as Depositor and
Execution Copy
__________________________________________________________________________________________________________________
WACHOVIA ASSET SECURITIZATION, INC.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
________________________________________
TRUST AGREEMENT
Dated as of September 27, 2002
________________________________________
WACHOVIA ASSET SECURITIZATION, INC. 2002-HE1 TRUST
Wachovia Asset Securitization, Inc. Asset-Backed Certificates,
Series 2002-HE1
__________________________________________________________________________________________________________________
ARTICLE I Definitions................................................................................2
Section 1.01. Definitions.......................................................................2
Section 1.02. Other Definitional Provisions.....................................................2
ARTICLE II Organization...............................................................................3
Section 2.01. Name..............................................................................3
Section 2.02. Office............................................................................3
Section 2.03. Purposes and Powers...............................................................3
Section 2.04. Appointment of Owner Trustee......................................................4
Section 2.05. Initial Capital Contribution of Trust Estate......................................4
Section 2.06. Declaration of Trust..............................................................4
Section 2.07. Title to Trust Property...........................................................4
Section 2.08. Situs of Trust....................................................................5
Section 2.09. Representations and Warranties of the Depositor...................................5
Section 2.10. Payment of Trust Fees.............................................................8
ARTICLE III Conveyance of the Mortgage Loans; Certificates.............................................9
Section 3.01. Conveyance of the Mortgage Loans..................................................9
Section 3.02. Payment of Purchase Price for Subsequent Mortgage Loans and Additional
Balances.........................................................................10
Section 3.03. Draws During Rapid Amortization Period...........................................11
Section 3.04. Allocation.......................................................................11
Section 3.05. Addition of Subsequent Mortgage Loans............................................11
Section 3.06. Initial Ownership................................................................12
Section 3.07. Issuance of Certificates.........................................................12
Section 3.08. Authentication of Certificates...................................................12
Section 3.09. Registration of and Limitations on Transfer and Exchange of Certificates.........13
Section 3.10. Mutilated, Destroyed, Lost or Stolen Certificates................................15
Section 3.11. Persons Deemed Certificateholders................................................15
Section 3.12. Access to List of Certificateholders' Names and Addresses........................16
Section 3.13. Maintenance of Office or Agency..................................................16
Section 3.14. Certificate Paying Agent.........................................................16
Section 3.15. Cooperation......................................................................18
Section 3.16. [Reserved].......................................................................18
Section 3.17. Subordination....................................................................18
Section 3.18. No Priority Among Certificates...................................................18
ARTICLE IV Authority and Duties of Owner Trustee.....................................................19
Section 4.01. General Authority................................................................19
Section 4.02. General Duties...................................................................19
Section 4.03. Action upon Instruction..........................................................19
Section 4.04. No Duties Except as Specified under Specified Documents or in Instructions.......20
Section 4.05. Restrictions.....................................................................20
Section 4.06. Prior Notice to Certificateholders and the Enhancer with Respect to
Certain Matters..................................................................20
Section 4.07. Action by Certificateholders with Respect to Certain Matters.....................21
Section 4.08. Action by Certificateholders with Respect to Bankruptcy..........................21
Section 4.09. Restrictions on Certificateholders' Power........................................21
Section 4.10. Majority Control.................................................................21
Section 4.11. Doing Business in Other Jurisdictions............................................22
Section 4.12. Removal of Mortgage Loans........................................................22
ARTICLE V Application of Trust Funds................................................................23
Section 5.01. Distributions....................................................................23
Section 5.02. Method of Payment................................................................23
Section 5.03. Signature on Returns.............................................................23
Section 5.04. Statements to Certificateholders.................................................23
Section 5.05. Tax Reporting....................................................................24
ARTICLE VI Concerning the Owner Trustee..............................................................25
Section 6.01. Acceptance of Trusts and Duties..................................................25
Section 6.02. Furnishing of Documents..........................................................26
Section 6.03. Representations and Warranties...................................................26
Section 6.04. Reliance; Advice of Counsel......................................................27
Section 6.05. Not Acting in Individual Capacity................................................27
Section 6.06. Owner Trustee Not Liable for Certificates or Related Documents...................27
Section 6.07. Owner Trustee May Own Certificates and Notes.....................................28
ARTICLE VII Compensation of Owner Trustee.............................................................29
Section 7.01. Owner Trustee's Fees and Expenses................................................29
Section 7.02. Indemnification..................................................................29
ARTICLE VIII Termination of Trust Agreement............................................................31
Section 8.01. Termination of Trust Agreement...................................................31
ARTICLE IX Successor Owner Trustees and Additional Owner Trustees....................................33
Section 9.01. Eligibility Requirements for Owner Trustee.......................................33
Section 9.02. Replacement of Owner Trustee.....................................................33
Section 9.03. Successor Owner Trustee..........................................................34
Section 9.04. Merger or Consolidation of Owner Trustee.........................................34
Section 9.05. Appointment of Co-Trustee or Separate Trustee....................................34
ARTICLE X Miscellaneous.............................................................................36
Section 10.01. Amendments.......................................................................36
Section 10.02. No Legal Title to Trust Estate...................................................37
Section 10.03. Limitations on Rights of Others..................................................37
Section 10.04. Notices..........................................................................37
Section 10.05. Severability.....................................................................38
Section 10.06. Separate Counterparts............................................................38
Section 10.07. Successors and Assigns...........................................................38
Section 10.08. No Petition......................................................................38
Section 10.09. No Recourse......................................................................38
Section 10.10. Headings.........................................................................39
Section 10.11. GOVERNING LAW....................................................................39
Section 10.12. Integration......................................................................39
Section 10.13. Rights of Enhancer to Exercise Rights of Certificateholders......................39
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
This trust agreement, dated as of September 27, 2002 (as amended from time to time, the "Trust
Agreement"), is between Wachovia Asset Securitization, Inc., a North Carolina corporation, as depositor (the
"Depositor"), and Wilmington Trust Company, 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 September 27, 2002 (the
"Indenture"), between Wachovia Asset Securitization, Inc. 2002-HE1 Trust, as Issuer, and JPMorgan Chase Bank, 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.
(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 Asset Securitization, Inc. 2002-HE1
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 sue 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, xxxxx, 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
(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 aggregate Voting Rights
of the Notes.
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.
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 or New York, and payments will be made by the Trust only from
Delaware or New York. 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 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).
(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 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 perform any of the 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 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.
(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.
(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.
(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 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 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, the Issuer, the Enhancer, 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).
(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 Indenture Trustee and the Servicer at the will of the
Trust, in such custodial capacity only; provided, however that any records and documents that come into the
possession of the Depositor shall be promptly delivered to the Servicer. 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.
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, amounts on deposit in the Pre-Funding Account 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
Amounts 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 Amount 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.
Section 3.04 Allocation. Except with respect to Liquidation Loss Amounts, 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. If the Loan Agreement 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 Amounts, 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, with respect to Liquidation Loss Amounts, 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 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 Enhancer and the Rating Agencies duly
executed 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 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 and the Indenture Trustee a copy of the Mortgage Loan Schedule reflecting the
Subsequent Mortgage Loans in electronic format.
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 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 Certificate Paying Agent, 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 Indenture Trustee 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 Certificate Registrar 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 any
authenticating agent. 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.
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 or the Depositor, satisfactory to the Depositor 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 Indenture Trustee 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-8-BEN or such successor form as required by then-applicable
regulations and shall resubmit such form every three years or with such frequency as required by then-applicable
regulations.
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 Servicer , 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 and the Servicer are provided with an Opinion
of Counsel that establishes to the satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
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 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 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 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.
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 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 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 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 Certificate Paying Agent, 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 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 any Paying Agent shall be bound by any notice to the
contrary.
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 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 in
The City of New York 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 Indenture Trustee (or such other office as the Indenture Trustee 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 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 Indenture Trustee pursuant to Section 3.05 of the
Indenture. The Trust hereby appoints the Indenture Trustee as 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 it has actual knowledge in the making
of any payment required to be made with respect to the Certificates;
(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 meet the standards
required to be met by the Certificate Paying Agent at the time of its appointment;
(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) deliver to the Owner Trustee a copy of the report to Certificateholders 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 Indenture Trustee shall be permitted to resign as Certificate
Paying Agent upon 30 days' written notice to the Owner Trustee and the Enhancer; provided the Indenture Trustee
is also resigning as Paying Agent under the Indenture at such time. In the event that the Indenture Trustee
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 Indenture Trustee, each
remittance received by the Certificate Paying Agent with respect to payments made pursuant to the Indenture.
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 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. 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.
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 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.
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.
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;
(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 Wilmington Trust Company 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 Wilmington Trust Company, or (iii) subject Wilmington Trust Company 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 Wilmington Trust Company 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.
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions.
(a) On each Payment Date occurring in the months of March, June, September and December, on any date on
which the Trust is terminated pursuant to Section 8.01, and on each other Payment Date for which the Certificate
Paying Agent has received written notice from the Certificateholders by the Determination Date relating to such
Payment Date requesting funds on deposit in the Distribution Account to be distributed, 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 or, if not, by check or money order mailed to such Certificateholder at the address of
such Certificateholder appearing in the Certificate Register.
Section 5.03. Signature on Returns. The Servicer shall sign on behalf of the Trust the tax returns, if any,
of the Trust.
Section 5.04. Statements to Certificateholders. On each Payment Date, the Certificate Paying Agent shall
make available to each Certificateholder the statement or statements 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 xxxxxx 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. 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;
(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 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 Depositor
or the Trust under this Trust Agreement or the other Basic Documents that are required to be performed by the
Indenture Trustee 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.
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;
(d) This Trust Agreement, assuming due authorization, execution and delivery by 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 Wilmington Trust Company 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.
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 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 and the Indenture Trustee in transactions with the same
rights as it would have if it were not Owner Trustee.
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, 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.
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.
(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 Xxxxx'x, 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
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 not 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 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.
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 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 Indenture
Trustee shall mail notice thereof to all Certificateholders, the Indenture Trustee, the Noteholders and the
Rating Agencies and the Enhancer. If the Indenture Trustee 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 Indenture Trustee.
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, that such Person shall be eligible pursuant to
Section 9.01 and, 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.
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.
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.
(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 (B) 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.
(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
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 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.
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 Certificate Paying Agent, addressed to JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000-0000 Attention: Institutional Trust Services with a copy to the Corporate Trust Office of the Indenture
Trustee, if to the Depositor, addressed to Wachovia Asset Securitization, Inc., 0000 Xxxxxxxx Xxxxx, XX0000-Xxxxx
X, Xxxxxxxxx, North Carolina 28288-0121, Attention: Xxxxxx X. Xxxxxx, Telecopier: (000)000-0000; if to the
Enhancer, addressed to Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Risk Management, Consumer Asset-Backed Services, Telecopier: (000) 000-0000; 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 covenant and agree that they 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.
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 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.
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 ASSET SECURITIZATION, INC.,
as Depositor
By:__________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
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:
JPMORGAN CHASE BANK,
as Indenture Trustee, Certificate Registrar
and Certificate Paying Agent
By:_______________________________________________
Name:
Title:
WACHOVIA ASSET SECURITIZATION, INC.
2002-HE1 TRUST,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:___________________________________________
Name:
Title:
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES AS DESCRIBED IN THE AGREEMENT (AS
DEFINED HEREIN).
BY ACCEPTING ITS CERTIFICATE, EACH CERTIFICATEHOLDER AGREES THAT UNLESS AN 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 IS AN EXPRESS THIRD PARTY
BENEFICIARY TO THE AGREEMENT.
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 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.
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.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR, THE
SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE AGREEMENT OR THE OTHER BASIC DOCUMENTS.
Certificate No. 1
Cut-Off Date:
September 1, 2002
Date of Trust Agreement:
September 27, 2002
First Payment Date: Percentage Interest: 100%
October 25, 2002
Final Payment Date:
September 25, 2032
WACHOVIA ASSET SECURITIZATION, INC.
ASSET-BACKED CERTIFICATES, SERIES 2002-HE1
evidencing a fractional undivided interest in Wachovia Asset Securitization, Inc. 2002-HE1 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 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 or the Owner Trustee or any
of their affiliates. None of the Depositor, the Seller, the Servicer, the Indenture Trustee 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 Asset Securitization, Inc. 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 Asset
Securitization, Inc. (the "Depositor"). The Trust (as defined herein) was created pursuant to a trust agreement
dated as of September 27, 2002 (as amended and supplemented from time to time, the "Agreement"), between the
Depositor and Wilmington Trust Company, 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 September 27, 2002, between the Trust 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 March, June,
September and December 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 or check mailed 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.
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 in the City and State of New York.
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 and the Certificate Registrar 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 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 Asset
Securitization, Inc. Asset-Backed Certificates of the Series specified hereon (the "Certificates").
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 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 registerable in the Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained in the City and State of New York,
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
Owner Trustee.
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 a 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; however, the Percentage Interest of this Certificate
may change in accordance with Section 3.12 of the Agreement. The Certificateholder of this Certificate hereby
consents to any change in its Percentage Interest in accordance with such Section.
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 an authenticating agent by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its individual capacity, has
caused this Certificate to be duly executed.
WACHOVIA ASSET SECURITIZATION, INC. 2002-HE1 TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
Dated: September 27, 2002 By:______________________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ___________________________________________
Authorized Signatory
or ____________________________________________
as Authenticating Agent of the Owner Trustee
By:____________________________________________
Authorized Signatory
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.
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)
EXHIBIT B
CERTIFICATE OF TRUST
OF
WACHOVIA ASSET SECURITIZATION, INC. 2002-HE1 TRUST
THE UNDERSIGNED, Wilmington Trust Company, 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 ASSET SECURITIZATION, INC. 2002-HE1 TRUST
2. The name and business address of the Trustee of the statutory trust in the State Delaware is
Wilmington Trust Company, 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.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as owner
trustee under the trust agreement to be dated as of
September 27, 2002
By:________________________________________
Name:
Title:
Dated: September 27, 2002
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 1933 Act.
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 September 27, 2002 (the "Agreement"), between
Wachovia Asset Securitization, Inc., as depositor (the "Depositor"), and Wilmington Trust Company, 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.
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 and the Servicer with either: (x) an opinion of counsel, satisfactory to the
Depositor, the Owner Trustee, the Certificate Registrar 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 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 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.
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 September 27, 2002, between the Trust and the Indenture Trustee.
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:
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.
____ 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.
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.
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.
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:__________________________________________
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 Xxxxx, 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.
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:________________________________
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
___________________, __________
Wachovia Asset Securitization, Inc.
0000 Xxxxxxxx Xxxxx
XX0000 Xxxxx X
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
JPMorgan Chase Bank
Institutional Trust Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-2697
Attention: Corporate Trust Services
Re: Wachovia Asset Securitization, Inc.
Asset-Backed Certificates, Series 2002-HE1
Ladies and Gentlemen:
___________________ (the "Purchaser") intends to purchase from
(the "Seller")_______________% Certificate Percentage Interest of Series 2002-HE1 (the "Certificates"), issued
pursuant to the trust agreement dated as of September 27, 2002 (the "Trust Agreement"), between Wachovia Asset
Securitization, Inc., as depositor (the "Depositor") and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), as acknowledged and agreed by JPMorgan Chase Bank, as Certificate Registrar. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto in Appendix A to the indenture
dated as of September 27, 2002, between the Trust 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.
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 and the Servicer with either: (x) an opinion of counsel, satisfactory to
the Depositor, the Owner Trustee, the Certificate Registrar 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 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 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 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:
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
__________________, _________
Wachovia Asset Securitization, Inc.
0000 Xxxxxxxx Xxxxx
XX0000 Xxxxx X
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
JPMorgan Chase Bank
Institutional Trust Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-2697
Attention: Corporate Trust Services
Re: Wachovia Asset Securitization, Inc.
Asset-Backed Certificates, Series 2002-HE1
Ladies and Gentlemen:
_____________(the "Purchaser") intends to purchase from __________________ (the "Seller") a
______% Percentage Interest of Certificates of Series 2002-HE1 (the "Certificates"), issued pursuant
to the trust agreement dated as of September 27, 2002 (the "Trust Agreement"), between Wachovia Asset
Securitization, Inc., as depositor (the "Depositor"), and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), as acknowledged and agreed by JPMorgan Chase Bank, as Certificate Registrar. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto in Appendix A to the indenture
dated as of September 27, 2002, between the Trust 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 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:
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 September 27, 2002 (the "Trust Agreement"), between Wachovia Asset Securitization, Inc., as depositor
(the "Depositor"), and Wilmington Trust Company, 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 Asset Securitization, Inc. Asset-Backed Certificates, Series 2002-HE1
(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 September 27, 2002, between the Trust 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
; 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 xxxxxxx, 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.
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
____________________, ___________
Wachovia Asset Securitization, Inc.
0000 Xxxxxxxx Xxxxx
XX0000 Xxxxx X
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Wachovia Bank, National Association
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
JPMorgan Chase Bank
Institutional Trust Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-2697
Attention: Corporate Trust Services
Re: Wachovia Asset Securitization, Inc.
Asset-Backed Certificates, Series 2002-HE1
Dear Sirs:
______________________________________ (the "Transferee") intends to acquire from
_________________________________(the "Transferor") a % Percentage Interest of Wachovia Asset
Securitization, Inc. Asset-Backed Certificates, Series 2002-HE1 (the "Certificates"), issued pursuant to a trust
agreement dated as of September 27, 2002, between Wachovia Asset Securitization, Inc., as depositor (the
"Depositor"), and Wilmington Trust Company, 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 September 27, 2002, between the Trust 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:
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.
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:
EXHIBIT H
FORM OF REPRESENTATION LETTER
_________________, ___________
Wachovia Asset Securitization, Inc.
0000 Xxxxxxxx Xxxxx
XX0000 Xxxxx X
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Wachovia Bank, National Association
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
JPMorgan Chase Bank
Institutional Trust Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 0000-0000
Re: Wachovia Asset Securitization, Inc.
Asset-Backed Certificates, Series 2002-HE1
Dear Sirs:
_____________________________________ (the "Transferee") intends to acquire from
__________________________________(the "Transferor") a % Percentage Interest of Wachovia Asset
Securitization, Inc. Asset-Backed Certificates, Series 2002-HE1 (the "Certificates"), issued pursuant to a trust
agreement dated as of September 27, 2002 (the "Trust Agreement"), Wachovia Asset Securitization, Inc., as
depositor (the "Depositor"), and Wilmington Trust Company, 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 September 27, 2002, between the Trust 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,
_________________________________________
By:______________________________________
Name:
Title:
EXHIBIT I
FORM OF ADDITION NOTICE
DATE:
JPMorgan Chase Bank Xxxxx'x Investors Service, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services;
Wachovia Asset Securitization, Inc.
2002-HE1 Trust
Wachovia Asset Securitization, Inc. Wilmington Trust Company
2002-HE1 Trust Xxxxxx Square North
c/o Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx
as Owner Trustee Wilmington, Delaware 19890-0000
Xxxxxx Xxxxxx North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: WACHOVIA ASSET SECURITIZATION, INC.
Ladies and Gentlemen:
Pursuant to Section 3.05 of the Trust Agreement, dated as of September 27, 2002 (the "Trust Agreement"),
among and Wachovia Asset Securitization, Inc., as Depositor and Wachovia Asset Securitization, Inc. 2002-HE1
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 September 27, 2002, between the Issuer and JPMorgan Chase
Bank, as indenture trustee.
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 ASSET SECURITIZATION, INC.,
2002-HE1 TRUST, as Issuer
By: Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee
By:_____________________________________________
Name:
Title:
WACHOVIA ASSET SECURITIZATION, INC.
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 Asset Securitization, Inc., as seller (the "Depositor"), and
Wachovia Asset Securitization, Inc. 2002-HE1 Trust (the "Issuer") and pursuant to the Trust Agreement dated as of
September 27, 2002 (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 September 27, 2002, between the Issuer and JPMorgan Chase Bank, 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 ASSET SECURITIZATION, INC.,
as Depositor
By:_____________________________________________
Name:
Title:
WACHOVIA ASSET SECURITIZATION, INC.
2002-HE1 TRUST, as Issuer
By:_____________________________________________
Name:
Title:
Acknowledged and Accepted:
JPMORGAN CHASE BANK, 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.
X. Xxxxxxxxx's Officer's Certificate.
WACHOVIA ASSET SECURITIZATION, INC. 2002-HE1 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: _______ %
--------
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.
