EXECUTION COPY
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WACHOVIA ASSET SECURITIZATION, INC.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
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TRUST AGREEMENT
Dated as of July 2, 2003
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WACHOVIA ASSET SECURITIZATION, INC. 2003-HE2 TRUST
Wachovia Asset Securitization, Inc. Asset-Backed Certificates,
Series 2003-HE2
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TABLE OF CONTENTS
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ARTICLE I Definitions......................................................1
Section 1.01. Definitions..............................................1
Section 1.02. Other Definitional Provisions............................1
ARTICLE II Organization.....................................................2
Section 2.01. Name.....................................................2
Section 2.02. Office...................................................2
Section 2.03. Purposes and Powers......................................2
Section 2.04. Appointment of Owner Trustee.............................3
Section 2.05. Initial Capital Contribution of Trust Estate.............3
Section 2.06. Declaration of Trust.....................................3
Section 2.07. Title to Trust Property..................................4
Section 2.08. Situs of Trust...........................................4
Section 2.09. Representations and Warranties of the Depositor..........4
Section 2.10. Payment of Trust Fees....................................7
ARTICLE III Conveyance of the Mortgage Loans; Certificates...................7
Section 3.01. Conveyance of the Mortgage Loans.........................7
Section 3.02. Payment of Purchase Price for Subsequent
Mortgage Loans and Additional Balances...................9
Section 3.03. Draws During Rapid Amortization Period...................9
Section 3.04. Allocation...............................................9
Section 3.05. Addition of Subsequent Mortgage Loans....................9
Section 3.06. Initial Ownership........................................9
Section 3.07. Issuance of Certificates.................................9
Section 3.08. Authentication of Certificates..........................10
Section 3.09. Registration of and Limitations on Transfer and
Exchange of Certificates................................10
Section 3.10. Mutilated, Destroyed, Lost or Stolen Certificates.......13
Section 3.11. Persons Deemed Certificateholders.......................13
Section 3.12. Access to List of Certificateholders' Names
and Addresses...........................................13
Section 3.13. Maintenance of Office or Agency.........................14
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TABLE OF CONTENTS
(continued)
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Section 3.14. Certificate Paying Agent................................14
Section 3.15. Cooperation.............................................15
Section 3.16. [Reserved]..............................................15
Section 3.17. Subordination...........................................15
Section 3.18. No Priority Among Certificates..........................16
ARTICLE IV Authority and Duties of Owner Trustee...........................16
Section 4.01. General Authority.......................................16
Section 4.02. General Duties..........................................16
Section 4.03. Action upon Instruction.................................16
Section 4.04. No Duties Except as Specified under
Specified Documents or in Instructions..................17
Section 4.05. Restrictions............................................17
Section 4.06. Prior Notice to Certificateholders and the
Enhancer with Respect to Certain Matters................17
Section 4.07. Action by Certificateholders with Respect to
Certain Matters.........................................18
Section 4.08. Action by Certificateholders with Respect
to Bankruptcy...........................................18
Section 4.09. Restrictions on Certificateholders' Power...............18
Section 4.10. Majority Control........................................18
Section 4.11. Doing Business in Other Jurisdictions...................19
Section 4.12. Removal of Mortgage Loans...............................19
ARTICLE V Application of Trust Funds......................................19
Section 5.01. Distributions...........................................19
Section 5.02. Method of Payment.......................................20
Section 5.03. Signature on Returns....................................20
Section 5.04. Statements to Certificateholders........................20
Section 5.05. Tax Reporting...........................................20
ARTICLE VI Concerning the Owner Trustee....................................20
Section 6.01. Acceptance of Trusts and Duties.........................20
Section 6.02. Furnishing of Documents.................................22
Section 6.03. Representations and Warranties..........................22
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TABLE OF CONTENTS
(continued)
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Section 6.04. Reliance; Advice of Counsel.............................22
Section 6.05. Not Acting in Individual Capacity.......................23
Section 6.06. Owner Trustee Not Liable for Certificates or
Related Documents.......................................23
Section 6.07. Owner Trustee May Own Certificates and Notes............23
ARTICLE VII Compensation of Owner Trustee...................................24
Section 7.01. Owner Trustee's Fees and Expenses.......................24
Section 7.02. Indemnification.........................................24
ARTICLE VIII Termination of Trust Agreement..................................25
Section 8.01. Termination of Trust Agreement..........................25
ARTICLE IX Successor Owner Trustees and Additional Owner Trustees..........26
Section 9.01. Eligibility Requirements for Owner Trustee..............26
Section 9.02. Replacement of Owner Trustee............................26
Section 9.03. Successor Owner Trustee.................................27
Section 9.04. Merger or Consolidation of Owner Trustee................27
Section 9.05. Appointment of Co-Trustee or Separate Trustee...........27
ARTICLE X Miscellaneous...................................................29
Section 10.01. Amendments..............................................29
Section 10.02. No Legal Title to Trust Estate..........................30
Section 10.03. Limitations on Rights of Others.........................30
Section 10.04. Notices.................................................31
Section 10.05. Severability............................................31
Section 10.06. Separate Counterparts...................................31
Section 10.07. Successors and Assigns..................................31
Section 10.08. No Petition.............................................31
Section 10.09. No Recourse.............................................32
Section 10.10. Headings................................................32
Section 10.11. GOVERNING LAW...........................................32
Section 10.12. Integration.............................................32
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TABLE OF CONTENTS
(continued)
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Section 10.13. Rights of Enhancer to Exercise Rights
of Certificateholders...................................32
EXHIBITS
Exhibit A - Form of Certificate........................................A-1
Exhibit B - Certificate of Trust.......................................B-1
Exhibit C - Form of Rule 144A Investment Representation................C-1
Exhibit D - Form of Investor Representation Letter.....................D-1
Exhibit E - Form of Transferor Representation Letter...................E-1
Exhibit F - Form of Certificate of Non-Foreign Status..................F-1
Exhibit G - Form of ERISA Representation Letter........................G-1
Exhibit H - Form of Representation Letter..............................H-1
Exhibit I - Form of Addition Notice....................................I-1
Exhibit J - Form of Transfer Agreement.................................J-1
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This trust agreement, dated as of July 2, 2003 (as amended from time to
time, the "Trust Agreement"), is among 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 July 2,
2003 (the "Indenture"), among Wachovia Asset Securitization, Inc. 2003-HE2
Trust, as Issuer, Wachovia Bank, National Association, as Paying Agent, and U.S.
Bank National Association, 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
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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. 2003-HE2 Trust," in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
Section 2.02 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificateholders, the
Depositor, and the Enhancer.
Section 2.03 Purposes and Powers. The purpose of the Trust is to engage in
the following activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Trust Agreement and to sell the Notes and the Certificates;
(b) to purchase the Mortgage Loans and to pay the organizational, start-up
and transactional expenses of the Trust;
(c) to assign, grant, transfer, pledge and convey the Mortgage Loans
pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to Section 5.01 any portion of the Mortgage Loans
released from the Lien of, and remitted to the Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic Documents to
which it is to be a party;
(e) to engage in those activities, including entering into agreements, that
are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith, including, without limitation, to
accept additional contributions of equity that are not subject to the Lien of
the Indenture; and
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(f) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the Trust
Estate and the making of distributions to the Securityholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Trust Agreement or the
other Basic Documents while any Note is outstanding without the consent of the
holders of Certificates evidencing a majority of the aggregate Certificate
Percentage Interest of the Certificates, the Indenture Trustee, the Enhancer and
the holders of Notes representing a majority of the Note Balance of the Notes;
provided that any Certificate registered in the name of the Seller or an
Affiliate of the Seller will not be considered a Certificate for purposes of
such consent; provided, further, that if 100% of the Certificates are held by
the Seller or an Affiliate of the Seller, the consent of the Certificateholders
will not be required.
Section 2.04 Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
Section 2.05 Initial Capital Contribution of Trust Estate. In consideration
of the delivery by the Owner Trustee, on behalf of the Trust, of the Securities
to the Depositor or its designee, upon the order of the Depositor, the
Depositor, as of the Closing Date and concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey to
the Trust, without recourse, but subject to the other terms and provisions of
this Trust Agreement, all of the right, title and interest of the Depositor in
and to the Trust Estate. The foregoing transfer, assignment, set over and
conveyance does not, and is not intended to, result in a creation or an
assumption by the Trust of any obligation of the Depositor or any other Person
in connection with the Trust Estate or under any agreement or instrument
relating thereto, except as specifically set forth herein.
The Owner Trustee, on behalf of the Trust, acknowledges the conveyance to
the Trust by the Depositor, as of the Closing Date, of the Trust Estate,
including all right, title and interest of the Depositor in and to the Trust
Estate. Concurrently with such conveyance and in exchange therefor, the Trust
has pledged the Trust Estate to the Indenture Trustee and has executed the
Certificates and the Notes and caused them to be duly authenticated and
delivered.
Section 2.06 Declaration of Trust. The Owner Trustee hereby declares that
it shall hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a statutory trust under the Statutory
Trust Statute and that this Trust Agreement constitute the governing instrument
of such statutory trust. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust. It is the
intention of the parties hereto that solely for federal, state and local income
and franchise tax purposes, for so long as 100% of the Certificates are held by
a single person or entity, the Trust shall be treated as an entity wholly owned
by such person or entity, with the assets of the entity being the Trust Estate,
and the Notes being debt of the entity, and the
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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, New York or the
Corporate Trust Office of the Certificate Paying Agent, and payments will be
made by the Trust only from Delaware, New York or the Corporate Trust Office of
the Certificate Paying Agent. The only office of the Trust will be at the
Corporate Trust Office of the Owner Trustee in Delaware.
Section 2.09 Representations and Warranties of the Depositor. The Depositor
hereby represents and warrants to the Owner Trustee and the Enhancer that:
(a) The Depositor has been duly formed, is validly existing in good
standing under the laws of the state of its formation, and is duly qualified to
do business and is in good standing under the laws of each jurisdiction where
the character of its property, the nature of its business or the performance of
its obligations, if any, under the Basic Documents make such qualification
necessary. The jurisdiction of organization of the Depositor is Delaware and the
Depositor is a "registered organization" (within the meaning of Section 9-102 of
the UCC in effect in Delaware).
(b) The Depositor has all requisite power and authority to own its
properties, to conduct its business, to execute and deliver each of the Basic
Documents to be executed and delivered by the Depositor and to enter into and
perform all of its obligations thereunder and any of the transactions
contemplated thereby.
(c) Each Basic Document to be executed and delivered by the Depositor has
been duly authorized, executed and delivered by the Depositor and, assuming the
due execution and delivery by the other parties thereto, constitutes a legal,
valid and binding agreement, enforceable against the Depositor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
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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
applicable provisions of the Basic Documents, (D) conflict in any material
respect with, or result in a breach in any material respect of, or constitute a
default in any material respect under, any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which the Depositor is
a party or by which it is bound, which conflict, breach or default would
materially and adversely affect the right of the Depositor to perform any of the
applicable provisions of the Basic Documents, or (E) result in the creation or
imposition of any Lien upon any of the properties of the Depositor pursuant to
the terms of any such indenture, mortgage, deed of trust, contract or other
instrument (other than the Basic Documents).
(e) No consent, approval, order or authorization by, and no filing with or
notice to, any court or other governmental authority in respect of the Depositor
is required in connection with the authorization, execution, delivery or
performance by the Depositor of the Basic Documents to which it is a party.
(f) There are no pending or, to the best of the Depositor's knowledge,
threatened, actions, suits, proceedings or investigations before any court,
administrative agency, arbitrator or governmental body that, if decided
adversely, would materially and adversely affect (A) the condition (financial or
otherwise), business or operations of the Depositor or (B) the ability of the
Depositor to perform its obligations under, or the validity or enforceability
of, the Basic Documents to which it is a party.
(g) The Depositor is solvent, and the Depositor does not contemplate any
pending insolvency or believe or have reason to believe that it will not be able
to pay its debts and other obligations as they become due. The Depositor did not
transfer the Transferred Property pursuant to this Agreement with any intent to
hinder, delay or defraud any of its creditors.
(h) Immediately prior to (1) the transfer hereunder, the Depositor had good
and marketable title to the interest in the Initial Transferred Property
conveyed to it, free and clear of all Liens, pledges, charges, encumbrances,
security interests or adverse claims of any nature, and this Agreement
constitutes a valid assignment and transfer to the Trust of all right, title and
interest of the Depositor in and to the Initial Transferred Property and (2) the
transfer under the related Subsequent Transfer Agreement, the Depositor had good
and marketable title to
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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.
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(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, the Paying Agent or the Servicer, as applicable, of a breach of the
Depositor's respective representations or warranties above that materially and
adversely affects the interests of the Securityholders 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.
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(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 Servicer at the will of the Trust, in such custodial capacity only,
or in trust by the Indenture Trustee if the Mortgage Files are required to be
transferred by the Servicer to the Indenture Trustee, pursuant to the Servicing
Agreement; provided, however, that any records and documents that come into the
possession of the Depositor shall be promptly delivered to the Servicer or the
Indenture, as applicable. The Depositor's records will accurately reflect the
sale of the Initial Mortgage Loans by it to the Trust.
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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 or amounts on
deposit in the applicable Funding Account, as applicable, or (ii) with respect
to an Additional Balance only, an
9
increase in the related Additional Balance Increase Amount as of the day on
which such Additional Balance was created, equal to the amount of such
Additional Balance.
Section 3.03 Draws During Rapid Amortization Period. During the Rapid
Amortization Period, any Excluded Draws shall not be Additional Balances, and
the ownership of the related balances shall be retained by the Seller. Payments
and collections allocable pursuant to Section 3.04 to an Excluded Draw shall not
be deposited into the Custodial Account, the Distribution Account or the Note
Payment Account, and shall be distributed by the Servicer to the Seller no less
frequently than monthly in accordance with reasonable instructions provided by
the Seller.
Section 3.04 Allocation. The Depositor, the Trust and the Servicer agree
that all collections on the Mortgage Loans will be allocated and applied as
provided by the terms of the related Loan Agreements or by applicable law.
Except with respect to Liquidation Loss Amounts, if the Loan Agreement or
applicable law does not specify a method of allocation and application for
particular Collections, such Collections shall be allocated and applied (i)
first, to interest pro rata (based on the respective amounts coming due on such
day) among the amounts coming due on such dates, and (ii) then, to principal in
the order of the dates on which such amounts were first incurred. If, as a
result of the provisions of this Section 3.04, Collections are allocated to
Excluded Draws, such Collections shall not be property of the Purchaser or its
assignees and shall be paid by the Servicer to the Seller as provided in Section
3.03. Liquidation Loss Amounts shall be allocated as provided in the definition
of Excluded Amount.
Section 3.05 Addition of Subsequent Mortgage Loans. The transfer by the
Depositor of any Subsequent Mortgage Loans to the Issuer, is conditioned upon
the satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Date:
(a) the Depositor shall have provided the Indenture Trustee, the Issuer,
the Paying Agent, the Enhancer and the Rating Agencies with a timely Addition
Notice substantially in the form of Exhibit I attached hereto, which notice
shall be given no later than five Business Days prior to the related Subsequent
Transfer Date, and shall designate the Subsequent Mortgage Loans to be sold to
the Issuer and the aggregate Principal Balance of such Subsequent Mortgage Loans
as of the related Subsequent Cut-Off Date;
(b) the Depositor shall have delivered to the Indenture Trustee, the Paying
Agent, the Enhancer and the Rating Agencies duly executed Subsequent Transfer
Agreement substantially in the form of Exhibit J, (A) confirming the
satisfaction of each condition precedent specified in this Section 3.05(b) and
in Section 2 of the related Subsequent Transfer Agreement and (B) including a
Mortgage Loan Schedule listing the Subsequent Mortgage Loans;
(c) as of each Subsequent Transfer Date, as evidenced by delivery to the
Indenture Trustee of the Subsequent Transfer Agreement, the Depositor shall not
be insolvent, made insolvent by such transfer or aware of any pending
insolvency;
(d) such sale and transfer shall not result in a material adverse tax
consequence to the Issuer or, due to any action or inaction on the part of the
Seller, to the Securityholders; and
10
(e) the Depositor shall have provided each of the Enhancer and each Rating
Agency with loan level information in the Enhancer's and each such Rating
Agency's standard format no later than five Business Days prior to the related
Subsequent Transfer Date, which shall designate the Subsequent Mortgage Loans to
be sold to the Issuer, and shall receive verbal consent from the Enhancer and
verbal confirmation from each Rating Agency that the addition of the Subsequent
Mortgage Loans will not result in a Rating Event.
Within five Business Days after each Subsequent Transfer Date, the
Depositor shall deliver to the Issuer, the Rating Agencies, the Enhancer, the
Paying Agent and the Indenture Trustee a copy of the Mortgage Loan Schedule
reflecting the Subsequent Mortgage Loans in electronic format.
Section 3.06 Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and the conveyance of the
Initial Mortgage Loans pursuant to Section 3.01 and the issuance of the
Certificates, Depositor shall be the sole Certificateholder.
Section 3.07 Issuance of Certificates. The Certificates shall be issued in
minimum denominations of a Percentage Interest of 10.0000% and integral
multiples of 0.0001% in excess thereof. The Certificates shall be issued in
substantially the form attached hereto as Exhibit A.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.08. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. A Person shall become a Certificateholder and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder upon
such Person's acceptance of a Certificate duly registered in such Person's name,
pursuant to Section 3.09.
A transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered in
such transferee's name pursuant to and upon satisfaction of the conditions set
forth in Section 3.09.
Section 3.08 Authentication of Certificates. Concurrently with the
acquisition of the Initial Mortgage Loans by the Trust, the Owner Trustee or the
Certificate Paying Agent shall cause the Certificates in an initial Percentage
Interest of 100.00% to be executed on behalf of the Trust, authenticated by the
Indenture Trustee and delivered to or upon the written order of the Depositor,
signed by its chairman of the board, its president or any vice president,
without further corporate action by the Depositor, in authorized denominations.
No Certificate shall entitle the Certificateholder thereof to any benefit under
this Trust Agreement or be valid for any purpose unless there shall appear on
such Certificate a certificate of authentication substantially in the form set
forth in Exhibit A hereto, executed by the Owner Trustee or the Indenture
Trustee, by manual signature, and such authentication shall constitute
conclusive evidence that
11
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section 3.09 Registration of and Limitations on Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.13, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Paying Agent
shall be the initial Certificate Registrar. If the Certificate Registrar resigns
or is removed, the Owner Trustee shall appoint a successor Certificate
Registrar.
Subject to satisfaction of the conditions set forth below, upon surrender
for registration of transfer of any Certificate at the office or agency
maintained pursuant to Section 3.13, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Indenture Trustee as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or the Indenture Trustee. At the option of a Certificateholder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.13. The initial
Certificateholder agrees to not transfer any Certificate during either the
Revolving Period or the Managed Amortization Period, unless the initial
Certificateholder receives an Opinion of Counsel stating that such transfer of
the Certificate will not adversely affect the opinion delivered on the Closing
Date by such counsel regarding the transfer of the Mortgage Loans by Seller to
the Depositor.
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, the Certificate Registrar and the
Enhancer, that such transfer (1) will not affect the tax status of the Owner
Trust and (2) will not adversely affect the
12
interests of any Securityholder or the Enhancer, including, without limitation,
as a result of the imposition of any United States federal withholding taxes on
the Owner Trust (except to the extent that such withholding taxes would be
payable solely from amounts otherwise distributable to the Certificate of the
prospective transferee). If such transfer occurs and such foreign
Certificateholder becomes subject to such United States federal withholding
taxes, any such taxes will be withheld by the Certificate Paying Agent at the
direction of the Servicer. Each Certificateholder unable to establish its
non-foreign status shall submit to the Certificate Paying Agent a copy of its
Form W-8BEN, Form W-8ECI or Form W-8IMY, or such successor forms thereto as
required by then-applicable regulations, and shall resubmit such form every
three years or with such frequency as required by then-applicable regulations.
In addition, prior to any transfer of a Certificate prior to July of 2008 to a
Certificateholder that cannot establish its non-foreign status, the
Certificateholder shall deliver to the Owner Trustee, the Paying Agent and the
Indenture Trustee, at the expense of the Certificateholder, an Opinion of
Counsel that no withholding tax would apply to payments made under any Yield
Maintenance Agreement.
No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with the Securities Act and such state
laws. In the event of any such transfer, the Certificate Registrar or the
Depositor shall prior to such transfer require the transferee to execute (A)
either (i) (a) an investment letter in substantially the form attached hereto as
Exhibit C (or in such form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor) which investment letters shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and which investment letter states that, among other
things, such transferee (a) is a "qualified institutional buyer" as defined
under Rule 144A, acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (b) is aware that the
proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the Securities Act and such state laws or is being made pursuant
to the Securities Act and such state laws, which Opinion of Counsel shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and (b) the transferee executes a representation
letter, substantially in the form of Exhibit D hereto, and the transferor
executes a representation letter, substantially in the form of Exhibit E hereto,
each acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (B) the
Certificate of Non-Foreign Status (in substantially the form attached hereto as
Exhibit F) acceptable to and in form and substance reasonably satisfactory to
the Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. If such Certificateholder is unable to provide a Certificate of
Non-Foreign Status, such Certificateholder must provide an Opinion of Counsel as
described in the preceding paragraph. The Certificateholder desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Certificate Paying Agent, the Indenture
Trustee, the Servicer, the Paying Agent, the Enhancer and the Depositor against
any liability that may result if the transfer is not so
13
exempt or is not made in accordance with such federal and state laws. No
transfer of Certificates or any interest therein shall be made to any Plan, any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring such Certificates with Plan Assets unless the Depositor, the Owner
Trustee, the Certificate Registrar, the Enhancer and the Servicer are provided
with an Opinion of Counsel that establishes to the satisfaction of the
Depositor, the Owner Trustee, the Certificate Registrar, the Enhancer and the
Servicer that the purchase of Certificates is permissible under applicable law,
will not constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Owner Trustee,
the Certificate Registrar, the Certificate Paying Agent, the Indenture Trustee,
the Paying Agent, the Enhancer or the Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Trust Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar, the Enhancer or the Servicer. In lieu of such Opinion of
Counsel, a Plan, any Person acting, directly or indirectly, on behalf of any
such Plan or any Person acquiring such Certificates with Plan Assets of a Plan
may provide a certification in the form of Exhibit G to this Trust Agreement,
which the Depositor, the Owner Trustee, the Certificate Registrar, the
Certificate Paying Agent, the Indenture Trustee, the Paying Agent, the Enhancer
and the Servicer may rely upon without further inquiry or investigation. Neither
an Opinion of Counsel nor a certification will be required in connection with
the initial transfer of any such Certificate by the Depositor to an Affiliate of
the Depositor (in which case, the Depositor or any such Affiliate shall be
deemed to have represented that such Affiliate is not a Plan or a Person
investing Plan Assets of any Plan) and the Owner Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee, shall be a written representation) from the Depositor of the status of
such transferee as an Affiliate of the Depositor.
In addition, no transfer of a Certificate shall be permitted, and no such
transfer shall be registered by the Certificate Registrar or be effective
hereunder, unless evidenced by an Opinion of Counsel addressed to the
Certificate Registrar, the Servicer and the Enhancer that establishes that such
transfer or the registration of such transfer would not cause the Trust to be
classified as a publicly traded partnership, by having more than 100
Certificateholders at any time during the taxable year of the Trust, an
association taxable as a corporation, a corporation or a taxable mortgage pool
for federal and relevant state income tax purposes, which Opinion of Counsel
shall not be an expense of the Certificate Registrar and shall be an expense of
the proposed transferee. No Opinion of Counsel will be required if such transfer
is made to a nominee of an existing beneficial holder of a Certificate.
In addition, no transfer, sale, assignment, pledge or other disposition of
a Certificate shall be made unless the proposed transferee executes a
representation letter substantially in the form of Exhibit H hereto, that (1)
the transferee is acquiring such Certificate for its own behalf and is not
acting as agent or custodian for any other Person or entity in connection with
such acquisition and (2) if the transferee is a partnership, grantor trust or S
corporation for federal income tax purposes, the Certificates acquired are not
more than 50% of the assets of the partnership, grantor trust or S corporation.
Section 3.10 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall
14
receive evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there shall be delivered to the Certificate Registrar, the
Indenture Trustee and the Owner Trustee such security or indemnity as may be
required by them to save each of them and the Issuer from harm, then in the
absence of notice to the Certificate Registrar, the Indenture Trustee or the
Owner Trustee that such Certificate has been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee or
the Indenture Trustee, as the Trust's authenticating agent, shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like tenor and denomination. In
connection with the issuance of any new Certificate under this Section 3.10, the
Owner Trustee, the Indenture Trustee or the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 3.10 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 3.11 Persons Deemed Certificateholders. Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Certificate Paying Agent may treat the Person in
whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Trust, the
Owner Trustee, the Certificate Registrar or the Certificate Paying Agent shall
be bound by any notice to the contrary.
Section 3.12 Access to List of Certificateholders' Names and Addresses. The
Certificate Registrar shall furnish or cause to be furnished to the Depositor or
the Owner Trustee, within 15 days after receipt by the Certificate Registrar of
a written request therefor from the Depositor or the Owner Trustee, a list, in
such form as the Depositor or the Owner Trustee, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders as of
the most recent Record Date. If three or more Certificateholders, or one or more
Certificateholders evidencing not less than 25% of the Certificate Percentage
Interest, apply in writing to the Owner Trustee or the Certificate Registrar,
and such application states that the applicants desire to communicate with other
Certificateholders, with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five (5) Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar, the Certificate Paying Agent or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 3.13 Maintenance of Office or Agency. The Owner Trustee, on behalf
of the Trust, shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee initially
designates the Corporate Trust Office of the Certificate Registrar (or such
other office as the Certificate Registrar may specify to the Owner Trustee) as
its office for
15
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor, the Certificateholders, the Indenture Trustee and the Enhancer of any
change in the location of the Certificate Register or any such office or agency.
Section 3.14 Certificate Paying Agent.
(a) The Certificate Paying Agent shall make distributions to
Certificateholders from the Distribution Account on behalf of the Trust in
accordance with the provisions of the Certificates and Section 5.01 hereof from
payments remitted to the Certificate Paying Agent by the Paying Agent pursuant
to Section 3.05 of the Indenture. The Trust hereby appoints the Paying Agent as
the Certificate Paying Agent. The Certificate Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Certificates in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of
which a Responsible Officer of the Certificate Paying Agent has actual knowledge
in the making of any payment required to be made with respect to the
Certificates;
(iii) at any time during the continuance of any such default, upon the
written request of the Owner Trustee, forthwith pay to the Owner Trustee on
behalf of the Trust all sums so held in trust by such Certificate Paying Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay
to the Owner Trustee on behalf of the Trust all sums held by it in trust for the
payment of Certificates if at any time it ceases to act as Paying Agent under
the Indenture or meet the standards required to be met by the Paying Agent at
the time of its appointment under the Indenture;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith; and
(vi) make available to the Owner Trustee a copy of the Servicing
Certificate prepared with respect to each Payment Date by the Servicer pursuant
to Section 4.01 of the Servicing Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent
if the Owner Trustee determines in its sole discretion that the Certificate
Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Paying Agent shall be permitted to resign
as Certificate Paying Agent upon 30 days' written notice to the Owner Trustee
and the Enhancer; provided, however, that the Paying Agent is also resigning as
Paying Agent under the Indenture at such time. In the event that the Paying
Agent shall no longer be the Certificate Paying Agent under this Trust Agreement
and Paying Agent under the Indenture, the Owner Trustee shall appoint a
successor to act as Certificate Paying Agent (which shall be a bank or trust
company) and which shall also be the successor Paying
16
Agent under the Indenture. The Owner Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent appointed by
the Owner Trustee to execute and deliver to the Owner Trustee an instrument to
the effect set forth in this Section 3.14 as it relates to the Certificate
Paying Agent. The Certificate Paying Agent shall return all unclaimed funds to
the Trust and upon removal of a Certificate Paying Agent such Certificate Paying
Agent shall also return all funds in its possession to the Trust. The provisions
of Sections 6.01, 6.04 and 7.01 shall apply to the Certificate Paying Agent to
the extent applicable. Any reference in this Trust Agreement to the Certificate
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself
the Distribution Account in which the Certificate Paying Agent shall deposit, on
the same day as it is received from the Servicer, the Indenture Trustee or
Paying Agent, each remittance received by the Certificate Paying Agent with
respect to payments made pursuant to the Indenture or the Servicing Agreement.
Pending any such distribution, funds deposited in the Distribution Account on a
Payment Date and not distributed to the Certificateholders on such Payment Date
shall be invested by the Certificate Paying Agent in Permitted Investments
selected by the Servicer (or if no selection is made by the Servicer in
Permitted Investments described in clause (v) of the definition thereof)
maturing no later than the Business Day preceding the next succeeding Payment
Date (except that any investment in the institution with which the Distribution
Account is maintained may mature or be payable on demand on such Payment Date
and shall not be sold or disposed of prior to the maturity). All investment
income earned in respect of funds on deposit in the Distribution Account shall
be credited to the Distribution Account, except that an amount equal to one
day's interest on any such investment shall be for the benefit of the
Certificate Paying Agent. A portion of any losses incurred in respect of any
such investments shall be deposited in the Distribution Account by the
Certificate Paying Agent out of its own funds immediately as realized in an
amount such that the percentage of any such loss allocated to the Certificate
Paying Agent shall equal a fraction, the numerator of which equals one (1) and
the denominator of which equals the number of days the funds in the Distribution
Account were invested in such investment. The remainder of any such losses shall
be charged against the Distribution Account. The Certificate Paying Agent shall
make all distributions on the Certificates as provided in Section 3.05 of the
Indenture and Section 5.01(a) of this Trust Agreement from moneys on deposit in
the Distribution Account.
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
17
owing by the Trust to the Noteholders and the Enhancer under, or otherwise
related to, the Indenture, and no distributions will be made on the Certificates
until the Noteholders, the Paying Agent, the Note Registrar, the Certificate
Paying Agent, the Certificate Registrar and the Indenture Trustee and the
Enhancer have been irrevocably paid in full.
Section 3.18. No Priority Among Certificates. All Certificateholders shall
rank equally as to amounts distributable upon the liquidation, dissolution or
winding up of the Trust, with no preference or priority being afforded to any
Certificateholders over any other Certificateholders.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party, as well
as any certificate that supports the factual assumptions made in any Opinion of
Counsel delivered on the Closing Date, and any amendment or other agreement or
instrument described herein, in each case, in such form as the Owner Trustee
shall approve, as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is obligated to take
all actions required of the Trust pursuant to the Basic Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to
administer the Trust pursuant to the terms of this Trust Agreement and the other
Basic Documents to which the Trust is a party and in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement.
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
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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.
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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
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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 and on any date on which the Trust is terminated
pursuant to Section 8.01, the Certificate Paying Agent shall distribute to the
Certificateholders all funds on deposit in the Distribution Account and
available therefor as provided in Section 3.05 of the Indenture. All
distributions made pursuant to this Section to any Certificates shall be
distributed to the Certificateholders pro rata based on the respective
Percentage Interests thereof.
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(b) In the event that any withholding tax is imposed on the distributions
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to such Certificateholder in accordance with this
Section 5.01. The Certificate Paying Agent is hereby authorized and directed to
retain or cause to be retained from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate Proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such Proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Certificate Paying Agent and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders.
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions
required to be made to Certificateholders on any Payment Date as provided in
Section 5.01 shall be made to each Certificateholder of record on the preceding
Record Date by wire transfer, in immediately available funds, to the account of
each Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Payment Date.
Section 5.03. Signature on Returns. The Servicer shall sign on behalf of
the Trust the tax returns, if any, of the Trust.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
Certificate Paying Agent shall make available to each Certificateholder the
Servicing Certificate provided to the Owner Trustee and the Certificate Paying
Agent by the Servicer pursuant to Section 4.01 of the Servicing Agreement with
respect to such Payment Date.
Section 5.05. Tax Reporting. The Certificateholders by their acceptance of
a Certificate, agree to appoint the Servicer as their agent and the Servicer, as
agent for such holders under the Servicing Agreement, has agreed to perform all
duties necessary to comply with federal and state income tax laws.
Any Certificateholder that holds 100% of the Certificates agrees by its
purchase of 100% of the Certificates to treat the Trust Estate as an entity
wholly owned by such Certificateholder for purposes of federal and state income
tax, franchise tax and any other tax measured in whole or in part by income,
with the assets of the entity being the assets held by the Trust, and the Notes
being debt of the Trust.
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ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all moneys
actually received by it constituting part of the Trust Estate upon the terms of
this Trust Agreement and the other Basic Documents to which each is a party. The
Owner Trustee shall not be answerable or accountable hereunder or under any
Basic Document under any circumstances, except (i) for its own willful
misconduct, negligence or bad faith or negligent failure to act or (ii) in the
case of the inaccuracy of any representation or warranty contained in Section
6.03 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) no provision of this Trust Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(b) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(c) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution hereof
by the Depositor for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate, or for or in respect of the validity or
sufficiency of the Basic Documents, the Notes, the Certificates, other than the
certificate of authentication on the Certificates, if executed by the Owner
Trustee and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein or in the other Basic Documents;
(d) the execution, delivery, authentication and performance by the Owner
Trustee of this Trust Agreement will not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action with respect to, any governmental authority or
agency;
(e) the Owner Trustee shall not be liable for the default or misconduct of
the Depositor, Indenture Trustee, the Certificate Paying Agent, the Paying Agent
or the Servicer under any of the Basic Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations of the
Certificate Paying Agent, the Paying Agent, the Depositor or the Trust under
this Trust Agreement or the other Basic Documents that are required to be
performed by the Indenture Trustee or the Paying Agent under the Indenture or
the Seller under the Purchase Agreement; and
23
(f) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it or duties imposed by this Trust Agreement, or to
institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any other Basic Document, at
the request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Trust Agreement or in any
other Basic Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its negligence, bad faith or willful
misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to
the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents other than any Yield Maintenance Agreement.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite corporate
power and authority to execute, deliver and perform its obligations under this
Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Trust Agreement, and this Trust Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Owner Trustee, enforceable against it in accordance
with the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which default might have consequences that would
materially and adversely affect the
24
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
25
have any responsibility or liability with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Trust Agreement or the Noteholders under the
Indenture, including, the compliance by the Depositor or the Seller with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, or any action
of the Certificate Paying Agent, the Certificate Registrar, the Paying Agent or
the Indenture Trustee taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Seller, the
Certificate Paying Agent, the Certificate Registrar, the Paying Agent and the
Indenture Trustee in transactions with the same rights as it would have if it
were not Owner Trustee.
26
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof in accordance with Section 6.06 of
the Servicing Agreement, and the Owner Trustee shall be reimbursed for its
reasonable expenses hereunder and under the other Basic Documents, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably employ
in connection with the exercise and performance of its rights and its duties
hereunder and under the other Basic Documents which shall be payable by the
Servicer pursuant to Section 3.11 of the Servicing Agreement.
Section 7.02. Indemnification. The Certificateholders of the majority of
the Percentage Interest of the Certificates shall indemnify, defend and hold
harmless the Owner Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Trust Agreement, the other Basic Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder; provided, however, that:
(a) such Certificateholder shall not be liable for or required to indemnify
an Indemnified Party from and against Expenses arising or resulting from the
Owner Trustee's willful misconduct, negligence or bad faith or as a result of
any inaccuracy of a representation or warranty contained in Section 6.03
expressly made by the Owner Trustee;
(b) with respect to any such claim, the Indemnified Party shall have given
such Certificateholder written notice thereof promptly after the Indemnified
Party shall have actual knowledge thereof;
(c) while maintaining control over its own defense, such Certificateholder
shall consult with the Indemnified Party in preparing such defense; and
(d) notwithstanding anything in this Trust Agreement to the contrary, such
Certificateholder shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of such
Certificateholder, which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Trust Agreement. In
the event of any Proceeding for which indemnity may be sought pursuant to this
Section 7.02, the Owner Trustee's choice of legal counsel, if other than the
legal counsel retained by the Owner Trustee in connection with the execution and
delivery of this Trust Agreement, shall be subject to the approval of the
27
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
28
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 Moody's, Standard & Poor's or Fitch, if rated by Fitch. If such corporation
shall publish reports of condition at least annually pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
9.01, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30 days'
prior written notice thereof to the Enhancer, the Indenture Trustee, the Paying
Agent and the Depositor. Upon receiving such notice of resignation, the
Indenture Trustee shall promptly appoint a successor Owner Trustee with the
consent of the Enhancer, which consent shall not be unreasonably withheld, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Indenture Trustee (and the Indenture Trustee shall make
such request upon (i) the written direction of the Enhancer, so long as the
Enhancer is not in default under the Policy, or (ii) the written direction of
holders of Notes representing not less than a majority of the Note Balance of
the Notes if the Enhancer is in default under the Policy), or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of
29
its property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Indenture Trustee may,
and, at the direction of the Enhancer, shall, remove the Owner Trustee. If the
Indenture Trustee shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Indenture Trustee shall promptly appoint a
successor Owner Trustee reasonably acceptable to the Enhancer by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee,
and shall pay all fees owed to the outgoing Owner Trustee. If the Indenture
Trustee is unable to appoint a successor Owner Trustee within 60 days after any
such direction, the Indenture Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Indenture Trustee, the Paying Agent and to its predecessor Owner Trustee an
instrument accepting such appointment under this Trust Agreement, and thereupon
the resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Trust Agreement, with like effect as
if originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Trust Agreement; and
the predecessor Owner Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Owner Trustee all such rights, powers, duties
and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Paying Agent shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders, the Rating Agencies
and the Enhancer. If the Paying Agent shall fail to mail such notice within 10
days after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Paying Agent.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein
30
to the contrary notwithstanding; provided, however, that such Person shall be
eligible pursuant to Section 9.01; provided, further, that the Owner Trustee
shall mail notice of such merger or consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Estate may at the time be located, the Owner Trustee shall
have the power and shall execute and deliver all instruments to appoint one or
more Persons to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Trust Estate, and to
vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
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.
31
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
32
consent to any such amendment, without the consent of the Certificateholders of
all such Certificates then outstanding; provided, further, that no Certificate
registered in the name of the Seller or an Affiliate of the Seller shall be
considered a Certificate for purposes of such consent.
(e) No amendment of this Trust Agreement may provide for the holding of any
of the Certificates in book-entry form.
(f) If the purpose of any such amendment is to provide for the issuance of
additional Certificates representing an interest in the Trust, it shall not be
necessary to obtain the consent of any Certificateholder, but the Owner Trustee
shall be furnished with (i) an Opinion of Counsel to the effect that such action
will not adversely affect in any material respect the interests of any
Certificateholders and (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
Paying Agent, the Enhancer and each of the Rating Agencies. It shall not be
necessary for the consent of Certificateholders or the Indenture Trustee
pursuant to this Section 10.01 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Trust Agreement or in any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to
which the Trust is a party, other than this Trust Agreement, the Owner Trustee
shall be entitled to receive and conclusively rely upon an Opinion of Counsel to
the effect that such amendment is authorized or permitted by the documents
subject to such amendment and that all conditions precedent in the Basic
Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
(i) The Owner Trustee may, but shall not be obligated to, execute any
amendment which adversely affects its rights, duties or immunities hereunder.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Section 10.02. No Legal Title to Trust Estate. The Certificateholders shall
not have legal title to any part of the Trust Estate. The Certificateholders
shall be entitled to receive distributions with respect to their undivided
beneficial interest therein only in accordance with Articles V and VIII. No
transfer, by operation of law or otherwise, of any right, title or interest of
the Certificateholders to and in their ownership interest in the Trust Estate
shall operate to terminate this Trust Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
33
Section 10.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Enhancer and, to the extent
expressly provided herein, the Paying Agent, the Indenture Trustee and the
Noteholders, and nothing in this Trust Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Trust Estate or under or in
respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof,
all notices shall be in writing and shall be deemed given upon receipt: if to
the Owner Trustee, addressed to its Corporate Trust Office; if to the Paying
Agent, addressed to its Corporate Trust Office, if to the Certificate Paying
Agent, addressed to U.S. Bank National Association, 000 Xxxx Xxxxx Xxxxxx, Xx.
Xxxx, Xxxxxxxxx 00000 Attention: Corporate Trust Services - WASI -- 2003-HE2,
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, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxxxx
X. Xxxxxx, Telecopier: (000) 000-0000; if to the Enhancer, addressed to
Financial Guaranty Insurance Company, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Research and Risk Management, Telecopier: 000-000-0000 (Wachovia
Asset Securitization, Inc. 2003-HE2 Trust); 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.
34
Section 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Enhancer, the Depositor, the Owner Trustee and its
successors and each Certificateholder and its successors and permitted assigns,
all as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this Trust
Agreement, and each Certificateholder, by accepting a Certificate, hereby
covenants and agrees that it will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy Proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the other Basic
Documents.
Section 10.09. No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificate represents a
beneficial interest in the Trust only and does not represent an interest in or
obligation of the Depositor, the Seller, the Owner Trustee, the Indenture
Trustee, the Paying Agent or any Affiliate thereof, and that no recourse may be
had against such Persons or their assets, except as may be expressly set forth
or contemplated in the Certificates, this Trust Agreement or the other Basic
Documents.
Section 10.10. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understanding pertaining thereto.
Section 10.13. Rights of Enhancer to Exercise Rights of Certificateholders.
By accepting its Certificate, each Certificateholder agrees that unless a
Enhancer Default exists, the Enhancer shall have the right to exercise all
rights of the Certificateholders under this Trust Agreement without any further
consent of the Certificateholders. Nothing in this Section, however, shall alter
or modify in any way, the fiduciary obligations of the Owner Trustee to the
Certificateholders pursuant to this Trust Agreement, or create any fiduciary
obligation of the Owner Trustee to the Enhancer. The Enhancer shall be an
express third party beneficiary of this Trust Agreement.
35
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:
U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Indenture Trustee
By:
-----------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar and Certificate
Paying Agent
By:
-----------------------------------
Name:
Title:
36
WACHOVIA ASSET SECURITIZATION, INC.
2003-HE2 TRUST,
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By:
-----------------------------------
Name:
Title:
37
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
STATE LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND SUCH STATE LAWS AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON ACTING,
DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY PERSON USING "PLAN
ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS SECTION
2510.3-101, TO ACQUIRE THIS CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (ii) IF
THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER AND THE CERTIFICATE REGISTRAR, OR
A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT, TO THE EFFECT THAT
THE PURCHASE OR HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT
ENACTMENTS) AND WILL NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER,
THE CERTIFICATE REGISTRAR, OR THE CERTIFICATE PAYING AGENT TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CERTIFICATE SHALL BE SUBJECT TO UNITED STATES
FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A
CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A
U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW.
A-1
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE,
the Paying Agent OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE AGREEMENT OR THE OTHER BASIC DOCUMENTS.
A-2
Certificate No. 1
Cut-Off Date:
June 1, 2003
Date of Trust Agreement:
July 2, 2003
First Payment Date: Percentage Interest: 100%
July 25, 2003
Final Payment Date:
June 25, 2033
WACHOVIA ASSET SECURITIZATION, INC.
ASSET-BACKED CERTIFICATES, SERIES 2003-HE2
evidencing a fractional undivided interest in Wachovia Asset
Securitization, Inc. 2003-HE2 Trust (the "Issuer"), the property of which
consists primarily of the Mortgage Loans.
This Certificate is payable solely from the assets of the Trust Estate, and
does not represent an obligation of or interest in the Depositor, the Seller,
the Servicer, the Indenture Trustee, the Paying Agent or the Owner Trustee or
any of their Affiliates. This Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Seller, the
Servicer, the Indenture Trustee, the Paying Agent or the Owner Trustee or any of
their affiliates. None of the Depositor, the Seller, the Servicer, the Indenture
Trustee, the Paying Agent or the Owner Trustee or any of their Affiliates will
have any obligation with respect to any certificate or other obligation secured
by or payable from payments on the Certificates.
This certifies that Wachovia 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 July 2, 2003 (as amended and
supplemented from time to time, the "Agreement"), among 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 July 2, 2003, among the Trust, the
Paying Agent and the Indenture Trustee. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Certificateholder of this Certificate by virtue of the acceptance
hereof assents and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Payment Date"), commencing on the first Payment
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the last day (or if such last
A-3
day is not a Business Day, the Business Day immediately preceding such last day)
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the pro rata portion evidenced by this Certificate
(based on the Percentage Interest stated on the face hereon) of the amount, if
any, required to be distributed to Certificateholders of Certificates on such
Payment Date. Distributions on this Certificate will be made as provided in the
Agreement by the Certificate Paying Agent by wire transfer to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Pursuant
to the Agreement, the Trust has issued the Certificates.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Certificate Paying Agent of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
designated by the Certificate Registrar for that purpose.
No transfer of this Certificate will be made unless such transfer is exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and any applicable state securities laws or is made in
accordance the Securities Act and such state laws. In the event that such a
transfer is to be made, (i) the Certificate Registrar or the Depositor may
require an opinion of counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor that such transfer
is exempt (describing the applicable exemption and the basis therefor) from or
is being made pursuant to the registration requirements of the Securities Act,
and of any applicable statute of any state and (ii) the transferee shall execute
an investment letter in the form described in the Agreement and (iii) the
Certificate Registrar shall require the transferee to execute an investment
letter and a Certificate of Non-Foreign Status in the form described by the
Agreement (or if a Certificate of Non-Foreign Status is not provided, an Opinion
of Counsel as described in the Agreement), which investment letter and
certificate or Opinion of Counsel shall not be at the expense of the Trust, the
Owner Trustee, the Certificate Registrar or the Depositor. The Certificateholder
hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trust, the Owner Trustee, the Depositor, the Servicer, the
Certificate Registrar and the Certificate Paying Agent against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws. In connection with any such transfer, the
Certificate Registrar (unless otherwise directed by the Depositor) will also
require either (i) a representation letter, in the form as described by the
Agreement, stating that the transferee is not an employee benefit or other plan
subject to the prohibited transaction restrictions or the fiduciary
responsibility requirements of ERISA or Section 4975 of the Code (a "Plan"), any
person acting, directly or indirectly, on behalf of any such Plan or any Person
using the "plan assets," within the meaning of the Department of Labor
Regulations Section 2510.3-101, to effect such acquisition (collectively, a
"Plan Investor") or (ii) if such transferee is a Plan Investor, an opinion of
counsel acceptable to and in form and substance satisfactory to the Depositor,
the Owner Trustee, the Servicer and the Certificate Registrar, or a
certification in the form of Exhibit G to the Agreement, to the effect that the
purchase or holding of such Certificate is permissible under applicable law,
will not constitute or result in a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Depositor, the Owner Trustee, the Servicer,
the Enhancer or the Certificate Registrar to any obligation or liability
(including obligations or liabilities under Section 406 of ERISA or Section 4975
of the Code) in addition to those undertaken in the Agreement.
A-4
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.
A-5
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
Corporate Trust Office of the Certificate Registrar, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Certificateholder hereof or such Certificateholder's attorney
duly authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee. The initial Certificate Registrar
appointed under the Agreement is the Paying Agent.
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.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar
and any agent of the Owner Trustee, the Certificate Paying Agent, or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with the
laws of the State of Delaware.
The obligations created by the Agreement in respect of this Certificate and
the Trust created thereby shall terminate upon the final distribution of all
moneys or other property or proceeds of the Trust Estate in accordance with the
terms of the Indenture and the Agreement.
It is the intent of the Depositor, the Issuer and the Certificateholder
that for federal, state and local income, single business and franchise tax
purposes, (a) the Trust will not be treated as an association (or publicly
traded partnership) taxable as a corporation or a taxable mortgage pool and (b)
the Trust will not fail to be treated as a disregarded entity.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee or the Indenture Trustee, as
authenticating agent by manual signature, this Certificate shall not be entitled
to any benefit under the Agreement or be valid for any purpose.
A-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
WACHOVIA ASSET SECURITIZATION, INC.
2003-HE2 TRUST
By: Wilmington Trust Company, not in
its individual capacity but solely
as Owner Trustee
Dated: July 2, 2003 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
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
*/
-------------------------------------
Signature Guaranteed:
*/
---------------------------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
to
-----------------------------------------------
-----------------------------------------------
for the account of ,
-------------------------------------------------------
account number , or,
----------------------------------------------------------
if mailed by check, to .
----------------------------
Applicable statements should be mailed to .
------------------------------
------------------------------------
Signature of assignee or agent
(for authorization of wire
transfer only)
A-9
EXHIBIT B
CERTIFICATE OF TRUST
OF
WACHOVIA ASSET SECURITIZATION, INC. 2003-HE2 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. 2003-HE2 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
July 2, 2003
By:
---------------------------------
Name:
Title:
Dated: July 2, 2003
B-1
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the
"Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby
certifies the following facts: Neither the Seller nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the Owner
Trustee and the Depositor, pursuant to Section 3.09 of the trust agreement dated
as of July 2, 2003 (the "Agreement"), among 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
C-1
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, the Enhancer and the Servicer with either: (x) an opinion
of counsel, satisfactory to the Depositor, the Owner Trustee, the Certificate
Registrar, the Enhancer and the Servicer, to the effect that the purchase and
holding of a Certificate by or on behalf of the Buyer is permissible under
applicable law, will not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code (or comparable provisions of
any subsequent enactments) and will not subject the Depositor, the Owner
Trustee, the Certificate Registrar, the Certificate Paying Agent, the Enhancer
or the Servicer to any obligation or liability (including liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in the Trust
Agreement, which opinion of counsel shall not be an expense of the Depositor,
the Owner Trustee, the Certificate Registrar, the Enhancer or the Servicer; or
(y) in lieu of
C-2
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 July 2,
2003, among the Trust, the Paying Agent and the Indenture Trustee.
C-3
IN WITNESS WHEREOF, each of the parties has executed this document as of
the date set forth below.
----------------------------------- ---------------------------------------
Print Name of Seller Print Name of Buyer
By: By:
-------------------------------- ------------------------------------
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
-------------------------------- ------------------------------------
Date: Date:
------------------------------ ----------------------------------
C-4
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $ 1 in securities (except for the
---------------------
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule
144A) and (ii) the Buyer satisfies the criteria in the category marked below.
Corporation, etc. The Buyer is a corporation (other than a bank,
------ savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
Bank. The Buyer (a) is a national bank or banking institution
------ organized under the laws of any state, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the state or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is attached
hereto.
Savings and Loan. The Buyer (a) is a savings and loan association,
------ building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a state or
federal authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements.
Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15
------ of the Securities Exchange Act of 1934, as amended.
----------------
1 Buyer must own and/or invest on a discretionary basis at least $1000,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-5
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.
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.
C-6
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:
------------------------------------
C-7
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
The Buyer owned $ in securities (other than the
------ --------------------
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
The Buyer is part of a Family of Investment Companies which owned in
------ the aggregate $ in securities (other than the
----------------------
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will continue to
rely on the statements made
C-8
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:
----------------------------------
C-9
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
,
------------- -----
Wachovia Asset Securitization, Inc.
0000 Xxxxxxxx Xxxxx
XX0000 Suite D
Charlotte, North Carolina 28288-0121
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - WASI -- 2003-HE2
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx-XX 0000,
Xxxxxxxxx, XX 00000,
Attn: Structure Finance Trust Services
Re: Wachovia Asset Securitization, Inc.
Asset-Backed Certificates, Series 2003-HE2
------------------------------------------
Ladies and Gentlemen:
(the "Purchaser") intends to purchase from
------------------------
(the "Seller") %
--------------- --------
Certificate Percentage Interest of Series 2003-HE2 (the "Certificates"), issued
pursuant to the trust agreement dated as of July 2, 2003 (the "Trust
Agreement"), among 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
July 2, 2003, among the Trust, the Paying Agent and the Indenture Trustee. The
Purchaser hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have
not been and will not be registered or qualified under the Securities
Act of 1933, as amended (the "Act"), or any state securities law, (b)
the Company is not required to so register or qualify the
Certificates, (c) the Certificates may be resold only if registered
and qualified pursuant to the provisions of the Act or any state
securities law, or if an exemption from such registration and
qualification is available, (d) the Trust Agreement contains
restrictions regarding the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing effect.
D-1
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, the Enhancer and
the Servicer with either: (x) an opinion of counsel,
satisfactory to the Depositor, the Owner Trustee, the
D-2
Certificate Registrar, the Enhancer and the Servicer, to the
effect that the purchase and holding of a Certificate by or
on behalf of the Purchaser is permissible under applicable
law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of
the Code (or comparable provisions of any subsequent
enactments) and will not subject the Depositor, the Owner
Trustee, the Certificate Registrar, the Certificate Paying
Agent, the Enhancer or the Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975
of the Code) in addition to those undertaken in the Trust
Agreement, which opinion of counsel shall not be an expense
of the Depositor, the Owner Trustee, the Certificate
Registrar, the Enhancer or the Servicer; or (y) in lieu of
such opinion of counsel, a certification in the form of
Exhibit G to the Trust Agreement; and
(ii) the Purchaser is familiar with the prohibited
transaction restrictions and fiduciary responsibility requirements of
Sections 406 and 407 of ERISA and Section 4975 of the Code and
understands that each of the parties to which this certification is
made is relying and will continue to rely on the statements made in
this paragraph 6.
7. The Purchaser is not a non-United States person.
Very truly yours,
---------------------------------------
By:
------------------------------------
Name:
Title:
D-3
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
,
--------------- -------
Wachovia Asset Securitization, Inc.
0000 Xxxxxxxx Xxxxx
XX0000 Suite D
Charlotte, North Carolina 28288-0121
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - WASI -- 2003-HE2
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx-XX 0000,
Xxxxxxxxx, XX 00000,
Attn: Structure Finance Trust Services
Re: Wachovia Asset Securitization, Inc.
Asset-Backed Certificates, Series 2003-HE2
------------------------------------------
Ladies and Gentlemen:
(the "Purchaser") intends to purchase from
------------- -------------
(the "Seller") %
------
a Percentage Interest of Certificates of Series 2003-HE2 (the "Certificates"),
issued pursuant to the trust agreement dated as of July 2, 2003 (the "Trust
Agreement"), among 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
July 2, 2003, among the Trust, the Paying Agent and the Indenture Trustee. The
Seller hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that
E-1
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:
E-2
EXHIBIT F
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status is delivered pursuant to Section
3.09 of the trust agreement dated as of July 2, 2003 (the "Trust Agreement"),
among 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 2003-HE2
(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 July 2, 2003, among the Trust, the Paying Agent and the Indenture
Trustee.
Each holder must complete Part I, Part II (if the holder is a nominee), and
in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of
the Internal Revenue Code (relating to withholding tax on foreign partners) do
not apply in respect of the Certificates held by the undersigned, the
undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (the Beneficial Owner is ) not a non-resident alien for
purposes of U.S. income taxation;
2. My (the Beneficial Owner's) name and home address are:
-------------------------------------
-------------------------------------
; and
-------------------------------------
3. My (the Beneficial Owner's) U.S. taxpayer identification
number (Social Security Number) is .
------------------------
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. (Name of the Beneficial Owner) is not a
-------------------
foreign corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in the Code
and Treasury Regulations;
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is
F-1
-------------------------------------
-------------------------------------
; and
-------------------------------------
3. The Beneficial Owner's U.S. employer identification number
is .
---------------------
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the undersigned
certifies that this Certificate has been made in reliance upon information
contained in:
an IRS Form W-9
------
a form such as this or substantially similar
------
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this certificate
and to the best of my knowledge and belief it is true, correct and complete and
will further declare that I will inform the Trust of any change in the
information provided above, and, if applicable, I further declare that I have
the authority* to sign this document.
-----------------------------------
Name
-----------------------------------
Title (if applicable)
-----------------------------------
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
F-2
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
,
Wachovia 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
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - WASI -- 2003-HE2]
Re: Wachovia Asset Securitization, Inc.
Asset-Backed Certificates, Series 2003-HE2
------------------------------------------
Dear Sirs:
(the "Transferee") intends to acquire
-------------------------
from (the "Transferor") a % Percentage
------------------------- ---------
Interest of Wachovia Asset Securitization, Inc. Asset-Backed Certificates,
Series 2003-HE2 (the "Certificates"), issued pursuant to a trust agreement dated
as of July 2, 2003, among 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
July 2, 2003, among the Trust, the Paying Agent and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and covenants
with, the Depositor, the Owner Trustee, the Certificate Registrar, the Enhancer
and the Servicer that:
The Certificates (i) are not being acquired by, and will not be transferred
to, any employee benefit plan within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other retirement arrangement,
G-1
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:
X-0
XXXXXXX X
XXXX XX XXXXXXXXXXXXXX XXXXXX
,
Xxxxxxxx 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
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - WASI -- 2003-HE2
Re: Wachovia Asset Securitization, Inc.
Asset-Backed Certificates, Series 2003-HE2
------------------------------------------
Dear Sirs:
(the "Transferee") intends to acquire
----------------------
from (the "Transferor") a % Percentage Interest of
----------------- ------
of Wachovia Asset Securitization, Inc. Asset-Backed Certificates, Series
2003-HE2 (the "Certificates"), issued pursuant to a trust agreement dated as
of July 2, 2003 (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 July 2, 2003, among the Trust, the Paying Agent and the
Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and covenants
with, the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer that:
(1) the Transferee is acquiring the Certificate for its own behalf and
is not acting as agent or custodian for any other person or entity in
connection with such acquisition; and
H-1
(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:
H-2
EXHIBIT I
FORM OF ADDITION NOTICE
DATE:
U.S. Bank National Association Standard & Poor's, a division of
000 Xxxx Xxxxx Xxxxxx The XxXxxx-Xxxx Companies, Inc.
Xx. Xxxx, Xxxxxxxxx 00000 26 Broadway
Attention: Corporate Trust Services Xxx Xxxx, Xxx Xxxx 00000-0000
WASI -- 2003-HE2
Wachovia Asset Securitization, Inc. Xxxxx'x Investors Service, Inc.
2003-HE2 Trust 00 Xxxxxx Xxxxxx
c/o Wilmington Trust Company, Xxx Xxxx, Xxx Xxxx 00000
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Wachovia Bank, National Association Wilmington Trust Company
000 Xxxxx Xxxxx Xxxxxx-XX 0000, Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000, 0000 Xxxxx Xxxxxx Xxxxxx
Attn: Structure Finance Trust Services Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: WACHOVIA ASSET SECURITIZATION, INC.
-----------------------------------
Ladies and Gentlemen:
Pursuant to Section 3.05 of the Trust Agreement, dated as of July 2, 2003
(the "Trust Agreement"), among and Wachovia Asset Securitization, Inc., as
Depositor and Wachovia Asset Securitization, Inc. 2003-HE2 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 July 2, 2003, among the Issuer,
the Paying Agent and U.S. Bank National Association, as indenture trustee.
I-1
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
WACHOVIA ASSET SECURITIZATION, INC.,
2003-HE2 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 , , among Wachovia Asset Securitization, Inc., as seller (the
"Depositor"), and Wachovia Asset Securitization, Inc. 2003-HE2 Trust (the
"Issuer") and pursuant to the Trust Agreement dated as of July 2, 2003 (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 July 2, 2003,
among the Issuer, Wachovia Bank, National Association, as Paying Agent (the
"Paying Agent") and U.S. Bank National Association, 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, among 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 , among 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.
2003-HE2 TRUST, as Issuer
By:
------------------------------------
Name:
Title:
Acknowledged and Accepted:
U.S. Bank National Association,
not in its individual capacity
but solely as Indenture Trustee
By:
-------------------------------
Name:
Title:
Attachments
-----------
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Depositor's Officer's Certificate.
WACHOVIA 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: %
------
