EXHIBIT 4.5
WACHOVIA BANK, NATIONAL ASSOCIATION
as Servicer,
WACHOVIA ASSET FUNDING TRUST, LLC [_____] TRUST
as Issuer,
WACHOVIA BANK, NATIONAL ASSOCIATION
as Paying Agent
and
[_________________]
as Indenture Trustee
_________________________
SERVICING AGREEMENT
Dated as of _____ __, 200_
_________________________
TABLE OF CONTENTS
Page
ARTICLE I Definitions................................................................................1
Section 1.01 Definitions.......................................................................1
Section 1.02 Other Definitional Provisions.....................................................1
Section 1.03 Interest Calculations.............................................................2
ARTICLE II Representations and Warranties.............................................................2
Section 2.01 Representations and Warranties Regarding the Servicer.............................2
Section 2.02 Representations and Warranties of the Issuer......................................3
Section 2.03 Enforcement of Representations and Warranties.....................................4
ARTICLE III Administration and Servicing of Mortgage Loans.............................................5
Section 3.01 The Servicer......................................................................5
Section 3.02 Collection of Certain Mortgage Loan Payments......................................7
Section 3.03 Custodial Duties..................................................................8
Section 3.04 Withdrawals from the Custodial Account...........................................10
Section 3.05 Maintenance of Hazard Insurance; Property Protection Expenses....................12
Section 3.06 Modification Agreements..........................................................13
Section 3.07 Trust Estate; Related Documents..................................................14
Section 3.08 Realization upon Defaulted Mortgage Loans........................................14
Section 3.09 Management and placeCitySale of REO Property.....................................15
Section 3.10 Issuer and Indenture Trustee to Cooperate........................................15
Section 3.11 Compensation; Payment of Certain Expenses........................................16
Section 3.12 Annual Statement as to Compliance................................................17
Section 3.13 Annual Independent Public Accountant's Servicing Report..........................17
Section 3.14 Access to Certain Documentation and Information Regarding the Mortgage
Loans............................................................................17
Section 3.15 Maintenance of Certain Servicing Insurance Policies..............................17
Section 3.16 Information Required by the Internal Revenue Service and Reports of
Foreclosures and Abandonments of Mortgaged Property..............................18
Section 3.17 Assignments; Recordings of Assignments...........................................18
Section 3.18 [Reserved].......................................................................19
Section 3.19 Funding Account and Distribution Account.........................................19
Section 3.20 [Reserved].......................................................................20
Section 3.21 P&I Advances.....................................................................20
Section 3.22 Transfer of Mortgage Loans.......................................................20
ARTICLE IV Servicing Certificate.....................................................................22
Section 4.01 Statements to Securityholders....................................................22
Section 4.02 Tax Returns and 1934 Act Reports.................................................24
Section 4.03 Exchange Act Reporting...........................................................24
ARTICLE V Note Payment Account......................................................................25
Section 5.01 Note Payment Account.............................................................25
ARTICLE VI The Servicer..............................................................................25
Section 6.01 Liability of the Servicer........................................................25
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of, the
Servicer.........................................................................25
Section 6.03 Limitation on Liability of the Servicer and Others...............................26
Section 6.04 Servicer Not to Resign...........................................................27
Section 6.05 Delegation of Duties.............................................................27
Section 6.06 Payment of Indenture Trustee's, the Paying Agent's and Owner Trustee's
Fees and Expenses; Indemnification...............................................27
ARTICLE VII Default...................................................................................29
Section 7.01 Servicing Default................................................................29
Section 7.02 Indenture Trustee to Act; Appointment of Successor...............................31
Section 7.03 Notification to Securityholders..................................................32
ARTICLE VIII Miscellaneous Provisions..................................................................33
Section 8.01 Amendment........................................................................33
Section 8.02 Exhibits.........................................................................33
Section 8.03 GOVERNING LAW....................................................................33
Section 8.04 Notices..........................................................................33
Section 8.05 Severability of Provisions.......................................................34
Section 8.06 Protection of Confidential Information...........................................34
Section 8.07 Third-Party Beneficiaries........................................................34
Section 8.08 Counterparts.....................................................................34
Section 8.09 Effect of Headings and Table of Contents.........................................34
Section 8.10 Termination upon Purchase by the Servicer or Liquidation of All Mortgage
Loans; Partial Redemption........................................................34
Section 8.11 Certain Matters Affecting the Indenture Trustee and the Paying Agent.............35
Section 8.12 Owner Trustee, Paying Agent and Indenture Trustee Not Liable for Related
Documents........................................................................35
ARTICLE IX Compliance with Regulation AB.............................................................35
Section 9.01 Intent of the Parties; Reasonableness............................................35
Section 9.02 Additional Representations and Warranties of the Indenture Trustee...............35
Section 9.03 Information to be provided by the Indenture Trustee..............................35
Section 9.04 Report on Assessment of Compliance and Attestation...............................35
Section 9.05 Indemnification; Remedies........................................................35
EXHIBITS
EXHIBIT A – MORTGAGE LOAN SCHEDULE.............................................................................A-1
EXHIBIT B – COLLECTION POLICY..................................................................................B-1
EXHIBIT C – LIMITED POWER OF ATTORNEY..........................................................................C-1
EXHIBIT D – FORM OF REQUEST FOR RELEASE........................................................................D-1
EXHIBIT E – FORM OF FORM 10-K CERTIFICATE......................................................................E-1
EXHIBIT F – FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE.............................................F-1
EXHIBIT G – SERVICING CRITERIA.................................................................................G-1
This Servicing Agreement, dated as of _____ __, 200_ (the "Agreement"), is among Wachovia Bank, National
Association, as servicer (the "Servicer"), the Wachovia Asset Funding Trust, LLC [______] Trust, as issuer (the
"Issuer"), Wachovia Bank, National Association, as Paying Agent (the "Paying Agent"), and [_________________], as
indenture trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, pursuant to the terms of the Purchase Agreement (as defined herein), Wachovia Bank, National
Association, as seller (in such capacity, "Seller") and as servicer, will sell to Wachovia Asset Funding Trust,
LLC, as purchaser (in such capacity, the "Purchaser"), the Initial Mortgage Loans on the Closing Date, and may
sell Subsequent Mortgage Loans on one or more Subsequent Transfer Dates, together with the Related Documents on
the Closing Date and any Subsequent Transfer Date, and thereafter all Additional Balances created on or after the
Cut-Off Date and any such Subsequent Transfer Date;
WHEREAS, Wachovia Asset Funding Trust, LLC, as depositor (in such capacity, the "Depositor"), will sell
the Initial Mortgage Loans and assign all of its rights under the Purchase Agreement to the Issuer, together with
the Related Documents on the Closing Date, and thereafter Subsequent Mortgage Loans and Additional Balances
relating to the Mortgage Loans created on or after the Cut-Off Date;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will issue the Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue the Notes; and
WHEREAS, pursuant to the terms of this Agreement, the Servicer will service the Mortgage Loans directly
or through one or more Subservicers.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
Definitions
Section 1.01 Definitions. For all purposes of this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Definitions contained in Appendix A to the indenture dated as of _____ __,
200_ (the "Indenture"), among the Issuer, the Paying Agent and the Indenture Trustee, which is incorporated by
reference herein. All other capitalized terms used herein shall have the meanings specified herein.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in this 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 Agreement and in any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms not defined in this Agreement or in any such certificate or other document,
and accounting terms partly defined in this 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 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 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
Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
Section and Exhibit references contained in this Agreement are references to Sections and Exhibits in or to this
Agreement unless otherwise specified; the term "including" shall mean "including without limitation"; "or" shall
include "and/or"; and the term "proceeds" shall have the meaning ascribed thereto in the UCC.
(d) The definitions contained in this Agreement are applicable to the singular as well as the
plural forms of such terms and to the masculine as well as 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.
Section 1.03 Interest Calculations. All calculations of interest hereunder that are made in respect of
the Principal Balance of a Mortgage Loan shall be made on a daily basis using a 365-day year. All calculations
of interest on the Notes shall be made on the basis of the actual number of days in an Interest Period and a year
assumed to consist of 360-days. The calculation of the Servicing Fee shall be made on the basis of a 360-day
year consisting of twelve 30-day months. All dollar amounts calculated hereunder shall be rounded to the nearest
xxxxx with one-half of one xxxxx being rounded up.
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the Servicer. The Servicer represents and
warrants to the Issuer, the Enhancer and for the benefit of the Indenture Trustee, as pledgee of the Mortgage
Loans, as of the Closing Date:
(a) The Servicer is a national banking association duly organized and validly existing under the
laws of the United States of America and is or will be in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the enforceability of each Mortgage Loan;
(b) The Servicer has the power and authority to make, execute, deliver and perform its obligations
under this Agreement and all of the transactions contemplated under this Agreement, has taken all necessary
corporate action to authorize the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement;
(c) The Servicer is not required to obtain the consent of any other Person or any consents,
licenses, approvals or authorizations from, or registrations or declarations with, any governmental authority,
bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be;
(d) The execution and delivery of this Agreement by the Servicer and the performance and compliance
with the terms of this Agreement by the Servicer will not violate the Articles of Association or Bylaws of the
Servicer, or constitute a material default (or an event which, with notice or lapse of time, or both, would
constitute a material default) under, or result in the material breach of, any material contract, agreement or
other instrument to which the Servicer is a party or which may be applicable to the Servicer or any of its
respective assets;
(e) No litigation is currently pending, or to the knowledge of the Servicer threatened, against the
Servicer, that in the opinion of the Servicer has a reasonable likelihood of resulting in a material adverse
effect on the transactions contemplated by this Agreement;
(f) This Agreement constitutes a legal, valid and binding obligation of the Servicer, enforceable
against the Servicer in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights
in general, as they may be applied in the context of the insolvency of a national banking association, and by
general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at
law), and by public policy considerations underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement which purport to provide
indemnification from liabilities under applicable securities laws; and
(g) The Servicer is not in default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition (financial or otherwise) or operations of
the Servicer or its respective properties or might have consequences that would materially adversely affect the
respective performance of the Servicer hereunder.
The foregoing representations and warranties shall survive any termination of the Servicer hereunder.
Section 2.02 Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to
the Servicer and for the benefit of the Indenture Trustee, as pledgee of the Mortgage Loans, as of the Closing
Date:
(a) the Issuer is a statutory trust duly formed and in good standing under the laws of the State of
Delaware and has full power, authority and legal right to execute and deliver this Agreement and to perform its
obligations under this Agreement, and has taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement; and
(b) the execution and delivery by the Issuer of this Agreement and the performance by the Issuer of
its obligations under this Agreement will not violate any provision of any law or regulation governing the Issuer
or any order, writ, judgment or decree of any court, arbitrator or governmental authority or agency applicable to
the Issuer or any of its assets. Such execution, delivery, authentication and performance 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 regulating the activities of limited
liability companies. Such execution, delivery, authentication and performance will not conflict with, or result
in a breach or violation of, any mortgage, deed of trust, lease or other agreement or instrument to which the
Issuer is bound.
Section 2.03 Enforcement of Representations and Warranties. The Servicer, on behalf of and subject to
the direction of the Indenture Trustee, as pledgee of the Mortgage Loans, or the Issuer, shall enforce the
representations and warranties of the Seller pursuant to the Purchase Agreement. Upon the discovery by the
Seller, the Depositor, the Servicer, the Indenture Trustee, the Enhancer or the Issuer of a breach of any of the
representations and warranties made by the Seller in the Purchase Agreement, in respect of any Mortgage Loan
which materially and adversely affects the interests of the Securityholders or the Enhancer, the party
discovering such breach shall give prompt written notice to the other parties. The Servicer shall promptly
notify the Seller of such breach and request that, pursuant to the terms of the Purchase Agreement, the Seller
either (i) cure such breach in all material respects within 90 days from the date the Seller was notified of such
breach or (ii) purchase such Mortgage Loan from the Issuer at the price and in the manner set forth in
Section 3.1(d) of the Purchase Agreement; provided, however, that the Seller shall, subject to the conditions set
forth in the Purchase Agreement, have the option to substitute an Eligible Substitute Loan or Loans for such
Mortgage Loan. In the event that the Seller elects to substitute one or more Eligible Substitute Loans pursuant
to Section 3.1(d) of the Purchase Agreement, the Seller shall deliver to the Servicer, in accordance with the
Purchase Agreement, with respect to such Eligible Substitute Loans, the original Loan Agreement, the Mortgage,
and such other documents and agreements as are required by the Purchase Agreement. Payments due with respect to
Eligible Substitute Loans in the month of substitution shall not be transferred to the Issuer and will be
retained by the Servicer and remitted by the Servicer to the Seller on the next succeeding Payment Date except to
the extent that a payment less than the applicable Minimum Monthly Payment has been received by the Issuer for
such month in respect of the Mortgage Loan to be removed. The Servicer shall amend or cause to be amended the
Mortgage Loan Schedule to reflect the removal of such Mortgage Loan and the substitution of the Eligible
Substitute Loans and the Servicer shall promptly deliver the amended Mortgage Loan Schedule to the Owner Trustee
and Indenture Trustee.
It is understood and agreed that the obligation of the Seller to cure such breach or purchase or
substitute for such Mortgage Loan as to which such a breach has occurred and is continuing shall constitute the
sole remedy respecting such breach available to the Issuer and the Indenture Trustee, as pledgee of the Mortgage
Loans, against the Seller. In connection with the purchase of or substitution for any such Mortgage Loan by the
Seller, the Issuer shall assign to the Seller all of its right, title and interest in respect of the Purchase
Agreement applicable to such Mortgage Loan.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 The Servicer.
(a) The Issuer, by execution and delivery of this Agreement, does hereby appoint the Servicer for,
and subject to the terms of this Agreement, the Servicer assumes responsibility for, the servicing of the
Mortgage Loans. Each original Mortgage File and any Related Documents delivered to the Servicer by the Seller
pursuant to the provisions of this Agreement and any Subsequent Transfer Agreement shall be held in trust by the
Servicer for the benefit of the Trust in accordance with the terms of this Agreement. The Servicer's possession
of any portion of any original Mortgage File, any Related Documents or copies thereof shall be maintained in
accordance with the provisions of this Agreement to facilitate the servicing of the related Mortgage Loans
pursuant to this Agreement.
(b) The Servicer shall service and administer the Mortgage Loans in a manner generally consistent
with the terms of this Agreement and the collection policy set forth on Exhibit B (the "Collection Policy") and
in a manner that shall be normal and usual in its mortgage servicing activities. Subject to the Collection
Policy and the terms of this Agreement (including without limitation Sections 3.08 and 3.09), the Servicer shall
have full power and authority to do any and all things in connection with such servicing and administration which
it may deem necessary or desirable, it being understood, however, that the Servicer shall at all times remain
responsible to the Issuer, the Paying Agent, the Indenture Trustee and, as a third-party beneficiary hereunder,
the Enhancer for the performance of its duties and obligations hereunder.
The Servicer will at all times apply the same standards and follow the same procedures with respect to
the decision to commence litigation, and in prosecuting and litigating with respect to the Mortgage Loans as it
applies and follows with respect to mortgage loans like the Mortgage Loans generally.
(c) The Servicer shall enforce the respective rights and interests of the Issuer and the Indenture
Trustee in and under each Mortgage Loan, including the Mortgaged Property and any other related security. The
Servicer is hereby authorized and empowered, in performing its duties hereunder, subject to the limitations set
forth herein, to execute and deliver, on behalf of itself, the Issuer, the Indenture Trustee or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other
comparable instruments with respect to the Mortgage Loans and the Mortgaged Properties. The Issuer and the
Indenture Trustee, as applicable, shall execute any powers of attorney and other documents furnished to them by
the Servicer and necessary or appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder. In addition, the Servicer may, at its own discretion, obtain credit information in the form of
a "credit score" from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the
Servicer a limited power of attorney substantially in the form of Exhibit C hereto.
No costs incurred by the Servicer in respect of Servicing Advances shall, for the purposes of
distributions to the Noteholders, be added to the amount owing under the related Mortgage Loan.
Notwithstanding anything to the contrary contained herein, the Servicer, in servicing and administering
the Mortgage Loans, shall employ or cause to be employed procedures (including collection, foreclosure and
management procedures with respect to REO Property) and exercise the same care that it customarily employs and
exercises in servicing and administering mortgage loans for its own account, in accordance with accepted mortgage
servicing practices of prudent lending institutions servicing mortgage loans similar to the Mortgage Loans and
giving due consideration to the Noteholders', the Enhancer's and the Trust's reliance on the Servicer.
If the Mortgage did not have a Lien senior to the related Mortgage Loan on the related Mortgaged
Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such
capacity, may not consent to the placing of a Lien senior to that of the Mortgage on the related Mortgaged
Property. If the Mortgage had a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of
the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may
consent to the refinancing of such prior senior Lien, provided that (i) the resulting CLTV of such Mortgage Loan
is no higher than the greater of the CLTV prior to such refinancing or 100%; (ii) the interest rate for the loan
evidencing the refinanced senior Lien is no higher than the interest rate on the loan evidencing the existing
senior Lien immediately prior to the date of such refinancing (meaning, in the case of an adjustable rate loan, a
substantially similar index and a gross margin no higher than that of the existing senior Lien); and (iii) the
loan evidencing the refinanced senior Lien is not subject to negative amortization.
In connection with servicing the Mortgage Loans, the Servicer may take reasonable actions to encourage
or effect the termination of Loan Agreements that have become dormant.
The relationship of the Servicer (and of any successor to the Servicer as servicer under this Agreement)
to the Issuer, the Paying Agent and the Indenture Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or agent.
(d) The Servicer may enter into Subservicing Agreements with Subservicers for the servicing and
administration of certain of the Mortgage Loans, provided that notwithstanding such appointment, the Servicer
shall remain liable for the performance of all servicing duties delegated by it. The Servicer shall provide
written notice to the Indenture Trustee, the Paying Agent and the Enhancer upon entering into a Subservicing
Agreement. References in this Agreement to actions taken or to be taken by the Servicer in servicing the
Mortgage Loans include actions taken or to be taken by a Subservicer on behalf of the Servicer and any amount
actually received by such Subservicer in respect of a Mortgage Loan shall be deemed to have been received by the
Servicer whether or not actually received by the Servicer. Each Subservicing Agreement will be upon such terms
and conditions as are not inconsistent with this Agreement and as the Servicer and the Subservicer have agreed.
With the approval of the Servicer, a Subservicer may delegate its servicing obligations to third-party servicers,
but such Subservicers will remain obligated under the related Subservicing Agreements. The Servicer and the
Subservicer may enter into amendments to the related Subservicing Agreements; provided, however, that any such
amendments shall not cause the Mortgage Loans to be serviced in a manner that would be materially inconsistent
with the standards set forth in this Agreement. The Servicer shall be entitled to terminate any Subservicing
Agreement in accordance with the terms and conditions thereof and without any limitation by virtue of this
Agreement; provided, however, that in the event of termination of any Subservicing Agreement by the Servicer or
the Subservicer, the Servicer shall either act as servicer of the related Mortgage Loan or enter into a
Subservicing Agreement with a successor Subservicer which will be bound by the terms of the related Subservicing
Agreement. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of
the Servicer and nothing contained in this Agreement shall be deemed to limit or modify such indemnification.
In the event that the rights, duties and obligations of the Servicer are terminated hereunder, any
successor to the Servicer in its sole discretion may, to the extent permitted by applicable law, terminate the
existing Subservicing Agreement with any Subservicer in accordance with the terms of the applicable Subservicing
Agreement or assume the terminated Servicer's rights and obligations under such subservicing arrangements which
termination or assumption will not violate the terms of such arrangements.
As part of its servicing activities hereunder, the Servicer, for the benefit of the Indenture Trustee,
the Paying Agent, the Enhancer and the Securityholders, shall use reasonable efforts to enforce the obligations
of each Subservicer under the related Subservicing Agreement, to the extent that the non-performance of any such
obligation would have a material adverse effect on a Mortgage Loan. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Subservicing Agreements and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Servicer,
in its good faith business judgment, would require were it the owner of the related Mortgage Loans. The Servicer
shall pay the costs of such enforcement at its own expense, and shall be reimbursed therefor only (i) from a
general recovery resulting from such enforcement to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys fees
against the party against whom such enforcement is directed.
Section 3.02 Collection of Certain Mortgage Loan Payments.
(a) The Servicer shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans, and shall, to the extent such procedures shall be consistent with this
Agreement and generally consistent with the Collection Policy, follow such collection procedures as shall be
normal and usual in its general mortgage servicing activities and consistent with the procedures the Servicer
employs in servicing all other Mortgage Loans in the servicing portfolio with characteristics similar to those of
the Mortgage Loans. Consistent with the foregoing, and without limiting the generality of the foregoing, the
Servicer may in its discretion (i) waive any late payment charge, penalty interest or other fees which may be
collected in the ordinary course of servicing a Mortgage Loan and (ii) arrange with a Mortgagor a schedule for
the payment of principal and interest due and unpaid; provided, however, that such arrangement is consistent with
the Servicer's policies with respect to home equity mortgage loans. The Servicer may also extend the Due Date
for payment due on a Mortgage Loan in accordance with the Collection Policy; provided, however, that the Servicer
shall first determine that any such waiver or extension will not impair the coverage of any related insurance
policy or materially adversely affect the Lien of the related Mortgage or the interests of the Securityholders or
the Enhancer, and the Servicer shall not grant any such waiver or extension that would have any such effect.
Consistent with the terms of this Agreement, the Servicer may also:
(i) waive, modify or vary any term of any Mortgage Loan (including reduce the Credit
Limit);
(ii) consent to the postponement of strict compliance with any such term or in any manner
grant indulgence to any Mortgagor;
(iii) arrange with a Mortgagor a schedule for the payment of principal and interest due and
unpaid;
(iv) forgive any portion of the amounts contractually owed under the Mortgage Loan;
(v) capitalize past due amounts owed under the Mortgage Loan by adding any amounts in
arrearage to the existing principal balance of the Mortgage Loan (a "Capitalization Workout") which will result
in an increased monthly payment amount, provided that: (A) the amount added to the existing principal balance of
the Mortgage Loan (the "Capitalized Amount") shall be no greater than five times the Mortgagor's current Minimum
Monthly Payment amount; and (B) the Servicer shall not enter into a Capitalization Workout unless the CLTV of the
Mortgage Loan prior to the Capitalization Workout equals or exceeds 80% and the Mortgagor has qualified for the
Capitalization Workout under the Servicer's servicing guidelines; or
(vi) reset the maturity date for the Mortgage Loan, but in no event shall such reset date
extend beyond the end of the Collection Period preceding the Final Payment Date;
or any combination of the foregoing, if in the Servicer's determination such waiver, modification, postponement
or indulgence is not materially adverse to the interests of the Securityholders or the Enhancer; provided,
however, that the Servicer may not, pursuant to this Section 3.02, modify or permit any Subservicer to modify any
Mortgage Loan (including without limitation any modification that would change the Loan Rate, forgive the payment
of any principal or interest (unless in connection with the liquidation of the related Mortgage Loan) or extend
the final maturity date of such Mortgage Loan) unless such Mortgage Loan is in default or, in the judgment of the
Servicer, such default is reasonably foreseeable or except as provided in Section 3.06. In connection with any
such waiver, modification, postponement or indulgence, the Servicer shall use reasonable efforts to maximize the
receipt of principal and interest thereon. The general terms of any waiver, modification, forgiveness,
postponement or indulgence with respect to any of the Mortgage Loans will be included in the Servicing
Certificate, and such Mortgage Loans will not be considered "delinquent" for the purposes of the Basic Documents
so long as the Mortgagor complies with the terms of such waiver, modification, forgiveness, postponement or
indulgence.
Section 3.03 Custodial Duties
(a) The Servicer is hereby appointed as custodian of the documents in each Mortgage File.
(b) The Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled
"Wachovia Asset Funding Trust, LLC [______] Trust Custodial Account," in which the Servicer or the Issuer, as
applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect
of the Mortgage Loans received by it subsequent to the applicable Cut-Off Date or Subsequent Cut-Off Date (other
than in respect of the payments referred to in the following paragraph), within one Business Day following
receipt thereof (or otherwise on or prior to the Closing Date), including the following payments and collections
received or made by it (without duplication):
(i) all payments of principal of or interest on the Mortgage Loans (other than amounts in
respect of the Excluded Amount) received or advanced by the Servicer, net of any portion of the interest thereof
retained by any Subservicer as subservicing fees;
(ii) Net Liquidation Proceeds (net of any related Foreclosure Profit) and all Subsequent
Recovery Amounts;
(iii) all proceeds of any Mortgage Loans repurchased by the Seller pursuant to the Purchase
Agreement, including any indemnity payments paid by the Seller pursuant to Section 3.1(d) of the Purchase
Agreement, and all Substitution Adjustment Amounts required to be deposited in connection with the substitution
of an Eligible Substitute Loan pursuant to the Purchase Agreement;
(iv) Insurance Proceeds, other than Net Liquidation Proceeds, resulting from any insurance
policy maintained on a Mortgaged Property;
(v) REO proceeds and Condemnation Proceeds; and
(vi) amounts required to be paid by the Servicer pursuant to Section 8.10;
provided, however, that with respect to each Collection Period, the Servicer shall be permitted to retain from
payments in respect of interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The
foregoing requirements respecting deposits to the Custodial Account are exclusive, it being understood that,
without limiting the generality of the foregoing, the Servicer need not deposit in the Custodial Account amounts
representing Foreclosure Profits, fees (including annual fees) or late charge penalties, payable by Mortgagors
(such amounts to be retained as additional servicing compensation in accordance with Section 3.10 hereof), or
amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes,
insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the
Custodial Account is so deposited, the Servicer may at any time withdraw such amount from the Custodial Account,
any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount.
The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections
allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or
the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04.
If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to
reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The
Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account
in Permitted Investments, which investments shall mature not later than the Business Day preceding the next
succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition,
no such Permitted Investment shall be purchased at a price in excess of par. Except as provided above, all
income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject
to its withdrawal or order from time to time. The amount of any losses incurred in respect of the principal
amount of any such investments shall be deposited in the Custodial Account by the Servicer out of its own funds
immediately as realized.
(c) The Servicer shall promptly report in writing to the Owner Trustee, the Paying Agent and the
Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records
and computer systems as herein provided and promptly take appropriate action to remedy any such failure.
Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or (iv), the Issuer or the
Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with
respect to the Mortgage Files for the Mortgage Loans. Following the occurrence of a Servicing Default as set
forth in Section 7.01(a)(i) or (ii), the Issuer or the Indenture Trustee shall, upon 60 days prior written
notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage
Files for the Mortgage Loans. Upon the termination of the Servicer's rights to perform the duties as custodian
with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee
or its designee in accordance with the instructions of the Indenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the
Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as
it would if they were its own property. The Mortgage Files shall at all times be held by the Servicer segregated
from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care,
using that degree of skill and attention that other servicers exercise with respect to the loan files relating to
all comparable loans that they service. Mortgage Files shall be held for the benefit of the Indenture Trustee,
the Enhancer and the Securityholders.
Section 3.04 Withdrawals from the Custodial Account. The Servicer shall, from time to time as provided
herein, make withdrawals from the Custodial Account of amounts on deposit therein pursuant to Section 3.02 that
are attributable to the Mortgage Loans for the following purposes:
(a) on each Determination Date, the Servicer shall determine the pro rata portion of the Interest
Collections deposited into the Custodial Account with respect to the related Collection Period that relate to the
Additional Balance Increase Amount and, prior to 1:00 p.m. (EST) on the Business Day prior to the related Payment
Date, the Servicer shall withdraw such amounts from the Custodial Account and deposit such amounts into the
Distribution Account established by the Certificate Paying Agent for distribution to the Certificateholders
pursuant to Section 5.01 of the Trust Agreement;
(b) on each Determination Date, the Servicer shall determine the aggregate amounts to be withdrawn
from the Custodial Account and applied pursuant to Section 3.05(a) of the Indenture and, prior to 1:00 p.m. (EST)
on the Business Day prior to the related Payment Date, the Servicer shall withdraw such amounts from the
Custodial Account and deposit such amounts into the Note Payment Account, the Funding Account or the Distribution
Account, as applicable, for distribution by the Paying Agent, in each case in accordance with Section 3.05 of the
Indenture and in the order of priority set forth in Section 3.05(a) of the Indenture for such Payment Date and in
accordance with the Servicing Certificate;
(c) to pay to the Seller any monthly payments received from the Mortgagors that do not constitute
Transferred Property;
(d) prior to the commencement of the Rapid Amortization Period, from Principal Collections on the
Mortgage Loans, and, on and after the Payment Date in ______ 200_, if Principal Collections are not sufficient
from Excess Spread, to pay to the Seller, as assignee of the Depositor, the amount of any Additional Balances, as
and when created during the related Collection Period, but only to the extent that amounts on deposit in the
Funding Account are not sufficient for such purpose; provided that Excess Spread shall not be so applied if the
Enhancer has not been reimbursed for all draws made under the Policy, with interest; and provided further that
Excess Spread (calculated with respect to the following Payment Date) in the Custodial Account will not be
applied to purchase Additional Balances to the extent that after such purchase the Overcollateralization Amount
would exceed the Overcollateralization Target Amount, calculated in each case as of the following Payment Date;
(e) to the extent deposited to the Custodial Account, to reimburse itself or the related
Subservicer for previously unreimbursed expenses incurred in maintaining individual insurance policies pursuant
to Section 3.05, for Servicing Advances, for fees payable pursuant to Section 3.08, for expenses payable pursuant
to Section 3.10, for amounts reimbursable pursuant to Section 6.03 or Liquidation Expenses, paid pursuant to
Section 3.08 or otherwise reimbursable pursuant to the terms of this Agreement (to the extent not payable
pursuant to Section 3.10), such withdrawal right being limited to amounts received on particular Mortgage Loans
(other than any Repurchase Price in respect thereof) that represent late recoveries of the payments for which
such advances were made, or from related Net Liquidation Proceeds or the proceeds of the purchase of such
Mortgage Loan;
(f) to pay itself an amount equal to the related Servicing Fee (to the extent not retained pursuant
to Section 3.03);
(g) to the extent deposited in the Custodial Account, to pay to the Servicer as additional
servicing compensation any (i) interest or investment income earned on funds deposited in the Custodial Account
that it is entitled to withdraw pursuant to Section 3.03, and (ii) Foreclosure Profits (to the extent permitted
by law);
(h) to pay to the Seller, with respect to any Mortgage Loan or property acquired in respect thereof
that has been purchased or otherwise transferred to the Seller, the Servicer or other entity, all amounts
received thereon and not required to be distributed to Securityholders as of the date on which the related
Purchase Price or Repurchase Price is determined;
(i) to withdraw any other amount, determined without duplication with respect to an other amount
provided for in this Section 3.04, deposited in the Custodial Account that was not required to be deposited
therein pursuant to Section 3.03;
(j) to pay to the Servicer, with respect to any Mortgage Loan for which the Servicer has made a P&I
Advance that has not been previously reimbursed to the extent of receipts of late recoveries of such payments
from the related Mortgagor, out of related Net Liquidation Proceeds or the proceeds of the purchase of such
Mortgage Loan; and
(k) to reimburse the Servicer for any advances or expenses that have not been previously reimbursed
pursuant to such clauses (e) or (j).
Since, in connection with withdrawals pursuant to clauses (c), (e), (f), (h) and (j), the Servicer's
entitlement thereto is limited to collections or other recoveries on the related Mortgage Loan, the Servicer
shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Custodial Account pursuant to such clauses. Notwithstanding any other
provision of this Agreement, the Servicer shall be entitled to be reimbursed itself for any previously
unreimbursed expenses incurred pursuant to Section 3.08 or otherwise reimbursable pursuant to the terms of this
Agreement that the Servicer determines to be otherwise nonrecoverable, by withdrawal from the Custodial Account
of amounts on deposit therein attributable to the Mortgage Loans on any Business Day prior to the Payment Date
succeeding the date of such determination.
If any deposit required to be made by the Servicer pursuant to Section 3.04(b) is not made when due, the
Servicer shall pay to the Paying Agent, out of the Servicer's own funds, one day of interest on such late
payment, at a per annum rate equal to the effective Federal Funds Rate for such date. Such interest shall be
remitted to the Paying Agent on the same day that the Servicer remits the late remittance to the Paying Agent.
Section 3.05 Maintenance of Hazard Insurance; Property Protection Expenses. To the extent permitted
under the related Loan Agreement and Mortgage, and to the extent the Servicer receives notice that a hazard
insurance policy has been cancelled, the Servicer shall cause to be maintained for each Mortgage Loan hazard
insurance naming the Servicer or related Subservicer as loss payee thereunder providing extended coverage in an
amount which is at least equal to the lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan from time to time or (ii) the combined principal balance owing on such Mortgage Loan and any
mortgage loan senior to such Mortgage Loan from time to time; provided, however, that such coverage may not be
less than the minimum amount required to fully compensate for any loss or damage on a replacement cost basis.
The Servicer shall use its best efforts to monitor that hazard insurance is maintained as described in the
previous sentence in the same manner as it would for mortgage loans in its own portfolio. The Servicer shall
cause to be maintained on property acquired upon foreclosure, or deed in lieu of foreclosure, of any Mortgage
Loan, fire insurance with extended coverage in an amount which is at least equal to the amount necessary to avoid
the application of any co-insurance clause contained in the related hazard insurance policy, the premium for
which shall be a Servicing Advance within the meaning of Section 3.08. Amounts collected by the Servicer under
any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged
Property or property thus acquired or amounts released to the Mortgagor in accordance with the Servicer's normal
servicing procedures) shall be deposited in the Custodial Account to the extent called for by Section 3.03. In
cases in which any Mortgaged Property is located at any time during the life of a Mortgage Loan in a federally
designated flood area, to the extent permitted under the related Loan Agreement and Mortgage, and to the extent
the Servicer receives notice that the related flood insurance has been cancelled, the hazard insurance to be
maintained for the related Mortgage Loan shall include flood insurance (to the extent available). All such flood
insurance shall be in amounts equal to the lesser of (i) the amount required to compensate for any loss or damage
to the related Mortgaged Property on a replacement cost basis and (ii) the maximum amount of such insurance
available for such Mortgaged Property under the national flood insurance program (assuming that the area in which
such Mortgaged Property is located is participating in such program). The Servicer shall use its best efforts to
monitor such flood insurance as described in the previous sentence in the same manner as it would for mortgage
loans in its own portfolio. The Servicer shall be under no obligation to require that any Mortgagor maintain
earthquake or other additional insurance and shall be under no obligation itself to maintain any such additional
insurance on property acquired in respect of a Mortgage Loan, other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such additional insurance. If the Servicer
shall obtain and maintain a blanket policy consistent with its general mortgage servicing activities insuring
against hazard losses on all of the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.05, it being understood and agreed that such
policy may contain a deductible clause, in which case the Servicer shall, in the event that there shall not have
been maintained on the related Mortgaged Property a policy complying with the first sentence of this Section 3.05
and there shall have been a loss which would have been covered by such policy, deposit in the Custodial Account
the amount of such loss that would have otherwise been covered. Any such deposit by the Servicer shall be made
on the last Business Day of the Collection Period in the month in which payments under any such policy would have
been deposited in the Custodial Account. In connection with its activities as servicer of the Mortgage Loans,
the Servicer agrees to present, on behalf of itself, the Issuer and the Indenture Trustee, claims under any such
blanket policy.
Section 3.06 Modification Agreements.
(a) The Servicer or the related Subservicer, as the case may be, shall be entitled to (a) execute
assumption agreements, substitution agreements, and instruments of satisfaction or cancellation or of partial or
full release or discharge, or any other document contemplated by this Agreement and other comparable instruments
with respect to the Mortgage Loans and with respect to the related Mortgaged Properties (and the Issuer and the
Indenture Trustee each shall promptly execute any such documents on request of the Servicer) and (b) approve the
granting of an easement thereon in favor of another Person, any alteration or demolition of such Mortgaged
Properties or other similar matters, if it has determined, exercising its good faith business judgment in the
same manner as it would if it were the owner of the related Mortgage Loans, that the security for, and the timely
and full collectability of, such Mortgage Loans would not be adversely affected thereby. A partial release
pursuant to this Section 3.06 shall be permitted only if the CLTV for the related Mortgage Loan after such
partial release does not exceed the CLTV for such Mortgage Loan as of the Cut-Off Date or related Subsequent
Cut-Off Date, as applicable. Any fee collected by the Servicer or the related Subservicer for processing such
request will be retained by the Servicer or such Subservicer as additional servicing compensation.
(b) Notwithstanding any other provision of this Agreement to the contrary, the Servicer, at its
option and in its sole discretion, may modify any Mortgage Loan to (i) change the Loan Rate payable on the
related Mortgage Loan, (ii) increase the credit limit on the related Mortgage Loan above the limit stated in the
related Loan Agreement, (iii) refinance the existing senior Lien or place a new senior Lien related to a Mortgage
Loan resulting in a CLTV Ratio above the previous CLTV Ratio for such Mortgage Loan, or (iv) make any other
material modification to the related Mortgage Loan; provided, however, that without the consent of the Enhancer,
the aggregate Principal Balance of the Mortgage Loans modified by this Section 3.06(b) shall not exceed five
percent (5%) of the Pool Balance as of the Cut-Off Date; provided, further, that any decision by the Servicer to
modify a Mortgage Loan shall be normal and usual in accordance with its general mortgage servicing activities and
consistent with the procedures the Servicer employs in servicing all other Mortgage Loans in the servicing
portfolio with characteristics similar to those of the Mortgage Loans (including, but not limited to, analysis of
credit scores, overall customer relationships and comparable industry standards) and provided, further, that, any
Mortgage Loan modified in connection with a Promotional Advance will not be included in the five percent (5%)
limitation described herein.
Section 3.07 Trust Estate; Related Documents.
(a) When required by the provisions of this Agreement, the Issuer or the Indenture Trustee shall
execute instruments furnished to them by the Servicer to release property from the terms of the Trust Agreement
or Indenture, as applicable, or convey the Issuer's or the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this Agreement. No party relying upon
an instrument executed by the Issuer or the Indenture Trustee as provided in this Section 3.07 shall be bound to
ascertain the Issuer's or the Indenture Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any moneys.
(b) Upon receipt of a Request for Release from the Servicer, substantially in the form of Exhibit D
hereto, to the effect that a Mortgage Loan has been the subject of a final payment or a prepayment in full and
such Mortgage Loan has been terminated or that substantially all Net Liquidation Proceeds that have been
determined by the Servicer in its reasonable judgment to be finally recoverable have been recovered, and upon
deposit to the Custodial Account of such final monthly payment, prepayment in full together with accrued and
unpaid interest to the date of such payment with respect to such Mortgage Loan or, if applicable, Net Liquidation
Proceeds, the Indenture Trustee shall execute such Related Documents furnished to it, along with such documents
as the Servicer or the related Mortgagor may request to evidence satisfaction and discharge of such Mortgage
Loan, upon request of the Servicer.
Section 3.08 Realization upon Defaulted Mortgage Loans.
(a) The Servicer shall, consistent with the provisions of the Mortgage and the Collection Policy,
foreclose upon or otherwise comparably convert (which may include acquisition of an REO Property) the ownership
of any Mortgaged Property securing a Mortgage Loan (but shall not sell or convey such Mortgage Loan) in the event
of a default under the Mortgage when no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.02, subject to the provisions contained in this Section 3.08(a) and only if the
Servicer determines that there is sufficient equity in the related Mortgaged Property to justify such
foreclosure. In connection with such foreclosure or other conversion, the Servicer shall use reasonable efforts
to realize upon such defaulted Mortgage Loan in such manner as will maximize the receipt of principal and
interest thereon, taking into account, among other things, the timing of foreclosure proceedings. The Servicer
shall pay all costs and expenses incurred by it in any such proceedings; provided, however, that such costs and
expenses shall be deemed to be a "Servicing Advance" and the Servicer shall be reimbursed therefor as provided in
Section 3.04 hereof; provided, further, that, in any case in which the Mortgaged Property shall have suffered
damage such that the complete restoration thereof is not fully reimbursable by insurance policies required to be
maintained with respect thereto, the Servicer shall not be required to expend its own funds to restore such
Mortgaged Property unless it shall determine, in good faith, that such restoration will increase the Liquidation
Proceeds to the Trust after reimbursement to itself for such expenses. In addition to the reimbursement of its
costs and expenses, the Servicer shall be entitled to a reasonable and customary fee as agreed to by the Servicer
and the Issuer for performing any foreclosure activities pursuant to this Section 3.08(a), which fee shall be
payable pursuant to Section 3.04.
(b) Any Liquidation Proceeds, Insurance Proceeds, REO Proceeds or Condemnation Proceeds received in
respect of a Mortgaged Property shall be deposited in the Custodial Account pursuant to Section 3.03 and applied
pursuant to Section 3.04.
(c) In connection with such foreclosure or other conversion, the Servicer shall exercise collection
and foreclosure procedures in accordance with the Collection Policy and with the same degree of care and skill in
its exercise or use as it would exercise or use under the circumstances in the conduct of its own affairs. The
Servicer shall take into account the existence of any hazardous substances, hazardous wastes or solid wastes, as
such terms are defined in the Comprehensive Environmental Response Compensation and Liability Act, the Resource
Conservation and Recovery Act of 1976, or other federal, state or local environmental legislation, on a Mortgaged
Property in determining whether to foreclose upon or otherwise comparably convert the ownership of a Mortgaged
Property. Any amounts advanced in connection with such foreclosure or other action shall constitute "Servicing
Advances."
Section 3.09 Management and CityplaceSale of REO Property. The Servicer shall manage, conserve, protect
and operate each REO Property solely for the purpose of its prudent and prompt disposition and sale; provided,
however, that the Servicer shall complete such sale and disposition no later than, and the Trust shall not retain
ownership of any REO Property for longer than, 36 months after the date on which such REO Property is acquired by
the Trust. The Servicer shall, either itself or through an agent selected by the Servicer, manage, conserve,
protect and operate the REO Property in the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar property in the same locality as the
REO Property is managed. The Servicer shall attempt to sell the same (and may temporarily rent the same) on such
terms and conditions as the Servicer deems to be in the best interest of the Securityholders, the Enhancer and
the Trust.
The Servicer shall cause to be set aside pursuant to Section 3.03, no later than five Business Days
after the receipt thereof, all revenues received with respect to the conservation and disposition of the related
REO Property net of funds necessary for the proper operation, management and maintenance of the REO Property and
the fees of any managing agent acting on behalf of the Servicer.
The disposition of REO Property shall be carried out by the Servicer for cash at such price, and upon
such terms and conditions, as the Servicer deems to be in the best interest of the Securityholders, the Enhancer
and the Trust. The cash proceeds of sale of the REO Property shall be promptly set aside pursuant to
Section 3.03 as received from time to time and, as soon as practicable thereafter, the expenses of such sale shall
be paid. Any costs or advances of the Servicer pursuant to this Section 3.09 also shall constitute Servicing
Advances. The Servicer shall reimburse itself for any related unreimbursed Servicing Advances and unpaid
Servicing Fees pursuant to Section 3.04.
Section 3.10 Issuer and Indenture Trustee to Cooperate. Upon receipt of payment in full, the Servicer
is authorized to execute, pursuant to the authorization contained in Section 3.01(c), an instrument of
satisfaction regarding the related Mortgage, which instrument of satisfaction shall be recorded by the Servicer
if required by applicable law and be delivered to the Person entitled thereto. It is understood and agreed that
any expenses incurred in connection with such instrument of satisfaction or transfer shall be reimbursed from
amounts deposited in the Custodial Account as provided in Section 3.04. From time to time and as appropriate for
the servicing or foreclosure of any Mortgage Loan and in accordance with the provisions hereof, upon request of
the Servicer to the Issuer, of a Request for Release, in the form attached hereto as Exhibit D, Issuer or
Indenture Trustee shall promptly execute such documents, in the forms provided by the Servicer, as shall be
necessary for the prosecution of any such proceedings or the taking of other servicing actions.
In order to facilitate the foreclosure of the Mortgage securing any Mortgage Loan that is in default
following recordation of the related Assignment of Mortgage to the Indenture Trustee or the Issuer if required in
accordance with the provisions of the Purchase Agreement or this Agreement, the Indenture Trustee or the Issuer
shall, if so requested in writing by the Servicer, promptly execute an appropriate assignment in the form
provided by the Servicer to assign such Mortgage Loan for the purpose of collection to the Servicer (any such
assignment shall unambiguously indicate that the assignment is for the purpose of collection only), and, upon
such assignment, the Servicer as assignee for collection will thereupon bring all required actions in its own
name and otherwise enforce the terms of such Mortgage Loan and deposit or credit the Net Liquidation Proceeds,
exclusive of Foreclosure Profits, received with respect thereto into the Custodial Account. In the event that
all delinquent payments due under any such Mortgage Loan are paid by the Mortgagor and any other defaults are
cured, then the Servicer as assignee for collection shall promptly reassign such Mortgage Loan to the Indenture
Trustee and return all Related Documents to the place where the related Mortgage File was being maintained.
In connection with the Issuer's obligation to cooperate as provided in this Section 3.10 and all other
provisions of this Agreement requiring the Issuer to authorize or permit any actions to be taken with respect to
the Mortgage Loans, the Indenture Trustee, as pledgee of the Mortgage Loans and as assignee of record of the
Mortgage Loans on behalf of the Issuer pursuant to Section 3.13 of the Indenture, expressly agrees, on behalf of
the Issuer, to take all such actions on behalf of the Issuer and promptly to execute and return all instruments
reasonably required by the Servicer in connection therewith; provided, however, that if the Servicer requests a
signature of the Indenture Trustee on behalf of the Issuer, then the Servicer shall deliver to the Indenture
Trustee an Officer's Certificate stating that such signature is necessary or appropriate to enable the Servicer
to carry out its servicing and administrative duties under this Agreement.
Section 3.11 Compensation; Payment of Certain Expenses.
(a) As compensation for its services hereunder, the Servicer shall be entitled to receive the
Servicing Fee in accordance with Section 3.03(b) and Section 3.04 as compensation for its services hereunder.
Moreover, late payment charges and the other amounts specified in Section 3.03(b) shall be retained by the
Servicer as additional servicing compensation.
(b) The Servicer shall be required to pay all expenses incurred by it in connection with its
servicing or administrative activities hereunder, and all fees and expenses of the Owner Trustee, the Paying
Agent, the Note Registrar, the Certificate Paying Agent, the Certificate Registrar and the Indenture Trustee, and
shall not be entitled to reimbursement therefor except as otherwise provided in this Agreement.
Section 3.12 Annual Statement as to Compliance.
(a) Within 90 days after December 31 of each year, commencing with 200_, the Servicer shall deliver
to the Issuer, the Indenture Trustee, the Paying Agent, the Depositor and the Underwriter, with a copy to the
Enhancer, a servicer compliance certificate, signed by an authorized officer of the Servicer, as described in
Item 1123 of Regulation AB, to the effect that:
(i) A review of the Servicer's activities during the reporting period and of its
performance under this Agreement has been made under such officer's supervision.
(ii) To the best of such officer's knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement in all materials respects throughout the reporting period
or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof.
The Servicer shall use commercially reasonable efforts to obtain from all other parties
participating in the servicing function any additional certifications required under Item 1123 of Regulation AB
to the extent required to be included in a Report on Form 10-K; provided, however, that a failure to obtain such
certifications shall not be a breach of the Servicer's duties hereunder if any such party fails to deliver such a
certification.
(b) The Servicer shall deliver to the Issuer and the Indenture Trustee, with a copy to the Enhancer
and the Paying Agent, promptly after having obtained knowledge thereof, but in no event later than five Business
Days thereafter, written notice by means of an Officer's Certificate of any event which with the giving of notice
or the lapse of time or both, would become a Servicing Default.
Section 3.13 Annual Independent Public Accountant's Servicing Report. Within 90 days after December 31
of each year, beginning with 200_, the Servicer at its expense shall cause a firm of independent public
accountants, which shall be members of the American Institute of Certified Public Accountants, to furnish a
report to the Depositor and the Indenture Trustee the attestation required under Item 1122(b) of Regulation AB.
Section 3.14 Access to Certain Documentation and Information Regarding the Mortgage Loans. Whenever
required by statute or regulation, the Servicer shall provide to the Enhancer, any Securityholder upon reasonable
request (or a regulator for a Securityholder) or the Indenture Trustee, reasonable access to the documentation
regarding the Mortgage Loans. Such access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Servicer. Nothing in this Section 3.14 shall derogate from
the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding
Mortgagors, and the failure of the Servicer to provide access as provided in this Section 3.14 as a result of
such obligation shall not constitute a breach of this Section 3.14.
Section 3.15 Maintenance of Certain Servicing Insurance Policies. The Servicer shall, during the term
of its service as Servicer, maintain in force and effect (i) a policy or policies of insurance covering errors
and omissions in the performance of its obligations as Servicer hereunder and (ii) a fidelity bond in respect of
its officers, employees or agents. Each such policy or policies and fidelity bond shall be at least equal to the
coverage that would be required by Xxxxxx Xxx or Xxxxxxx Mac, whichever is greater, for Persons performing
servicing for mortgage loans purchased by such entity. The Servicer shall furnish a copy of such policy or
policies and/or fidelity bond to the Enhancer upon the Enhancer's reasonable request therefor.
Section 3.16 Information Required by the Internal Revenue Service and Reports of Foreclosures and
Abandonments of Mortgaged Property. The Servicer shall prepare and deliver all federal and state information
reports with respect to the Mortgage Loans when and as required by all applicable state and federal income tax
laws. In particular, with respect to the requirement under Section 6050J of the Code to the effect that the
Servicer or Subservicer shall make reports of foreclosures and abandonments of any mortgaged property for each
year beginning in 200_, the Servicer or Subservicer shall file reports relating to each instance occurring during
the previous calendar year in which the Issuer (a) acquired an interest in any Mortgaged Property through
foreclosure or other comparable conversion in full or partial satisfaction of a Mortgage Loan, or (b) knew or had
reason to know that any Mortgaged Property had been abandoned. The reports from the Servicer or Subservicer
shall be in form and substance sufficient to meet the reporting requirements imposed by Section 6050J and
Section 6050H (reports relating to mortgage interest received) of the Code.
Section 3.17 Assignments; Recordings of Assignments.
(a) Concurrently herewith, the Depositor has contracted to acquire the Mortgage Loans from the
Seller and the Issuer has Granted its right, title and interest in the Mortgage Loans and other Transferred
Property constituting the Trust Estate to the Indenture Trustee to secure payments on the Notes. The Seller will
deliver the original Loan Agreements to the Servicer on behalf of the Depositor, endorsed or assigned in blank,
to effect the transfer to the Issuer of the Loan Agreements and all related Mortgages and other loan documents.
The parties hereto acknowledge and agree that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Depositor, from the Depositor to the Issuer and from the Issuer to the
Indenture Trustee.
(b) If the credit rating of Wachovia is withdrawn or reduced to "____" by Standard & Poor's or
"____" by [Xxxxx'x], the Servicer shall, within 30 days of any such withdrawal or reduction, at its own expense,
prepare Assignments of Mortgage (which may be included in one or more blanket assignments if permitted by
applicable law) in recordable form from the Seller to "[____________], as Indenture Trustee under that certain
Indenture dated as of _____ __, 200_, for Wachovia Asset Funding Trust, LLC [______] Trust". In addition, if the
credit rating of Wachovia is withdrawn or reduced to below "____" by Standard & Poor's or below "____" by
[Xxxxx'x], the Servicer shall, within 60 days of any such withdrawal or reduction, at its own expense, complete
and submit for recording in the appropriate public office for real property records the Assignments of Mortgage
for each Mortgage Loan, provided that no such recordation will be required in any state where, in the opinion of
counsel acceptable to the Enhancer, such recording is not required to protect the Indenture Trustee's interests
in the Mortgage Loan against the claim of any subsequent transferee or any creditor of the Seller. While such
assignment to be recorded is being recorded, the Servicer shall retain a photocopy of such assignment. If any
assignment is lost or returned unrecorded to the Servicer because of any defect therein, the Servicer shall
prepare a substitute assignment or cure such defect, as the case may be, and the Servicer shall cause such
assignment to be recorded in accordance with this paragraph. Any Assignment of Mortgage required to be recorded
hereunder shall be retained in the Mortgage File.
Section 3.18 [Reserved].
Section 3.19 Funding Account and Distribution Account.
(a) No later than the Closing Date, the Indenture Trustee shall establish and maintain on behalf of
the Enhancer and the Noteholders one or more segregated trust accounts, which shall be Eligible Accounts, titled
"Funding Account, [_________________], as Indenture Trustee for Wachovia Asset Funding Trust, LLC [______] Trust"
(the "Funding Account"). On the Business Day prior to each Payment Date during the Revolving Period, the
Servicer shall withdraw from the Custodial Account and deposit (x) into the Funding Account (i) the aggregate
amount of Principal Collections remaining after the purchase of all Additional Balances and Subsequent Mortgage
Loans, and (ii) on and after the Payment Date occurring in [_____] 200_, from Excess Spread the amount necessary
to be applied so that the Overcollateralization Amount is not less than the Overcollateralization Target Amount,
and (y) into the Distribution Account established by the Certificate Paying Agent, the Additional Balance
Increase Amount, in each case to the extent available and subject to the provisions of Section 3.05(a) of the
Indenture.
(b) On each Subsequent Transfer Date, the Servicer shall instruct the Indenture Trustee in writing
to withdraw from the Funding Account an amount equal to the aggregate Principal Balance as of the related
Subsequent Cut-Off Date of the Subsequent Mortgage Loans to be sold to the Trust on such Subsequent Transfer Date
and allocate such withdrawal to amounts on deposit in the Funding Account, and to pay such amount to or upon the
order of the Seller upon satisfaction of the conditions set forth in this Agreement, in the Purchase Agreement
and in the related Subsequent Transfer Agreement with respect thereto.
(c) The Servicer may cause the institution maintaining the Funding Account to invest any funds
therein in Permitted Investments having a maturity of up to 90 days or maturing or otherwise available not later
than the Business Day preceding the related Payment Date on which funds are scheduled to be withdrawn to purchase
Subsequent Mortgage Loans or Additional Balances, provided that no such investment may be sold or disposed of
prior to maturity. If no instructions are received as to which Permitted Investments the funds are to be
invested in, the funds shall be invested in Permitted Investments described in clause (v) of such definition. In
addition, no such Permitted Investment shall be purchased at a price in excess of par. At any time when the
Indenture Trustee is maintaining the Funding Account, any request by the Servicer to invest funds on deposit
therein shall be in writing, delivered to the Indenture Trustee at or before 10:30 a.m., placeStateNew York time,
if such investment is to be made on such day. The Servicer shall certify that the requested investment is a
Permitted Investment maturing at or prior to the time required hereby. Any such investment shall be registered
in the name of the Indenture Trustee or its nominee, and to the extent that any such investment is certificated,
such investment shall be maintained with the Indenture Trustee at its Corporate Trust Office. All net income or
other gain received from any such investment shall be deposited into or credited to the Custodial Account as
Interest Collections, and may be withdrawn therefrom in accordance with Section 3.05 of the Indenture.
(d) From time to time the Indenture Trustee shall make withdrawals from the Funding Account in
accordance with written instructions from the Servicer as follows:
(i) on each Payment Date during the Revolving Period, any amounts on deposit in the
Funding Account, including Excess Spread, shall be withdrawn and applied, to the extent available to the Seller,
as designee of the Depositor, as payment for Additional Balances, if any, in an amount equal to (A) the aggregate
of all Draws during the related Collection Period or (B) if the Servicer has applied amounts on deposit in the
Custodial Account representing Principal Collections received during such Collection Period to the purchase of
Additional Balances, the excess, if any, of the aggregate of all Draws during the related Collection Period over
the amount on deposit in the Funding Account;
(ii) on each Subsequent Transfer Date, any amounts on deposit in the Funding Account, to
the extent not used to purchase Additional Balances, shall be withdrawn and applied as payment for Subsequent
Mortgage Loans, if any, in an amount equal to the aggregate Principal Balance as of the related Subsequent
Cut-Off Date of the Subsequent Mortgage Loans;
(iii) prior to 3:00 p.m. (EST) on the Business Day prior to the Payment Date immediately
following the last day of the Revolving Period, any amounts remaining on deposit in the Funding Account, if any,
after giving effect to clauses (i) and (ii) above, shall be first deposited into the Distribution Account in an
amount equal to the lesser of (A) the Additional Balance Increase Amount and (B) the amount on deposit in the
Funding Account, and then shall be deposited to the Note Payment Account for payment to the Noteholders pursuant
to Section 3.05 of the Indenture.
Section 3.20 [Reserved].
Section 3.21 P&I Advances.
(a) The Servicer, in its sole discretion, may deposit into the Custodial Account (from its own
funds) an amount equal to the aggregate amount of principal of or interest on Mortgage Loans that were delinquent
as of the end of any Collection Period ("P&I Advances"). The Servicer shall notify the Indenture Trustee and the
Paying Agent by a certificate of the Servicing Officer of (i) the aggregate amount of P&I Advances for a Payment
Date and (ii) the amount of any Nonrecoverable P&I Advances for such Payment Date.
(b) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made
hereunder or shall be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I
Advance. On the fourth Business Day before each Payment Date, the Servicer shall determine whether each P&I
Advance made with respect to any previous Payment Date is a Nonrecoverable P&I Advance.
Section 3.22 Transfer of Mortgage Loans.
(a) Subject to the conditions set forth below, the Servicer, upon receipt of written notice and
direction from the Issuer, shall cause the retransfer of Mortgage Loans from the Trust Estate to the Issuer as of
the close of business on a Payment Date (the "Transfer Date"). On the fifth Business Day (the "Transfer Notice
Date") prior to the Transfer Date designated in such notice, the Servicer shall give the Indenture Trustee, the
Rating Agencies, the Paying Agent and the Enhancer a notice of the proposed retransfer that contains a list of
the Mortgage Loans to be retransferred. Such retransfers of Mortgage Loans shall be permitted upon satisfaction
of the following conditions:
(i) No Rapid Amortization Event has occurred;
(ii) On the Transfer Date, the Overcollateralization Amount (after giving effect to the
removal from the Trust Estate of the Mortgage Loans proposed to be retransferred) will equal or exceed the
Overcollateralization Target Amount;
(iii) The retransfer of any Mortgage Loans on any Transfer Date during the Managed
Amortization Period shall not, in the reasonable belief of the Servicer, cause a Rapid Amortization Event to
occur or an event which with notice or lapse of time or both would constitute a Rapid Amortization Event;
(iv) On or before the Transfer Date, the Servicer shall have delivered to the Indenture
Trustee and the Paying Agent a revised Mortgage Loan Schedule showing that the Mortgages Loans transferred to the
Certificateholders are no longer owned by the Trust Estate;
(v) The Servicer shall represent and warrant that the Mortgage Loans to be removed from
the Trust Estate were selected at random and the Servicer shall have received the consent of the Enhancer as to
the selection of the particular Mortgage Loans to be removed; and
(vi) The Enhancer shall have consented to the Transfer;
(vii) Notice of such removal has been given to the Rating Agencies;
(viii) Such transfer may only occur once per month;
(ix) The Outstanding Principal Balance of the Transferred Mortgage Loans shall not be
greater than the Outstanding Additional Balance Increase Amount immediately prior to such transfer; and
(x) The Servicer shall have delivered to the Indenture Trustee, the Paying Agent and the
Enhancer an Officer's Certificate certifying that the items set forth in subparagraphs (i) through (ix),
inclusive, have been performed or are true and correct, as the case may be. The Indenture Trustee and the Paying
Agent may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to
the matters set forth therein and shall incur no liability in so relying.
The Servicer shall not be permitted to effect the retransfer of any Mortgage Loan except under the
conditions specified above. Upon receiving the requisite notice and direction from the Issuer, the Servicer
shall perform in a timely manner those acts required of it, as specified above. Upon satisfaction of the above
conditions, on the Transfer Date the Servicer shall deliver, or cause to be delivered, to the Issuer a written
itemization of each Mortgage Loan being transferred, together with the Mortgage File for each such Mortgage Loan,
and the Indenture Trustee shall execute and deliver to the Issuer or its designee such other documents prepared
by the Servicer as shall be reasonably necessary to transfer such Mortgage Loans to the Certificateholders. Any
such transfer of the Trust Estate's right, title and interest in and to Mortgage Loans shall be without recourse,
representation or warranty by or of the Indenture Trustee or the Trust Estate to the Issuer or its designee.
ARTICLE IV
Servicing Certificate
Section 4.01 Statements to Securityholders.
(a) With respect to each Payment Date, on the Business Day following the related Determination
Date, the Servicer shall forward the Servicing Certificate to the Indenture Trustee and the Paying Agent, and the
Paying Agent, pursuant to Section 3.26 of the Indenture, shall on such Payment Date make such Servicing
Certificate available to each Certificateholder, each Noteholder, the Depositor, the Owner Trustee, the
Certificate Paying Agent, the Paying Agent and each Rating Agency, with a copy to the Enhancer. The Servicing
Certificate shall set forth the following information as to the Notes and Certificates, to the extent applicable:
(i) the applicable Record Date, Determination Date and Payment Date;
(ii) the aggregate amount of payments received with respect to the Mortgage Loans,
including prepayment amounts;
(iii) the Servicing Fee and Subservicing Fee payable to the Servicer and the Subservicer;
(iv) the amount of any other fees or expenses paid, and the identity of the party receiving
such fees or expenses;
(v) the aggregate amount of (a) Interest Collections, (b) Principal Collections (and, with
respect to any Payment Date relating to the Managed Amortization Period, Net Principal Collections) and
(c) Substitution Adjustment Amounts for such Collection Period;
(vi) the amount of such distribution as principal to the Noteholders;
(vii) the amount of such distribution as interest to the Noteholders, the amount thereof, if
any, payable in respect of unpaid Interest Shortfalls, and the amount of any Interest Shortfalls for the related
Payment Date;
(viii) each Deficiency Amount, if any, for such Payment Date and the aggregate amount of
prior draws on the Policy thereunder not yet reimbursed;
(ix) the amount, if any, received under the Yield Maintenance Agreement;
(x) the amount of such distribution to the Certificateholders;
(xi) the amount of any Additional Balance Increase Amount payable to the Certificateholders
and the amount of Principal Collections paid in respect of such Additional Balance Increase Amount;
(xii) the aggregate Principal Balance of the Mortgage Loans as of the end of the preceding
Collection Period;
(xiii) the number and aggregate Principal Balances of Mortgage Loans (a) as to which the
Minimum Monthly Payment is delinquent for 30-59 days, 60-89 days, 90-119 days, 120-149 days, 150-179 days and 180
or more days, respectively, (b) the related Mortgaged Property of which has been foreclosed upon and (c) as to
which the related Mortgaged Property has become REO Property, in each case as of the end of the preceding
Collection Period; provided, however, that such information shall not be provided on the statements relating to
the first Payment Date;
(xiv) LIBOR for the related Interest Period;
(xv) the Note Rate for the Notes for such Payment Date;
(xvi) the Net WAC Rate for the related Collection Period;
(xvii) prior to the second Determination Date following the commencement of the Rapid
Amortization Period, the aggregate amount of Additional Balances created during the previous Collection Period
and conveyed to the Issuer prior to the commencement of the Rapid Amortization Period;
(xviii) the aggregate Liquidation Loss Amounts (other than amounts allocated in respect of the
Excluded Amount) with respect to the related Collection Period, the amount distributed as principal to
Noteholders in respect of Liquidation Loss Amounts and the aggregate of the Liquidation Loss Amounts (minus any
Subsequent Recovery Amounts and other than amounts allocated in respect of the Excluded Amount) from all
Collection Periods to date expressed as dollar amount and as a percentage of the aggregate Cut-Off Date Principal
Balances of the Mortgage Loans;
(xix) the Note Balance of the Notes and the Certificate Balance of the Certificates after
giving effect to the distribution of principal on such Payment Date;
(xx) the balance of the Funding Account as of the end of the preceding Collection Period;
(xxi) the Percentage Interest applicable to each of the Securities, after application of
payments made on such Payment Date;
(xxii) the Overcollateralization Amount as of the end of the preceding Collection Period;
(xxiii) the aggregate Principal Balance of Subsequent Mortgage Loans transferred to the Trust
Estate since the Closing Date;
(xxiv) reserved;
(xxv) reserved;
(xxvi) on or after the Stepdown Date, a statement (yes or no) as to whether each of the
Stepdown Delinquency Test and the Stepdown Cumulative Loss Test have been met as of the related Payment Date;
(xxvii) the aggregate outstanding Principal Balance of the three largest Mortgage Loans as of
the close of business on the last day of the related Collection Period;
(xxviii) the Overcollateralization Target Amount;
(xxix) the number of Mortgage Loans that are the subject of a Promotional Rate and the
aggregate amount of Promotional Advances with respect to such Mortgage Loan;
(xxx) any material modifications, extensions or waivers to the terms of the Mortgage Loans
during the Collection Period or that have cumulatively become material over time; and
(xxxi) any material breaches of Mortgage Loan representations, warranties or covenants in the
Purchase Agreement.
In the case of information furnished pursuant to clauses (ii) and (iii) above, the amounts shall be
expressed as an aggregate dollar amount per Note or Certificate, as applicable, with a $______ denomination and
per Certificate with a denomination equal to a 100% Percentage Interest.
If a Managed Amortization Event, a Rapid Amortization Event or a Servicing Default shall occur, on the
Business Day following the related Determination Date, the Servicer shall forward to the Indenture Trustee and
the Paying Agent, a statement to such effect, including the nature of such Rapid Amortization Event or Servicing
Default. The Paying Agent shall deliver or cause to be delivered by mail to each Certificateholder, each
Noteholder, the Enhancer, the Depositor, the Owner Trustee, the Certificate Paying Agent and each Rating Agency,
notice of such Managed Amortization Event, Rapid Amortization Event or Servicing Default, including, in the case
of a Rapid Amortization Event or a Servicing Default, the nature thereof. Such statement may be included in, or
separate from, the regular statement sent to Securityholders.
The Paying Agent shall make the Servicing Certificate (and, at its option, any additional files
containing the same information in an alternative format) available each month to Securityholders and the
Enhancer, and other parties to this Agreement via the Paying Agent's internet website. The Paying Agent's
internet website shall initially be located at "[_________]". Assistance in using the website can be obtained by
calling the Paying Agent's customer service desk at [(___) ___-____]. Parties that are unable to use the above
distribution option are entitled to have a paper copy mailed to them via first class mail by calling the customer
service desk and indicating such. The Paying Agent shall have the right to change the way the statements to
Securityholders are distributed in order to make such distribution more convenient and/or more accessible to the
above parties and the Paying Agent shall provide timely and adequate notification to all above parties regarding
any such changes. The Paying Agent may require registration and the acceptance of a disclaimer in connection with
access to its website.
(b) The Servicer shall forward to the Paying Agent any other information reasonably requested by
the Paying Agent necessary to make distributions pursuant to Section 3.05 of the Indenture. Prior to the close
of business on the Business Day next succeeding each Determination Date, the Servicer shall furnish a written
statement to the Certificate Paying Agent, the Paying Agent and the Indenture Trustee setting forth the aggregate
amounts required to be withdrawn from the Custodial Account and deposited into the Note Payment Account, Funding
Account and/or Distribution Account on the Business Day preceding the related Payment Date pursuant to
Section 3.04. The determination by the Servicer of such amounts shall, in the absence of obvious error, be deemed
to be presumptively correct for all purposes hereunder, and the Owner Trustee, the Paying Agent and the Indenture
Trustee shall be protected in relying upon the same without any independent check or verification. In addition,
upon the Issuer's written request, the Servicer shall promptly furnish such information reasonably requested by
the Issuer that is reasonably available to the Servicer to enable the Issuer to perform its federal and state
income tax reporting obligations.
Section 4.02 Tax Returns and 1934 Act Reports
(a) The Servicer agrees to perform the obligations of the Servicer set forth in Section 5.03 of the
Trust Agreement. The Servicer will prepare and file or cause to be prepared and filed all tax and information
returns of the Trust Estate.
(b) The Servicer shall prepare all reports on behalf of the Trust Estate, including, but not
limited to, all Forms 8-K and Forms 10-K, and, when applicable, any Form 15, that are required under the
Securities Exchange Act of 1934, as amended, and any certifications required by the Xxxxxxxx-Xxxxx Act of 2002 to
be filed with such Forms 10-K. The Servicer shall continue to file all Forms 8-K and Forms 10-K with respect to
the Trust Estate until directed by the Depositor in writing to discontinue such filings.
Section 4.03 Exchange Act Reporting
(a) The Servicer shall, on behalf of the Depositor and in respect of the Trust Estate, sign and
cause to be filed with the Commission any periodic reports required to be filed under the provisions of the
Exchange Act, and the rules and regulations of the Commission thereunder including, without limitation, reports
on Form 10-K, Form 10-D and Form 8-K. In connection with the preparation and filing of such periodic reports,
the Indenture Trustee shall timely provide to the Servicer (I) a list of Securityholders as shown on the
Certificate Register and the Note Register as of the end of each calendar year, (II) copies of all pleadings,
other legal process and any other documents relating to any claims, charges or complaints involving the Indenture
Trustee, as trustee hereunder, or the Trust Estate that are received by the Indenture Trustee, (III) notice of
all matters that, to the actual knowledge of a Responsible Officer of the Indenture Trustee, have been submitted
to a vote of the Securityholders, other than those matters that have been submitted to a vote of the
Securityholders at the request of the Depositor or the Servicer, and (IV) notice of any failure of the Indenture
Trustee to make any distribution to the Securityholders as required pursuant to this Agreement. Neither the
Servicer nor the Indenture Trustee shall have any liability with respect to the Servicer's failure to properly
prepare or file such periodic reports resulting from or relating to the Servicer's inability or failure to obtain
any information not resulting from the Servicer's own negligence or willful misconduct.
(b) Any Form 10-K filed with the Commission in connection with this Section 4.03 shall include:
(i) A certification, signed by the senior officer in charge of the servicing
functions of the Servicer, in the form attached as Exhibit E hereto or such other form
as may be required or permitted by the Commission (the "Form 10-K Certification"), in
compliance with Rules 13a-14 and 15d-14 under the Exchange Act and any additional
directives of the Commission.
(ii) A report regarding its assessment of compliance during the preceding calendar
year with all applicable servicing criteria set forth in relevant Commission
regulations with respect to mortgage-backed securities transactions taken as a whole
involving the Servicer that are backed by the same types of assets as those backing
the certificates, as well as similar reports on assessment of compliance received from
other parties participating in the servicing function as required by relevant
Commission regulations, as described in Item 1122(a) of Regulation AB. The Servicer
shall obtain from all other parties participating in the servicing function any
required certifications.
(iii) With respect to each assessment report described immediately above, a report
by a registered public accounting firm that attests to, and reports on, the assessment
made by the asserting party, as set forth in relevant Commission regulations, as
described in Regulation 1122(b) of Regulation AB and Section 3.13.
(iv) The servicer compliance certificate required to be delivered pursuant Section
3.12.
(c) In connection with the Form 10-K Certification, the Indenture Trustee shall provide the
Servicer with a back-up certification substantially in the form attached hereto as Exhibit F.
(d) This Section 4.03 may be amended in accordance with this Agreement without the consent of the
Securityholders.
ARTICLE V
Note Payment Account
Section 5.01 Note Payment Account. The Paying Agent shall establish and maintain an Eligible Account
entitled "Wachovia Bank, National Association, as Paying Agent, for the benefit of the Securityholders, the
Indenture Trustee, the Certificate Paying Agent and the Enhancer, pursuant to the Indenture, dated as of _____
__, 200_, among Wachovia Asset Funding Trust, LLC [______] Trust, Wachovia Bank, National Association and
[_________________]" (the "Note Payment Account"). On each Payment Date, amounts on deposit in the Note Payment
Account shall be distributed by the Paying Agent in accordance with Section 3.05 of the Indenture. The Paying
Agent shall invest or cause the institution maintaining the Note Payment Account to invest the funds therein in
Permitted Investments designated in the name of the Paying Agent, which investments shall mature not later than
the Business Day next preceding the Payment Date next following the date of such investment (except that any
investment in the institution with which the Note Payment Account is maintained may mature or be payable on
demand on such Payment Date). In addition, no such Permitted Investment shall be purchased at a price in excess
of par. All income and gain realized from any such investment shall be for the benefit of the Servicer and shall
be subject to its withdrawal or order from time to time, except that an amount equal to one day's interest on any
such investment shall be for the benefit of the Paying Agent. The amount of any losses incurred in respect of
any such investments shall be deposited in the Note Payment Account by the Servicer and the Paying Agent out of
their own funds immediately as realized and shall be allocated between the Servicer and the Paying Agent on a pro
rata basis, such that the percentage of any such loss allocated to the 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 Note
Payment Account were invested in such investment. Subject to Section 8.02(b) of the Indenture, and except as
provided in this Section 5.01, the Paying Agent shall not be liable for investment losses on funds on deposit in
the Note Payment Account.
ARTICLE VI
The Servicer
Section 6.01 Liability of the Servicer. The Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the Servicer herein.
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of, the Servicer. Any
corporation into which the Servicer may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Servicer shall be a party, or any
corporation succeeding to the business of the Servicer, shall be the successor of the Servicer hereunder, without
the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
The Servicer may assign its rights and delegate its duties and obligations under this Agreement,
provided that the Person accepting such assignment or delegation shall be a Person qualified to service mortgage
loans, is reasonably satisfactory to the Enhancer (provided, however, that such consent to assignment may not be
unreasonably withheld), is willing to service the Mortgage Loans and executes and delivers to the Issuer (with a
copy to the Enhancer) an agreement, in form and substance reasonably satisfactory to the Enhancer, that contains
an assumption by such Person of the due and punctual performance and observance of each covenant and condition to
be performed or observed by the Servicer under this Agreement; provided, further, that no Rating Event will occur
as a result of such assignment and delegation (as evidenced by a letter to such effect from each Rating Agency)
if determined without regard to the Policy; provided, further, that the Owner Trustee, the Paying Agent, the
Enhancer and the Indenture Trustee shall receive an Opinion of Counsel to the effect that such assignment or
delegation will not cause the Issuer to be treated as an association (or a publicly-traded partnership) taxable
as a corporation for federal income tax purposes.
Section 6.03 Limitation on Liability of the Servicer and Others. Neither the Servicer nor any of the
directors or officers or employees or agents of the Servicer shall be under any liability to the Issuer, the
Owner Trustee, the Paying Agent, the Indenture Trustee or the Securityholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this Agreement; provided, however, that this
provision shall not protect the Servicer or any such Person against any liability that would otherwise be imposed
by reason of its willful misfeasance, bad faith or gross negligence in the performance of its duties hereunder or
by reason of its reckless disregard of its obligations and duties hereunder. The Servicer and any director or
officer or employee or agent of the Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising hereunder. The Servicer and any
director, officer, employee or agent of the Servicer shall be indemnified by the Issuer and held harmless against
any loss, liability or expense incurred in connection with any legal action relating to this Agreement or the
Securities, including any amount paid to the Owner Trustee, the Paying Agent or the Indenture Trustee pursuant to
Section 6.06(b), other than any loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement)
and any loss, liability or expense incurred by reason of the Servicer's willful misfeasance, bad faith or gross
negligence in the performance of its duties hereunder or by reason of its reckless disregard of its obligations
and duties hereunder. The Servicer shall not be under any obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to service the Mortgage Loans in accordance with this Agreement, and
that in its opinion may involve it in any expense or liability; provided, however, that the Servicer may in its
sole discretion undertake any such action that it may deem necessary or desirable in respect of this Agreement,
the rights and duties of the parties hereto and the interests of the Securityholders and the Enhancer. In such
event, the reasonable legal expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Issuer, and the Servicer shall be entitled to be reimbursed therefor. The
Servicer's right to indemnity or reimbursement pursuant to this Section 6.03 shall survive any resignation or
termination of the Servicer pursuant to Section 6.04 or 7.01 with respect to any losses, expenses, costs or
liabilities arising prior to such resignation or termination (or arising from events that occurred prior to such
resignation or termination).
Section 6.04 Servicer Not to Resign. Subject to the provisions of Section 6.02, the Servicer shall not
resign from the obligations and duties hereby imposed on it except (a) upon determination that the performance of
its obligations or duties hereunder are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it or its subsidiaries or Affiliates, the other
activities of the Servicer so causing such a conflict being of a type and nature carried on by the Servicer or
its subsidiaries or Affiliates at the date of this Agreement or (b) upon satisfaction of the following
conditions: (i) the Servicer shall have proposed a successor servicer to the Issuer and the Indenture Trustee in
writing and such proposed successor servicer is reasonably acceptable to the Issuer, the Indenture Trustee and
the Enhancer; (ii) each Rating Agency shall have delivered a letter to the Issuer, the Enhancer and the Indenture
Trustee prior to the appointment of the successor servicer stating that the proposed appointment of such
successor servicer as Servicer hereunder will not cause a Rating Event, if determined without regard to the
Policy; and (iii) such proposed successor servicer is reasonably acceptable to the Enhancer, as evidenced by a
letter to the Issuer and the Indenture Trustee; provided, however, that no such resignation by the Servicer shall
become effective until such successor servicer or, in the case of (a) above, the Indenture Trustee, as pledgee of
the Mortgage Loans, shall have assumed the Servicer's responsibilities and obligations hereunder or the Indenture
Trustee, as pledgee of the Mortgage Loans, shall have designated a successor servicer in accordance with
Section 7.02. Any such resignation shall not relieve the Servicer of responsibility for any of the obligations
specified in Sections 7.01 and 7.02 as obligations that survive the resignation or termination of the Servicer.
Any such determination permitting the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Indenture Trustee and the Enhancer.
Section 6.05 Delegation of Duties. In the ordinary course of business, the Servicer at any time may
delegate any of its duties hereunder to any Person, including any of its Affiliates, that agrees to conduct such
duties in accordance with standards comparable to those with which the Servicer complies pursuant to
Section 3.01. Such delegation shall not relieve the Servicer of its liabilities and responsibilities with respect
to such duties and shall not constitute a resignation within the meaning of Section 6.04.
Section 6.06 Payment of Indenture Trustee's, the Paying Agent's and Owner Trustee's Fees and Expenses;
Indemnification.
(a) After the Closing Date, the Servicer covenants and agrees to pay to the Owner Trustee, the
Paying Agent, the Note Registrar, the Certificate Paying Agent, the Certificate Registrar, the Indenture Trustee
and any co-trustee of the Indenture Trustee or the Owner Trustee from time to time, and the Owner Trustee, the
Note Registrar, the Certificate Paying Agent, the Certificate Registrar, the Paying Agent, the Indenture Trustee
and any such co-trustee shall be entitled to, reasonable compensation for all services rendered by each of them
in the execution of the trusts created under the Trust Agreement and the Indenture and in the exercise and
performance of any of the powers and duties under the Trust Agreement or the Indenture, as the case may be, of
the Owner Trustee, the Note Registrar, the Certificate Paying Agent, the Certificate Registrar, the Paying Agent,
the Indenture Trustee and any co-trustee, and the Servicer will pay or reimburse the Note Registrar, the
Certificate Paying Agent, the Certificate Registrar, the Paying Agent, the Indenture Trustee and any co-trustee
upon request for all reasonable expenses, disbursements and advances incurred or made by the Note Registrar, the
Certificate Paying Agent, the Certificate Registrar, the Paying Agent, the Indenture Trustee or any co-trustee in
accordance with any of the provisions of this Agreement, the Indenture, the Trust Agreement, or any other Basic
Document (which payment shall not be limited by any law in regards to the compensation of a trustee of an
express trust) except any such expense, disbursement or advance as may arise from its negligence, willful
misfeasance or bad faith. In addition, the Indenture Trustee shall be entitled to be reimbursed from the
Servicer for all reasonable costs associated with the transfer of servicing from the predecessor servicer
pursuant to Section 7.02 hereunder, including, without limitation, any reasonable costs or expenses associated
with the complete transfer of all servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Indenture Trustee to correct any errors or insufficiencies in the servicing data
or otherwise to enable the Indenture Trustee or successor Servicer to service the Mortgage Loans properly and
effectively.
(b) The Servicer agrees to indemnify the Indenture Trustee, the Paying Agent, the Note Registrar,
the Certificate Paying Agent, the Certificate Registrar and the Owner Trustee for, and to hold the Indenture
Trustee (and any Responsible Officer thereof), the Paying Agent, the Note Registrar, the Certificate Paying
Agent, the Certificate Registrar and the Owner Trustee, as the case may be, harmless against, any loss, liability
or expense incurred without negligence, bad faith or willful misconduct on the part of the Indenture Trustee, the
Paying Agent, the Note Registrar, the Certificate Paying Agent, the Certificate Registrar or the Owner Trustee,
as the case may be, arising out of, or in connection with, the acceptance and administration of the Issuer and
the assets thereof, including the costs and expenses (including reasonable legal fees and expenses) of defending
the Indenture Trustee, the Paying Agent, the Note Registrar, the Certificate Paying Agent, the Certificate
Registrar or the Owner Trustee, as the case may be, against any claim in connection with the exercise or
performance of any of its powers or duties under any Basic Document; provided, however, that:
(i) with respect to any such claim, the Indenture Trustee, the Paying Agent, the Note
Registrar, the Certificate Paying Agent, the Certificate Registrar or Owner Trustee, as the case may be, shall
have given the Servicer written notice thereof promptly after the Indenture Trustee, the Paying Agent, the Note
Registrar, the Certificate Paying Agent, the Certificate Registrar or Owner Trustee, as the case may be, shall
have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Issuer, the Indenture Trustee, the
Paying Agent, the Note Registrar, the Certificate Paying Agent, the Certificate Registrar or Owner Trustee, as
the case may be, shall cooperate and consult fully with the Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Servicer shall not be
liable for settlement of any claim by the Indenture Trustee, the Paying Agent, the Note Registrar, the
Certificate Paying Agent, the Certificate Registrar or the Owner Trustee, as the case may be, entered into
without the prior consent of the Servicer.
No termination of this Agreement or resignation or removal of the Paying Agent, the Note Registrar, the
Certificate Paying Agent, the Certificate Registrar or the Indenture Trustee shall affect the obligations created
by this Section 6.06 of the Servicer to indemnify the Indenture Trustee, the Paying Agent, the Note Registrar,
the Certificate Paying Agent, the Certificate Registrar and the Owner Trustee under the conditions and to the
extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the Servicer in this Section 6.06(b)
shall not pertain to any loss, liability or expense of the Indenture Trustee, the Paying Agent, the Note
Registrar, the Certificate Paying Agent, the Certificate Registrar or the Owner Trustee, including the costs and
expenses of defending itself against any claim, incurred in connection with any actions taken by the Indenture
Trustee, the Paying Agent, the Note Registrar, the Certificate Paying Agent, the Certificate Registrar or the
Owner Trustee at the written direction of the Noteholders or Certificateholders, as the case may be, pursuant to
the terms of this Agreement.
ARTICLE VII
Default
Section 7.01 Servicing Default.
(a) If a Servicing Default shall occur and be continuing, then, and in every such case, so long as
a Servicing Default shall not have been remedied by the Servicer, either the Depositor, the Enhancer (so long as
no Enhancer Default exists), or the Indenture Trustee, at the written direction of the holders of at least 51% of
the Outstanding Note Balance (if an Enhancer Default exists) by notice then given in writing to the Servicer, the
Issuer and the Indenture Trustee, may terminate all of the rights and obligations of the Servicer as servicer
under this Agreement other than its right to receive servicing compensation and reimbursement for servicing the
Mortgage Loans hereunder during any period prior to the date of such termination, and the Issuer, the Enhancer or
the Indenture Trustee (with the written consent of the Enhancer), may exercise any and all other remedies
available at law or equity. The Servicer shall immediately notify the Indenture Trustee, the Issuer and each
Rating Agency, the Enhancer and the Issuer in writing of any Servicing Default as to which it has actual
knowledge. On or after the receipt by the Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Securities or the Mortgage Loans or otherwise, shall
pass to and be vested, subject to Section 7.02 hereof, as pledgee of the Mortgage Loans, in the Indenture
Trustee, pursuant to and under this Section 7.01; and, without limitation, the Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to complete the transfer and
endorsement of each Mortgage Loan and related documents, or otherwise. The Servicer agrees to cooperate with the
Issuer, the Enhancer and Indenture Trustee, as the case may be, in effecting the termination of the
responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the
Indenture Trustee for the administration by it of all cash amounts relating to the Mortgage Loans that shall at
the time be held by the Servicer and to be deposited by it in the Custodial Account, or that have been deposited
by the Servicer in the Custodial Account or thereafter received by the Servicer with respect to the Mortgage
Loans. All reasonable costs and expenses (including, but not limited to, attorneys' fees) incurred in connection
with amending this Agreement to reflect such succession as Servicer pursuant to this Section 7.01 shall be paid
by the predecessor Servicer (or if the predecessor Servicer is the Indenture Trustee, the initial Servicer) upon
presentation of reasonable documentation of such costs and expenses.
(b) Notwithstanding any termination of the activities of the Servicer hereunder, the Servicer shall
be entitled to receive, out of any late collection of a payment on a Mortgage Loan that was due prior to the
notice terminating the Servicer's rights and obligations hereunder and received after such notice, that portion
to which the Servicer would have been entitled pursuant to Sections 3.03 and 3.09, as well as its Servicing Fee
in respect thereof, and any other amounts payable to the Servicer hereunder the entitlement to which arose prior
to the termination of its activities hereunder.
Notwithstanding the foregoing, a delay in or failure of performance under clause (i) or (ii) of the
definition of Servicing Default, after the applicable grace periods specified therein, shall not constitute a
Servicing Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the
Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or
undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes,
earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using
reasonable efforts to perform its respective obligations in a timely manner in accordance with the terms of this
Agreement. The Servicer shall provide the Indenture Trustee, the Paying Agent, the Enhancer and the
Securityholders with written notice of any such failure or delay by it, together with a description of its
efforts to so perform its obligations. The Servicer shall immediately notify the Indenture Trustee, the Paying
Agent, the Enhancer and the Issuer in writing of any Servicing Default.
(c) If the Servicer Termination Triggers shall occur and be continuing with respect to a Payment
Date, then in each and every such case, and so long as no Enhancer Default exists, the Enhancer may send written
notice to the Securityholders of its intention to remove the Servicer and appoint a successor Servicer and the
date on which such removal will take place; provided, however, that such date shall be at least 30 days from the
date of such notice. None of the Indenture Trustee, the Paying Agent or the Securityholders shall have the right
to initiate removal of the Servicer if a Servicer Termination Trigger has occurred.
Section 7.02 Indenture Trustee to Act; Appointment of Successor.
(a) On and after the time the Servicer receives a notice of termination pursuant to Section 7.01 or
sends a notice pursuant to Section 6.04, the Indenture Trustee as pledgee of the Mortgage Loans shall itself
become, or shall appoint an affiliate of the Indenture Trustee to become, the successor in all respects to the
Servicer in its capacity as servicer under this Agreement and the transactions set forth or provided for herein
and shall immediately assume all of the obligations of the Servicer to make advances on Mortgage Loans under
Section 3.03(b) and will be subject to all other responsibilities, duties and liabilities relating thereto placed
on the Servicer by the terms and provisions hereof as soon as practicable, but in no event later than 90 days
after the Indenture Trustee becomes successor servicer. During such 90 day period, the Indenture Trustee, with
the written consent of the Enhancer, may require the Servicer being terminated to continue to perform such
servicing responsibilities (other than making advances on the Mortgage Loans under Section 3.03(b)) as the
Indenture Trustee deems appropriate. In such event, the Servicer being terminated shall provide such services as
directed by the Indenture Trustee until the earliest of the date the Indenture Trustee notifies such Servicer to
discontinue providing such services, the date on which a successor servicer or the Indenture Trustee has assumed
all responsibilities, duties and liabilities of the Servicer hereunder or the expiration of the 90 day period.
The Servicer shall be entitled to the Servicing Fee hereunder for any period during which the Servicer is
obligated to provide such services as if no termination of the Servicer had occurred. Nothing in this Agreement
or in the Trust Agreement shall be construed to permit or require the Indenture Trustee to (i) succeed to the
responsibilities, duties and liabilities of the initial Servicer in its capacity as Seller under the Purchase
Agreement, (ii) be responsible or accountable for any act or omission of the Servicer prior to the issuance of a
notice of termination hereunder, (iii) require or obligate the Indenture Trustee, in its capacity as successor
Servicer, to purchase, repurchase or substitute any Mortgage Loan, (iv) fund any Additional Balances with respect
to any Mortgage Loan, (v) fund any losses on any Permitted Investment directed by any other Servicer, or (vi) be
responsible for the representations and warranties of the predecessor Servicer. As compensation therefor, the
Indenture Trustee shall be entitled to such compensation as the Servicer would have been entitled to hereunder if
no such notice of termination had been given. Notwithstanding the foregoing, if the Indenture Trustee is (x)
unwilling to act as successor Servicer itself or to appoint an affiliate to become successor Servicer, or (y)
legally unable so to act, the Indenture Trustee as pledgee of the Mortgage Loans may (in the situation described
in clause (x)) or shall (in the situation described in clause (y)) appoint or petition a court of competent
jurisdiction to appoint any established housing and home finance institution, bank or other mortgage loan
servicer having a net worth of not less than $10,000,000 as the successor to the Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder; provided,
however, that any such successor Servicer shall be acceptable to the Enhancer, as evidenced by the Enhancer's
prior written consent, which consent shall not be unreasonably withheld. Pending appointment of a successor to
the Servicer hereunder, unless the Indenture Trustee is prohibited by law from so acting, the Indenture Trustee
itself shall act or appoint an affiliate to act in such capacity as provided above. In connection with such
appointment and assumption, the successor shall be entitled to receive compensation out of payments on Mortgage
Loans in an amount equal to the compensation that the Servicer would otherwise have received pursuant to
Section 3.11 (or such other compensation as the Indenture Trustee and such successor shall agree). The
appointment of a successor Servicer shall not affect any liability of the predecessor Servicer that may have
arisen under this Agreement prior to its termination as Servicer (including the obligation to purchase Mortgage
Loans pursuant to Section 3.01, to pay any deductible under an insurance policy pursuant to Section 3.05 or to
indemnify the Indenture Trustee pursuant to Section 6.06), nor shall any successor Servicer (including the
Indenture Trustee) be liable for any acts or omissions of the predecessor Servicer or for any breach by such
Servicer of any of its representations or warranties contained herein or in any related document or agreement.
The Indenture Trustee and such successor shall take such action, consistent with this Agreement and the
requirements (including any notice requirements) of applicable law, as shall be necessary to effectuate any such
succession. Notwithstanding the foregoing, the Indenture Trustee, in its capacity as successor Servicer, shall
not be responsible for the lack of information and/or documents that it cannot obtain through reasonable efforts
or for failing to take any action that the Indenture Trustee is legally prohibited from taking by applicable law.
(b) Any successor, including the Indenture Trustee, to the Servicer as servicer shall during its
term as Servicer (i) continue to service and administer the Mortgage Loans for the benefit of the
Securityholders, (ii) maintain in force a policy or policies of insurance covering errors and omissions in the
performance of its obligations as Servicer hereunder and a fidelity bond in respect of its officers, employees
and agents to the same extent as the Servicer is so required pursuant to Section 3.13 and (iii) be bound by the
terms of the Insurance Agreement.
(c) Any successor Servicer, including the Indenture Trustee, shall not be deemed in default or to
have breached its duties hereunder if the predecessor Servicer shall fail to deliver any required deposit to the
Custodial Account or otherwise cooperate with any required servicing transfer or succession hereunder.
(d) All reasonable costs and expenses (including attorneys' fees) incurred in connection with the
transfer of Mortgage Files and the servicing duties to a successor servicer hereunder shall be paid by the
related predecessor servicer.
Section 7.03 Notification to Securityholders. Upon any termination of or appointment of a successor to
the Servicer pursuant to this Article VII or Section 6.04, the Indenture Trustee shall give prompt written notice
thereof to the Securityholders, the Enhancer, the Issuer and each Rating Agency.
ARTICLE VIII
Miscellaneous Provisions
Section 8.01 Amendment. This Agreement may be amended from time to time by the parties hereto, but only
by written instrument signed by the parties hereto; provided, however, that any such amendment shall be
accompanied by a letter from each Rating Agency to the effect that such amendment will not result in a Rating
Event if determined without regard to the Policy; provided, further, that the Enhancer, the Paying Agent and the
Indenture Trustee shall consent thereto.
Section 8.02 Exhibits. The exhibits to this Agreement are hereby incorporated and made a part hereof
and are an integral part of this Agreement.
Section 8.03 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.04 Notices. All demands, notices and communications hereunder shall be in writing and shall
be deemed to have been duly given if personally delivered at or mailed by certified mail, return receipt
requested, to (a) in the case of the Servicer, Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: [__________], Re: Wachovia Asset Funding Trust, LLC [______] Trust, Facsimile: (704)
383-3878, (b) in the case of the Enhancer, [________], [address], Attention: [________], telecopier number (___)
___-____, (c) in the case of [Xxxxx'x, Home Mortgage Loan Monitoring Group, 4th Floor, 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000], (d) in the case of [Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Surveillance Group], (e) in the case of the Owner Trustee, [________], [address],
Attention: [________], telecopier number (___) ___-____, (f) in the case of the Issuer, Wachovia Asset Funding
Trust, LLC [______] Trust, c/o the Owner Trustee at the address set forth in clause (e) above, (g) in the case of
the Indenture Trustee, at the Corporate Trust Office of the Indenture Trustee, and (h) in the case of the Paying
Agent, at the Corporate Trust Office of the Paying Agent; or, with respect to each of the foregoing Persons, at
such other address as shall be designated by such Person in a written notice to the other foregoing Persons. Any
notice required or permitted to be mailed to a Securityholder shall be given by first class mail, postage
prepaid, at the address of such Securityholder as shown in the Note Register or Certificate Register, as the case
may be. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the related Securityholder receives such notice. Any notice or other document
required to be delivered or mailed by the Indenture Trustee to any Rating Agency shall be given on a reasonable
efforts basis and only as a matter of courtesy and accommodation, and the Indenture Trustee shall have no
liability for failure to deliver any such notice or document to any Rating Agency.
Section 8.05 Severability of Provisions. If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of
this Agreement and shall in no way affect the validity or enforceability of the other provisions of this
Agreement or the Securities or the rights of the Securityholders.
Section 8.06 Protection of Confidential Information. The Servicer shall keep confidential and shall not
divulge to any party any information pertaining to the Mortgage Loans or any Mortgagor thereunder, except as
required pursuant to this Agreement and except to the extent that it is necessary and appropriate for the
Servicer to do so in working with legal counsel, auditors, taxing authorities, regulatory authorities or other
governmental agencies or in accordance with the Collection Policy.
Section 8.07 Third-Party Beneficiaries. This Agreement shall inure to the benefit of and be binding
upon the parties hereto, the Securityholders, the Enhancer, the Owner Trustee and their respective successors and
permitted assigns. Except as otherwise provided in this Agreement, no other Person shall have any right or
obligation hereunder. The Enhancer shall be an express third-party beneficiary of this Agreement.
Section 8.08 Counterparts. This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and
the same instrument.
Section 8.09 Effect of Headings and Table of Contents. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.
Section 8.10 Termination upon Purchase by the Servicer or Liquidation of All Mortgage Loans; Partial
Redemption.
(a) The respective obligations and responsibilities of the Servicer, the Issuer, the Paying Agent
and the Indenture Trustee created hereby shall terminate upon the last action required to be taken by the Issuer
pursuant to the Trust Agreement and by the Indenture Trustee and the Paying Agent pursuant to the Indenture
following the earlier of:
(i) the date on or before which the Indenture or the Trust Agreement is terminated, or
(ii) the purchase by the Servicer from the Issuer of all Mortgage Loans and REO Property in
accordance with Section 8.10(b).
(b) The Servicer shall have the right to purchase from the Issuer all of the Mortgage Loans and
related REO Property if the Note Balance of the Notes as of any Payment Date is less than 10% of the Note Balance
of the Notes as of the Closing Date, (provided that a draw on the Policy would not occur as a result of such
purchase, and provided further that the purchase price will provide sufficient funds to pay the outstanding Note
Balance and accrued and unpaid interest on the Notes to the Payment Date on which such amounts are to be
distributed to the Securityholders), at a price equal to 100% of the aggregate unpaid Principal Balance of all
such remaining Mortgage Loans, plus accrued and unpaid interest thereon at the weighted average of the Loan Rates
thereon up to the date preceding the Payment Date on which such amounts are to be distributed to the
Securityholders (and in the case of REO Property, the fair market value of the REO Property), plus any amounts
due and owing to the Enhancer under the Insurance Agreement related to the Mortgage Loans or the Notes (and any
unpaid Servicing Fee relating to the Mortgage Loans shall be deemed to have been paid at such time), plus any
Interest Shortfall and interest owed thereon to the Noteholders. The purchase price paid by the Servicer shall
also include any amounts owed by the Seller pursuant to Section 3.01(d) of the Purchase Agreement in respect of
any liability, penalty or expense that resulted from a breach of the representation and warranty set forth in
Section 3.01(b)(xi), that remain unpaid on the date of such purchase.
The Servicer shall send written notice to the Indenture Trustee, the Paying Agent and the
Enhancer of its intent to exercise its right to purchase any of the Mortgage Loans pursuant to this
Section 8.10(b).
If such right is exercised by the Servicer, the Servicer shall deposit the amount calculated
pursuant to this Section 8.08(b) with the Indenture Trustee or the Paying Agent pursuant to Section 4.10 of the
Indenture and, upon the receipt of such deposit, the Indenture Trustee shall release to the Servicer, the files
pertaining to the Mortgage Loans being purchased. The Servicer, at its expense, shall prepare and deliver to the
Indenture Trustee for execution, at the time the related Mortgage Loans are to be released to the Servicer,
appropriate documents assigning each such Mortgage Loans from the Indenture Trustee or the Issuer to the Servicer
or the appropriate party.
Section 8.11 Certain Matters Affecting the Indenture Trustee and the Paying Agent. For all purposes of
this Agreement, in the performance of any of each of their duties or in the exercise of any of either of their
powers hereunder, the Indenture Trustee and the Paying Agent shall be subject to and entitled to the benefits of
Article VI of the Indenture.
Section 8.12 Owner Trustee, Paying Agent and Indenture Trustee Not Liable for Related Documents. The
recitals contained herein shall be taken as the statements of the Servicer, and the Owner Trustee, the Paying
Agent and the Indenture Trustee assume no responsibility for the correctness thereof. The Owner Trustee, the
Paying Agent and the Indenture Trustee make no representations as to the validity or sufficiency of this
Agreement, of any Basic Document or Related Document, or of the Certificates (other than the signatures of the
Owner Trustee and the Indenture Trustee on the Certificates) or the Notes. The Owner Trustee, the Paying Agent
and the Indenture Trustee shall at no time have any responsibility or liability with respect to the sufficiency
of the Trust Estate or its ability to generate the payments to be distributed to Certificateholders under the
Trust Agreement or the Noteholders under the Indenture, including the compliance by the Depositor, the Seller or
the Servicer with any warranty or representation made under any Basic Document or the accuracy of any such
warranty or representation, or any action of any person taken in the name of the Owner Trustee, the Paying Agent
or the Indenture Trustee.
ARTICLE IX
Miscellaneous Provisions
Section 9.01 Intent of the Parties; Reasonableness The Depositor, the Indenture Trustee and the
Servicer acknowledge and agree that the purpose of this Article IX is to facilitate compliance by the Depositor
with the provisions of Regulation AB and related rules and regulations of the Commission. The Depositor shall
not exercise its right to request delivery of information or other performance under these provisions other than
in good faith, or for purposes other than compliance with the Securities Act, the Exchange Act and the rules and
regulations of the Commission under the Securities Act and the Exchange Act. Each of the Servicer and the
Indenture Trustee acknowledges that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the
mortgage-backed securities markets, advice of counsel, or otherwise, and agrees to comply with reasonable
requests made by the Depositor in good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. Each of the Servicer and the Indenture Trustee shall cooperate
reasonably with the Depositor to deliver to the Depositor (including any of its assignees or designees), any and
all disclosure, statements, reports, certifications, records and any other information necessary in the
reasonable, good faith determination of the Depositor to permit the Depositor to comply with the provisions of
Regulation AB.
Section 9.02 Additional Representations and Warranties of the Indenture Trustee
(a) The Indenture Trustee shall be deemed to represent and warrant to the Depositor as of the date
hereof and on each date on which information is provided to the Depositor under Sections 9.01, 9.02(b) or 9.03
that, except as disclosed in writing to the Depositor prior to such date: (i) it is not aware and has not
received notice that any default, early amortization or other performance triggering event has occurred as to any
other Securitization Transaction due to any default of the Indenture Trustee; (ii) there are no aspects of its
financial condition that could have a material adverse effect on the performance by it of its trustee obligations
under this Agreement or any other Securitization Transaction as to which it is the trustee; (iii) there are no
material legal or governmental proceedings pending (or known to be contemplated) against it that would be
material to Noteholders; (iv) there are no relationships or transactions (as described in Item 1119(b) of
Regulation AB) relating to the Indenture Trustee with respect to the Depositor or any sponsor, issuing entity,
servicer, trustee, originator, significant obligor, enhancement or support provider or other material transaction
party (as each of such terms are used in Regulation AB) relating to the Securitization Transaction contemplated
by this Agreement, as identified by the Depositor to the Indenture Trustee in writing as of the Closing Date
(each, a "Transaction Party") that are outside the ordinary course of business or on terms other than would be
obtained in an arm's length transaction with an unrelated third party, apart from the Securitization Transaction,
and that are material to the investors' understanding of the Term Notes; and (v) the Indenture Trustee is not an
affiliate (as contemplated by Item 1119(a) of Regulation AB) of any Transaction Party. The Depositor shall
notify the Indenture Trustee of any change in the identity of a Transaction Party after the Closing Date.
(b) If so requested by the Depositor on any date following the Closing Date, the Indenture Trustee
shall, within five Business Days following such request, confirm in writing the accuracy of the representations
and warranties set forth in paragraph (a) of this Section or, if any such representation and warranty is not
accurate as of the date of such confirmation, provide the pertinent facts, in writing, to the Depositor. Any
such request from the Depositor shall not be given more than once each calendar quarter, unless the Depositor
shall have a reasonable basis for questioning the accuracy of any of the representations and warranties.
Section 9.03 Information to be provided by the Indenture Trustee For so long as the Term Notes are
outstanding, for the purpose of satisfying the Depositor's reporting obligation under the Exchange Act with
respect to any class of Term Notes, the Indenture Trustee shall provide to the Depositor a written description of
(a) any litigation or governmental proceedings pending against the Indenture Trustee as of the last day of each
calendar month that would be material to Noteholders, and (b) any affiliations or relationships (as described in
Item 1119 of Regulation AB) that develop following the Closing Date between the Indenture Trustee and any
Transaction Party of the type described in Section 9.02(a)(iv) or 9.02(a)(v) as of the last day of each calendar
year. Any descriptions required with respect to legal proceedings, as well as updates to previously provided
descriptions, under this Section 9.03 shall be given no later than five Business Days prior to the Determination
Date following the month in which the relevant event occurs, and any notices and descriptions required with
respect to affiliations, as well as updates to previously provided descriptions, under this Section 9.03 shall be
given no later than January 31 of the calendar year following the year in which the relevant event occurs. As of
the related Payment Date with respect to each Report on Form 10-D with respect to the Term Notes filed by or on
behalf of the Depositor, and as of March 15 preceding the date each Report on Form 10-K with respect to the Term
Notes is filed, the Indenture Trustee shall be deemed to represent and warrant that any information previously
provided by the Indenture Trustee under this Article IX is materially correct and does not have any material
omissions unless the Indenture Trustee has provided an update to such information. The Depositor will allow the
Indenture Trustee to review any disclosure relating to material litigation against the Indenture Trustee prior to
filing such disclosure with the Commission to the extent the Depositor changes the information provided by the
Indenture Trustee.
Section 9.04 Report on Assessment of Compliance and Attestation Within 90 days after December 31 of
each year, the Indenture Trustee shall:
(a) deliver to the Depositor a report (in form and substance reasonably satisfactory to the
Depositor) regarding the Indenture Trustee's assessment of compliance with the applicable Servicing Criteria
during the immediately preceding calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB. Such report shall be signed by an authorized officer of the Indenture Trustee, and
shall address each of the Servicing Criteria specified on Exhibit G hereto; and
(b) deliver to the Depositor a report of a registered public accounting firm satisfying the
requirements of Rule 2-01 of Regulation S-X under the Securities Act and the Exchange Act that attests to, and
reports on, the assessment of compliance made by the Indenture Trustee and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act.
Section 9.05 Indemnification; Remedies
(a) The Indenture Trustee shall indemnify the Depositor, each affiliate of the Depositor, the
Servicer and each affiliate of the Servicer, and the respective present and former directors, officers, employees
and agents of each of the foregoing, and shall hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees
and expenses that any of them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, accountants' attestation or other material provided under this Article
IX by or on behalf of the Indenture Trustee (collectively, the "Indenture Trustee Information"), or (B) the
omission or alleged omission to state in the Indenture Trustee Information a material fact required to be stated
in the Indenture Trustee Information or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or
(ii) any failure by the Indenture Trustee to deliver any information, report,
certification, or other material when and as required under this Article IX, other than a failure by the
Indenture Trustee to deliver an accountants' attestation.
(b) In the case of any failure of performance described in clause (ii) of Section 9.05(a), as well
as a failure to deliver an accountants' attestation, the Indenture Trustee shall (i) promptly reimburse the
Depositor for all costs reasonably incurred by the Depositor in order to obtain the information, report,
certification, accountants' attestation or other material not delivered by the Indenture Trustee as required and
(ii) cooperate with the Depositor to mitigate any damages that may result from such failure.
(c) The Depositor and the Servicer shall indemnify the Indenture Trustee, each affiliate of the
Indenture Trustee and the respective present and former directors, officers, employees and agents of the
Indenture Trustee, and shall hold each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that
any of them may sustain arising out of or based upon (i) any untrue statement of a material fact contained or
alleged to be contained in any information provided under this Agreement by or on behalf of the Depositor or
Servicer for inclusion in any report filed with Commission under the Exchange Act (collectively, the "Wachovia
Information"), or (ii) the omission or alleged omission to state in the Wachovia Information a material fact
required to be stated in the Wachovia Information or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) Notwithstanding any provision in this Section 9.05 to the contrary, the parties agree that none
of the Indenture Trustee, the Depositor or the Servicer shall be liable to the other for any consequential or
punitive damages whatsoever, whether in contract, tort (including negligence and strict liability), or any other
legal or equitable principle; provided, however, that such limitation shall not be applicable with respect to
third party claims made against a party.
IN WITNESS WHEREOF, the Servicer, the Issuer, the Paying Agent and the Indenture Trustee have caused
this Agreement to be duly executed by their respective officers or representatives all as of the day and year
first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Servicer
By:____________________________________________________________
Name:
Title:
WACHOVIA ASSET FUNDING TRUST, LLC [_____] TRUST, as Issuer
By: Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee
By:_____________________________________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION, as Paying Agent
By:____________________________________________________________
Name:
Title:
[_________________], not in its individual capacity but solely
as Indenture Trustee
By:_____________________________________________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
EXHIBIT B
COLLECTION POLICY
[See attachment]
EXHIBIT C
LIMITED POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PREMISES:
That [_________________], as indenture trustee (the "Indenture Trustee"), under the indenture dated as
of _____ __, 200_ (the "Indenture"), among Wachovia Asset Funding Trust, LLC [______] Trust, as issuer, Wachovia
Bank, National Association, as Paying Agent, and the Indenture Trustee, a national bank, and having its principal
office located at [address], Attn: _______, hath made, constituted and appointed, and does by these presents
make, constitute and appoint Wachovia Bank, National Association, a national banking association organized and
existing under the laws of the United States of America, its true and lawful Attorney-in-Fact, with full power
and authority to sign, execute, acknowledge, deliver, file for record, and record any instrument on its behalf,
and to perform such other act or acts as may be customarily and reasonably necessary and appropriate, to
effectuate the following enumerated transactions in respect of any of the Mortgages securing a Mortgage Loan and
the related Loan Agreements for which the undersigned is acting as Indenture Trustee for various Securityholders
(whether the undersigned is named therein as mortgagee or beneficiary or has become mortgagee by virtue of
endorsement of such Loan Agreement secured by any such Mortgage) and for which Wachovia Bank, National
Association is acting as Servicer pursuant to the Servicing Agreement.
This appointment shall apply to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage, where said modification or re-recording is for the
purpose of correcting the Mortgage to conform same to the original intent of the parties thereto or to
correct title errors discovered after such title insurance was issued and said modification or
re-recording, in either instance, does not adversely affect the Lien of the Mortgage as insured.
2. The subordination of the Lien of a Mortgage to an easement in favor of a public utility company or a
government agency or unit with powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfactions/releases, partial reconveyances or the execution of requests to
trustees to accomplish same.
3. With respect to a Mortgage, the foreclosure, the taking of a deed in lieu of foreclosure, or the
completion of judicial or non-judicial foreclosure or termination, cancellation or rescission of any
such foreclosure, including, without limitation, any and all of the following acts:
a. The substitution of trustee(s) serving under a Mortgage, in accordance with state law and the
Mortgage;
b. The preparation and issuance of statements of breach or non-performance;
c. The preparation and issuance of notices of default;
d. Cancellations/rescissions of notices of default and/or notices of sale;
e. The taking of a deed in lieu of foreclosure; and
f. Such other documents and actions as may be necessary under the terms of the Mortgage or state
law to expeditiously complete said transactions.
4. The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to
be acquired as real estate owned, or conveyance of title to real estate owned.
5. The completion of loan assumption agreements.
6. The full satisfaction/release of a Mortgage or full reconveyance upon payment and discharge of all sums
secured thereby, including, without limitation, cancellation of the related Loan Agreement.
7. The assignment of any Mortgage and the related Loan Agreement, in connection with the repurchase of the
Mortgage Loan secured and evidenced thereby.
8. The full assignment of a Mortgage upon payment and discharge of all sums secured thereby in conjunction
with the refinancing thereof, including, without limitation, the endorsement of the related Loan
Agreement.
9. The modification or re-recording of a Mortgage, where said modification or re-recording is for the
purpose of any modification pursuant to Section 4.01 of the Servicing Agreement.
10. The subordination of the Lien of a Mortgage, where said subordination is in connection with any
modification pursuant to Section 3.01 of the Servicing Agreement, and the execution of partial
satisfactions/releases in connection with such same Section 3.01.
The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to
do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted
by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify
and confirm to all that said Attorney-in-Fact shall lawfully do or cause to be done by authority hereof.
Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in
Appendix A to the Indenture.
Third parties without actual notice may rely upon the exercise of the power granted under this Limited
Power of Attorney and may be satisfied that this Limited Power of Attorney shall continue in full force and
effect and has not been revoked, unless an instrument of revocation has been made in writing by the undersigned.
[_________________],
not in its individual capacity
but solely as Indenture Trustee
By:_______________________________________________________
Name:
Title:
STATE OF )
SS.
COUNTY OF )
On this ____ day of ____, 200_, before me the undersigned, Notary Public of said State, personally
appeared , personally known to me to be duly authorized officers of
[_________________] that executed the within instrument and personally known to me to be the persons who executed
the within instrument on behalf of [_________________] therein named, and acknowledged to me such
[_________________] executed the within instrument pursuant to its by-laws.
WITNESS my hand and official seal.
Notary Public in and for the
State of_____________________________________
After recording, please mail to:
Attn:_________________________________________
EXHIBIT D
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with your administration of the Mortgage Loans, we request the release of the Mortgage File
described below.
Servicing Agreement Dated:
Series #:
Account #:
Pool #:
Loan #:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan
Prepaid in Full Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection with such payments which are
required to be deposited have been or will be so deposited as provided in the Servicing Agreement."
___________________________________________________
Wachovia Bank, National Association
Authorized Signature
******************************************************************************
TO CUSTODIAN: Please acknowledge this request, and check off documents being enclosed with a copy of this form.
You should retain this form for your files in accordance with the terms of the Servicing Agreement.
Enclosed Documents: [ ] Loan Agreement
Name________________________________________
Title_______________________________________
EXHIBIT E
FORM OF FORM 10-K CERTIFICATE
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D required to be filed in
respect of the period covered by this report on Form 10-K of the trust (the Exchange Act periodic reports)
pursuant to the Servicing Agreement dated [ ], 20[ ] (the "Agreement") among Wachovia Bank,
National Association, as servicer (the "Servicer"), the Wachovia Asset Funding Trust, LLC [______] Trust, as
issuer (the "Issuer"), Wachovia Bank, National Association, as Paying Agent (the "Paying Agent"), and
[_________________], as indenture trustee (the "Indenture Trustee").
2. Based on my knowledge, Exchange Act periodic reports, taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other information required to be
provided under Form 10-D for the period covered by this report is included in the Exchange Act periodic reports;
4. I am responsible for reviewing the activities performed by the Servicer and based on my
knowledge and the compliance review conducted in preparing the servicer compliance statement required in this
report under Item 1123 of Regulation AB and except as disclosed in the Exchange Act periodic reports, the
Servicer has fulfilled its obligations under the Agreement; and
5. All of the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance with servicing criteria for
asset-backed securities required to be included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this report, except as otherwise
disclosed in this report. Any material instances of noncompliance described in such reports have been disclosed
in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on the information provided to me by the
following unaffiliated parties: [the Indenture Trustee].
Date:____________
_________________________________*
[Signature]
Name:
Title:
* - to be signed by the senior officer in charge of the servicing functions of the Servicer
EXHIBIT F
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, a Responsible Officer of [__________] (the "Indenture Trustee") certifies that:
(a) The Indenture Trustee has performed all of the duties specifically required to be performed by
it pursuant to the provisions of the Servicing Agreement dated as of [ ], 20[ ] (the "Agreement")
by and among Wachovia Bank, National Association, as servicer (the "Servicer"), the Wachovia Asset Funding
Trust, LLC [______] Trust, as issuer (the "Issuer"), Wachovia Bank, National Association, as Paying Agent
(the "Paying Agent"), and the Indenture Trustee in accordance with the standards set forth therein.
(b) Based on my knowledge, the list of Securityholders as shown on the Certificate Register and the
Note Register as of the end of each calendar year that is provided by the Indenture Trustee pursuant to the
Agreement is accurate as of the last day of the 20[ ] calendar year.
Capitalized terms used and not defined herein shall have the meanings given such terms in the
Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of _________, 20__.
Name:________________________________________________
Title:_______________________________________________
EXHIBIT G
SERVICING CRITERIA
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Indenture Trustee shall address, at a minimum, the
criteria identified as below as "Applicable Servicing Criteria":
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
-------------------- --------------------------------------------------------------------- ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
General Servicing Considerations
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the pool assets are maintained.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the
party participating in the servicing function throughout the
reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Cash Collection and Administration
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate |X| (as to accounts
custodial bank accounts and related bank clearing accounts no more held by Trustee)
than two business days following receipt, or such other number of
days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to |X| (as to investors
an investor are made only by authorized personnel. only)
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with |X| (as to accounts
respect to commingling of cash) as set forth in the transaction held by Trustee)
1122(d)(2)(iv) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction agreements.
For purposes of this criterion, "federally insured depository
institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including custodial
accounts and related bank clearing accounts. These reconciliations
are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items.
These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days
specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Investor Remittances and Reporting
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of pool assets serviced by the
servicer.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance |X|
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made to an investor are posted within two business
days to the servicer's investor records, or such other number of |X|
1122(d)(3)(iii) days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank |X|
1122(d)(3)(iv) statements.
-------------------- --------------------------------------------------------------------- ----------------------
Pool Asset Administration
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(i) Collateral or security on pool assets is maintained as required by
the transaction agreements or related asset pool documents.
-------------------- --------------------------------------------------------------------- ----------------------
Pool assets and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made in accordance
with the related pool asset documents are posted to the servicer's
obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items
(e.g., escrow) in accordance with the related pool asset documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(v) The servicer's records regarding the pool assets agree with the
servicer's records with respect to an obligor's unpaid principal
balance.
------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's pool
asset (e.g., loan modifications or re-agings) are made, reviewed
and approved by authorized personnel in accordance with the
transaction agreements and related pool asset documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the
period a pool asset is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent pool assets including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for pool assets
with variable rates are computed based on the related pool asset
documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's pool asset documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable pool asset documents and state laws; and
(C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related pool asset, or such other number
of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the servicer's funds and
not charged to the obligor, unless the late payment was due to the
obligor's error or omission.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the servicer,
or such other number of days specified in the transaction
1122(d)(4)(xiii) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained |X|
1122(d)(4)(xv) as set forth in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
