the Trust Agreement, as
identified by the Depositor to the Owner Trustee in writing as of the Closing
Date (each, a "Transaction Party") that are outside the ordinary course of
business or on terms other than would be obtained in an arm's length
transaction with an unrelated third party, apart from the Securitization
Transaction, and that are material to the investors' understanding of the
Certificates; and (v) the Owner Trustee is not an affiliate (as contemplated
by Item 1119(a) of Regulation AB) of any Transaction Party. The Depositor
shall notify the Owner Trustee of any change in the identity of a Transaction
Party after the Closing Date at least five (5) Business Days prior to
[January 31] of each calendar year.
(b) If so requested by the Depositor on any date following the
Closing Date, the Owner Trustee shall, within five Business Days following
such request, confirm in writing the accuracy of the representations and
warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such
confirmation, provide the pertinent facts, in writing, to the Depositor. Any
such request from the Depositor shall not be given more than once each
calendar quarter, unless the Depositor shall have a reasonable basis for
questioning the accuracy of any of the representations and warranties.
35
Section 11.03. Information to Be Provided by the Owner Trustee.
(a) For so long as the Notes are outstanding, for the purpose of
satisfying the Depositor's reporting obligation under the Exchange Act with
respect to any class of Notes, the Owner Trustee shall provide to the
Depositor a written description of (i) the commencement of, a material
development in or, if applicable, the termination of, any and all legal
proceedings against the Owner Trustee or any and all proceedings of which any
property of the Owner Trustee is the subject, that would be material to
Noteholders; and (ii) any such proceedings known to be contemplated by
governmental authorities that would be material to Noteholders. the Owner
Trustee shall also notify the Depositor, in writing, as promptly as
practicable following notice to or discovery by a Responsible Officer of the
Owner Trustee of any material changes to proceedings described in the
preceding sentence. In addition, the Owner Trustee will furnish to the
Depositor, in writing, the necessary disclosure regarding the Owner Trustee
describing such proceedings required to be disclosed under Item 1117 of
Regulation AB, for inclusion in reports filed by or on behalf of the
Depositor pursuant to the Exchange Act. The Depositor will allow the Owner
Trustee to review any disclosure relating to material litigation against the
Owner Trustee prior to filing such disclosure with the Commission to the
extent the Depositor changes the information provided by the Owner Trustee.
Any descriptions required with respect to legal proceedings, as well as
updates to previously provided descriptions, under this Section 11.03(a)
shall be given no later than five Business Days prior to the Determination
Date following the month in which the relevant event occurs.
(b) For so long as the Notes are outstanding, for the purpose of
satisfying the Depositor's reporting obligation under the Exchange Act with
respect to any class of Notes, the Owner Trustee shall, no later than January
31 of each calendar year, (i) provide to the Depositor such information
regarding the Owner Trustee as is required for the purpose of compliance with
Item 1119 of Regulation AB; provided, however, the Owner Trustee shall not be
required to provide such information in the event that there has been no
change to the information previously provided by the Owner Trustee to the
Depositor; and (ii) as promptly as practicable following notice to or
discovery by a Responsible Officer of the Owner Trustee of any changes to
such information, provide to the Depositor, in writing, such updated
information. Such information shall include, at a minimum, a description of
any affiliation between the Owner Trustee and any of the following parties to
the Securitization Transaction contemplated by the Trust Agreement, as such
parties and their affiliates are identified to the Owner Trustee by the
Depositor in connection with the closing of each Securitization Transaction
or, if there has been a change in any such party, as such party is identified
by the Depositor in a written notice to the Owner Trustee at least five (5)
Business Days prior to [January 31] of each calendar year:
(1) the sponsor;
36
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any Securitization
Transaction.
In addition, the Owner Trustee shall provide a description of whether
there is, and if so the general character of, any business relationship,
agreement, arrangement, transaction or understanding between the Owner
Trustee and any above-listed party that is entered into outside the ordinary
course of business or is on terms other than would be obtained in an arm's
length transaction with an unrelated third party, apart from the
Securitization Transaction contemplated by the Trust Agreement, that
currently exists or that existed during the past two years and that is
material to an investor's understanding of the Notes.
(c) As of the related Payment Date with respect to each Report on
Form 10-D with respect to the Notes filed by or on behalf of the Depositor,
and as of [March 15] preceding the date each Report on Form 10-K with respect
to the Notes is filed, the Owner Trustee shall be deemed to represent and
warrant that any information previously provided by the Owner Trustee under
this Article II is materially correct and does not have any material
omissions unless the Owner Trustee has provided an update to such information.
Section 11.04. Indemnification; Remedies.
(a) The Owner Trustee shall indemnify the Depositor, each affiliate
of the Depositor and the respective present and former directors, officers,
employees and agents of each of the foregoing, and shall hold each of them
harmless from and against any claims, losses, liabilities (including
penalties), actions, suits, judgments, demands, damages, costs and expenses
(including reasonable fees and expenses of attorneys or, as necessary,
consultants and auditors and reasonable costs of investigations) that any of
them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact
contained or alleged to be contained in any information, report,
certification or other material provided under Sections 11.01, 11.02 or 11.03
of this Article II by or on behalf of the Owner Trustee (collectively, the
"Wachovia Information"), or (B) the omission or alleged omission to state in
the Wachovia Information a material fact required to be stated in the
Wachovia Information or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; or
37
(ii) any failure by the Owner Trustee to deliver any
information, report, certification or other material when and as required
under Sections 11.02 and 11.03.
(b) In the case of any failure of performance described in clause
(ii) of Section 11.04(a), the Owner Trustee shall (i) promptly reimburse the
Depositor for all costs reasonably incurred by the Depositor in order to
obtain the information, report, certification or other material not delivered
by the Owner Trustee as required and (ii) cooperate with the Depositor to
mitigate any damages that may result from such failure.
(c) The Depositor shall indemnify the Owner Trustee, each affiliate
of the Owner Trustee and the respective present and former directors,
officers, employees and agents of the Owner Trustee, and shall hold each of
them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other costs, fees and expenses that any of them may sustain arising out of or
based upon (i) any untrue statement of a material fact contained or alleged
to be contained in any information provided by or on behalf of the Depositor
for inclusion in any report filed with Commission under the Exchange Act
(collectively, the "[ ] Information"), or (ii) the omission or
alleged omission to state in the [ ] Information a material fact
required to be stated in the [ ] Information or necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) Notwithstanding any provision in this Section 11.04 to the
contrary, the parties agree that neither the Owner Trustee nor the Depositor
shall be liable to the other for any consequential or punitive damages
whatsoever, whether in contract, tort (including negligence and strict
liability), or any other legal or equitable principle; provided, however,
that such limitation shall not be applicable with respect to third party
claims made against a party.
38
IN WITNESS WHEREOF, the Depositor and the Owner 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.
WACHOVIA MORTGAGE LOAN TRUST, LLC
as Depositor
By: ____________________________________
Name:
Title:
[_____________],
not in its individual capacity but
solely as Owner Trustee, except with
respect to the representations and
warranties contained in Section 6.03
hereof
By: ____________________________________
Name:
Title:
Acknowledged and Agreed:
[_____________]
not in its individual capacity but solely
as Indenture Trustee
By: ___________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Certificate Registrar and Certificate Paying Agent
By: ___________________________________
Name:
Title:
39
WACHOVIA MORTGAGE LOAN TRUST, LLC
[_______] TRUST
By: [_____________],
not in its individual capacity but solely as
Owner Trustee
By: ___________________________________
Name:
Title:
40
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED 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 STATE LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT
FROM REGISTRATION UNDER SUCH ACT AND SUCH STATE LAWS AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS 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"), ANY PERSON
ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY PERSON
USING "PLAN ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR
REGULATIONS SECTION 2510.3-101, TO ACQUIRE THIS CERTIFICATE (EACH, A "PLAN
INVESTOR"), OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PLAN INVESTOR, AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER AND
THE CERTIFICATE REGISTRAR, OR A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE
AGREEMENT, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE IS
PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT SUBJECT
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER, THE CERTIFICATE REGISTRAR, OR
THE CERTIFICATE PAYING AGENT TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CERTIFICATE SHALL BE SUBJECT TO UNITED STATES
FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED
A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS
AS A U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW.
A-1
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER
TRUSTEE, THE PAYING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS
EXPRESSLY PROVIDED IN THE AGREEMENT OR THE OTHER BASIC DOCUMENTS.
A-2
Certificate No. 1
Cut-Off Date:
_____ __, 200_
Date of Trust Agreement:
_____ __, 200_
First Payment Date: Percentage Interest: 100%
_____ __, 200_
Final Payment Date:
Payment Date occurring in ____ 20__
WACHOVIA MORTGAGE LOAN TRUST, LLC
ASSET-BACKED CERTIFICATES, SERIES [_______]
evidencing a fractional undivided interest in Wachovia Mortgage Loan
Trust, LLC [_______] Trust (the "Issuer"), the property of which consists
primarily of the Mortgage Loans.
This Certificate is payable solely from the assets of the Trust Estate,
and does not represent an obligation of or interest in the Depositor, the
Seller, the Servicer, the Indenture Trustee, the Paying Agent, or the Owner
Trustee or any of their Affiliates. This Certificate is not guaranteed or
insured by any governmental agency or instrumentality or by the Depositor,
the Seller, the Servicer, the Indenture Trustee, the Paying Agent or the
Owner Trustee or any of their affiliates. None of the Depositor, the Seller,
the Servicer, the Indenture Trustee, the Paying Agent or the Owner Trustee or
any of their Affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Wachovia Mortgage Loan Trust, LLC is the registered
owner of the Certificate Percentage Interest evidenced by this Certificate
(as set forth on the face hereof) in certain distributions with respect to
the Trust Estate, consisting primarily of the Mortgage Loans, created by
Wachovia Mortgage Loan Trust, LLC (the "Depositor"). The Trust (as defined
herein) was created pursuant to a trust agreement dated as of _____ __, 200_
(as amended and supplemented from time to time, the "Agreement"), between the
Depositor and [_____________], as owner trustee (the "Owner Trustee," which
term includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth hereafter. Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in Appendix A to the indenture dated as of _____ __, 200_,
among the Trust, the Paying Agent and the Indenture Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Certificateholder of this
Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder 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 "Payment Date"), commencing on the
first Payment Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if
such last day is not a Business Day, the Business Day immediately preceding
such last day) of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the pro rata portion
evidenced by this Certificate (based on the Percentage Interest stated on the
face hereon) of the amount, if any, required to be distributed to
Certificateholders of Certificates on such Payment Date. Distributions on
this Certificate will be made as provided in the Agreement by the Certificate
Paying Agent by wire transfer to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon. Pursuant to the Agreement,
the Trust has issued the Certificates.
A-3
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency designated by the Certificate Registrar for that purpose.
No transfer of this Certificate will be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and any applicable state securities laws or
is made in accordance the Securities Act and such state laws. In the event
that such a transfer is to be made, (i) the Certificate Registrar or the
Depositor may require an opinion of counsel acceptable to and in form and
substance satisfactory to the Certificate Registrar and the Depositor 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, and of any applicable statute of any state and (ii) the
transferee shall execute an investment letter in the form described in the
Agreement and (iii) the Certificate Registrar shall require the transferee to
execute an investment letter and a Certificate of Non-Foreign Status in the
form described by the Agreement (or if a Certificate of Non-Foreign Status is
not provided, an Opinion of Counsel as described in the Agreement), which
investment letter and certificate or Opinion of Counsel shall not be at the
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. The Certificateholder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Depositor, the Servicer, the Certificate Registrar, the Enhancer and the
Certificate Paying Agent 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 Certificate Registrar
(unless otherwise directed by the Depositor) will also require either (i) a
representation letter, in the form as described by the Agreement, stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction restrictions or the fiduciary responsibility
requirements of ERISA or Section 4975 of the Code (a "Plan"), any person
acting, directly or indirectly, on behalf of any such Plan or any Person
using the "plan assets," within the meaning of the Department of Labor
Regulations Section 2510.3-101, to effect such acquisition (collectively, a
"Plan Investor") or (ii) if such transferee is a Plan Investor, an opinion of
counsel acceptable to and in form and substance satisfactory to the
Depositor, the Owner Trustee, the Servicer and the Certificate Registrar, or
a certification in the form of Exhibit G to the Agreement, to the effect that
the purchase or holding of such Certificate is permissible under applicable
law, will not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code (or comparable provisions of
any subsequent enactments) and will not subject the Depositor, the Owner
Trustee, the Servicer, the Enhancer or the Certificate Registrar to any
obligation or liability (including obligations or liabilities under
Section 406 of ERISA or Section 4975 of the Code) in addition to those
undertaken in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Wachovia Mortgage Loan Trust, LLC Asset-Backed Certificates of
the Series specified hereon (the "Certificates").
A-4
The Certificateholder of this Certificate, by its acceptance hereof,
agrees that it will look solely to the funds on deposit in the Distribution
Account that have been released from the Lien of the Indenture for payment
hereunder and that neither the Owner Trustee in its individual capacity nor
the Depositor is personally liable to the Certificateholders for any amount
payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders and the Enhancer as described
in the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor or the Trust, or join in any institution against the Depositor
or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations
relating to the Certificates, the Notes, the Agreement or any of the other
Basic Documents.
The Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by the consent of the Enhancer and
an Opinion of Counsel to the Owner Trustee to the effect that such amendment
complies with the provisions of the Agreement and will not cause the Trust to
be subject to an entity level tax. If the purpose of any such amendment is
to correct any mistake, eliminate any inconsistency, cure any ambiguity or
deal with any matter not covered, it shall not be necessary to obtain the
consent of any Certificateholder, but the Owner Trustee shall be furnished
with a letter from each Rating Agency to the effect that such amendment will
not cause a Rating Event, determined without regard to the Policy, and the
consent of the Enhancer shall be obtained. If the purpose of any such
amendment is to prevent the imposition of any federal or state taxes at any
time that any Security is Outstanding, it shall not be necessary to obtain
the consent of the any Certificateholder, but the Owner Trustee shall be
furnished with an Opinion of Counsel that such amendment is necessary or
helpful to prevent the imposition of such taxes and is not materially adverse
to any Certificateholder and the consent of the Enhancer shall be obtained.
If the purpose of the amendment is to add or eliminate or change any
provision of the Agreement, other than as specified in the preceding two
sentences, the amendment shall require either (a) a letter from each Rating
Agency to the effect that such amendment will not cause a Rating Event,
determined without regard to the Policy or (b) the consent of
Certificateholders of a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate
without the consent of all Certificateholders affected thereby and the
Enhancer, or (ii) reduce the aforesaid percentage of Certificates the
Certificateholders of which are required to consent to any such amendment
without the consent of the Certificateholders of all such Certificates then
outstanding.
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 Corporate Trust Office of the Certificate Registrar, accompanied by a
written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one or
more new Certificates of authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Agreement is the Paying
Agent.
A-5
Except as provided in the Agreement, the Certificates are issuable only
in minimum denominations of a 10.0000% Percentage Interest and in integral
multiples of 0.0001% Percentage Interest in excess thereof. As provided in
the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of authorized
denominations, as requested by the Certificateholder surrendering the same.
This Certificate is issued in the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent,
or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Paying Agent, the Certificate Registrar or
any such agent shall be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware.
The obligations created by the Agreement in respect of this Certificate
and the Trust created thereby shall terminate upon the final distribution of
all moneys or other property or proceeds of the Trust Estate in accordance
with the terms of the Indenture and the Agreement.
It is the intent of the Depositor, the Issuer and the Certificateholder
that for federal, state and local income, single business and franchise tax
purposes, (a) the Trust will not be treated as an association (or publicly
traded partnership) taxable as a corporation or a taxable mortgage pool and
(b) the Trust will not fail to be treated as a disregarded entity.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or the Indenture
Trustee, as authenticating agent by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
WACHOVIA MORTGAGE LOAN TRUST, LLC
[_______] TRUST
By: [_____________],
not in its individual capacity
but solely as Owner Trustee
Dated: _____ __, 200_ By: __________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
[_____________],
not in its individual capacity
but solely as Owner Trustee
By: _______________________________
Authorized Signatory
or _______________________________,
as Authenticating Agent of the Owner Trustee
By:________________________________
Authorized Signatory
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
_______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
_____________________________________ */
Signature Guaranteed:
___________________________ */
_________________________
*/ NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
A-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to__________________________________________________________________
__________________________________________________________________________
for the account of _______________________, account number ______________,
or, if mailed by check, to_____________________.
Applicable statements should be mailed to__________________________.
________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
A-9
EXHIBIT B
CERTIFICATE OF TRUST
OF
WACHOVIA MORTGAGE LOAN TRUST, LLC [_______] TRUST
THE UNDERSIGNED, [_____________], as owner trustee (the "Trustee"), for
the purpose of forming a statutory trust does hereby certify as follows:
1. The name of the statutory trust is:
WACHOVIA MORTGAGE LOAN TRUST, LLC [_______] TRUST
2. The name and business address of the Trustee of the statutory
trust in the State Delaware is [_____________], Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. The statutory trust reserves the right to amend, alter, change,
or repeal any provision contained in this Certificate of Trust in the manner
now or hereafter prescribed by law.
4. This Certificate of Trust shall be effective upon filing.
THE UNDERSIGNED, being the Trustee hereinbefore named, for the purpose
of forming a statutory trust pursuant to the provisions of the Delaware
Statutory Trust Act, does make this certificate of trust, hereby declaring
and further certifying that this is its act and deed and that to the best of
the undersigned's knowledge and belief the facts herein stated are true.
[_____________],
not in its individual capacity but
solely as owner trustee under the
trust agreement to be dated as of
_____ __, 200_
By:_____________________________________
Name:
Title:
Dated: _____ __, 200_
B-1
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer
(the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting
on its behalf has offered, transferred, pledged, sold or otherwise disposed
of the Rule 144A Securities, any interest in the Rule 144A Securities or any
other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security with,
any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Rule 144A Securities under the
Securities Act of 1933, as amended (the "1933 Act"), or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the 1933
Act or require registration pursuant thereto, and that the Seller has not
offered the Rule 144A Securities to any person other than the Buyer or
another "qualified institutional buyer" as defined in Rule 144A under the
0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee and the Depositor, pursuant to Section 3.09 of the trust
agreement dated as of _____ __, 200_ (the "Agreement"), between Wachovia
Mortgage Loan Trust, LLC, as depositor (the "Depositor"), and
[_____________], as owner trustee (the "Owner Trustee"), as follows:
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Indenture Trustee, the Owner Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
C-1
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either of
the forms of certification to that effect attached hereto as Annex 1 or
Annex 2. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
1933 Act.
3. The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
_____ a. The Buyer is not any employee benefit plan
subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or the Internal Revenue Code of 1986, as
amended (the "Code"), a Person acting, directly or indirectly, on
behalf of any such plan or any Person acquiring such Certificates
with "plan assets" of a Plan within the meaning of the Department
of Labor Regulations Section 2510.3-101; or
_____ b. The Buyer will provide the Depositor, the
Owner Trustee, the Certificate Registrar, the Enhancer and the
Servicer with either: (x) an opinion of counsel, satisfactory to
the Depositor, the Owner Trustee, the Certificate Registrar, the
Enhancer and the Servicer, to the effect that the purchase and
holding of a Certificate by or on behalf of the Buyer is
permissible under applicable law, will not constitute or result
in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Depositor, the
Owner Trustee, the Certificate Registrar, the Certificate Paying
Agent, the Enhancer or the Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Trust Agreement,
which opinion of counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar, the
Enhancer or the Servicer; or (y) in lieu of such opinion of
counsel, a certification in the form of Exhibit G to the Trust
Agreement; and
(ii) the Buyer is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made in this paragraph 3.
C-2
This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same document.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in Appendix A to the indenture dated as of
_____ __, 200_, among the Trust, the Paying Agent and the Indenture Trustee.
C-3
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
_____________________________ ______________________________
Print Name of Seller Print Name of Buyer
By:__________________________ By:___________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No.__________________________ No.___________________________
Date: Date:
C-4
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $ (1) in
securities (except for the excluded securities referred to below) as of the
end of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
_____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code.
_____ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any state, territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
_____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements.
_____ Broker-Dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state or
territory or the District of Columbia.
___________________________
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
C-5
_____ State or Local Plan. The Buyer is a plan established and
maintained by a state, its political subdivisions, or any agency
or instrumentality of the state or its political subdivisions,
for the benefit of its employees.
_____ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income Security
Act of 1974, as amended.
_____ Investment Adviser. The Buyer is an investment adviser
registered under the Investment Advisers Act of 1940. as amended.
_____ SBIC. The Buyer is a Small Business Investment Company
licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of
1958, as amended.
_____ Business Development Company. The Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940, as amended.
_____ Trust Fund. The Buyer is a trust fund whose trustee is a
bank or trust company and whose participants are exclusively (a)
plans established and maintained by a state, its political
subdivisions, or any agency or instrumentality of the state or
its political subdivisions, for the benefit of its employees, or
(b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, as amended, but
is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities
that are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is a dealer, (iii) bank deposit notes and certificates of deposit, (iv)
loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph. Further, in determining
such aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such subsidiaries are consolidated
with the Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such
securities were not included if the Buyer is a majority-owned, consolidated
subsidiary of another enterprise and the Buyer is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Rule 144A
Securities are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
C-6
_____ _____ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at
the time is a "qualified institutional buyer" within the meaning of Rule
144A. In addition, the Buyer agrees that the Buyer will not purchase
securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently
meets the definition of "qualified institutional buyer" set forth in Rule
144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of Rule 144A
Securities will constitute a reaffirmation of this certification as of the
date of such purchase.
_______________________________________
Print Name of Buyer
By: _________________________________
Name:
Title:
Date: _________________________________
C-7
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and
(ii) as marked below, the Buyer alone, or the Buyer's Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such
securities was used.
_______ The Buyer owned $__________________ in securities
(other than the excluded securities referred to below) as
of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
______ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $_____________________________
in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will continue
to rely on the statements made herein because one or more sales to the Buyer
will be in reliance on Rule 144A. In addition, the Buyer will only purchase
for the Buyer's own account.
C-8
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
_______________________________________
Print Name of Buyer
By:____________________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Buyer
Date:__________________________________
C-9
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
______________, _______
Wachovia Mortgage Loan Trust, LLC
[address]
[Indenture Trustee]
[address]
Attention: [_______]
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx-XX 0000
Xxxxxxxxx, XX 00000
Attn: Structure Finance Trust Services
Re: Wachovia Mortgage Loan Trust, LLC
Asset-Backed Certificates, Series [_______]
Ladies and Gentlemen:
___________________ (the "Purchaser") intends to purchase from
(the "Seller") % Certificate
Percentage Interest of Series [_______] (the "Certificates"), issued pursuant
to the trust agreement dated as of _____ __, 200_ (the "Trust Agreement"),
between Wachovia Mortgage Loan Trust, LLC, as depositor (the "Depositor") and
[_____________], as owner trustee (the "Owner Trustee"). Capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed
thereto in Appendix A to the indenture dated as of _____ __, 200_, among the
Trust, the Paying Agent and the Indenture Trustee. The Purchaser hereby
certifies, represents and warrants to, and covenants with, the Depositor and
the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have
not been and will not be registered or qualified under the Securities
Act of 1933, as amended (the "Act"), or any state securities law, (b)
the Company is not required to so register or qualify the Certificates,
(c) the Certificates may be resold only if registered and qualified
pursuant to the provisions of the Act or any state securities law, or
if an exemption from such registration and qualification is available,
(d) the Trust Agreement contains restrictions regarding the transfer of
the Certificates and (e) the Certificates will bear a legend to the
foregoing effect.
2. The Purchaser is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such matters
related to securities similar to the Certificates, such that it is
capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an investment
and (c) an "accredited investor" within the meaning of Rule 501(a)
promulgated pursuant to the Act.
D-1
4. The Purchaser has been furnished with, and has had an
opportunity to review a copy of the Trust Agreement and such other
information concerning the Certificates, the Mortgage Loans and the
Depositor as has been requested by the Purchaser from the Depositor or
the Seller and is relevant to the Purchaser's decision to purchase the
Certificates. The Purchaser has had any questions arising from such
review answered by the Depositor or the Seller to the satisfaction of
the Purchaser.
5. The Purchaser has not and will not nor has it authorized or
will it authorize any person to (a) offer, pledge, sell, dispose of or
otherwise transfer any Certificate, any interest in any Certificate or
any other similar security to any person in any manner, (b) solicit any
offer to buy or to accept a pledge, disposition of other transfer of
any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) otherwise approach or
negotiate with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any
manner, (d) make any general solicitation by means of general
advertising or in any other manner or (e) take any other action, that
(as to any of (a) through (d) above) would constitute a distribution of
any Certificate under the Act, that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities
law, or that would require registration or qualification pursuant
thereto. The Purchaser will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Trust
Agreement.
6. The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
_____ a. The Purchaser is not any employee benefit
plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the Internal Revenue Code of 1986,
as amended (the "Code"), a Person acting, directly or indirectly,
on behalf of any such plan or any Person acquiring such
Certificates with "plan assets" of a Plan within the meaning of
the Department of Labor Regulations Section 2510.3-101; or
_____ b. The Purchaser will provide the Depositor,
the Owner Trustee, the Certificate Registrar, the Enhancer and
the Servicer with either: (x) an opinion of counsel, satisfactory
to the Depositor, the Owner Trustee, the Certificate Registrar,
the Enhancer and the Servicer, to the effect that the purchase
and holding of a Certificate by or on behalf of the Purchaser is
permissible under applicable law, will not constitute or result
in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Depositor, the
Owner Trustee, the Certificate Registrar, the Certificate Paying
Agent, the Enhancer or the Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Trust Agreement,
which opinion of counsel shall not be an expense of the
Depositor, the Owner Trustee, the Certificate Registrar, the
Enhancer or the Servicer; or (y) in lieu of such opinion of
counsel, a certification in the form of Exhibit G to the Trust
Agreement; and
D-2
(ii) the Purchaser is familiar with the prohibited
transaction restrictions and fiduciary responsibility requirements of
Sections 406 and 407 of ERISA and Section 4975 of the Code and
understands that each of the parties to which this certification is
made is relying and will continue to rely on the statements made in
this paragraph 6.
7. The Purchaser is not a non-United States person.
Very truly yours,
_______________________________
By:____________________________
Name:
Title:
D-3
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
_____________, _______
Wachovia Mortgage Loan Trust, LLC
[address]
[Indenture Trustee]
[address]
Attention: [_______]
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx-XX 0000
Xxxxxxxxx, XX 00000
Attn: Structure Finance Trust Services
Re: Wachovia Mortgage Loan Trust, LLC
Asset-Backed Certificates, Series
[_______]
Ladies and Gentlemen:
(the "Purchaser") intends to purchase from
(the "Seller") a ______% Percentage Interest of
Certificates of Series [_______] (the "Certificates"), issued pursuant to the
trust agreement dated as of _____ __, 200_ (the "Trust Agreement"), between
Wachovia Mortgage Loan Trust, LLC, as depositor (the "Depositor"), and
[_____________], as owner trustee (the "Owner Trustee"). Capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed
thereto in Appendix A to the indenture dated as of _____ __, 200_, among the
Trust, the Paying Agent and the Indenture Trustee. The Seller hereby
certifies, represents and warrants to, and covenants with, the Depositor and
the Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
has otherwise approached or negotiated with respect to any Certificate, any
interest in any Certificate or any other similar security with any person in
any manner, (d) has made any general solicitation by means of general
advertising or in any other manner, or (e) has taken any other action, that
(as to any of (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933 (the "Act"), that would render
the disposition of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or qualification
pursuant thereto. The Seller will not act, in any manner set forth in the
E-1
foregoing sentence with respect to any Certificate. The Seller has not and
will not sell or otherwise transfer any of the Certificates, except in
compliance with the provisions of the Trust Agreement.
Very truly yours,
________________________________
(Seller)
By:_____________________________
Name:
Title:
E-2
EXHIBIT F
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status is delivered pursuant to
Section 3.09 of the trust agreement dated as of _____ __, 200_ (the "Trust
Agreement"), between Wachovia Mortgage Loan Trust, LLC, as depositor (the
"Depositor"), and [_____________], as owner trustee, in connection with the
acquisition of, transfer to or possession by the undersigned, whether as
beneficial owner (the "Beneficial Owner"), or nominee on behalf of the
Beneficial Owner of Wachovia Mortgage Loan Trust, LLC Asset-Backed
Certificates, Series [_______] (the "Certificates"). Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed
thereto in Appendix A to the indenture dated as of _____ __, 200_, among the
Trust, the Paying Agent and the Indenture Trustee.
Each holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form
W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or
1446 of the Internal Revenue Code (relating to withholding tax on foreign
partners) do not apply in respect of the Certificates held by the
undersigned, the undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (the Beneficial Owner is ) not a non-resident
alien for purposes of U.S. income taxation;
2. My (the Beneficial Owner's) name and home address are:
______________________________
______________________________
______________________________; and
3. My (the Beneficial Owner's) U.S. taxpayer
identification number (Social Security Number) is
_______________________.
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. ______________________________(Name of the Beneficial
Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as
those terms are defined in the Code and Treasury
Regulations;
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is
F-1
______________________________
______________________________
______________________________; and
3. The Beneficial Owner's U.S. employer identification
number is __________________________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this Certificate has been made in reliance upon
information contained in:
_____ an IRS Form W-9
_____ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that
the form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Trust within sixty (60) days of the date that the Beneficial
Owner becomes a foreign person. The undersigned understands that this
certificate may be disclosed to the Internal Revenue Service by the Trust and
any false statement contained therein could be punishable by fines,
imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct
and complete and will further declare that I will inform the Trust of any
change in the information provided above, and, if applicable, I further
declare that I have the authority* to sign this document.
____________________________________
Name
____________________________________
Title (if applicable)
____________________________________
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
F-2
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
_________________, ________
Wachovia Mortgage Loan Trust, LLC
[address]
[Owner Trustee]
[address]
Attention: [_______]
Wachovia Bank, National Association
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
[Indenture Trustee]
[address]
Attention: [_______]
Re: Wachovia Mortgage Loan Trust, LLC
Asset-Backed Certificates, Series
[_______]
Dear Sirs:
__________________________________________________(the "Transferee")
intends to acquire from ___________________________________________(the
"Transferor") a _________% Percentage Interest of Wachovia Mortgage Loan
Trust, LLC Asset-Backed Certificates, Series [_______] (the "Certificates"),
issued pursuant to a trust agreement dated as of _____ __, 200_, between
Wachovia Mortgage Loan Trust, LLC, as depositor (the "Depositor"), and
[_____________], as owner trustee (the "Owner Trustee"). Capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed
thereto in Appendix A to the indenture dated as of _____ __, 200_, among the
Trust, the Paying Agent and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar,
the Enhancer and the Servicer that:
The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate
accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code") (any of the foregoing, a
"Plan"), (ii) are not being acquired with "plan assets" of a Plan
within the meaning of the Department of Labor ("DOL") Regulations
Section 2510.3-101, and (iii) will not be transferred to any entity
that is deemed to be investing in plan assets within the meaning of the
DOL Regulations Section 2510.3-101.
G-1
The Transferee is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made herein.
Very truly yours,
_____________________________
By:__________________________
Name:
Title:
G-2
EXHIBIT H
FORM OF REPRESENTATION LETTER
__________________, ________
Wachovia Mortgage Loan Trust, LLC
[address]
[Owner Trustee]
[address]
Attention: [_______]
Wachovia Bank, National Association
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
[Indenture Trustee]
[address]
Attention: [_______]
Re: Wachovia Mortgage Loan Trust, LLC
Asset-Backed Certificates, Series
[_______]
Dear Sirs:
_____________________________________________(the "Transferee") intends
to acquire from ____________________________________________(the "Transferor")
a ______% Percentage Interest of Wachovia Mortgage Loan Trust, LLC
Asset-Backed Certificates, Series [_______] (the "Certificates"), issued
pursuant to a trust agreement dated as of _____ __, 200_ (the "Trust
Agreement"), Wachovia Mortgage Loan Trust, LLC, as depositor (the
"Depositor"), and [_____________], as owner trustee (the "Owner Trustee").
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the indenture dated as of _____
__, 200_, among the Trust, the Paying Agent and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer that:
(1) the Transferee is acquiring the Certificate for its own
behalf and is not acting as agent or custodian for any other person or
entity in connection with such acquisition; and
(2) the Transferee is not a partnership, grantor trust or S
corporation for federal income tax purposes, or, if the Transferee is a
partnership, grantor trust or S corporation for federal income tax
purposes, the Certificates are not more than 50% of the assets of the
partnership, grantor trust or S corporation.
Very truly yours,
_____________________________
H-1
By:__________________________
Name:
Title:
H-2
EXHIBIT I
FORM OF ADDITION NOTICE
DATE:
[Indenture Trustee] [Enhancer]
[address] [address]
Attention: [_______] Attention: [_______]
Wachovia Mortgage Loan Trust, LLC Xxxxx'x Investors Service, Inc.
[_______] Trust 00 Xxxxxx Xxxxxx
c/o [_____________], Xxx Xxxx, Xxx Xxxx 00000
as Owner Trustee
[address] Standard & Poor's, a division of The
Attention: [_______] XxXxxx-Xxxx Companies, Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wachovia Bank, National Association [Owner Trustee]
000 Xxxxx Xxxxx Xxxxxx-XX 1179 [address]
Xxxxxxxxx, XX 00000 Attention: [_______]
Attn: Structure Finance Trust Services
Re: WACHOVIA MORTGAGE LOAN TRUST, LLC
Ladies and Gentlemen:
Pursuant to Section 3.05 of the Trust Agreement, dated as of _____ __,
200_ (the "Trust Agreement"), among and Wachovia Mortgage Loan Trust, LLC, as
Depositor and Wachovia Mortgage Loan Trust, LLC [_______] Trust, as Issuer,
the Depositor, the Issuer has designated the Subsequent Mortgage Loans
identified on the Mortgage Loan Schedule attached hereto to be sold to the
Issuer on ___________, ______________, with an aggregate Principal Balance of
$ ___________________. Capitalized terms not otherwise defined herein have
the meaning set forth in the Appendix A to the Indenture dated as of _____
__, 200_, among the Issuer, the Paying Agent and [_____________], as
indenture trustee.
I-1
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention
of the undersigned.
Very truly yours,
WACHOVIA MORTGAGE LOAN TRUST, LLC
[_______] TRUST, as Issuer
By: [_____________], not in its
individual capacity but solely as Owner
Trustee
By: _______________________________
Name:
Title:
WACHOVIA MORTGAGE LOAN TRUST, LLC
as Depositor
By: _____________________________
Name:
Title:
EXHIBIT J
FORM OF TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No. __________ (the
"Agreement"), dated as of _________________ , ___________ , between Wachovia
Mortgage Loan Trust, LLC, as seller (the "Depositor"), and Wachovia Mortgage
Loan Trust, LLC [_______] Trust (the "Issuer") and pursuant to the Trust
Agreement dated as of _____ __, 200_ (the "Trust Agreement"), among the
Depositor and the Issuer, the Depositor and the Issuer agree to the sale by
the Depositor and the purchase by the Issuer of the mortgage loans listed on
the attached Schedule of Subsequent Mortgage Loans (the "Subsequent Mortgage
Loans").
Capitalized terms used and not defined herein have their respective
meanings as set forth in Appendix A to the Indenture dated as of _____ __,
200_, among the Issuer, Wachovia Bank, National Association, as Paying Agent
(the "Paying Agent"), and [_____________], as indenture trustee (the
"Indenture Trustee"), which meanings are incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified
herein.
Section 1. Sale of Subsequent Mortgage Loans.
(a) The Depositor, by the execution and delivery of this Agreement,
does hereby sell, assign, set over, and otherwise convey to the Issuer,
without recourse (except as expressly provided herein and in the Trust
Agreement), all of its right, title and interest, whether now owned or
existing or hereafter created, arising, or acquired, in, to and under the
following: (i) the Subsequent Mortgage Loans identified on the Mortgage Loan
Schedule attached hereto as Attachment B and the other related Subsequent
Transferred Property purchased by the Depositor from the Seller pursuant to
the Purchase Agreement; provided, however, that the Issuer does not assume
any obligations (including any obligations to fund Draws) arising under or
related to the Related Documents. Such conveyance shall be deemed to be
made: (1) with respect to the Cut-Off Date Principal Balances, with respect
to the Subsequent Mortgage Loans, as of the related Subsequent Transfer Date;
and (2) with respect to the amount of each Additional Balance created on or
after the Subsequent Cut-Off Date and prior to the commencement of the Rapid
Amortization Period, as of the later of the related Subsequent Cut-Off Date
and the date that the corresponding Draw was made pursuant to the related
Loan Agreement, subject to the receipt by the Depositor of consideration
therefore as provided in Section 3.02(c) of the Trust Agreement. The
Depositor, contemporaneously with the delivery of this Agreement, has
delivered or caused to be delivered to the Issuer each item set forth in
Section 3.04 of the Trust Agreement.
The transfer to the Issuer by the Depositor of the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule shall be absolute and is
intended by the parties hereto to constitute a sale by the Depositor to the
Issuer on the Subsequent Transfer Date of all the Depositor's right, title
and interest in and to the Subsequent Mortgage Loans, and other related
Subsequent Transferred Property as and to the extent described above, and the
Issuer hereby acknowledges such transfer. In the event the transactions set
forth herein are deemed not to be a sale, the Depositor hereby grants to the
Issuer a security interest in all of the Depositor's right, title and
interest, whether now owned or hereafter acquired, in, to and under the
Subsequent Transferred Property to secure all of the Depositor's obligations
hereunder, and this Agreement shall and hereby does constitute a security
agreement under applicable law. The Depositor agrees to take or cause to be
taken such actions and to execute such documents, including without
limitation the authorization and filing of any continuation statements with
respect to the UCC financing statements filed with respect to the Subsequent
Transferred Property by the Depositor on the related Subsequent Transfer
Date, if any, and any amendments thereto required to reflect a change in the
name or corporate structure of the Depositor or the filing of any additional
UCC financing statements due to the change in the principal office or
jurisdiction of organization of the Depositor as are necessary to perfect and
protect the Issuer's interests in the Subsequent Transferred Property. The
Depositor shall file any such continuation statements or amendments on a
timely basis.
(b) The expenses and costs relating to the delivery of the Subsequent
Mortgage Loans and the related Subsequent Transferred Property, this
Agreement and the Mortgage Loan Purchase Agreement shall be borne by the
Depositor.
(c) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Conditions Precedent; Assignment.
(a) The Depositor hereby affirms the representations and warranties
made by it and set forth in Section 2.09 of the Trust Agreement as of the
date hereof. The Depositor hereby confirms that each of the conditions set
forth in Section 2.2(b) of the Mortgage Loan Purchase Agreement have been
satisfied in connection with the Subsequent Transfer Agreement, dated as of
the date hereof, between the Seller and the Depositor as Purchaser and
Section 3.05(c) of the Trust Agreement, respectively, are satisfied as of the
date hereof.
(b) The Depositor is solvent, is able to pay its debts as they become
due and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this Instrument or by the performance of its obligations hereunder nor is it
aware of any pending insolvency; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Depositor prior to
the date hereof.
(c) All terms and conditions of the Trust Agreement relating to the
Subsequent Mortgage Loans are hereby ratified and confirmed; provided,
however, that in the event of any conflict the provisions of this Agreement
shall control over the conflicting provisions of the Mortgage Loan Purchase
Agreement.
(d) The Depositor hereby assigns to the Issuer all of the Depositor's
right, title and interest to and under the Subsequent Transfer Agreement,
dated as of _______ __, ____ between the Seller and the Depositor as
Purchaser, including the Depositor's right to enforce the obligations of the
Seller thereunder (including the Seller's obligation to repurchase Mortgage
Loans as the result of a breach of the Seller's representations and
warranties in such Subsequent Transfer Agreement and the Purchase Agreement).
Section 3. GOVERNING LAW. THIS INSTRUMENT 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. Counterparts. This Instrument may be executed in
counterparts, each of which, when so executed, shall be deemed to be an
original and together shall constitute one and the same instrument.
Section 5. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Depositor and the Purchaser and their
respective successors and assigns.
WACHOVIA MORTGAGE LOAN TRUST, LLC
as Depositor
By: __________________________
Name:
Title:
WACHOVIA MORTGAGE LOAN TRUST, LLC
[_______] TRUST, as Issuer
By: __________________________
Name:
Title:
Acknowledged and Accepted:
[_____________], not in its
individual capacity but solely
as Indenture Trustee
By:___________________________
Name:
Title:
Attachments
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Depositor's Officer's Certificate.
WACHOVIA MORTGAGE LOAN TRUST, LLC [_______] TRUST
ATTACHMENT A TO FORM OF SUBSEQUENT TRANSFER AGREEMENT
____________, ____
A.
1. Subsequent Cut-Off Date:
2. Pricing date:
3. Subsequent Transfer Date:
4. Aggregate Principal Balance of the Subsequent
Mortgage Loans as of the Subsequent Cut-Off Date:
5. Purchase Price: 100.00%
B.
As to all Subsequent Mortgage Loans:
1. Longest stated term to maturity:
______months
2. Minimum loan rate: ______%
3. Maximum Loan Rate: ______%
