EXHIBIT 4.1
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WACHOVIA ASSET SECURITIZATION, INC.,
as Depositor,
[ ],
as Servicer,
and
[ ],
as Trustee
POOLING AND SERVICING AGREEMENT
Dated , 200
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Mortgage Pass-Through Certificates
Series 200 -
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EXHIBIT 4.1
TABLE OF CONTENTS
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PRELIMINARY STATEMENT.............................................................................................1
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................................................3
Section 1.02 Interest Calculations........................................................................25
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................................................25
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..............................................28
Section 2.03 Representations, Warranties and Covenants of the Servicer....................................30
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans.....................31
Section 2.05 Designation of Interests in the REMIC........................................................38
Section 2.06 Designation of Start-up Day..................................................................38
Section 2.07 REMIC Certificate Maturity Date..............................................................38
Section 2.08 Execution and Delivery of Certificates.......................................................38
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans...........................................................39
Section 3.02 Subservicing; Enforcement of the Obligations of Servicer.....................................40
Section 3.03 Fidelity Bond; Errors and Omissions Insurance................................................41
Section 3.04 Access to Certain Documentation..............................................................41
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims.....................................42
Section 3.06 Rights of the Depositor and the Trustee in Respect of the Servicer...........................42
Section 3.07 Trustee to Act as Servicer...................................................................43
Section 3.08 Collection of Mortgage Loan Payments; Servicer Custodial Account; and Certificate
Account....................................................................................43
Section 3.09 Collection of Taxes, Assessments and Similar Items; Escrow Accounts..........................46
Section 3.10 Access to Certain Documentation and Information Regarding the Mortgage Loans.................48
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Section 3.11 Permitted Withdrawals from the Servicer Custodial Account and Certificate Account............48
Section 3.12 Maintenance of Hazard Insurance..............................................................49
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption Agreements....................................50
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO Property......................................52
Section 3.15 Trustee to Cooperate; Release of Mortgage Files..............................................54
Section 3.16 Documents, Records and Funds in Possession of the Servicer to be Held for the
Trustee....................................................................................56
Section 3.17 Servicing Compensation.......................................................................56
Section 3.18 Annual Statement as to Compliance............................................................56
Section 3.19 Annual Independent Public Accountants' Servicing Statement; Financial Statements.............57
Section 3.20 Advances.....................................................................................57
Section 3.21 Modifications, Waivers, Amendments and Consents..............................................57
Section 3.22 Reports to the Securities and Exchange Commission............................................59
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate.......................................................................59
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions................................................................................59
Section 5.02 Priorities of Distributions..................................................................60
Section 5.03 Allocation of Losses.........................................................................63
Section 5.04 Statements to Certificateholders.............................................................65
Section 5.05 Tax Returns and Reports to Certificateholders................................................67
Section 5.06 Tax Matters Person...........................................................................68
Section 5.07 Rights of the Tax Matters Person in Respect of the Trustee...................................68
Section 5.08 REMIC Related Covenants......................................................................68
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.............................................................................70
Section 6.02 Registration of Transfer and Exchange of Certificates........................................71
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............................................75
Section 6.04 Persons Deemed Owners........................................................................75
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ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Servicer.....................................75
Section 7.02 Merger or Consolidation of the Depositor or the Servicer.....................................76
Section 7.03 Limitation on Liability of the Depositor, the Servicer and Others............................76
Section 7.04 Depositor and Servicer Not to Resign.........................................................77
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default............................................................................77
Section 8.02 Remedies of Trustee..........................................................................78
Section 8.03 Directions by Certificateholders and Duties of Trustee During Event of Default...............79
Section 8.04 Action upon Certain Failures of the Servicer and upon Event of Default.......................79
Section 8.05 Trustee to Act; Appointment of Successor.....................................................79
Section 8.06 Notification to Certificateholders...........................................................80
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee............................................................................80
Section 9.02 Certain Matters Affecting the Trustee........................................................82
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans........................................83
Section 9.04 Trustee May Own Certificates.................................................................84
Section 9.05 Eligibility Requirements for Trustee.........................................................84
Section 9.06 Resignation and Removal of Trustee...........................................................84
Section 9.07 Successor Trustee............................................................................85
Section 9.08 Merger or Consolidation of Trustee...........................................................85
Section 9.09 Appointment of Co-Trustee or Separate Trustee................................................86
Section 9.10 Authenticating Agents........................................................................87
Section 9.11 Trustee's Fees and Expenses..................................................................87
Section 9.12 Appointment of Custodian.....................................................................88
Section 9.13 Paying Agents................................................................................88
Section 9.14 Limitation of Liability......................................................................89
Section 9.15 Trustee May Enforce Claims Without Possession of Certificates................................89
Section 9.16 Suits for Enforcement........................................................................89
Section 9.17 Waiver of Bond Requirement...................................................................89
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement....................................90
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ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Depositor or Liquidation of All Mortgage Loans..............90
Section 10.02 Additional Termination Requirements..........................................................91
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................................................92
Section 11.02 Recordation of Agreement.....................................................................93
Section 11.03 Limitation on Rights of Certificateholders...................................................94
Section 11.04 Governing Law................................................................................94
Section 11.05 Notices......................................................................................95
Section 11.06 Severability of Provisions...................................................................95
Section 11.07 Certificates Nonassessable and Fully Paid....................................................95
Section 11.08 Access to List of Certificateholders.........................................................95
Section 11.09 Recharacterization...........................................................................96
EXHIBITS
Exhibit A-1 - Form of Face of Class A-1 Certificate
Exhibit A-2 - Form of Face of Class A-2 Certificate
Exhibit A-3 - Form of Face of Class A-3 Certificate
Exhibit A-4 - Form of Face of Class A-4 Certificate
Exhibit A-5 - Form of Face of Class A-5 Certificate
Exhibit A-6 - Form of Face of Class A-6 Certificate
Exhibit A-WIO - Form of Face of Class A-WIO Certificate
Exhibit A-PO - Form of Face of Class A-PO Certificate
Exhibit A-R - Form of Face of Class A-R Certificate
Exhibit A-LR - Form of Face of Class A-LR Certificate
Exhibit B-1 - Form of Face of Class B-1 Certificate
Exhibit B-2 - Form of Face of Class B-2 Certificate
Exhibit B-3 - Form of Face of Class B-3 Certificate
Exhibit B-4 - Form of Face of Class B-4 Certificate
Exhibit B-5 - Form of Face of Class B-5 Certificate
Exhibit B-6 - Form of Face of Class B-6 Certificate
Exhibit C Form of Reverse of all Certificates..................................................C-1
Exhibit D Mortgage Loan Schedule...............................................................D-1
Exhibit E Request for Release of Documents.....................................................E-1
Exhibit F Form of Certification of Establishment of Account....................................F-1
Exhibit G-1 Form of Transferor's Certificate...................................................G-1-1
Exhibit G-2A Form 1 of Transferee's Certificate................................................G-2A-1
Exhibit G-2B Form 2 of Transferee's Certificate................................................G-2B-1
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Exhibit H Form of Transferee Representation Letter
for ERISA Restricted Certificates....................................................H-1
Exhibit I Form of Affidavit Regarding Transfer of Residual Certificates........................I-1
Exhibit J Contents of Servicing File...........................................................J-1
Exhibit K Form of Special Servicing Agreement..................................................K-1
Exhibit L List of Recordation States...........................................................L-1
Exhibit M Principal Balance Schedules M-1
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EXHIBIT 4.1
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated , 200 is hereby
executed by and among WACHOVIA ASSET SECURITIZATION, INC., as depositor
(together with its permitted successors and assigns, the "Depositor"), , as
servicer (together with its permitted successors and assigns, the "Servicer"),
and , as trustee (together with its permitted successors and assigns, the
"Trustee").
W I T N E S S E T H T H A T:
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In consideration of the mutual agreements herein contained,
the Depositor, the Servicer and the Trustee agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys
the Trust Estate to the Trustee to create the Trust. The Trust Estate for
federal income tax purposes will be treated as two separate real estate mortgage
investment conduits (the "Upper-Tier REMIC" and the "Lower-Tier REMIC,"
respectively, and each, a "REMIC"). The Class A Certificates (other than the
Class A-R and Class A-LR Certificates) and the Class B Certificates are referred
to collectively as the "Regular Certificates" and shall constitute "regular
interests" in the Upper-Tier REMIC. The Uncertificated Lower-Tier Interests
shall constitute the "regular interests" in the Lower-Tier REMIC. The Class A-R
Certificate shall be the "residual interest" in the Upper-Tier REMIC and the
Class A-LR Certificate shall be the "residual interest" in the Lower-Tier REMIC.
The Certificates will represent the entire beneficial ownership interest in the
Trust. The "latest possible maturity date" for federal income tax purposes of
all interests created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the
Certificates, together with the minimum denominations and integral multiples in
excess thereof in which the Classes of Certificates shall be issuable (except
that one Certificate of each Class of Certificates may be issued in any amount
in excess of the minimum denomination):
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Integral Multiples
Initial Class Certificate Pass-Through Minimum In Excess
Classes Balance or Notional Amount Rate Denomination Of Minimum
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Class A-1 $ % $ $
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Class A-2 $ % $ $
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Class A-3 $ % $ $
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Class A-4 $ (1) $ $
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Class A-5 $ (2) $ $
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Class A-6 $ % $ $
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Class A-PO $ (4) $ $
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Class A-WIO $ (3) $ $
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Class A-R $ % $ $
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Class A-LR $ % $ $
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Class B-1 $ % $ $
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Class B-2 $ % $ $
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Class B-3 $ % $ $
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Class B-4 $ % $ $
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Class B-5 $ % $ $
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Class B-6 $ % $ $
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(1) During the initial Interest Accrual Period, interest will accrue on the
Class A-4 Certificates at a rate of % per annum. During each Interest Accrual
Period thereafter, interest will accrue on the Class A-4 Certificates at a per
annum rate equal to (i) % plus (ii) LIBOR, subject to a minimum rate of
% and a maximum rate of %.
(2) During the initial Interest Accrual Period, interest will accrue on the
Class A-5 Certificates at a rate of % per annum. During each Interest Accrual
Period thereafter, interest will accrue on the Class A-5 Certificates at a per
annum rate equal to (i) % minus (ii) LIBOR, subject to a minimum rate of
% and a maximum rate of %.
(3) Interest will accrue on the Class A-WIO Notional Amount as of any
Distribution Date at a per annum rate equal to (i) the weighted average of the
Net Mortgage Interest Rates of the Premium Mortgage Loans (based on the Stated
Principal Balance of the Premium Mortgage Loans on the Due Date in the month
preceding the month of such Distribution Date minus (ii) %.
(4) Class A-PO Certificates will be Principal Only Certificates and will not
bear interest.
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and
each interest-bearing Class, one month's interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the applicable
Class Certificate Balance or Notional Amount, as applicable.
Adjusted Pool Amount: With respect to any Distribution Date,
the Cut-Off Date Pool Principal Balance of the Mortgage Loans minus the sum of
(i) all amounts in respect of principal received in respect of the Mortgage
Loans (including, without limitation, amounts received as Monthly Payments,
Periodic Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of Certificates on such
Distribution Date and all prior Distribution Dates and (ii) the principal
portion of all Realized Losses (other than Debt Service Reductions) incurred on
the Mortgage Loans from the Cut-Off Date through the end of the month preceding
such Distribution Date.
Adjusted Pool Amount (PO Portion): With respect to any
Distribution Date, the sum of the amounts, calculated as follows, with respect
to all Outstanding Mortgage Loans: the product of (i) the PO Percentage for each
such Mortgage Loan and (ii) the remainder of (A) the Cut-Off Date Principal
Balance of such Mortgage Loan minus (B) the sum of (x) all amounts in respect of
principal received in respect of such Mortgage Loan (including, without
limitation, amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments, Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to Holders of the Certificates on such Distribution Date and all
prior Distribution Dates and (y) the principal portion of any Realized Loss
(other than a Debt Service Reduction) incurred on such Mortgage Loan from the
Cut-Off Date through the end of the month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with
all amendments hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution
Date, the total of the amounts held in the Servicer Custodial Account at the
close of business on the preceding Determination Date on account of (i)
Principal Prepayments and Liquidation Proceeds received or made in the month of
such Distribution Date and (ii) payments which represent receipt of Monthly
Payments in respect of a Due Date or Due Dates subsequent to the related Due
Date.
Appraised Value: With respect to any Mortgaged Property,
either (i) the lesser of (a) the appraised value determined in an appraisal
obtained by the originator at origination of
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such Mortgage Loan and (b) the sales price for such property, except that, in
the case of Mortgage Loans the proceeds of which were used to refinance an
existing mortgage loan, the Appraised Value of the related Mortgaged Property is
the appraised value thereof determined in an appraisal obtained at the time of
refinancing, or (ii) the appraised value determined in an appraisal made at the
request of a Mortgagor subsequent to origination in order to eliminate the
Mortgagor's obligation to keep a Primary Insurance Policy in force.
Assignment of Mortgage: An individual assignment of the
Mortgage, notice of transfer or equivalent instrument in recordable form,
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
Book-Entry Certificate: All Classes of Certificates other than
the Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State of North Carolina, the
State of New York, the state in which the servicing offices of the Servicer is
located or the state in which the Corporate Trust Office is located are required
or authorized by law or executive order to be closed.
Certificate: Any of the Wachovia Asset Securitization, Inc.
Mortgage Pass-Through Certificates, Series 200 - that are issued pursuant to
this Agreement.
Certificate Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.08(c) in the name of the Trustee
for the benefit of the Certificateholders and designated " , in trust for
registered holders of Wachovia Asset Securitization, Inc. Mortgage Pass-Through
Certificates, Series 200 - ." Funds in the Certificate Account shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement.
Certificate Balance: With respect to any Certificate at any
date, the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the product of the Percentage
Interest of such Certificate and the Class Certificate Balance of the Class of
Certificates of which such Certificate is a part.
Certificate Custodian: Initially, ; thereafter any other
Certificate Custodian acceptable to the Depository and selected by the Trustee.
Certificate Owner: With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of a Book-Entry Certificate. With respect
to any Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to
Section 6.02.
Certificate Registrar: The registrar appointed pursuant to
Section 6.02.
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Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Servicer or any affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that the Trustee
shall not be responsible for knowing that any Certificate is registered in the
name of such an affiliate unless one of its Responsible Officers has actual
knowledge.
Class: As to the Certificates, the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-PO, Class A-WIO, Class A-R, Class
A-LR, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates, as the case may be.
Class A Certificates: The Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-PO, Class A-WIO, Class A-R and Class
A-LR Certificates.
Class A-5 Notional Amount: As to any Distribution Date and the
Class A-5 Certificates, the Class Certificate Balance of the Class A-4
Certificates.
Class A-PO Deferred Amount: As to any Distribution Date prior
to the Senior Credit Support Depletion Date, the aggregate of the applicable PO
Percentage of each Realized Loss to be allocated to the Class A-PO Certificates
on such Distribution Date or previously allocated to the Class A-PO Certificates
and not yet paid to the Holders of the Class A-PO Certificates pursuant to
Section 5.02(a)(iii) and the amount (without duplication) of any reduction in
the Class Certificate Balance of the Class A-PO Certificates pursuant to Section
5.03(b).
Class A-WIO Notional Amount: As to any Distribution Date and
the Class A-WIO Certificates, the aggregate Stated Principal Balances of the
Premium Mortgage Loans on the Due Date in the month preceding the month of such
Distribution.
Class B Certificates: The Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class (other
than the Class A-5 and Class A-WIO Certificates) and any date of determination,
the Initial Class Certificate Balance of such Class minus the sum of (i) all
distributions of principal made with respect thereto, (ii) all Realized Losses
allocated thereto pursuant to Section 5.03(a), and (iii) all other reductions in
Class Certificate Balance previously allocated thereto pursuant to Section
5.03(b). The Class A-5 and Class A-WIO Certificates are Interest-Only
Certificates and have no Class Certificate Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, the amount by which Accrued Certificate Interest for
such Class (as reduced pursuant to Section 5.02(c)) exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to clause (i) of the definition of "Interest Distribution Amount."
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Class Unpaid Interest Shortfall: As to any Distribution Date
and each interest-bearing Class, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount of interest actually distributed on such Class on such prior Distribution
Dates pursuant to clause (ii) of the definition of "Interest Distribution
Amount."
Closing Date: , 200 .
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: As defined in Section 3.17.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal office of the Trustee at
which at any particular time its certificate transfer services are conducted,
which office at the date of the execution of this instrument is located
at , , ,
Attention: .
Corresponding Upper-Tier Class or Classes: As to the following
Uncertificated Lower-Tier Interests, the Corresponding Upper-Tier Class or
Classes, as follows:
Uncertificated Lower-Tier Interest Corresponding Upper-Tier Class or Classes
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Class A-L1 Interest Class A-1 Certificates, Class A-2 Certificates and Class A-6
Certificates
Class A-L3 Interest Class A-3 Certificates
Class A-L4 Interest Class A-4 Certificates and Class A-5 Certificates
Class A-LPO Interest Class A-PO Certificates
Class A-LUR Interest Class A-R Certificate
Class A-LWIO Interest Class A-WIO Certificates
Class B-L1 Interest Class B-1 Certificates
Class B-L2 Interest Class B-2 Certificates
Class B-L3 Interest Class B-3 Certificates
Class B-L4 Interest Class B-4 Certificates
Class B-L5 Interest Class B-5 Certificates
Class B-L6 Interest Class B-6 Certificates
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Custodian: Initially, the Trustee, and thereafter the
Custodian, if any, hereafter appointed by the Trustee pursuant to Section 9.12.
The Custodian may (but need not) be the Trustee or any Person directly or
indirectly controlling or controlled by or under common control of either of
them. Neither the Servicer nor the Depositor, nor any Person directly or
indirectly controlling or controlled by or under common control with any such
Person may be appointed Custodian.
Customary Servicing Procedures: With respect to the Servicer,
procedures (including collection procedures) that the Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located.
Cut-Off Date: , 200 .
Cut-Off Date Pool Principal Balance: The aggregate of the
Cut-Off Date Principal Balances of the Mortgage Loans which is $ .
Cut-Off Date Principal Balance: As to any Mortgage Loan, the
unpaid principal balance thereof as of the close of business on the Cut-Off
Date, reduced by all installments of principal due on or prior thereto whether
or not paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-Off Date or (2) Monthly Payments are being advanced by the Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-Off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required
to be cured, repurchased or substituted for pursuant to Sections 2.02 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any
Determination Date, the excess of (i) the then outstanding indebtedness under
such Mortgage Loan over (ii) the secured valuation thereof established by a
court of competent jurisdiction (pursuant to an order which has become final and
nonappealable) as a result of a proceeding initiated by or against the related
Mortgagor under the Bankruptcy Code, as amended from time to time (11 U.S.C.),
pursuant to which such Mortgagor retained such Mortgaged Property; provided that
no such excess shall be
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considered a Deficient Valuation so long as (a) the Servicer is pursuing an
appeal of the court order giving rise to any such modification and (b)(1) such
Mortgage Loan is not in default with respect to payments due thereunder in
accordance with the terms of such Mortgage Loan as in effect on the Cut-Off Date
or (2) Monthly Payments are being advanced by the Servicer in accordance with
the terms of such Mortgage Loan as in effect on the Cut-Off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that
became the subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Wachovia Asset Securitization, Inc., a North
Carolina corporation, or its successor in interest, as depositor of the Trust
Estate.
Depository: The Depository Trust Company, the nominee of which
is Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: As to any Distribution Date, the 16th day
of the month of the related Distribution Date or, if such 16th day is not a
Business Day, the Business Day immediately preceding such 16th day.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate that is less than % per annum.
Distribution Date: The th day of each month beginning in
200 (or, if such day is not a Business Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan,
the first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with (a) , or (b) a federal or state chartered depository institution
or trust company the short-term unsecured debt obligations of which (or, in the
case of a depository institution or trust company that is the principal
subsidiary of a holding company, the debt obligations of such holding company)
have the highest short-term ratings of each Rating Agency at the time any
amounts are held on deposit therein, or (ii) an account or accounts in a
depository institution or trust company in which such accounts are insured by
the FDIC (to the limits established by the FDIC) and the uninsured deposits in
which accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the
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depository institution or trust company in which such account is maintained, or
(iii) a trust account or accounts maintained with the trust department of a
federal or state chartered depository institution or trust company, acting in
its fiduciary capacity or (iv) any other account acceptable to each Rating
Agency. Eligible Accounts may bear interest and may include, if otherwise
qualified under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class B-4, Class B-5, or
Class B-6 Certificate.
Escrow Account: As defined in Section 3.09.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Insurance Policy premiums, fire and hazard insurance premiums and other
payments as may be required to be escrowed by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the amount, if any, by which the sum of any Liquidation Proceeds of such
Mortgage Loan received in the calendar month in which such Mortgage Loan became
a Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Final Distribution Date: The Distribution Date on which the
final distribution in respect of the Certificates will be made pursuant to
Section 10.01.
Financial Market Service: Bloomberg Financial Service and any
other financial information provider designated by the Depositor by written
notice to the Trustee.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
[Fitch: Fitch Ratings, and its successors in interest.]
FNMA: Xxxxxx Xxx, or any successor thereto.
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Fractional Interest: As defined in Section 5.02(d).
Holder: A Certificateholder.
Independent: When used with respect to any specified Person
means such a Person who (i) is in fact independent of the Depositor and the
Servicer, (ii) does not have any direct financial interest or any material
indirect financial interest in the Depositor or the Servicer or in an affiliate
of either of them, and (iii) is not connected with the Depositor or the Servicer
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Initial Class Certificate Balance: As to each Class of
Certificates (other than the Class A-5 and Class A-WIO Certificates), the Class
Certificate Balance set forth in the Preliminary Statement. The Class A-5 and
Class A-WIO Certificates are Interest-Only Certificates and have no Initial
Class Certificate Balance.
Initial Notional Amount: As to each Class of Interest-Only
Certificates, the Notional Amount set forth in the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included
in the Trust Estate, any related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to
any Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
Class of Certificates (other than the Class A-4, Class A-5 and A-PO
Certificates), the period from and including the first day of the calendar month
preceding the calendar month of such Distribution Date to but not including the
first day of the calendar month of such Distribution Date. As to any
Distribution Date and the Class A-4 and Class A-5 Certificates, the period from
and including the day of the calendar month preceding the calendar month in
which such Distribution Date occurs and ending on the day of the calendar
month in which such Distribution Date occurs.
Interest Distribution Amount: For any Distribution Date and
each interest-bearing Class, the sum of (i) the Accrued Certificate Interest,
subject to reduction pursuant to Section 5.02(c) and (ii) any Class Unpaid
Interest Shortfall for such Class.
Interest-Only Certificates: Any Class of Certificates entitled
to distributions of interest, but no distributions of principal. The Class A-5
and Class A-WIO Certificates are the only Classes of Interest-Only Certificates.
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LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations for one-month U.S. Dollar deposits, as
determined by the Trustee in accordance with Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open
for dealing in foreign currency and exchange in London, England, the City
of New York and the State where the Corporate Trust Office is located.
LIBOR Certificates: Any of the Class A-4 and Class A-5
Certificates.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property) that was liquidated
in the calendar month preceding the month of such Distribution Date and as to
which the Servicer has certified (in accordance with this Agreement) that it has
received all proceeds it expects to receive in connection with the liquidation
of such Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account, the insurance policies, if any,
relating to a Mortgage Loan and property which secured a Mortgage Loan and which
has been acquired by foreclosure or deed in lieu of foreclosure.
MERS: As defined in Section 2.01(b)(iii).
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan due on any Due Date allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified herein, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument
creating a first lien on a Mortgaged Property securing a Mortgage Note or
creating a first lien on a leasehold interest.
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Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate of interest at which interest accrues on the principal balance of such
Mortgage Loan in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated , 200 , between the , as seller, and the Depositor,
as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from
time to time amended by the Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Estate and from time to time subject to this Agreement, attached hereto as
Exhibit D, setting forth the following information with respect to each Mortgage
Loan: (i) the Mortgage Loan identifying number; (ii) a code indicating whether
the Mortgaged Property is owner-occupied; (iii) the property type for each
Mortgaged Property; (iv) the original months to maturity or the remaining months
to maturity from the Cut-Off Date; (v) the Loan-to-Value Ratio at origination;
(vi) the Mortgage Interest Rate; (vii) the date on which the first Monthly
Payment was due on the Mortgage Loan, and, if such date is not the Due Date
currently in effect, such Due Date; (viii) the stated maturity date; (ix) the
amount of the Monthly Payment as of the Cut-Off Date; (x) the paid-through date;
(xi) the original principal amount of the Mortgage Loan; (xii) the principal
balance of the Mortgage Loan as of the close of business on the Cut-Off Date,
after application of payments of principal due on or before the Cut-Off Date,
whether or not collected, and after deduction of any payments collected of
scheduled principal due after the Cut-Off Date; (xiii) a code indicating the
purpose of the Mortgage Loan; (xiv) a code indicating the documentation style;
and (xv) the Appraised Value. With respect to the Mortgage Loans in the
aggregate, the Mortgage Loan Schedule shall set forth the following information,
as of the Cut-Off Date: (i) the number of Mortgage Loans; (ii) the current
aggregate outstanding principal balance of the Mortgage Loans; (iii) the
weighted average Mortgage Rate of the Mortgage Loans; and (iv) the weighted
average months to maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 as from time to time are held
as a part of the Trust Estate (including any Substitute Mortgage Loans and REO
Property), the Mortgage Loans originally so held being identified in the
Mortgage Loan Schedule.
Mortgage Note: The originally executed note or other evidence
of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan, together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a
Mortgage Loan, which may include Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
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Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution Date, such Mortgage Loan's Mortgage Interest Rate thereon on the
first day of the month preceding the month of the related Distribution Date
reduced by the Servicing Fee Rate and the Trustee Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a
fraction (expressed as a percentage), the numerator of which is the Net Mortgage
Interest Rate of such Discount Mortgage Loan and the denominator of which is
%. As to any Mortgage Loan that is not a Discount Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date, the sum
of the applicable Non-PO Percentage of (a) the principal portion of each Monthly
Payment due on each Mortgage Loan on the related Due Date, (b) the Stated
Principal Balance, as of the date of repurchase, of each Mortgage Loan that was
repurchased by the Depositor pursuant to this Agreement as of such Distribution
Date, (c) any Substitution Adjustment Amount in connection with a Defective
Mortgage Loan received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
allocable to principal received during the calendar month preceding the month of
such Distribution Date with respect to such Mortgage Loan and (f) all Principal
Prepayments received during the calendar month preceding the month of such
Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution
Date, the amount, if any, by which the aggregate of Prepayment Interest
Shortfalls exceeds Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously
made or proposed to be made in respect of a Mortgage Loan which has not been
previously reimbursed and which, in the good faith judgment of the Servicer,
will not or, in the case of a proposed Advance, would not be ultimately
recoverable from the related Mortgagor, related Liquidation Proceeds, or other
recoveries in respect of the related Mortgage Loan.
Notional Amount: With respect to: (i) the Class A-5
Certificates and any date of determination, the Class A-5 Notional Amount and
(ii) the Class A-WIO Certificates and any date of determination, the Class A-WIO
Notional Amount.
Offered Certificates: The Class A, Class B-1, Class B-2 and
Class B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of
the Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the
Servicer, as the case may be, and delivered to the Trustee.
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Opinion of Counsel: A written opinion of counsel acceptable to
the Trustee, who may be counsel for the Depositor or the Servicer, except that
any opinion of counsel relating to the qualification of the Trust Estate as two
separate REMICs or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
Original Fractional Interest: With respect to each of the
following Classes of Subordinate Certificates, the corresponding percentage
described below, as of the Closing Date:
Class B-1 %
Class B-2 %
Class B-3 %
Class B-4 %
Class B-5 %
Class B-6 %
Original Subordinate Certificate Balance: $ .
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which was not the subject of a Principal Prepayment in Full prior to such Due
Date, which did not become a Liquidated Mortgage Loan prior to such Due Date and
which was not purchased from the Trust prior to such Due Date pursuant to
Sections 2.02 or 2.04.
Ownership Interest: As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth in the Preliminary Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage
obtained by dividing the initial Certificate Balance of such Certificate (or the
initial notional amount for a Class A-5 or Class A-WIO Certificate) by the
Initial Class Certificate Balance or Initial Notional Amount, as applicable, of
the Class of which such Certificate is a part.
Periodic Advance: The payment required to be made by the
Servicer with respect to any Distribution Date pursuant to Section 3.20, the
amount of any such payment being equal to the aggregate of Monthly Payments (net
of the Servicing Fee) on the Mortgage Loans (including any REO Property) that
were due on the related Due Date and not received as of the close of business on
the related Determination Date, less the aggregate amount of any such delinquent
payments that the Servicer has determined would constitute a Nonrecoverable
Advance if advanced.
Permitted Investments: One or more of the following:
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(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the United States
when such obligations are backed by the full faith and credit of the United
States; provided that such obligations of FHLMC or FNMA shall be limited to
senior debt obligations and mortgage participation certificates other than
investments in mortgage-backed or mortgage participation securities with yields
evidencing extreme sensitivity to the rate of principal payments on the
underlying mortgages, which shall not constitute Permitted Investments
hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with a
corporation incorporated under the laws of the United States or any state
thereof rated not lower than " " by and " " by ;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original maturity of
not more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining maturity of
more than 30 days) denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the United States or
any state thereof, rated not lower than " " by and " " by ;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States or any
state thereof which is rated not lower than " " by and " " by ;
investments in money market funds (including funds of the Trustee or its
affiliates, or funds for which an affiliate of the Trustee acts as advisor, as
well as funds for which the Trustee and its affiliates may receive compensation)
rated either " " by and " " by or otherwise approved in
writing by each Rating Agency; and
(v) other obligations or securities that are acceptable to each Rating
Agency and, as evidenced by an Opinion of Counsel obtained by the Servicer, will
not affect the qualification of the Trust Estate as two separate REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States, or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income)
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(except certain farmers' cooperatives described in Code Section 521), (iv) rural
electric and telephone cooperatives described in Code Section 1381(a)(2)(C) and
(v) any other Person so designated by the Servicer based on an Opinion of
Counsel to the effect that any transfer to such Person may cause the Trust or
any other Holder of a Residual Certificate to incur tax liability that would not
be imposed other than on account of such transfer. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificates: The Class A-R, Class A-LR, Class B-4,
Class B-5 and Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
PO Percentage: As to any Discount Mortgage Loan, 100% minus
the Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan that is
not a Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date, the sum of
the applicable PO Percentage of (a) the principal portion of each Monthly
Payment due on each Mortgage Loan on the related Due Date, (b) the Stated
Principal Balance, as of the date of repurchase, of each Mortgage Loan that was
repurchased by the related Seller or the Depositor pursuant to this Agreement as
of such Distribution Date, (c) any Substitution Adjustment Amount in connection
with any Defective Mortgage Loan received with respect to such Distribution
Date, (d) any Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans that are not yet Liquidated Mortgage Loans received during the
calendar month preceding the month of such Distribution Date, (e) with respect
to each Mortgage Loan that became a Liquidated Mortgage Loan during the calendar
month preceding the month of such Distribution Date, the amount of Liquidation
Proceeds allocable to principal received with respect to such Mortgage Loan
during the calendar month preceding the month of such Distribution Date with
respect to such Mortgage Loan and (f) all Principal Prepayments received during
the calendar month preceding the month of such Distribution Date.
Pool Distribution Amount: As to any Distribution Date, the
excess of (a) the sum of (i) the aggregate of (A) the interest portion of any
Monthly Payment (net of the Servicing Fee) and the principal portion of any
Monthly Payment due on the Due Date in the month in which such Distribution Date
occurs and which is received prior to the related Determination Date and (B) all
Periodic Advances and payments of Compensating Interest made by the Servicer in
respect of such Distribution Date deposited to the Servicer Custodial Account
pursuant to Section 3.08(b)(vii); (ii) all Liquidation Proceeds received during
the preceding calendar month and deposited to the Servicer Custodial Account
pursuant to Section 3.08(b)(iii); (iii) all Principal Prepayments received
during the month preceding the month of such Distribution Date and deposited to
the Servicer Custodial Account pursuant to Section 3.08(b)(i) during such
period; (iv) in connection with Defective Mortgage Loans, as applicable, the
aggregate of the
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Repurchase Prices and Substitution Adjustment Amounts deposited on the related
Remittance Date pursuant to Section 3.08(b)(vi); and (v) any other amounts in
the Servicer Custodial Account deposited therein pursuant to Sections
3.08(b)(iv), (v) and (viii) in respect of such Distribution Date; over (b) any
(i) amounts permitted to be withdrawn from the Servicer Custodial Account
pursuant to clauses (i) through (vii), inclusive, of Section 3.11(a) and (ii)
amounts permitted to be withdrawn from the Certificate Account pursuant to
clauses (i) and (ii) of Section 3.11(b).
Pool Stated Principal Balance: As to any Distribution Date,
the aggregate Stated Principal Balances of all Mortgage Loans that were
Outstanding Mortgage Loans immediately following the Due Date in the month of
such Distribution Date.
Premium Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate that is equal to or more than % per annum.
Prepayment Interest Shortfall: As to any Distribution Date and
each Mortgage Loan subject to a Principal Prepayment received during the
calendar month preceding such Distribution Date, the amount, if any, by which
one month's interest at the related Mortgage Interest Rate (net of the Servicing
Fee) on such Principal Prepayment exceeds the amount of interest paid in
connection with such Principal Prepayment.
Primary Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal-Only Certificates: Any Class of Certificates
entitled to distributions of principal, but to no distributions of interest. The
Class A-PO Certificates are the only Principal-Only Certificates.
Principal Prepayment: Any payment or other recovery of
principal on a Mortgage Loan (other than Liquidation Proceeds) which is received
in advance of its scheduled Due Date and is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire principal balance of a Mortgage Loan.
Priority Amount: As to any Distribution Date, the lesser of
(i) the Class Certificate Balance of the Class A-6 Certificates and (ii) the
product of (a) the Shift Percentage, (b) the Priority Percentage and (c) the
Non-PO Principal Amount.
Priority Percentage: As to any Distribution Date, the
percentage equivalent (carried to six places rounded up) of a fraction the
numerator of which is the Class Certificate Balance of the Class A-6
Certificates immediately prior to such date and the denominator of which is the
aggregate of the Class Certificate Balances of all Classes of Certificates
(other than the Class A-PO Certificates) immediately prior to such date.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
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Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the portion of the
Subordinate Principal Distribution Amount allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amount for such Distribution
Date and a fraction, the numerator of which is the related Class Certificate
Balance thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be 0%.
Qualified Appraiser: An appraiser of a Mortgaged Property duly
appointed by the originator of the related Mortgage Loan, who had no interest,
direct or indirect, in such Mortgaged Property or in any loan made on the
security thereof, whose compensation is not affected by the approval or
disapproval of the related Mortgage Loan and who met the minimum qualifications
of FNMA or FHLMC.
Rate Determination Date: As to any Distribution Date and any
Class of LIBOR Certificates, the second LIBOR Business Day prior to the
beginning of the applicable Interest Accrual Period for such Class and such
Distribution Date.
Rating Agency: Each of and . If either such
organization or a successor is no longer in existence, "Rating Agency" shall be
such nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee. References herein to a given rating or rating category of
a Rating Agency shall mean such rating category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Record Date: The last day of the month (or, if such day is not
a Business Day, the preceding Business Day) preceding the month of the related
Distribution Date.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of
which were not used to purchase the related Mortgaged Property.
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Regular Certificates: As defined in the Preliminary Statement
hereto.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
Relief Act Reduction: With respect to any Distribution Date,
for any Mortgage Loan as to which there has been a reduction in the amount of
interest collectible thereon for the most recently ended calendar month as a
result of the application of the Relief Act or comparable state legislation, the
amount, if any, by which (i) interest collectible on such Mortgage Loan for the
most recently ended calendar month is less than (ii) interest accrued pursuant
to the terms of the Mortgage Note on the same principal amount and for the same
period as the interest collectible on such Mortgage Loan for the most recently
ended calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity
date" of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time, as well as provisions of applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m.
Eastern time on the second Business Day immediately preceding such Distribution
Date.
REO Disposition Period: As defined in Section 3.14.
REO Proceeds: Proceeds, net of any related expenses of the
Servicer, received in respect of any REO Property (including, without
limitation, proceeds from the rental of the related Mortgaged Property) which
are received prior to the final liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Trust through foreclosure or deed-in-lieu of foreclosure in
connection with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan
repurchased on any date pursuant to Sections 2.02 or 2.04, an amount equal to
the sum of (i) the unpaid principal balance thereof and (ii) the unpaid accrued
interest thereon at the applicable Mortgage Interest Rate from the Due Date to
which interest was last paid by the Mortgagor to the first day of the month
following the month in which such Mortgage Loan became eligible to be
repurchased.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on behalf of the Trustee, substantially
in the form of Exhibit E.
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Required Insurance Policy: With respect to any Mortgage Loan,
any insurance policy which is required to be maintained from time to time under
this Agreement in respect of such Mortgage Loan.
Reserve Interest Rate: As defined in Section 5.09.
Residual Certificates: The Class A-R and Class A-LR
Certificates.
Responsible Officer: When used with respect to the Trustee,
any officer of the Corporate Trust Department of the Trustee, including any
Senior Vice President, any Vice President, any Assistant Vice President, any
Assistant Secretary, any Trust Officer or Assistant Trust Officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having responsibility for
the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
[S&P: Standard & Poor's, a Division of The XxXxxx-Xxxx
Companies, Inc., and its successors in interest.]
Seller: , a , or its successor
in interest, as seller of the Mortgage Loans under the Mortgage Loan Purchase
Agreement.
Senior Certificates: The Class A Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing the aggregate
Class Certificate Balance of the Senior Certificates (other than the Class A-PO
Certificates) immediately prior to such Distribution Date by the aggregate Class
Certificate Balance of all Classes of Certificates (other than the Class A-PO
Certificates) immediately prior to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during
the five years beginning on the first Distribution Date, %. The Senior
Prepayment Percentage for any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date will, except as provided herein, be
as follows: for any Distribution Date in the first year thereafter, the Senior
Percentage plus % of the Subordinate Percentage for such Distribution Date;
for any Distribution Date in the second year thereafter, the Senior Percentage
plus % of the Subordinate Percentage for such Distribution Date; for any
Distribution Date in the third year thereafter, the Senior Percentage plus %
of the Subordinate Percentage for such Distribution Date; for any Distribution
Date in the fourth year thereafter, the Senior Percentage plus % of the
Subordinate Percentage for such Distribution Date; and for any Distribution Date
in the fifth or later years thereafter, the Senior Percentage for such
Distribution Date (unless on any of the foregoing Distribution Dates the Senior
Percentage exceeds the initial Senior Percentage, in which case the Senior
Prepayment Percentage for such Distribution Date will once
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again equal 100%). Notwithstanding the foregoing, no decrease in the Senior
Prepayment Percentage will occur unless both of the Senior Step Down Conditions
are satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date, the sum of (i) the Senior Percentage of the applicable Non-PO Percentage
of all amounts described in clauses (a) through (d) of the definition of "Non-PO
Principal Amount" for such Distribution Date and (ii) the Senior Prepayment
Percentage of the applicable Non-PO Percentage of the amounts described in
clauses (e) and (f) of the definition of "Non-PO Principal Amount" for such
Distribution Date.
Senior Step Down Conditions: As of any Distribution Date as to
which any decrease in the Senior Prepayment Percentage applies, (i) the
outstanding principal balance of all Mortgage Loans (including, for this
purpose, any Mortgage Loans in foreclosure or any REO Property) delinquent 60
days or more (averaged over the preceding six month period), as a percentage of
the aggregate Class Certificate Balance of the Subordinate Certificates
(averaged over the preceding six-month period), is not equal to or greater than
50% or (ii) cumulative Realized Losses with respect to the Mortgage Loans as of
the applicable Distribution Date do not exceed the percentages of the Original
Subordinate Certificate Balance set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring Certificate Balance
--------------------------- -------------------
20 through 20 %
20 through 20 %
20 through 20 %
20 through 20 %
20 and thereafter %
Servicer: , a , or its successor in
interest, in its capacity as servicer of the Mortgage Loans, or any successor
servicer appointed as herein provided.
Servicer Advance Date: As to any Distribution Date, 11:30
a.m., Eastern time, on the Business Day immediately preceding such Distribution
Date.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by the Servicer pursuant to Section 3.08(b).
Servicer's Certificate: The monthly report required by Section
4.01.
Servicing Advances: All customary, reasonable and necessary
"out of pocket" costs and expenses incurred in the performance by the Servicer
of its servicing obligations, including, but not limited to (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) expenses
reimbursable to the Servicer pursuant to Section 3.14 and any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of any REO Property and (iv) compliance with the obligations under
Section 3.12.
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Servicing Fee: With respect to each Mortgage Loan and
Distribution Date, the amount of the fee payable to the Servicer, which shall,
for such Distribution Date, be equal to one-twelfth of the product of the
Servicing Fee Rate with respect to such Mortgage Loan and the Stated Principal
Balance of such Mortgage Loan, subject to reduction as provided in Section 3.17.
Such fee shall be payable monthly, computed on the basis of the same Stated
Principal Balance and period respecting which any related interest payment on a
Mortgage Loan is computed. The Servicer's right to receive the Servicing Fee is
limited to, and payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds and other proceeds, to the
extent permitted by Section 3.11) of related Monthly Payments collected by the
Servicer, or as otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, the
per annum rate equal to (i) the related Mortgage Interest Rate less (ii) the sum
of % and the Trustee Fee Rate; provided, however, that the Servicing Fee Rate
will not be less than % per annum with respect to any Mortgage Loan.
Servicing File: The items pertaining to a particular Mortgage
Loan referred to in Exhibit J hereto, and any additional documents required to
be added to the Servicing File pursuant to the Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In Shift Percentage
------------------------------ ----------------
20 through 20 ...................................... %
20 through 20 ...................................... %
20 through 20 ...................................... %
20 through 20 ...................................... %
20 through 20 ...................................... %
20 and thereafter........................................... %
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and date,
the unpaid principal balance of such Mortgage Loan as of the Due Date
immediately preceding such date as specified in the amortization schedule at the
time relating thereto (before any adjustment to such amortization schedule by
reason of any moratorium or similar waiver or grace period) after giving effect
to any previous partial Principal Prepayments and Liquidation Proceeds allocable
to principal (other than with respect to any Liquidated Mortgage Loan) and to
the payment of principal due on such Due Date and irrespective of any
delinquency in payment by the related Mortgagor, and after giving effect to any
Deficient Valuation.
Subordinate Certificates: The Class B Certificates.
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Subordinate Percentage: As of any Distribution Date, 100%
minus the Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution
Date, 100% minus the Senior Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the sum of (i) the Subordinate Percentage
of the applicable Non-PO Percentage of all amounts described in clauses (a)
through (d) of the definition of "Non-PO Principal Amount" for such Distribution
Date and (ii) the Subordinate Prepayment Percentage of the applicable Non-PO
Percentage of the amounts described in clauses (e) and (f) of the definition of
"Non-PO Principal Amount" for such Distribution Date.
Subservicer: Any Person with which the Servicer has entered
into a Subservicing Agreement and which satisfies the requirements set forth
therein.
Subservicing Agreement: Any subservicing agreement (which, in
the event the Subservicer is an affiliate of the Servicer, need not be in
writing) between the Servicer and any Subservicer relating to servicing and/or
administration of certain Mortgage Loans as provided in Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of, and not more
than 10% less than, the Stated Principal Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (iv) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Defective Mortgage Loan; and (v)
comply with each Mortgage Loan representation and warranty set forth in the Sale
Agreement relating to the Defective Mortgage Loan. More than one Substitute
Mortgage Loan may be substituted for a Defective Mortgage Loan if such
Substitute Mortgage Loans meet the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters
person" in accordance with Section 5.06 and the manner provided under Treasury
Regulation ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Telerate page 3750: As defined in Section 5.09.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement.
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets as shall from
time to time be identified as
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deposited in the Servicer Custodial Account or the Certificate Account, in
accordance with this Agreement, REO Property, the Primary Insurance Policies and
any other Required Insurance Policy.
Trustee: , and its successors-in-interest and,
if a successor trustee is appointed hereunder, such successor, as trustee.
Trustee Fee: As to any Distribution Date, an amount equal to
one-twelfth of the Trustee Fee Rate multiplied by the aggregate Stated Principal
Balance of the Mortgage Loans immediately following the Due Date in the month
preceding the month in which such Distribution Date occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, % per
annum.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02(a) hereof. Any of
the Class A-L1, Class A-L3, Class A-L4, Class A-LPO, Class A-LUR, Class A-LWIO,
Class B-L1, Class B-L2, Class B-L3, Class B-L4, Class B-L5 and Class B-L6
Interests are Uncertificated Lower-Tier Interests.
Underwriting Guidelines: The underwriting guidelines of .
Upper-Tier Certificate: Any one of the Class A Certificates
(other than the Class A-LR Certificate) and the Class B Certificates.
Upper-Tier Certificate Account: The separate Eligible Account
established and maintained by the Trustee pursuant to Section 3.08(f).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be held in the Upper-Tier Certificate
Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) % of all Voting Rights shall be allocated to the Holders of
the Residual Certificates, (b) % of all Voting Rights shall be allocated to
the Holders of the Class A-5 Certificates, (c) % of all Voting Rights shall be
allocated to the Holders of the Class A-WIO Certificates and (d) the remaining
Voting Rights
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shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on such
date.
Section 1.02 Interest Calculations. All calculations of interest will be
made on 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 down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
on behalf of the Trust for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to the
Mortgage Loans, including all interest and principal received on or with respect
to the Mortgage Loans (other than payments of principal and interest due and
payable on the Mortgage Loans on or before the Cut-Off Date). The foregoing
sale, transfer, assignment and set over does not and is not intended to result
in a creation of an assumption by the Trustee of any obligation of the Depositor
or any other Person in connection with the Mortgage Loans or any agreement or
instrument relating thereto, except as specifically set forth herein.
(b) In connection with such transfer and assignment, the Depositor has
delivered or caused to be delivered to the Trustee, for the benefit of the
Certificateholders, the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of , as Trustee, without
recourse," with all necessary intervening endorsements showing a complete
chain of endorsement from the originator to the Trustee (each such
endorsement being sufficient to transfer all right, title and interest of
the party so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note);
(ii) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Depositor as being a true and correct copy
of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to " , as trustee for the holders of the
Wachovia Asset Securitization, Inc. Mortgage Pass-Through Certificates,
Series 200 - Certificates" (which may be included in a blanket assignment
or assignments), together with, except as provided below, originals of all
interim recorded assignments of such mortgage or a copy of such interim
assignment certified by the Depositor as being a true
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and complete copy of the original recorded intervening assignments of
Mortgage (each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and transfer to
the assignee thereof, under the Mortgage to which the assignment relates);
provided that, if the related Mortgage has not been returned from the
applicable public recording office, such Assignment of Mortgage may exclude
the information to be provided by the recording office; and provided,
further, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
Assignment of Mortgage in favor of the Trustee will be required to be
prepared or delivered and instead, the Servicer shall take all actions as
are necessary to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) the original or duplicate original mortgagee title insurance policy
and all riders thereto;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a residential
long-term lease, a copy of the lease with evidence of recording indicated
thereon, or, if the lease is in the process of being recorded, a photocopy
of the lease, certified by an officer of the respective prior owner of such
Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to be a true
and correct copy of the lease transmitted for recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals of
the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
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(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of recording
thereon (or in a form suitable for recordation).
provided, however, that on the Closing Date, with respect to item (iii), the
Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in
blank and has caused the Servicer to retain the completed Assignment of Mortgage
for recording as described below, unless such Mortgage has been recorded in the
name of MERS or its designee. In addition, if the Depositor is unable to deliver
or cause the delivery of any original Mortgage Note due to the loss of such
original Mortgage Note, the Depositor may deliver a copy of such Mortgage Note,
together with a lost note affidavit, and shall thereby be deemed to have
satisfied the document delivery requirements of this Section 2.01(b). As set
forth on Exhibit L attached hereto is a list of all states where recordation is
required by either Rating Agency to obtain the initial ratings of the
Certificates. The Trustee may rely and shall be protected in relying upon the
information contained in such Exhibit L.
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, modification, consolidation or extension agreements, if any, or (D)
the lender's title policy (together with all riders thereto) satisfying the
requirements of clause (ii), (iii), (iv) or (v) above, respectively,
concurrently with the execution and delivery hereof because such document or
documents have not been returned from the applicable public recording office in
the case of clause (ii), (iii) or (iv) above, or because the title policy has
not been delivered to either the Servicer or the Depositor by the applicable
title insurer in the case of clause (v) above, the Depositor shall promptly
deliver or cause to be delivered to the Trustee or the Custodian on behalf of
the Trustee, in the case of clause (ii), (iii) or (iv) above, such Mortgage,
such interim assignment or such assumption, modification, consolidation or
extension agreement, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, but in no event
shall any such delivery of any such documents or instruments be made later than
one year following the Closing Date, unless, in the case of clause (ii), (iii)
or (iv) above, there has been a continuing delay at the applicable recording
office or, in the case of clause (v), there has been a continuing delay at the
applicable insurer and the Depositor has delivered the Officer's Certificate to
such effect to the Trustee. The Depositor shall forward or cause to be forwarded
to the Trustee (1) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (2) any other documents
required to be delivered by the Depositor or the Servicer to the Trustee or the
Custodian on the Trustee's behalf. In the event that the original Mortgage is
not delivered and in connection with the payment in full of the related Mortgage
Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Servicer shall prepare, execute and deliver or cause to be
prepared, executed and delivered, on behalf of the Trust, such a document to the
public recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30 days thereafter, the Servicer shall
(except for any Mortgage which has been recorded in the name of MERS or its
designee) (I) cause each Assignment of Mortgage to be in
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proper form for recording in the appropriate public office for real property
records within 30 days of the Closing Date and (II) at the Depositor's expense,
cause to be delivered for recording in the appropriate public office for real
property records the Assignments of the Mortgages to the Trustee, except that,
with respect to any Assignment of a Mortgage as to which the Servicer has not
received the information required to prepare such assignment in recordable form,
the Servicer's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within 30 days after the receipt thereof and, no recording of an
Assignment of Mortgage will be required in a state if either (i) the Depositor
furnishes to the Trustee an unqualified Opinion of Counsel reasonably acceptable
to the Trustee to the effect that recordation of such assignment is not
necessary under applicable state law to preserve the Trustee's interest in the
related Mortgage Loan against the claim of any subsequent transferee of such
Mortgage Loan or any successor to, or creditor of, the Depositor or the
originator of such Mortgage Loan or (ii) the recordation of an Assignment of
Mortgage in such state is not required by either Rating Agency in order to
obtain the initial ratings on the Certificates on the Closing Date.
In the case of Mortgage Loans that have been prepaid in full
as of the Closing Date, the Depositor, in lieu of delivering the above documents
to the Trustee, or the Custodian on the Trustee's behalf, will cause the
Servicer to deposit in the Servicer Custodial Account the portion of such
payment that is required to be deposited in the Servicer Custodial Account
pursuant to Section 3.08.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or the Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it constituting the Mortgage
Files, and that it will hold such other assets as are included in the Trust
Estate, in trust for the exclusive use and benefit of all present and future
Certificateholders.
Within 90 days after the execution and delivery of this
Agreement, the Trustee shall review, or cause the Custodian to review, the
Mortgage Files in its possession. If, in the course of such review, the Trustee
or the Custodian finds any document constituting a part of a Mortgage File which
does not meet the requirements of Section 2.01 or is omitted from such Mortgage
File, the Trustee shall promptly so notify the Servicer and the Depositor, or
shall cause the Custodian to promptly so notify the Servicer and the Depositor.
In performing any such review, the Trustee or the Custodian may conclusively
rely on the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's or the Custodian's
review of the Mortgage Files is limited solely to confirming that the documents
listed in Section 2.01 have been received and further confirming that any and
all documents delivered pursuant to Section 2.01 appear on their face to have
been executed and relate to the Mortgage Loans identified in the Mortgage Loan
Schedule. Neither the Trustee nor the Custodian shall have any responsibility
for determining whether any document is valid and binding, whether the text of
any assignment or endorsement is in proper or recordable form, whether any
document has been recorded in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction. The Depositor hereby covenants and agrees that it will promptly
correct or cure such defect within 90 days from the date it was so notified of
such defect and, if the Depositor does not correct or cure such defect within
such period, the Depositor will either (a) substitute for the related Mortgage
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Loan a Substitute Mortgage Loan, which substitution shall be accomplished in the
manner and subject to the conditions set forth below or (b) purchase such
Mortgage Loan from the Trustee at the Repurchase Price for such Mortgage Loan;
provided, however, that in no event shall such a substitution occur more than
two years from the Closing Date; provided, further, that such substitution or
repurchase shall occur within 90 days of when such defect was discovered if such
defect will cause the Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
With respect to each Substitute Mortgage Loan the Depositor
shall deliver to the Trustee, for the benefit of the Certificateholders, the
Mortgage Note, the Mortgage, the related Assignment of Mortgage (except for any
Mortgage which has been recorded in the name of MERS or its designee), and such
other documents and agreements as are otherwise required by Section 2.01, with
the Mortgage Note endorsed and the Mortgage assigned as required by Section
2.01. No substitution is permitted to be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to any such
Substitute Mortgage Loan in the month of substitution shall not be part of the
Trust Estate and will be retained by the Depositor. For the month of
substitution, distributions to Certificateholders will include the Monthly
Payment due for such month on any Defective Mortgage Loan for which the
Depositor has substituted a Substitute Mortgage Loan.
The Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of each Mortgage Loan
that has become a Defective Mortgage Loan and the substitution of the Substitute
Mortgage Loan or Loans and the Servicer shall deliver the amended Mortgage Loan
Schedule to the Trustee and the Custodian. Upon such substitution, each
Substitute Mortgage Loan shall be subject to the terms of this Agreement in all
respects, and the Depositor shall be deemed to have made to the Trustee with
respect to such Substitute Mortgage Loan, as of the date of substitution, the
representations and warranties made pursuant to Section 2.04. Upon any such
substitution and the deposit to the Servicer Custodial Account of any required
Substitution Adjustment Amount (as described in the next paragraph) and receipt
of a Request for Release, the Trustee shall release, or shall direct the
Custodian to release, the Mortgage File relating to such Defective Mortgage Loan
to the Depositor and shall execute and deliver at the Depositor's direction such
instruments of transfer or assignment prepared by the Depositor, in each case
without recourse, as shall be necessary to vest title in the Depositor, or its
designee, to the Trustee's interest in any Defective Mortgage Loan substituted
for pursuant to this Section 2.02.
For any month in which the Depositor substitutes one or more
Substitute Mortgage Loans for one or more Defective Mortgage Loans, the amount
(if any) by which the aggregate principal balance of all such Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all such Defective Mortgage Loans (after application of the
principal portion of the Monthly Payments due in the month of substitution) (the
"Substitution Adjustment Amount") plus an amount equal to the aggregate of any
unreimbursed Advances with respect to such Defective Mortgage Loans shall be
deposited into the Certificate Account by the Depositor on or before the
Remittance Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan is required to be purchased or
replaced hereunder.
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The Trustee shall retain or shall cause the Custodian to
retain possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions set forth herein. The Servicer shall
promptly deliver to the Trustee, upon the execution or, in the case of documents
requiring recording, receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the Servicer's
possession from time to time.
It is understood and agreed that the obligation of the
Depositor to substitute for or to purchase any Mortgage Loan which does not meet
the requirements of Section 2.01 shall constitute the sole remedy respecting
such defect available to the Trustee and any Certificateholder against the
Depositor.
The Trustee or the Custodian, on behalf of the Trustee, shall
be under no duty or obligation (i) to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face or (ii) to determine
whether any Mortgage File should include any of the documents specified in
Section 2.01(b)(iv), (vi), (vii) and (viii).
Section 2.03 Representations, Warranties and Covenants of
the Servicer.
The Servicer hereby makes the following representations and
warranties to the Depositor and the Trustee, as of the Closing Date:
(i) The Servicer is a national banking association duly
organized, validly existing, and in good standing under the federal
laws of the United States of America and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified
and in good standing in each of the states where a Mortgaged Property
is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Servicer. The
Servicer has power and authority to execute and deliver this Agreement
and to perform in accordance herewith; the execution, delivery and
performance of this Agreement (including all instruments of transfer to
be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and
validly authorized. This Agreement, assuming due authorization,
execution and delivery by the other parties hereto, evidences the
valid, binding and enforceable obligation of the Servicer, subject to
applicable law except as enforceability may be limited by (A)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the
rights of creditors and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. All
requisite corporate action has been taken by the Servicer to make this
Agreement valid and binding upon the Servicer in accordance with its
terms.
(ii) No consent, approval, authorization or order is required
for the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Servicer is required or, if
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required, such consent, approval, authorization or order has been or
will, prior to the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the Servicer
and will not result in the breach of any term or provision of the
charter or by-laws of the Servicer or result in the breach of any term
or provision of, or conflict with or constitute a default under or
result in the acceleration of any obligation under, any agreement,
indenture or loan or credit agreement or other instrument to which the
Servicer or its property is subject, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Servicer
or its property is subject.
(iv) There is no action, suit, proceeding or investigation
pending or, to the best knowledge of the Servicer, threatened against
the Servicer which, either individually or in the aggregate, would
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Servicer, or in any
material impairment of the right or ability of the Servicer to carry on
its business substantially as now conducted or which would draw into
question the validity of this Agreement or the Mortgage Loans or of any
action taken or to be taken in connection with the obligations of the
Servicer contemplated herein, or which would materially impair the
ability of the Servicer to perform under the terms of this Agreement.
The representations and warranties made pursuant to this
Section 2.03 shall survive delivery of the respective Mortgage Files to the
Trustee for the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor
as to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee
with respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as
of the date hereof or such other date set forth herein that as of the Closing
Date:
(i) The information set forth in the Mortgage Loan Schedule is
true and correct in all material respects.
(ii) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the lien priority of the related Mortgaged Property.
(iii) The terms of the Mortgage Note and the Mortgage have not
been impaired, waived, altered or modified in any respect, except by
written instruments, recorded in the applicable public recording office
if necessary to maintain the lien priority of the Mortgage, and which
have been delivered to the Trustee; the substance of any such waiver,
alteration or modification has been approved by the insurer under the
Primary Insurance Policy, if any, the title insurer, to the extent
required by the related policy, and is reflected on the Mortgage Loan
Schedule. No instrument of waiver, alteration or
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modification has been executed, and no Mortgagor has been released, in
whole or in part, except in connection with an assumption agreement
approved by the insurer under the Primary Insurance Policy, if any, the
title insurer, to the extent required by the policy, and which
assumption agreement has been delivered to the Trustee.
(iv) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the
Mortgage Note and the Mortgage, or the exercise of any right
thereunder, render either the Mortgage Note or the Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury and no such right of rescission, set-off, counterclaim or defense
has been asserted with respect thereto.
(v) All buildings upon the Mortgaged Property are insured by
an insurer generally acceptable to prudent mortgage lending
institutions against loss by fire, hazards of extended coverage and
such other hazards as are customary in the area the Mortgaged Property
is located, pursuant to insurance policies conforming to the
requirements of Customary Servicing Procedures and this Agreement. All
such insurance policies contain a standard mortgagee clause naming the
originator of the Mortgage Loan, its successors and assigns as
mortgagee and all premiums thereon have been paid. If the Mortgaged
Property is in an area identified on a flood hazard map or flood
insurance rate map issued by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made
available), a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration is in effect
which policy conforms to the requirements of FNMA or FHLMC. The
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor. (vi) Any and all
requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
consumer credit protections, equal credit opportunity or disclosure
laws applicable to the origination and servicing of Mortgage Loan have
been complied with.
(vii) The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part (other than as to
Principal Prepayments in full which may have been received prior to the
Closing Date), and the Mortgaged Property has not been released from
the lien of the Mortgage, in whole or in part, nor has any instrument
been executed that would effect any such satisfaction, cancellation,
subordination, rescission or release.
(viii) The Mortgage is a valid, existing and enforceable first
lien on the Mortgaged Property, including all improvements on the
Mortgaged Property subject only to (A) the lien of current real
property taxes and assessments not yet due and payable, (B) covenants,
conditions and restrictions, rights of way, easements and other matters
of the public record as of the date of recording being acceptable to
mortgage lending institutions generally and specifically referred to in
the lender's title insurance policy delivered to the
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originator of the Mortgage Loan and which do not adversely affect the
Appraised Value of the Mortgaged Property, (C) if the Mortgaged
Property consists of Co-op Shares, any lien for amounts due to the
cooperative housing corporation for unpaid assessments or charges or
any lien of any assignment of rents or maintenance expenses secured by
the real property owned by the cooperative housing corporation, and (D)
other matters to which like properties are commonly subject which do
not materially interfere with the benefits of the security intended to
be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. Any security
agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates
a valid, existing and enforceable first lien and first priority
security interest on the property described therein and the Depositor
has the full right to sell and assign the same to the Trustee.
(ix) The Mortgage Note and the related Mortgage are genuine
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms except as
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors and (B)
general principles of equity, whether enforcement is sought in a
proceeding in equity or at law.
(x) All parties to the Mortgage Note and the Mortgage had
legal capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage, and the Mortgage Note and
the Mortgage have been duly and properly executed by such parties.
(xi) The proceeds of the Mortgage Loan have been fully
disbursed to or for the account of the Mortgagor and there is no
obligation for the Mortgagee to advance additional funds thereunder and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have
been complied with. All costs fees and expenses incurred in making or
closing the Mortgage Loan and the recording of the Mortgage have been
paid, and the Mortgagor is not entitled to any refund of any amounts
paid or due to the Mortgagee pursuant to the Mortgage Note or Mortgage.
(xii) To the best of the Depositor's knowledge, all parties
which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which
they held and disposed of such interest, were) in compliance with any
and all applicable "doing business" and licensing requirements of the
laws of the state wherein the Mortgaged Property is located.
(xiii) The Mortgage Loan is covered by an ALTA lender's title
insurance policy, acceptable to FNMA or FHLMC, issued by a title
insurer acceptable to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject
to the exceptions contained in (viii)(A) and (B) above) the Seller, its
successors and assigns as to the first priority lien of the Mortgage in
the original principal amount of the Mortgage Loan. The Depositor is
the sole insured of such lender's title insurance policy, and such
lender's title insurance policy is in full force and effect and will be
in full force
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and effect upon the consummation of the transactions contemplated by
this Agreement. No claims have been made under such lender's title
insurance policy, and the Depositor has not done, by act or omission,
anything which would impair the coverage of such lender's title
insurance policy.
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach,
violation or event of acceleration, and the Seller has not waived any
default, breach, violation or event of acceleration.
(xv) As of the date of origination of the Mortgage Loan, there
had been no mechanics' or similar liens or claims filed for work, labor
or material (and no rights are outstanding that under law could give
rise to such lien) affecting the relating Mortgaged Property which are
or may be liens prior to, or equal or coordinate with, the lien of the
related Mortgage.
(xvi) All improvements which were considered in determining
the Appraised Value of the related Mortgaged Property lay wholly within
the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property.
(xvii) The Mortgage Loan was originated by a commercial bank
or similar banking institution which is supervised and examined by a
federal or state authority, or by a mortgagee approved by the Secretary
of HUD.
(xviii) Principal payments on the Mortgage Loan commenced no
more than sixty days after the proceeds of the Mortgaged Loan were
disbursed. The Mortgage Loans are 30-year fixed rate mortgage loans
having an original term to maturity of not more than 30 years, with
interest payable in arrears on the first day of the month. Each
Mortgage Note requires a monthly payment which is sufficient to fully
amortize the original principal balance over the original term thereof
and to pay interest at the related Mortgage Interest Rate. The Mortgage
Note does not permit negative amortization.
(xix) There is no proceeding pending or, to the Depositor's
knowledge, threatened for the total or partial condemnation of the
Mortgaged Property and such property is in good repair and is undamaged
by waste, fire, earthquake or earth movement, windstorm, flood, tornado
or other casualty, so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the
premises were intended.
(xx) The Mortgage and related Mortgage Note contain customary
and enforceable provisions such as to render the rights and remedies of
the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including
(A) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (B) otherwise by judicial foreclosure. To the best
of the Depositor's knowledge, following the date of origination of the
Mortgage Loan, the
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Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection
under applicable bankruptcy laws. There is no homestead or other
exemption or right available to the Mortgagor or any other person which
would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage.
(xxi) The Mortgage Note and Mortgage are on forms acceptable
to FNMA or FHLMC.
(xxii) The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage on the
Mortgaged Property and the security interest of any applicable security
agreement or chattel mortgage referred to in (viii) above.
(xxiii) The Mortgage File contains an appraisal of the related
Mortgaged Property, in a form acceptable to FNMA or FHLMC and such
appraisal complies with the requirements of FIRREA, and was made and
signed, prior to the approval of the Mortgage Loan application, by a
Qualified Appraiser.
(xxiv) In the event the Mortgage constitutes a deed of trust,
a trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves, and no fees or
expenses are or will become payable by the Trustee to the trustee under
the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor.
(xxv) No Mortgage Loan is a graduated payment mortgage loan,
no Mortgage Loan has a shared appreciation or other contingent interest
feature, and no Mortgage Loan contains any "buydown" provision.
(xxvi) The Mortgagor has received all disclosure materials
required by applicable law with respect to the making of mortgage loans
of the same type as the Mortgage Loan and rescission materials required
by applicable law if the Mortgage Loan is a Refinance Mortgage Loan.
(xxvii) Each Mortgage Loan with a Loan-to-Value Ratio at
origination in excess of 80% will be subject to a Primary Insurance
Policy, issued by an insurer acceptable to FNMA or FHLMC, which insures
that portion of the Mortgage Loan in excess of the portion of the
Appraised Value of the Mortgaged Property required by FNMA. All
provisions of such Primary Insurance Policy have been and are being
complied with, such policy is in full force and effect, and all
premiums due thereunder have been paid. Any Mortgage subject to any
such Primary Insurance Policy obligates the Mortgagor thereunder to
maintain such insurance and to pay all premiums and charges in
connection therewith at least until Loan-to-Value Ratio of such
Mortgage Loan is reduced to less than 80%. The Mortgage Interest Rate
for the Mortgage Loan does not include any such insurance premium.
(xxviii) To the best of the Depositor's knowledge as of the
date of origination of the Mortgage Loan, (A) the Mortgaged Property is
lawfully occupied under applicable
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law, (B) all inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy, have been made
or obtained from the appropriate authorities and (C) no improvement
located on or part of the Mortgaged Property is in violation of any
zoning law or regulation.
(xxix) The Assignment of Mortgage (except with respect to any
Mortgage that has been recorded in the name of MERS or its designee) is
in recordable form and is acceptable for recording under the laws of
the jurisdiction in which the Mortgaged Property is located.
(xxx) All payments required to be made prior to the Cut-Off
Date for such Mortgage Loan under the terms of the Mortgage Note have
been made and no Mortgage Loan has been more than 30 days delinquent
more than once in the twelve month period immediately prior to the
Cut-Off Date.
(xxxi) With respect to each Mortgage Loan, the Depositor or
Servicer is in possession of a complete Mortgage File except for the
documents which have been delivered to the Trustee or which have been
submitted for recording and not yet returned.
(xxxii) Immediately prior to the transfer and assignment
contemplated herein, the Depositor was the sole owner and holder of the
Mortgage Loans. The Mortgage Loans were not assigned or pledged by the
Depositor and the Depositor had good and marketable title thereto, and
the Depositor had full right to transfer and sell the Mortgage Loans to
the Trustee free and clear of any encumbrance, participation interest,
lien, equity, pledge, claim or security interest and had full right and
authority subject to no interest or participation in, or agreement with
any other party to sell or otherwise transfer the Mortgage Loans.
(xxxiii) Any future advances made prior to the Cut-Off Date
have been consolidated with the outstanding principal amount secured by
the Mortgage, and the secured principal amount, as consolidated, bears
a single interest rate and single repayment term. The lien of the
Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated
interest or by other title evidence acceptable to FNMA and FHLMC. The
consolidated principal amount does not exceed the original principal
amount of the Mortgage Loan.
(xxxiv) The Mortgage Loan was underwritten in accordance with
the applicable Underwriting Guidelines in effect at the time of
origination with exceptions thereto exercised in a reasonable manner.
(xxxv) If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without
the lessor's consent and the acquisition by the holder of the Mortgage
of the rights of the lessee upon foreclosure or assignment in lieu of
foreclosure or provide the
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holder of the Mortgage with substantially similar protections; (3) the
terms of such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled to
receive written notice of, and opportunity to cure, such default, (b)
allow the termination of the lease in the event of damage or
destruction as long as the Mortgage is in existence, (c) prohibit the
holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to
the Mortgaged Property or (d) permit any increase in the rent other
than pre-established increases set forth in the lease; (4) the original
term of such lease in not less than 15 years; (5) the term of such
lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in
a jurisdiction in which the use of leasehold estates in transferring
ownership in residential properties is a widely accepted practice.
(xxxvi) The Mortgaged Property is located in the state
identified in the Mortgage Loan Schedule and consists of a parcel of
real property with a detached single family residence erected thereon,
or a two- to four-family dwelling, or an individual condominium unit,
or an individual unit in a planned unit development, or, in the case
of Mortgage Loans secured by Co-op Shares, leases or occupancy
agreements; provided, however, that any condominium project or planned
unit development generally conforms with the applicable Underwriting
Guidelines regarding such dwellings, and no residence or dwelling is a
mobile home or a manufactured dwelling.
(xxxvii) The Depositor used no adverse selection procedures in
selecting the Mortgage Loan for inclusion in the Trust Estate.
(xxxviii) Each Mortgage Loan is a "qualified mortgage" within
Section 860G(a)(3) of the Code.
(xxxix) With respect to each Mortgage where a lost note
affidavit has been delivered to the Trustee in place of the related
Mortgage Note, the related Mortgage Note is no longer in existence.
Notwithstanding the foregoing, no representations or
warranties are made by the Depositor as to the environmental condition of any
Mortgaged Property; the absence, presence or effect of hazardous wastes or
hazardous substances on any Mortgaged Property; any casualty resulting from the
presence or effect of hazardous wastes or hazardous substances on, near or
emanating from any Mortgaged Property; the impact on Certificateholders of any
environmental condition or presence of any hazardous substance on or near any
Mortgaged Property; or the compliance of any Mortgaged Property with any
environmental laws, nor is any agent, Person or entity otherwise affiliated with
the Depositor authorized or able to make any such representation, warranty or
assumption of liability relative to any Mortgaged Property. In addition, no
representations or warranties are made by the Depositor with respect to the
absence or effect of fraud in the origination of any Mortgage Loan.
It is understood and agreed that the representations and
warranties set forth in this Section 2.04 shall survive delivery of the
respective Mortgage Files to the Trustee or the
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Custodian and shall inure to the benefit of the Trustee, notwithstanding any
restrictive or qualified endorsement or assignment.
Upon discovery by either the Depositor, the Servicer, the
Trustee or the Custodian that any of the representations and warranties set
forth in this Section 2.04 is not accurate (referred to herein as a "breach")
and that such breach materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement); provided that any such breach
that causes the Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code shall be deemed to materially and
adversely affect the interests of the Certificateholders. Within 90 days of its
discovery or its receipt of notice of any such breach, the Depositor shall cure
such breach in all material respects or shall either (i) repurchase the Mortgage
Loan or any property acquired in respect thereof from the Trustee at a price
equal to the Repurchase Price or (ii) if within two years of the Closing Date,
substitute for such Mortgage Loan in the manner described in Section 2.02;
provided that if the breach would cause the Mortgage Loan to be other than a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such
repurchase or substitution must occur within 90 days from the date the breach
was discovered. The Repurchase Price of any repurchase described in this
paragraph and the Substitution Adjustment Amount, if any, shall be deposited in
the Certificate Account. It is understood and agreed that the obligation of the
Depositor to repurchase or substitute for any Mortgage Loan or Mortgaged
Property as to which such a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to
Certificateholders, or to the Trustee on behalf of Certificateholders, and such
obligation shall survive until termination of the Trust hereunder.
Section 2.05 Designation of Interests in the REMIC. The
Depositor hereby designates the Classes of Class A Certificates (other than the
Class A-R and Class A-LR Certificates) and the Classes of Class B Certificates
as classes of "regular interests" and the Class A-R Certificate as the single
class of "residual interest" in the Upper-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2), respectively. The Depositor hereby further
designates the Class A-L1 Interest, Class A-L3 Interest, Class A-L4 Interest,
Class A-LPO Interest, Class A-LUR Interest, Class A-LWIO Interest, Class B-L1
Interest, Class B-L2 Interest, Class B-L3 Interest, Class B-L4 Interest, Class
B-L5 Interest and Class B-L6 Interest as classes of "regular interests" and the
Class A-LR Certificate as the single class of "residual interest" in the
Lower-Tier REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2),
respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby designated as the "start-up day" of each of the Upper-Tier REMIC and
Lower-Tier REMIC within the meaning of Section 860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for
purposes of satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the "latest possible maturity date" of the regular interests in the Upper-Tier
REMIC and Lower-Tier REMIC is May 20, 2028.
Section 2.08 Execution and Delivery of Certificates. The
Trustee (i) acknowledges the issuance of and hereby declares that it holds the
Uncertificated Lower-Tier
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Interests on behalf of the Upper-Tier REMIC and the Certificateholders and (ii)
has executed and delivered to or upon the order of the Depositor, in exchange
for the Mortgage Loans and Uncertificated Lower-Tier Interests together with all
other assets included in the definition of "Trust Estate," receipt of which is
hereby acknowledged, Certificates in authorized denominations which, together
with the Uncertificated Lower-Tier Interests, evidence ownership of the entire
Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. For and on
behalf of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans, all in accordance with the terms of this Agreement, Customary
Servicing Procedures, applicable law and the terms of the Mortgage Notes and
Mortgages. In connection with such servicing and administration, the Servicer
shall have full power and authority, acting alone and/or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things that it
may deem necessary or desirable in connection with such servicing and
administration including, but not limited to, the power and authority, subject
to the terms hereof, (a) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (b) to consent, with respect to the Mortgage Loans it
services, to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this Agreement),
(c) to collect any Insurance Proceeds and other Liquidation Proceeds relating to
the Mortgage Loans it services, and (d) to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage Loan
it services. The Servicer shall represent and protect the interests of the Trust
in the same manner as it protects its own interests in mortgage loans in its own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan and
shall not make or permit any modification, waiver or amendment of any term of
any Mortgage Loan, except as provided pursuant to Section 3.21. Without limiting
the generality of the foregoing, the Servicer, in its own name or in the name of
any Subservicer or the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when the Servicer or any
Subservicer, as the case may be, believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders 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 it services, and with
respect to the related Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by either or
both of them as are necessary or appropriate to enable the Servicer to service
and administer the Mortgage Loans it services to the extent that the Servicer is
not permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents, the Depositor and/or the Trustee, upon
the direction of the Servicer, shall promptly execute such documents and deliver
them to the Servicer.
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In accordance with the standards of the preceding paragraph,
the Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
The costs incurred by the Servicer, if any, in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance premiums
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement) to the Trustee under this Agreement
is intended by the parties to be that of an independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Subservicing; Enforcement of the Obligations of
Servicer.
(a) The Servicer may arrange for the subservicing of any
Mortgage Loan it services by a Subservicer pursuant to a Subservicing Agreement;
provided, however, that such subservicing arrangement and the terms of the
related Subservicing Agreement must provide for the servicing of such Mortgage
Loan in a manner consistent with the servicing arrangements contemplated
hereunder. Notwithstanding the provisions of any Subservicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the Servicer shall remain obligated and liable to the
Depositor, the Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans it services in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
those Mortgage Loans. All actions of each Subservicer performed pursuant to the
related Subservicing Agreement shall be performed as agent of the Servicer with
the same force and effect as if performed directly by the Servicer.
(b) For purposes of this Agreement, the Servicer shall be
deemed to have received any collections, recoveries or payments with respect to
the Mortgage Loans it services that are received by a Subservicer regardless of
whether such payments are remitted by the Subservicer to the Servicer.
(c) As part of its servicing activities hereunder, the
Servicer, for the benefit of the Trustee and the Certificateholders, shall use
its best reasonable efforts to enforce the obligations of each Subservicer
engaged by the Servicer under the related Subservicing Agreement, to the extent
that the non-performance of any such obligation would have a material and
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,
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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.
(d) Any Subservicing Agreement entered into by the Servicer
shall provide that it may be assumed or terminated by the Trustee, if the
Trustee has assumed the duties of the Servicer, or any successor Servicer, at
the Trustee's or successor Servicer's option, as applicable, without cost or
obligation to the assuming or terminating party or the Trust Estate, upon the
assumption by such party of the obligations of the Servicer pursuant to Section
8.05.
Any Subservicing Agreement, and any other transactions or
services relating to the Mortgage Loans involving a Subservicer, shall be deemed
to be between the Servicer and such Subservicer alone, and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims
or rights of action against, rights, obligations, duties or liabilities to or
with respect to the Subservicer or its officers, directors or employees, except
as set forth in Section 3.01.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket
fidelity bond and an errors and omissions insurance policy, with broad coverage
on all officers, employees or other persons acting in any capacity requiring
such persons to handle funds, money, documents or papers relating to the
Mortgage Loans it services. These policies must insure the Servicer against
losses resulting from dishonest or fraudulent acts committed by the Servicer's
personnel, any employees of outside firms that provide data processing services
for the Servicer, and temporary contract employees or student interns. Such
fidelity bond shall also protect and insure the Servicer against losses in
connection with the release or satisfaction of a Mortgage Loan without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 3.03 requiring such fidelity bond and errors and omissions
insurance shall diminish or relieve the Servicer from its duties and obligations
as set forth in this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the corresponding amounts required
by FNMA in the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' &
Servicers' Guide, as amended or restated from time to time, or in an amount as
may be permitted to the Servicer by express waiver of FNMA or FHLMC.
Section 3.04 Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinate
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation required by applicable
regulations of the OTS and the FDIC with respect to the Mortgage Loans. Such
access shall be afforded without charge, but only upon reasonable and prior
written request and during normal business hours at the offices designated by
the Servicer. Nothing in this Section 3.04 shall limit the obligation of the
Servicer to observe any applicable law and the failure of the Servicer to
provide access as provided in this Section 3.04 as a result of such obligation
shall not constitute a breach of this Section 3.04.
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Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
With respect to each Mortgage Loan with a Loan-to-Value Ratio
in excess of 80% or such other Loan-to-Value Ratio as may be required by law,
the Servicer responsible for servicing such Mortgage Loan shall, without any
cost to the Trust Estate, maintain or cause the Mortgagor to maintain in full
force and effect a Primary Insurance Policy insuring that portion of the
Mortgage Loan in excess of a percentage in conformity with FNMA requirements.
The Servicer shall pay or shall cause the Mortgagor to pay the premium thereon
on a timely basis, at least until the Loan-to-Value Ratio of such Mortgage Loan
is reduced to 80% or such other Loan-to-Value Ratio as may be required by law.
If such Primary Insurance Policy is terminated, the Servicer shall obtain from
another insurer a comparable replacement policy, with a total coverage equal to
the remaining coverage of such terminated Primary Insurance Policy. If the
insurer shall cease to be an insurer acceptable to FNMA, the Servicer shall
notify the Trustee in writing, it being understood that the Servicer shall not
have any responsibility or liability for any failure to recover under the
Primary Insurance Policy for such reason. If the Servicer determines that
recoveries under the Primary Insurance Policy are jeopardized by the financial
condition of the insurer, the Servicer shall obtain from another insurer which
meets the requirements of this Section 3.05 a replacement insurance policy. The
Servicer shall not take any action that would result in noncoverage under any
applicable Primary Insurance Policy of any loss that, but for the actions of the
Servicer, would have been covered thereunder. In connection with any assumption
or substitution agreement entered into or to be entered into pursuant to Section
3.13, the Servicer shall promptly notify the insurer under the related Primary
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such Primary Insurance Policy and shall take all
actions which may be required by such insurer as a condition to the continuation
of coverage under such Primary Insurance Policy. If such Primary Insurance
Policy is terminated as a result of such assumption or substitution of
liability, the Servicer shall obtain a replacement Primary Insurance Policy as
provided above.
In connection with its activities as servicer, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Insurance Policy in
a timely fashion in accordance with the terms of such Primary Insurance Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any Primary Insurance Policy respecting a defaulted Mortgage
Loan. Pursuant to Section 3.09(a), any amounts collected by the Servicer under
any Primary Insurance Policy shall be deposited in the related Escrow Account,
subject to withdrawal pursuant to Section 3.09(b).
The Servicer will comply with all provisions of applicable
state and federal law relating to the cancellation of, or collection of premiums
with respect to, Primary Mortgage Insurance, including, but not limited to, the
provisions of the Homeowners Protection Act of 1998, and all regulations
promulgated thereunder, as amended from time to time.
Section 3.06 Rights of the Depositor and the Trustee in
Respect of the Servicer.
The Depositor may, but is not obligated to, enforce the
obligations of the Servicer hereunder and may, but is not obligated to, perform,
or cause a designee to perform, any defaulted obligation of the Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Servicer hereunder; provided that the Servicer shall
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not be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee. Neither the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by the Servicer nor shall the Trustee or the Depositor be obligated to
supervise the performance of the Servicer hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee and Certificateholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.07.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.07 Trustee to Act as Servicer.
If the Servicer shall for any reason no longer be the Servicer
hereunder (including by reason of an Event of Default), the Trustee shall
thereupon assume, if it so elects, or shall appoint a successor Servicer to
assume, all of the rights and obligations of the Servicer hereunder arising
thereafter (except that the Trustee shall not be (a) liable for losses of the
Servicer pursuant to Section 3.12 or any acts or omissions of the predecessor
Servicer hereunder, (b) obligated to make Advances if it is prohibited from
doing so by applicable law or (c) deemed to have made any representations and
warranties of the Servicer hereunder). Any such assumption shall be subject to
Section 7.02. If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Trustee or the successor
Servicer may elect to succeed to any rights and obligations of the Servicer
under each Subservicing Agreement or may terminate each Subservicing Agreement.
If it has elected to assume the Subservicing Agreement, the Trustee or the
successor Servicer shall be deemed to have assumed all of the Servicer's
interest therein and to have replaced the Servicer as a party to any
Subservicing Agreement entered into by the Servicer as contemplated by Section
3.02 to the same extent as if the Subservicing Agreement had been assigned to
the assuming party except that the Servicer shall not be relieved of any
liability or obligations under any such Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall,
upon request of the Trustee, but at the expense of the Servicer, deliver to the
assuming party all documents and records relating to each Subservicing Agreement
or substitute servicing agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected or held by it and otherwise
use its best efforts to effect the orderly and efficient transfer of such
substitute Subservicing Agreement to the assuming party.
Section 3.08 Collection of Mortgage Loan Payments; Servicer
Custodial Account; Certificate Account; and Upper-Tier Certificate Account.
(a) Continuously from the date hereof until the principal and
interest on all Mortgage Loans are paid in full, the Servicer will proceed
diligently, in accordance with this Agreement, to collect all payments due under
each of the Mortgage Loans it services when the same shall become due and
payable. Further, the Servicer will in accordance with all applicable law and
Customary Servicing Procedures ascertain and estimate taxes, assessments, fire
and
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hazard insurance premiums, mortgage insurance premiums and all other charges
with respect to the Mortgage Loans it services that, as provided in any
Mortgage, will become due and payable to the end that the installments payable
by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable. Consistent with the foregoing, the Servicer may in its
discretion (i) waive any late payment charge or any prepayment charge or penalty
interest in connection with the prepayment of a Mortgage Loan it services and
(ii) extend the due dates for payments due on a Mortgage Note for a period not
greater than 120 days; provided, however, that the Servicer cannot extend the
maturity of any such Mortgage Loan past the date on which the final payment is
due on the latest maturing Mortgage Loan as of the Cut-Off Date. In the event of
any such arrangement, the Servicer shall make Periodic Advances on the related
Mortgage Loan in accordance with the provisions of Section 3.20 during the
scheduled period in accordance with the amortization schedule of such Mortgage
Loan without modification thereof by reason of such arrangements. The Servicer
shall not be required to institute or join in litigation with respect to
collection of any payment (whether under a Mortgage, Mortgage Note or otherwise
or against any public or governmental authority with respect to a taking or
condemnation) if it reasonably believes that enforcing the provision of the
Mortgage or other instrument pursuant to which such payment is required is
prohibited by applicable law.
(b) The Servicer shall establish and maintain the Servicer
Custodial Account. The Servicer shall deposit or cause to be deposited into the
Servicer Custodial Account, all on a daily basis within one Business Day of
receipt, except as otherwise specifically provided herein, the following
payments and collections remitted by Subservicers or received by the Servicer in
respect of the Mortgage Loans subsequent to the Cut-Off Date (other than in
respect of principal and interest due on the Mortgage Loans on or before the
Cut-Off Date) and the following amounts required to be deposited hereunder with
respect to the Mortgage Loans it services:
(i) all payments on account of principal of the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, net of the Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds,
other than Insurance Proceeds to be (1) applied to the restoration or
repair of the Mortgaged Property, (2) released to the Mortgagor in
accordance with Customary Servicing Procedures or (3) required to be
deposited to an Escrow Account pursuant to Section 3.09(a) and (B) any
Insurance Proceeds released from an Escrow Account pursuant to Section
3.09(b)(iv);
(iv) any amount required to be deposited by the Servicer
pursuant to Section 3.08(d) in connection with any losses on Permitted
Investments with respect to the Servicer Custodial Account;
(v) any amounts required to be deposited by the Servicer
pursuant to Section 3.14;
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(vi) all Repurchase Prices and all Substitution Adjustment
Amounts received by the Servicer;
(vii) Periodic Advances made by the Servicer pursuant to
Section 3.20 and any payments of Compensating Interest; and
(viii) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer
Custodial Account by the Servicer shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of prepayment penalties, late payment charges or assumption fees, if
collected, need not be deposited by the Servicer. If the Servicer shall deposit
in the Servicer Custodial Account any amount not required to be deposited, it
may at any time withdraw or direct the institution maintaining the Servicer
Custodial Account to withdraw such amount from the Servicer Custodial Account,
any provision herein to the contrary notwithstanding. The Servicer Custodial
Account may contain funds that belong to one or more trust funds created for
mortgage pass-through certificates of other series and may contain other funds
respecting payments on mortgage loans belonging to the Servicer or serviced by
the Servicer on behalf of others. Notwithstanding such commingling of funds, the
Servicer shall keep records that accurately reflect the funds on deposit in the
Servicer Custodial Account that have been identified by it as being attributable
to the Mortgage Loans it services. The Servicer shall maintain adequate records
with respect to all withdrawals made pursuant to this Section 3.08. All funds
required to be deposited in the Servicer Custodial Account shall be held in
trust for the Certificateholders until withdrawn in accordance with Section
3.11.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate Account. The Trustee shall, promptly upon
receipt, deposit in the Certificate Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the
Trustee pursuant to Section 3.11(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section
3.08(d) in connection with any losses on Permitted Investments with
respect to the Certificate Account; and
(iii) any other amounts deposited hereunder which are required
to be deposited in the Certificate Account.
If the Servicer shall remit any amount not required to be
remitted, it may at any time direct the Trustee to withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding. Such
direction may be accomplished by delivering an Officer's Certificate to the
Trustee which describes the amounts deposited in error in the Certificate
Account. All funds required to be deposited in the Certificate Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.11. In
no event shall the Trustee incur liability for withdrawals from the Certificate
Account at the direction of a the Servicer.
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(d) Each institution at which the Servicer Custodial Account
or the Certificate Account is maintained shall invest the funds therein as
directed in writing by the Servicer in Permitted Investments, which shall mature
not later than (i) in the case of the Servicer Custodial Account, the Business
Day next preceding the related Remittance Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account, then
such Permitted Investment shall mature not later than such Remittance Date) and
(ii) in the case of the Certificate Account, the Business Day next preceding the
Distribution Date (except that if such Permitted Investment is an obligation of
the institution that maintains such account, then such Permitted Investment
shall mature not later than such Distribution Date) and, in each case, shall not
be sold or disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income or gain (net of any losses) realized from any
such investment of funds on deposit in the Servicer Custodial Account shall be
for the benefit of the Servicer as servicing compensation and shall be retained
by it monthly as provided herein. All income or gain (net of any losses)
realized from any such investment of funds on deposit in the Certificate Account
shall be for the benefit of the Trustee as additional compensation and shall be
retained by it monthly as provided herein. The amount of any losses realized in
the Servicer Custodial Account or the Certificate Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
Servicer in the Servicer Custodial Account or by the Trustee in the Certificate
Account, as applicable.
(e) The Servicer shall give notice to the Trustee of any
proposed change of the location of the Servicer Custodial Account maintained by
the Servicer not later than 30 days and not more than 45 days prior to any
change thereof. The Trustee shall give notice to the Servicer, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account not later than 30 days and not more than 45 days prior to
any change thereof. The creation of the Servicer Custodial Account shall be
evidenced by a certification substantially in the form of Exhibit F hereto. A
copy of such certification shall be furnished to the Trustee.
(f) The Trustee shall establish and maintain the Upper-Tier
Certificate Account. On each Distribution Date (other than the Final
Distribution Date, if such Final Distribution Date is in connection with a
purchase of the assets of the Trust Estate by the Depositor), the Trustee shall,
from funds available on deposit in the Certificate Account, deposit, in
immediately available funds, by wire transfer or otherwise, into the Upper-Tier
Certificate Account, the Lower-Tier Distribution Amount.
Section 3.09 Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.
(a) To the extent required by the related Mortgage Note and
not violative of current law, the Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan which constitute Escrow
Payments in trust separate and apart from any of its own funds and general
assets and for such purpose shall establish and maintain one or more escrow
accounts (collectively, the "Escrow Account"), titled "[Insert name of
Servicer], in trust for registered holders of Wachovia Asset Securitization,
Inc. Mortgage Pass-Through Certificates, Series 200 - and various Mortgagors."
The Escrow Account shall be established with a commercial bank, a savings bank
or a savings and loan association that meets the guidelines set forth by FNMA or
FHLMC as an eligible institution for escrow accounts and
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which is a member of the Automated Clearing House. In any case, the Escrow
Account shall be insured by the FDIC to the fullest extent permitted by law. The
Servicer shall deposit in the appropriate Escrow Account on a daily basis, and
retain therein: (i) all Escrow Payments collected on account of the Mortgage
Loans, (ii) all amounts representing proceeds of any hazard insurance policy
which are to be applied to the restoration or repair of any related Mortgaged
Property and (iii) all amounts representing proceeds of any Primary Insurance
Policy. Nothing herein shall require the Servicer to compel a Mortgagor to
establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow
Accounts may be made by the Servicer only (i) to effect timely payment of taxes,
assessments, mortgage insurance premiums, fire and hazard insurance premiums,
condominium or PUD association dues, or comparable items constituting Escrow
Payments for the related Mortgage, (ii) to reimburse the Servicer out of related
Escrow Payments made with respect to a Mortgage Loan for any Servicing Advance
made by the Servicer pursuant to Section 3.09(c) with respect to such Mortgage
Loan, (iii) to refund to any Mortgagor any sums determined to be overages, (iv)
for transfer to the Servicer Custodial Account upon default of a Mortgagor or in
accordance with the terms of the related Mortgage Loan and if permitted by
applicable law, (v) for application to restore or repair the Mortgaged Property,
(vi) to pay to the Mortgagor, to the extent required by law, any interest paid
on the funds deposited in the Escrow Account, (vii) to pay to itself any
interest earned on funds deposited in the Escrow Account (and not required to be
paid to the Mortgagor), (viii) to the extent permitted under the terms of the
related Mortgage Note and applicable law, to pay late fees with respect to any
Monthly Payment which is received after the applicable grace period, (ix) to
withdraw suspense payments that are deposited into the Escrow Account, (x) to
withdraw any amounts inadvertently deposited in the Escrow Account or (xi) to
clear and terminate the Escrow Account upon the termination of this Agreement in
accordance with Section 10.01. Any Escrow Account shall not be a part of the
Trust Estate.
(c) With respect to each Mortgage Loan, the Servicer shall
maintain accurate records reflecting the status of taxes, assessments and other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Insurance Policy premiums and fire and hazard insurance
coverage. The Servicer shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account, if any, which shall have been
estimated and accumulated by the Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. To the extent that a
Mortgage does not provide for Escrow Payments, the Servicer shall determine that
any such payments are made by the Mortgagor. The Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills irrespective of each Mortgagor's faithful performance
in the payment of same or the making of the Escrow Payments. The Servicer shall
advance any such payments that are not timely paid, but the Servicer shall be
required so to advance only to the extent that such Servicing Advances, in the
good faith judgment of the Servicer, will be recoverable by the Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
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Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Servicer shall afford the Trustee reasonable access to all
records and documentation regarding the Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement, such access
being afforded without charge, but only upon reasonable request and during
normal business hours at the office designated by the Servicer.
Upon reasonable advance notice in writing, the Servicer will
provide to each Certificateholder which is a savings and loan association, bank
or insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit such
Certificateholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates; provided
that the Servicer shall be entitled to be reimbursed by each such
Certificateholder for actual expenses incurred by the Servicer in providing such
reports and access.
Section 3.11 Permitted Withdrawals from the Servicer Custodial
Account; Certificate Account and Upper-Tier Certificate Account.
(a) The Servicer may from time to time make withdrawals from
the Servicer Custodial Account, for the following purposes:
(i) to pay to the Servicer (to the extent not previously
retained), the servicing compensation to which it is entitled pursuant
to Section 3.17, and to pay to the Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds
in or credited to the Servicer Custodial Account;
(ii) to reimburse the Servicer for unreimbursed Advances made
by it, such right of reimbursement pursuant to this clause (ii) being
limited to amounts received on the Mortgage Loan(s) in respect of
which any such Advance was made;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage
Loan or REO Property that has been purchased pursuant to Section 2.02
or 2.04, all amounts received thereon after the date of such purchase;
(vi) to reimburse the Servicer or the Depositor for expenses incurred
by any of them and reimbursable pursuant to Section 7.03;
(vii) to withdraw any amount deposited in the Servicer
Custodial Account and not required to be deposited therein;
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(viii) on or prior to the Remittance Date, to withdraw an
amount equal to the related Pool Distribution Amount, the related
Trustee Fee and any other amounts due to the Trustee under this
Agreement for such Distribution Date, to the extent on deposit, and
remit such amount in immediately available funds to the Trustee for
deposit in the Certificate Account; and
(ix) to clear and terminate the Servicer Custodial Account
upon termination of this Agreement pursuant to Section 10.01.
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 Servicer Custodial Account pursuant to clauses (i), (ii),
(iv) and (v). Prior to making any withdrawal from the Servicer Custodial Account
pursuant to clause (iii), the Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous Advance
determined by the Servicer to be a Nonrecoverable Advance and identifying the
related Mortgage Loan(s) and their respective portions of such Nonrecoverable
Advance.
(b) The Trustee shall withdraw funds from the Certificate
Account for distributions to Certificateholders in the manner specified in this
Agreement. In addition, the Trustee may from time to time make withdrawals from
the Certificate Account for the following purposes:
(i) to pay to itself the Trustee Fee and any other amounts due
to the Trustee under this Agreement for the related Distribution Date;
(ii) to pay to itself as additional compensation earnings on
or investment income with respect to funds in the Certificate Account;
(iii) to withdraw and return to the Servicer any amount
deposited in the Certificate Account and not required to be deposited
therein; and
(iv) to clear and terminate the Certificate Account upon
termination of the Agreement pursuant to Section 10.01.
(c) Notwithstanding anything herein to the contrary, the
Regular Certificates and the Class A-R Certificate shall not receive
distributions directly from the Certificate Account. On each Distribution Date,
funds on deposit in the Upper-Tier Certificate Account shall be used to make
payments on the Regular Certificates and the Class A-R Certificate as provided
in Sections 5.01 and 5.02. The Upper-Tier Certificate Account shall be cleared
and terminated upon termination of this Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage
Loan, fire and hazard insurance with extended coverage customary in the area
where the Mortgaged Property is located in an amount which is at least equal to
the lesser of (a) the full insurable value of the Mortgaged Property or (b) the
greater of (i) the outstanding principal balance owing on the Mortgage Loan and
(ii) an amount such that the proceeds of such insurance shall be sufficient to
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avoid the application to the Mortgagor or loss payee of any coinsurance clause
under the policy. If the Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available) the Servicer
will cause to be maintained a flood insurance policy meeting the requirements of
the current guidelines of the Federal Insurance Administration and the
requirements of FNMA or FHLMC. The Servicer shall also maintain on REO Property,
fire and hazard insurance with extended coverage in an amount which is at least
equal to the maximum insurable value of the improvements which are a part of
such property, liability insurance and, to the extent required, flood insurance
in an amount required above. Any amounts collected by the Servicer under any
such policies (other than amounts to be deposited in an Escrow Account and
applied to the restoration or repair of the property subject to the related
Mortgage or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor in accordance with Customary Servicing Procedures)
shall be deposited in the Servicer Custodial Account, subject to withdrawal
pursuant to Section 3.11(a). It is understood and agreed that no earthquake or
other additional insurance need be required by the Servicer of any Mortgagor or
maintained on REO Property, other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. All policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to the Servicer, and shall provide
for at least 30 days prior written notice of any cancellation, reduction in
amount or material change in coverage to the Servicer.
The hazard insurance policies for each Mortgage Loan secured
by a unit in a condominium development or planned unit development shall be
maintained with respect to such Mortgage Loan and the related development in a
manner which is consistent with FNMA requirements.
Notwithstanding the foregoing, the Servicer may maintain a
blanket policy insuring against hazard losses on all of the Mortgaged Properties
relating to the Mortgage Loans in lieu of maintaining the required hazard
insurance policies for each Mortgage Loan and may maintain a blanket policy
insuring against special flood hazards in lieu of maintaining any required flood
insurance. Any such blanket policies shall (A) be consistent with prudent
industry standards, (B) name the Servicer as loss payee, (C) provide coverage in
an amount equal to the aggregate unpaid principal balance on the related
Mortgage Loans without co-insurance, and (D) otherwise comply with the
requirements of this Section 3.12. Any such blanket policy may contain a
deductible clause; provided that if any Mortgaged Property is not covered by a
separate policy otherwise complying with this Section 3.12 and a loss occurs
with respect to such Mortgaged Property which loss would have been covered by
such a policy, the Servicer shall deposit in the Servicer Custodial Account the
difference, if any, between the amount that would have been payable under a
separate policy complying with this Section 3.12 and the amount paid under such
blanket policy.
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.13, when
any Mortgaged Property subject to a Mortgage has been conveyed by the Mortgagor,
the Servicer shall use reasonable efforts, to the extent that it has actual
knowledge of such conveyance, to enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under
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applicable law and governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under any Required
Insurance Policy. Notwithstanding the foregoing, the Servicer is not required to
exercise such rights with respect to a Mortgage Loan if the Person to whom the
related Mortgaged Property has been conveyed or is proposed to be conveyed
satisfies the terms and conditions contained in the Mortgage Note and Mortgage
related thereto and the consent of the mortgagee under such Mortgage Note or
Mortgage is not otherwise required under such Mortgage Note or Mortgage as a
condition to such transfer. If (i) the Servicer is prohibited by law from
enforcing any such due-on-sale clause, (ii) coverage under any Required
Insurance Policy would be adversely affected, (iii) the Mortgage Note does not
include a due-on-sale clause or (iv) nonenforcement is otherwise permitted
hereunder, the Servicer is authorized, subject to Section 3.13(b), to take or
enter into an assumption and modification agreement from or with the Person to
whom such Mortgaged Property has been or is about to be conveyed, pursuant to
which such Person becomes liable under the Mortgage Note and, unless prohibited
by applicable state law, the Mortgagor remains liable thereon; provided that the
Mortgage Loan shall continue to be covered (if so covered before the Servicer
enters such agreement) by the applicable Required Insurance Policies. The
Servicer, subject to Section 3.13(b), is also authorized with the prior approval
of the insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is substituted as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section
3.13 by reason of any transfer or assumption which the Servicer reasonably
believes it is restricted by law from preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.13(a), in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and such Person
is to enter into an assumption agreement or modification agreement or supplement
to the Mortgage Note or Mortgage that requires the signature of the Trustee, or
if an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall prepare and
deliver or cause to be prepared and delivered to the Trustee for signature and
shall direct, in writing, the Trustee to execute the assumption agreement with
the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
In no event shall the Trustee incur liability for executing any document under
this Section 3.13 at the direction of the Servicer. In connection with any such
assumption, no material term of the Mortgage Note may be changed. In addition,
the substitute Mortgagor and the Mortgaged Property must be acceptable to the
Servicer in accordance with its underwriting standards as then in effect.
Together with each such substitution, assumption or other agreement or
instrument delivered to the Trustee for execution by it, the Servicer shall
deliver an Officer's Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met. The Servicer shall notify the
Trustee that any such substitution or assumption agreement has been completed by
forwarding to the Trustee (or at the direction of the Trustee, the Custodian)
the original of such substitution or assumption agreement, which in the case of
the original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to
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the same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Servicer for entering into an assumption or
substitution of liability agreement may be retained by the Servicer as
additional master servicing compensation. Notwithstanding the foregoing, to the
extent permissible under applicable law and at the request of the Servicer, the
Trustee shall execute and deliver to the Servicer any powers of attorney and
other documents prepared by the Servicer that are reasonably necessary or
appropriate to enable the Servicer to execute any assumption agreement or
modification agreement required to be executed by the Trustee under this Section
3.13.
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The Servicer shall use reasonable efforts to foreclose
upon or otherwise comparably convert the ownership of Mortgaged Properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments. In connection with such foreclosure or other conversion, the Servicer
shall follow Customary Servicing Procedures and shall meet the requirements of
the insurer under any Required Insurance Policy; provided, however, that the
Servicer may enter into a special servicing agreement with an unaffiliated
Holder of 100% Percentage Interest of a Class of Class B Certificates or a
holder of a class of securities representing interests in the Class B
Certificates alone or together with other subordinated mortgage pass-through
certificates. Such agreement shall be substantially in the form attached hereto
as Exhibit K or subject to each Rating Agency's acknowledgment that the ratings
of the Certificates in effect immediately prior to the entering into such
agreement would not be qualified, downgraded or withdrawn and the Certificates
would not be placed on credit review status (except for possible upgrading) as a
result of such agreement. Any such agreement may contain provisions whereby such
holder may instruct the Servicer to commence or delay foreclosure proceedings
with respect to delinquent Mortgage Loans and will contain provisions for the
deposit of cash by the holder that would be available for distribution to
Certificateholders if Liquidation Proceeds are less than they otherwise may have
been had the Servicer acted in accordance with its normal procedures.
Notwithstanding the foregoing, the Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
Mortgaged Property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through proceeds of the liquidation of the Mortgage Loan
(respecting which it shall have priority for purposes of withdrawals from the
Servicer Custodial Account). Any such expenditures shall constitute Servicing
Advances for purposes of this Agreement.
The decision of the Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Servicer that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding.
With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The Servicer shall ensure
that the title to such REO Property references this Agreement and the Trustee's
capacity hereunder.
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Pursuant to its efforts to sell such REO Property, the Servicer shall either
itself or through an agent selected by the Servicer manage, conserve, protect
and operate such 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. Incident to its conservation and protection of the interests of the
Certificateholders, the Servicer may rent the same, or any part thereof, as the
Servicer deems to be in the best interest of the Certificateholders for the
period prior to the sale of such REO Property. The Servicer shall prepare for
and deliver to the Trustee a statement with respect to each REO Property that
has been rented, if any, showing the aggregate rental income received and all
expenses incurred in connection with the management and maintenance of such REO
Property at such times as is necessary to enable the Trustee to comply with the
reporting requirements of the REMIC Provisions; provided, however, that the
Servicer shall have no duty to rent any REO Property on behalf of the Trust. The
net monthly rental income, if any, from such REO Property shall be deposited in
the Servicer Custodial Account no later than the close of business on each
Determination Date. The Servicer shall perform, with respect to the Mortgage
Loans, the tax reporting and withholding required by Sections 1445 and 6050J of
the Code with respect to foreclosures and abandonments, the tax reporting
required by Section 6050H of the Code with respect to the receipt of mortgage
interest from individuals and, if required by Section 6050P of the Code with
respect to the cancellation of indebtedness by certain financial entities, by
preparing such tax and information returns as may be required, in the form
required. The Servicer shall deliver copies of such reports to the Trustee.
If the Trust acquires any Mortgaged Property as described
above or otherwise in connection with a default or a default which is reasonably
foreseeable on a Mortgage Loan, the Servicer shall dispose of such Mortgaged
Property prior to the end of the third calendar year following the year of its
acquisition by the Trust (such period, the "REO Disposition Period") unless (A)
the Trustee shall have been supplied by the Servicer with an Opinion of Counsel
to the effect that the holding by the Trust of such Mortgaged Property
subsequent to the REO Disposition Period will not result in the imposition of
taxes on "prohibited transactions" (as defined in Section 860F of the Code) on
either the Upper-Tier REMIC or the Lower-Tier REMIC or cause either REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding, or
(B) the Trustee (at the Servicer's expense) or the Servicer shall have applied
for, prior to the expiration of the REO Disposition Period, an extension of the
REO Disposition Period in the manner contemplated by Section 856(e)(3) of the
Code. If such an Opinion of Counsel is provided or such an exemption is
obtained, the Trust may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) for the applicable period.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust shall be rented (or allowed to continue to be rented) or
otherwise used for the production of income by or on behalf of the Trust in such
a manner or pursuant to any terms that would (i) cause such Mortgaged Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code or (ii) subject either REMIC to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the Servicer has
agreed to indemnify and hold harmless the Trust with respect to the imposition
of any such taxes. The Servicer shall identify to the Trustee any Mortgaged
Property relating to a Mortgage Loan held by the Trust for 30 months for which
no plans to dispose of such Mortgaged Property by the Servicer have been made.
After delivery of such identification, the Servicer shall proceed to
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dispose of any such Mortgaged Property by holding a commercially reasonable
auction for such property.
The income earned from the management of any REO Properties,
net of reimbursement to the Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Servicing Fees, Periodic Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (solely for the purposes of allocating principal and interest,
interest shall be treated as accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Servicer Custodial Account. To
the extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Interest Rate on the related Mortgage Loan for such calendar month,
such excess shall be considered to be a partial prepayment of principal of the
related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well
as any income from an REO Property, will be applied in the following order of
priority: first, to reimburse the Servicer for any related unreimbursed
Servicing Advances and Servicing Fees; second, to reimburse the Servicer for any
unreimbursed Periodic Advances and to reimburse the Servicer Custodial Account
for any Nonrecoverable Advances (or portions thereof) that were previously
withdrawn by the Servicer pursuant to Section 3.11(a)(iii) that related to such
Mortgage Loan; third, to accrued and unpaid interest (to the extent no Periodic
Advance has been made for such amount or any such Periodic Advance has been
reimbursed) on the Mortgage Loan or related REO Property, at the Mortgage Rate
to the Due Date occurring in the month in which such amounts are required to be
distributed; and fourth, as a recovery of principal of the Mortgage Loan. Excess
Proceeds, if any, from the liquidation of a Liquidated Mortgage Loan will be
retained by the Servicer as additional servicing compensation pursuant to
Section 3.17.
(b) The Servicer shall promptly notify the Depositor of any
Mortgage Loan which comes into default. The Depositor shall be entitled, at its
option, to repurchase (i) any such defaulted Mortgage Loan from the Trust Estate
if (a) in the Depositor's judgment, the default is not likely to be cured by the
Mortgagor and (b) such Mortgage Loan is 180 days or more delinquent or (ii) any
Mortgage Loan in the Trust Estate which pursuant to Section 4(b) of the Mortgage
Loan Purchase Agreement the Seller requests the Depositor to repurchase and to
sell to the Seller to facilitate the exercise of the Seller's rights against the
originator or prior holder of such Mortgage Loan. The purchase price for any
such Mortgage Loan shall be 100% of the unpaid principal balance of such
Mortgage Loan plus accrued interest thereon at the Mortgage Interest Rate (less
the Servicing Fee Rate for such Mortgage Loan) through the last day of the month
in which such repurchase occurs. Upon the receipt of such purchase price, the
Servicer shall provide to the Trustee the notification required by Section 3.15
and the Trustee or the Custodian shall promptly release to the Depositor the
Mortgage File relating to the Mortgage Loan being repurchased.
Section 3.15 Trustee to Cooperate; Release of Mortgage Files.
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Upon the payment in full of any Mortgage Loan, or the receipt
by the Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Servicer will immediately notify the
Trustee (or, at the direction of the Trustee, the Custodian) by delivering, or
causing to be delivered, two copies (one of which will be returned to the
Servicer with the Mortgage File) of a Request for Release (which may be
delivered in an electronic format acceptable to the Trustee and the Servicer).
Upon receipt of such request, the Trustee or the Custodian, as applicable, shall
within seven Business Days release the related Mortgage File to the Servicer.
The Trustee shall at the Servicer's direction execute and deliver to the
Servicer the request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage,
in each case provided by the Servicer, together with the Mortgage Note with
written evidence of cancellation thereon. If the Mortgage has been recorded in
the name of MERS or its designee, the Servicer shall take all necessary action
to reflect the release of the Mortgage on the records of MERS. Expenses incurred
in connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the related Mortgagor. From time to time and as shall be
appropriate for the servicing or foreclosure of any Mortgage Loan, including for
such purpose collection under any policy of flood insurance, any fidelity bond
or errors or omissions policy, or for the purposes of effecting a partial
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Mortgage File, the Trustee or the Custodian, as
applicable, shall, upon delivery to the Trustee (or, at the direction of the
Trustee, the Custodian) of a Request for Release signed by a Servicing Officer,
release the Mortgage File within seven Business Days to the Servicer. Subject to
the further limitations set forth below, the Servicer shall cause the Mortgage
File so released to be returned to the Trustee or the Custodian, as applicable,
when the need therefor by the Servicer no longer exists, unless the Mortgage
Loan is liquidated and the proceeds thereof are deposited in the Servicer
Custodial Account, in which case the Servicer shall deliver to the Trustee or
the Custodian, as applicable, a Request for Release, signed by a Servicing
Officer.
The Trustee shall execute and deliver to the Servicer any
powers of attorney and other documents prepared by the Servicer that are
reasonably necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement, upon the request of
the Servicer. In addition, upon prepayment in full of any Mortgage Loan or the
receipt of notice that funds for such purpose have been placed in escrow, the
Servicer is authorized to give, as attorney-in-fact for the Trustee and the
mortgagee under the Mortgage, an instrument of satisfaction (or Assignment of
Mortgage without recourse) regarding the Mortgaged Property relating to such
Mortgage Loan, which instrument of satisfaction or Assignment of Mortgage, as
the case may be, shall be delivered to the Person entitled thereto against
receipt of the prepayment in full. If the Mortgage is registered in the name of
MERS or its designee, the Servicer shall take all necessary action to reflect
the release on the records of MERS. In lieu of executing such satisfaction or
Assignment of Mortgage, or if another document is required to be executed by the
Trustee, the Servicer may deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
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Section 3.16 Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee.
The Servicer shall transmit to the Trustee or, at the
direction of the Trustee, the Custodian as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Servicer from time to time and shall account fully to the
Trustee for any funds received by the Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan. The documents constituting the Servicing File shall be held by
the Servicer as custodian and bailee for the Trustee. All Mortgage Files and
funds collected or held by, or under the control of, the Servicer in respect of
any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including but not limited to, any funds
on deposit in the Servicer Custodial Account, shall be held by the Servicer for
and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
The Servicer also agrees that it shall not knowingly create, incur or subject
any Mortgage File or any funds that are deposited in the Servicer Custodial
Account, Certificate Account or any Escrow Account, or any funds that otherwise
are or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance created by the Servicer, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Servicer under this
Agreement.
Section 3.17 Servicing Compensation.
The Servicer shall be entitled out of each payment of interest
on a Mortgage Loan (or portion thereof) and included in the Trust Estate to
retain or withdraw from the Servicer Custodial Account an amount equal to the
Servicing Fee for such Distribution Date.
Additional servicing compensation in the form of Excess
Proceeds, prepayment penalties, assumption fees, late payment charges and all
income and gain net of any losses realized from Permitted Investments and all
other customary and ancillary income and fees shall be retained by the Servicer
to the extent not required to be deposited in the Servicer Custodial Account
pursuant to Section 3.08(b). The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement therefor except as specifically provided in
this Agreement.
Notwithstanding the foregoing, with respect to the payment of
the Servicing Fee on any Distribution Date, the aggregate Servicing Fee for the
Servicer for such Distribution Date shall be reduced (but not below zero) by an
amount equal to the lesser of (a) the Prepayment Interest Shortfall for such
Distribution Date relating to the Mortgage Loans and (b) one-twelfth of % of
the aggregate Stated Principal Balance of such Mortgage Loans for such
Distribution Date (any such reduction, "Compensating Interest").
Section 3.18 Annual Statement as to Compliance.
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The Servicer shall deliver to the Trustee and each Rating
Agency on or before 90 days after the end of the Servicer's fiscal year,
commencing with its 20 fiscal year, an Officer's Certificate stating, as to the
signer thereof, that (a) a review of the activities of the Servicer during the
preceding calendar year and of the performance of the Servicer under this
Agreement has been made under such officer's supervision, and (b) to the best of
such officer's knowledge, based on such review, the Servicer has fulfilled all
its obligations under this Agreement throughout such year, or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
The Servicer shall, at its own expense, on or before 90 days
after the end of the Servicer's fiscal year, commencing with its 20 fiscal year,
cause a firm of independent public accountants (who may also render other
services to the Servicer or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Trustee to the effect that such firm has with respect to the Servicer's overall
servicing operations, examined such operations in accordance with the
requirements of the Uniform Single Attestation Program for Mortgage Bankers,
stating such firm's conclusions relating thereto.
Section 3.20 Advances.
The Servicer shall determine on or before each Servicer
Advance Date whether it is required to make a Periodic Advance pursuant to the
definition thereof. If the Servicer determines it is required to make a Periodic
Advance, it shall, on or before the Servicer Advance Date, either (a) deposit
into the Servicer Custodial Account an amount equal to the Advance and/or (b)
make an appropriate entry in its records relating to the Servicer Custodial
Account that any portion of the Amount Held for Future Distribution in the
Servicer Custodial Account has been used by the Servicer in discharge of its
obligation to make any such Periodic Advance. Any funds so applied shall be
replaced by the Servicer by deposit in the Servicer Custodial Account no later
than the close of business on the Business Day preceding the next Servicer
Advance Date. The Servicer shall be entitled to be reimbursed from the Servicer
Custodial Account for all Advances of its own funds made pursuant to this
Section 3.20 as provided in Section 3.11(a). The obligation to make Periodic
Advances with respect to any Mortgage Loan shall continue until the ultimate
disposition of the REO Property or Mortgaged Property relating to such Mortgage
Loan. The Servicer shall inform the Trustee of the amount of the Periodic
Advance to be made by the Servicer on each Servicer Advance Date no later than
the related Remittance Date.
The Servicer shall deliver to the Trustee on the related
Servicer Advance Date an Officer's Certificate of a Servicing Officer indicating
the amount of any proposed Periodic Advance determined by the Servicer to be a
Nonrecoverable Advance. Notwithstanding anything to the contrary, the Servicer
shall not be required to make any Periodic Advance or Servicing Advance that
would be a Nonrecoverable Advance.
Section 3.21 Modifications, Waivers, Amendments and Consents.
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(a) Subject to this Section 3.21, the Servicer may agree to
any modification, waiver, forbearance, or amendment of any term of any Mortgage
Loan without the consent of the Trustee or any Certificateholder. All
modifications, waivers, forbearances or amendments of any Mortgage Loan shall be
in writing and shall be consistent with Customary Servicing Procedures.
(b) The Servicer shall not agree to enter into, and shall not
enter into, any modification, waiver (other than a waiver referred to in Section
3.13, which waiver, if any, shall be governed by Section 3.13), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder;
(ii) in the Servicer's judgment, materially impair the
security for such Mortgage Loan or reduce the likelihood of timely payment
of amounts due thereon; or
(iii) otherwise constitute a "significant modification" within
the meaning of Treasury Regulations Section 1.860G-2(b);
unless, in either case, (A) such Mortgage Loan is 90 days or more past due or
(B) the Servicer delivers to the Trustee an Opinion of Counsel to the effect
that such modification, waiver, forbearance or amendment would not affect the
REMIC status of either the Upper-Tier REMIC or the Lower-Tier REMIC and, in
either case, such modification, waiver, forbearance or amendment is reasonably
likely to produce a greater recovery with respect to such Mortgage Loan than
would liquidation. Subject to Customary Servicing Procedures, the Servicer may
permit a forbearance for a Mortgage Loan which in the Servicer's judgment is
subject to imminent default.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver, forbearance or amendment permitted hereunder, shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
or such modification, waiver or amendment so permit.
(d) The Servicer may, as a condition to granting any request
by a Mortgagor for consent, modification, waiver, forbearance or amendment, the
granting of which is within the Servicer's discretion pursuant to the Mortgage
Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to the Servicer, as additional servicing compensation, a
reasonable or customary fee for the additional services performed in connection
with such request, together with any related costs and expenses incurred by the
Servicer, which amount shall be retained by the Servicer as additional servicing
compensation.
(e) The Servicer shall notify the Trustee, in writing, of any
modification, waiver, forbearance or amendment of any term of any Mortgage Loan
and the date thereof, and shall deliver to the Trustee (or, at the direction of
the Trustee, the Custodian) for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver,
forbearance or amendment, promptly (and in any event within ten Business Days)
following the execution thereof; provided, however, that if any such
modification, waiver, forbearance or
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amendment is required by applicable law to be recorded, the Servicer (i) shall
deliver to the Trustee a copy thereof and (ii) shall deliver to the Trustee such
document, with evidence of notification upon receipt thereof from the public
recording office.
Section 3.22 Reports to the Securities and Exchange
Commission.
The Trustee shall, on behalf of the Trust, cause to be filed
with the Securities and Exchange Commission any periodic reports required to be
filed under the provisions of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
thereunder, for so long as any Certificates registered under the 1933 Act are
outstanding (other than the Current Report on Form 8-K to be filed by the
Depositor in connection with computational materials and the initial Current
Report on Form 8-K to be filed by the Depositor in connection with the issuance
of the Certificates). Upon the request of the Trustee, the Servicer and the
Depositor shall cooperate with the Trustee in the preparation of any such report
and shall provide to the Trustee in a timely manner all such information or
documentation as the Trustee may reasonably request in connection with the
performance of its duties and obligations under this Section.
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the
Business Day following each Determination Date, the Servicer shall deliver to
the Trustee, a Servicer's Certificate (in substance and format mutually
acceptable to the Servicer and the Trustee) certified by a Servicing Officer
setting forth the information necessary in order for the Trustee to perform its
obligations under this Agreement. The Trustee may conclusively rely upon the
information contained in a Servicer's Certificate for all purposes hereunder and
shall have no duty to verify or re-compute any of the information contained
therein.
Each such statement shall be provided by the Trustee to any
Holder of a Certificate upon request and shall also, to the extent available,
include information regarding delinquencies on Mortgage Loans providing such
statement, indicating the number and aggregate principal amount of Mortgage
Loans which are either one, two, three or more than three months delinquent and
the book value of any REO Property.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based
solely on the information in the Servicer's Certificate, the Trustee shall
distribute out of the Upper-Tier Certificate Account or the Certificate Account,
as applicable, (to the extent funds are available therein) to each
Certificateholder of record on the related Record Date (other than as provided
in
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Section 10.01 respecting the final distribution) (a) by check mailed to such
Certificateholder entitled to receive a distribution on such Distribution Date
at the address appearing in the Certificate Register, or (b) upon written
request by the Holder of a Regular Certificate (in the event such
Certificateholder owns of record 100% of a Class of Certificates or holds
Certificates of any Class having denominations aggregating $1,000,000 or more),
by wire transfer or by such other means of payment as such Certificateholder and
the Trustee shall agree upon, such Certificateholder's Percentage Interest in
the amount to which the related Class of Certificates is entitled in accordance
with the priorities set forth below in Section 5.02.
None of the Holders of any Class of Certificates, the
Depositor, the Servicer or the Trustee shall in any way be responsible or liable
to Holders of any Class of Certificates in respect of amounts properly
previously distributed on any such Class.
Amounts distributed with respect to any Class of Certificates
shall be applied first to the distribution of interest thereon and then to
principal thereon.
Section 5.02 Priorities of Distributions.
(a) On each Distribution Date, based solely on the information
contained in the Servicer's Certificate, the Trustee shall withdraw from the
Certificate Account (to the extent funds are available therein) (1) the amounts
payable to the Trustee pursuant to Sections 3.11(b)(i) and 3.11(b)(ii) and shall
pay such funds to itself, and (2) the Pool Distribution Amount, in an amount as
specified in written notice received by the Trustee from the Servicer no later
than the related Determination Date, and shall apply such funds, first, to
distributions in respect of the Uncertificated Lower-Tier Interests as specified
in this Section 5.02(a) for deposit in the Upper-Tier Certificate Account and to
the Class A-LR Certificate, and then from the Upper-Tier Certificate Account to
distributions on the Certificates in the following order of priority and to the
extent of such funds:
(i) to each Class of Senior Certificates (other than the Class
A-PO and Class A-LR Certificates), an amount allocable to interest equal to
the Interest Distribution Amount for such Class and any shortfall being
allocated among such Classes in proportion to the amount of the Interest
Distribution Amount that would have been distributed in the absence of such
shortfall;
(ii) concurrently to the Class A Certificates (other than the
Class A-PO and Class A-LR Certificates) and the Class A-PO Certificates,
pro rata, based on their respective Senior Principal Distribution Amount
and PO Principal Amount, (A) to the Class A Certificates (other than the
Class A-PO Certificates), in an aggregate amount up to the Senior Principal
Distribution Amount, such distribution to be allocated among such Classes
in accordance with Section 5.02(b) and (B) to the Class A-PO Certificates
in an aggregate amount up to the PO Principal Amount;
(iii) to the Class A-PO Certificates, any Class A-PO Deferred
Amount, up to the Subordinate Principal Distribution Amount for such
Distribution Date from amounts otherwise distributable first to the Class
B-6 Certificates pursuant to clause (iv)(L) below, second to the Class B-5
Certificates pursuant to clause (iv)(J) below, third to the Class B-
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4 Certificates pursuant to clause (iv)(H) below, fourth to the Class B-3
Certificates pursuant to clause (iv)(F) below, fifth to the Clause B-2
Certificates pursuant to clause (iv)(D) below and finally to the Class B-1
Certificates pursuant to clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to
paragraph (d) below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(B) to the Class B-1 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date less any amount used to pay the Class A-PO
Deferred Amount pursuant to clause (iii) above until the Class
Certificate Balance thereof has been reduced to zero;
(C) to the Class B-2 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(D) to the Class B-2 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date less any amount used to pay the Class A-PO
Deferred Amount pursuant to clause (iii) above until the Class
Certificate Balance thereof has been reduced to zero;
(E) to the Class B-3 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(F) to the Class B-3 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date less any amount used to pay the Class A-PO
Deferred Amount pursuant to clause (iii) above until the Class
Certificate Balance thereof has been reduced to zero;
(G) to the Class B-4 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(H) to the Class B-4 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date less any amount used to pay the Class A-PO
Deferred Amount pursuant to clause (iii) above until the Class
Certificate Balance thereof has been reduced to zero;
(I) to the Class B-5 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(J) to the Class B-5 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date less any amount used to pay the Class A-PO
Deferred Amount pursuant to clause (iii) above until the Class
Certificate Balance thereof has been reduced to zero;
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(K) to the Class B-6 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date less any amount used to pay the Class A-PO
Deferred Amount pursuant to clause (iii) above until the Class
Certificate Balance thereof has been reduced to zero; and
(v) to the Holder of the Class A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Account, and to the Holder of the
Class A-LR Certificate, any remaining Pool Distribution Amount.
On any Distribution Date, amounts distributed in respect of
Class A-PO Deferred Amounts will not reduce the Class Certificate Balance of the
Class A-PO Certificates.
All distributions in respect of the Interest Distribution
Amount for a Class will be applied first with respect to the amount payable
pursuant to clause (i) of the definition of "Interest Distribution Amount," and
second with respect to the amount payable pursuant to clause (ii) of such
definition.
On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions in respect of principal in an amount equal
to the amount of principal distributed to their respective Corresponding
Upper-Tier Class or Classes as provided herein. On each Distribution Date, each
Uncertificated Lower-Tier Interest shall receive distributions in respect of
interest in an amount equal to the Interest Distribution Amounts in respect of
its Corresponding Upper-Tier Class or Classes, in each case to the extent
actually distributed thereon. Such amounts distributed to the Uncertificated
Lower-Tier Interests in respect of principal and interest with respect to any
Distribution Date are referred to herein collectively as the "Lower-Tier
Distribution Amount."
As of any date, the principal balance (or, in the case of the
Class A-LWIO Interest, the notional amount) of each Uncertificated Lower-Tier
Interest equals the aggregate of the Class Certificate Balances of the
respective Corresponding Upper-Tier Class or Classes (or, in the case of the
Class A-WIO Certificates, the Class A-WIO Notional Amount). The initial
principal balance of each Uncertificated Lower-Tier Interest equals the
aggregate of the Initial Class Certificate Balances (or notional amount) of the
respective Corresponding Upper-Tier Class or Classes.
The pass-through rate with respect to the Class A-L1 Interest,
Class A-LUR Interest, Class B-L1 Interest, Class B-L2 Interest, Class B-L3
Interest, Class B-L4 Interest, Class B-L5 Interest and Class B-L6 Interest shall
be % per annum. The pass-through rate with respect to the Class A-L3 Interest
shall be % per annum. The pass-through rate with respect to the Class A-L4
Interest shall be % per annum. The pass-through rate with respect to the Class
A-LWIO Interest shall be a per annum rate equal to (i) the weighted average of
the Net Mortgage Interest Rates of the Premium Mortgage Loans (based on the
Stated Principal Balance of the Premium Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date minus (ii) %. The Class
A-LPO Interest is a principal-
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only interest and is not entitled to distributions of interest. Any
Non-Supported Interest Shortfalls will be allocated to each Uncertificated
Lower-Tier Interest in the same relative proportions as interest is allocated to
such Uncertificated Lower-Tier Interest.
(b) (i) On each Distribution Date prior to the Senior Credit
Support Depletion Date, the amount distributable to the Class A Certificates
(other than the Class A-PO Certificates) pursuant to Section 5.02(a)(ii) for
such Distribution Date, will be distributed in the following order of priority:
[To Be Provided]
On each Distribution Date on or after the Senior Credit
Support Depletion Date, notwithstanding the allocation and priority set forth
above, the portion of the Pool Distribution Amount available to be distributed
as principal of the Class A Certificates (other than the Class A-PO
Certificates) shall be distributed concurrently, as principal, on such Classes,
pro rata, on the basis of their respective Class Certificate Balances, until the
Class Certificate Balances thereof are reduced to zero.
(c) On each Distribution Date, Accrued Certificate Interest
for each Class of Certificates for such Distribution Date shall be reduced by
such Class's pro rata share, based on such Class's Interest Distribution Amount
for such Distribution Date, without taking into account the allocation made by
this Section 5.02(c), of (A) Non-Supported Interest Shortfalls, (B) any Excess
Losses allocable to interest, (C) on and after the Senior Credit Support
Depletion Date, any other Realized Loss allocable to interest and (D) each
Relief Act Reduction incurred during the calendar month preceding the month of
such Distribution Date.
(d) Notwithstanding the priority and allocation contained in
Section 5.02(a)(iv), if with respect to any Class of Subordinate Certificates on
any Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates which have a higher numerical Class designation than such Class,
divided by (ii) the aggregate Class Certificate Balance of all the Certificates
(other than the Class A-PO Certificates) immediately prior to such Distribution
Date (the "Fractional Interest") is less than the Original Fractional Interest
for such Class, no distribution of principal will be made to any Classes junior
to such Class (the "Restricted Classes") and the Class Certificate Balances of
the Restricted Classes will not be used in determining the Pro Rata Share for
the Subordinate Certificates that are not Restricted Classes. Any funds
remaining will be distributed in the order provided in Section 5.02(a)(iv).
Section 5.03 Allocation of Losses.
(a) On or prior to each Determination Date, the Servicer shall
inform the Trustee in writing with respect to each Mortgage Loan: (1) whether
any Realized Loss is a Deficient Valuation or a Debt Service Reduction, (2) of
the amount of such loss or Deficient Valuation, or of the terms of such Debt
Service Reduction and (3) of the total amount of Realized Losses. Based on such
information, the Trustee shall determine the total amount of Realized Losses
with respect to the related Distribution Date.
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The principal portion of Realized Losses with respect to any
Distribution Date shall be allocated as follows:
(i) the applicable PO Percentage of the principal portion of
any Realized Loss with respect to a Discount Mortgage Loan shall be
allocated to the Class A-PO Certificates until the Class Certificate
Balance thereof is reduced to zero; and
(ii) the applicable Non-PO Percentage of the principal portion
of any Realized Loss shall be allocated first to the Subordinate
Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinate Certificates then
outstanding with the highest numerical Class designation) until the
respective Class Certificate Balance of each such Class is reduced to zero,
and second to the Senior Certificates (other than the Class A-PO
Certificates), pro rata, on the basis of their respective Class Certificate
Balances immediately prior to the related Distribution Date, until the
Class Certificate Balances thereof have been reduced to zero; and
(b) The Class Certificate Balance of the Class A-PO
Certificates shall be reduced on each Distribution Date by the amount, if any,
by which the Class Certificate Balance of the Class A-PO Certificates (after
giving effect to the amount to be distributed as a distribution of principal and
the allocation of Realized Losses on such Distribution Date) exceeds the
Adjusted Pool Amount (PO Portion) for such Distribution Date.
The Class Certificate Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class designation shall
be reduced on each Distribution Date by the amount, if any, by which the
aggregate of the Class Certificate Balances of all outstanding Classes of
Certificates (after giving effect to the amount to be distributed as a
distribution of principal and the allocation of Realized Losses and Class A-PO
Deferred Amounts on such Distribution Date) exceeds the Adjusted Pool Amount for
such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates in the aggregate (other than the
Class Certificate Balance of the Class A-PO Certificates) shall be reduced on
each Distribution Date by the amount, if any, by which the aggregate of the
Class Certificate Balances of all outstanding Classes of Senior Certificates
(other than Class A-PO Certificates) (after giving effect to the amount to be
distributed as a distribution of principal and the allocation of Realized Losses
on such Distribution Date) exceeds the difference between (i) the Adjusted Pool
Amount for such Distribution Date and (ii) the Adjusted Pool Amount (PO Portion)
for such Distribution Date.
Any such reduction shall be allocated among the Senior
Certificates (other than the Class A-PO Certificates) based on the Class
Certificate Balances immediately prior to such Distribution Date.
(c) Any Realized Loss allocated to a Class of Certificates or
any reduction in the Class Certificate Balance of a Class of Certificates
pursuant to Section 5.03(b) above shall be allocated among the Certificates of
such Class in proportion to their respective Percentage Interests.
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(d) Any allocation of Realized Losses to a Class of
Certificates or any reduction in the Class Certificate Balance of a Class
pursuant to Section 5.03(b) above shall be accomplished by reducing the Class
Certificate Balance thereof prior to the distributions made on the related
Distribution Date in accordance with the definition of "Class Certificate
Balance."
(e) With respect to any Distribution Date, Realized Losses
allocated pursuant to this Section 5.03 will be allocated to each Uncertificated
Lower-Tier Interest in an amount equal to the amount allocated to its respective
Corresponding Upper-Tier Class or Classes as provided above.
Section 5.04 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon
the information provided to the Trustee on the Servicer's Certificates delivered
to the Trustee pursuant to Section 4.01, the Trustee shall determine the
following information with respect to such Distribution Date:
(i) the amount allocable to principal, separately identifying
the aggregate amount of any Principal Prepayments and Liquidation Proceeds
included therein;
(ii) the amount allocable to interest, any Class Unpaid
Interest Shortfall included in such distribution and any remaining Class
Unpaid Interest Shortfall after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of
Certificates after giving effect to the distribution of principal on such
Distribution Date;
(v) the Pool Stated Principal Balance for the following
Distribution Date;
(vi) the Senior Percentage, the Priority Percentage and the
Subordinate Percentage for the following Distribution Date; (vii) the
amount of the Servicing Fee paid to or retained by the Servicer with
respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of
Certificates with respect to such Distribution Date;
(ix) the amount of Periodic Advances included in the
distribution on such Distribution Date and the aggregate amount of Periodic
Advances outstanding as of the close of business on such Distribution Date;
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(x) the number and aggregate principal amounts of Mortgage
Loans (A) delinquent (exclusive of Mortgage Loans in foreclosure) (1) 1 to
30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days and (B)
in foreclosure, as of the close of business on the last day of the calendar
month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number and Stated
Principal Balance of such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xii) the total number and principal balance of any REO
Properties (and market value, if available) as of the close of business on
the Determination Date preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage and the Subordinate
Prepayment Percentage for the following Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred during
the preceding calendar month or any Class A-PO Deferred Amounts for such
Distribution Date.
(xv) in the case of the Class A-5 Certificates, the Class A-5
Notional Amount;
(xvi) in the case of the Class A-WIO Certificates, the Class
A-WIO Notional Amount for such Distribution Date.
(b) No later than each Distribution Date, the Trustee, based
upon information supplied to it on the Servicer's Certificates, shall prepare
and deliver (by mail, fax or electronically) to each Holder of a Certificate,
each Rating Agency and the Servicer a statement setting forth the information
set forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i),
(ii) and (ix) of Section 5.04(a), the amounts shall be expressed as a dollar
amount per Certificate with a $1,000 denomination.
On each Distribution Date, the Trustee shall prepare and
furnish to each Financial Market Service, in electronic or such other format and
media mutually agreed upon by the Trustee, the Financial Market Service and the
Depositor, the information contained in the statement described in Section
5.04(a) for such Distribution Date.
The Trustee may make available each month, to any interested
party, the monthly statement to Certificateholders via the Trustee's website.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish to each Person who at any time during
the calendar year was the Holder of a Certificate, if requested in writing by
such Person, a statement containing the information set forth in clauses (i),
(ii) and (vii) of Section 5.04(a), in each case aggregated for such calendar
year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially
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comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in force.
The Trustee shall deliver to the Holders of Certificates any
reports or information the Trustee is required by this Agreement or the Code,
Treasury Regulations or REMIC Provisions to deliver to the Holders of
Certificates, and the Trustee shall prepare and provide to the
Certificateholders (by mail, telephone, or publication as may be permitted by
applicable Treasury Regulations) such other reasonable information as the
Trustee deems necessary or appropriate or is required by the Code, Treasury
Regulations, and the REMIC Provisions including, but not limited to, (i)
information to be reported to the Holders of the Residual Certificates for
quarterly notices on Schedule Q (Form 1066) (which information shall be
forwarded to the Holders of the Residual Certificates by the Trustee), (ii)
information to be provided to the Holders of Certificates with respect to
amounts which should be included as interest and original issue discount in such
Holders' gross income and (iii) information to be provided to all Holders of
Certificates setting forth the percentage of each REMIC's assets, determined in
accordance with Treasury Regulations using a convention, not inconsistent with
Treasury Regulations, selected by the Trustee in its absolute discretion, that
constitute real estate assets under Section 856 of the Code, and assets
described in Section 7701(a)(19)(C) of the Code; provided, however, that in
setting forth the percentage of such assets of each REMIC, nothing contained in
this Agreement, including without limitation Section 7.03 hereof, shall be
interpreted to require the Trustee periodically to appraise the fair market
values of the assets of the Trust Estate or to indemnify the Trust Estate or any
Certificateholders from any adverse federal, state or local tax consequences
associated with a change subsequently required to be made in the Depositor's
initial good faith determinations of such fair market values (if subsequent
determinations are required pursuant to the REMIC Provisions) made from time to
time.
Section 5.05 Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC shall have a
calendar year taxable year and shall maintain its books on the accrual method of
accounting.
(b) The Trustee shall prepare or cause to be prepared, shall
execute and shall file or cause to be filed with the Internal Revenue Service
and applicable state or local tax authorities income tax information returns for
each taxable year with respect to each REMIC containing such information at the
times and in the manner as may be required by the Code, the Treasury Regulations
or state or local tax laws, regulations, or rules, and shall furnish or cause to
be furnished to each REMIC and the Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby.
Within 30 days of the Closing Date, the Trustee shall furnish or cause to be
furnished to the Internal Revenue Service, on Form 8811 or as otherwise required
by the Code or the Treasury Regulations, the name, title, address and telephone
number of the person that Holders of the Certificates may contact for tax
information relating thereto, together with such additional information at the
time or times and in the manner required by the Code or the Treasury
Regulations. Such federal, state, or local income tax or information returns
shall be signed by the Trustee, or such other Person as may be required to sign
such returns by the Code, the Treasury Regulations or state or local tax laws,
regulations, or rules.
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(c) In the first federal income tax return of each REMIC for
its short taxable year ending December 31, 200 , REMIC status shall be elected
for such taxable year and all succeeding taxable years.
(d) The Trustee will maintain or cause to be maintained such
records relating to each REMIC, including but not limited to records relating to
the income, expenses, assets and liabilities of the Trust Estate, and the
initial fair market value and adjusted basis of the Trust Estate property and
assets determined at such intervals as may be required by the Code or the
Treasury Regulations, as may be necessary to prepare the foregoing returns,
schedules, statements or information.
Section 5.06 Tax Matters Person. The Tax Matters Person shall
have the same duties with respect to each REMIC as those of a "tax matters
partner" under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder
of the Class A-R Certificate is hereby designated as the Tax Matters Person for
the Upper-Tier REMIC. The Holder of the Class A-LR Certificate is hereby
designated as the Tax Matters Person for the Lower-Tier REMIC. By their
acceptance of the Class A-R or Class A-LR Certificate, as applicable, each such
Holder irrevocably appoints the Trustee as its agent to perform all of the
duties of the Tax Matters Person for the Upper-Tier REMIC and the Lower-Tier
REMIC.
Section 5.07 Rights of the Tax Matters Person in Respect of
the Trustee. The Trustee shall afford the Tax Matters Person, upon reasonable
notice during normal business hours, access to all records maintained by the
Trustee in respect of its duties hereunder and access to officers of the Trustee
responsible for performing such duties. Upon request, the Trustee shall furnish
the Tax Matters Person with its most recent report of condition published
pursuant to law or to the requirements of its supervisory or examining authority
publicly available. The Trustee shall make available to the Tax Matters Person
such books, documents or records relating to the Trustee's services hereunder as
the Tax Matters Person shall reasonably request. The Tax Matters Person shall
not have any responsibility or liability for any action or failure to act by the
Trustee and is not obligated to supervise the performance of the Trustee under
this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as the Trust
shall exist, the Trustee, the Depositor and the Servicer shall act in accordance
herewith to assure continuing treatment of the Upper-Tier REMIC and the
Lower-Tier REMIC as REMICs and avoid the imposition of tax on either REMIC. In
particular:
(a) The Trustee shall not create, or permit the creation of,
any "interests" in either REMIC within the meaning of Code Section 860D(a)(2)
other than the interests represented by the Regular Certificates, the Residual
Certificates and the Uncertificated Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the
Depositor and the Servicer shall not contribute to the Trust Estate and the
Trustee shall not accept property unless substantially all of the property held
in each REMIC constitutes either "qualified mortgages" or "permitted
investments" as defined in Code Sections 860G(a)(3) and (5), respectively, and
(ii) no property shall be contributed to each REMIC after the start-up day
unless such contribution
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would not subject the Trust Estate to the 100% tax on contributions to a REMIC
after the start-up day of the REMIC imposed by Code Section 860G(d).
(c) The Trustee shall not accept on behalf of either REMIC any
fee or other compensation for services and neither the Trustee nor the Servicer
shall knowingly accept, on behalf of the Trust Estate any income from assets
other than those permitted to be held by a REMIC.
(d) The Trustee shall not sell or permit the sale of all or
any portion of the Mortgage Loans (other than in accordance with Sections 2.02,
2.04 or 3.14(b)), unless such sale is pursuant to a "qualified liquidation" of
the applicable REMIC as defined in Code Section 860F(a)(4)(A) and in accordance
with Article X.
(e) The Trustee shall maintain books with respect to the Trust
and each REMIC on a calendar year taxable year and on an accrual basis.
Neither the Servicer nor the Trustee shall engage in a
"prohibited transaction" (as defined in Code Section 860F(a)(2)), except that,
with the prior written consent of the Servicer and the Depositor, the Trustee
may engage in the activities otherwise prohibited by the foregoing paragraphs
(b), (c) and (d); provided that the Servicer shall have delivered to the Trustee
an Opinion of Counsel to the effect that such transaction will not result in the
imposition of a tax on either REMIC and will not disqualify the Trust Estate
from treatment as two REMICs; and, provided further, that the Servicer shall
have demonstrated to the satisfaction of the Trustee that such action will not
adversely affect the rights of the Holders of the Certificates and the Trustee
and that such action will not adversely impact the rating of the Certificates.
Section 5.09 Determination of LIBOR. On each Rate
Determination Date for a Class of LIBOR Certificates, the Trustee shall
determine LIBOR for the applicable Distribution Date on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. Dollars as found on Telerate page 3750 as of 11:00 A.M. London time on
such Rate Determination Date. As used herein, "Telerate page 3750" means the
display designated as page 3750 on the Bridge Telerate Service.
If on any Rate Determination Date for a Class of LIBOR
Certificates, the Trustee is unable to determine LIBOR on the basis of the
method set forth in the preceding paragraph, LIBOR for the applicable
Distribution Date will be whichever is higher of (x) LIBOR as determined on the
previous Rate Determination Date for such Class of LIBOR Certificates or (y) the
Reserve Interest Rate. The "Reserve Interest Rate" will be the rate per annum
which the Trustee determines to be either (A) the arithmetic mean (rounding such
arithmetic mean upwards if necessary to the nearest whole multiple of 1/16%) of
the one-month U.S. Dollar lending rates that New York City banks selected by the
Trustee are quoting, on the relevant Rate Determination Date, to the principal
London offices of at least two leading banks in the London interbank market or
(B) in the event that the Trustee can determine no such arithmetic mean, the
lowest one-month U.S. Dollar lending rate that the New York City banks selected
by the Trustee are quoting on such Rate Determination Date to leading European
banks.
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If on any Rate Determination Date for a Class of LIBOR
Certificates, the Trustee is required but is unable to determine the Reserve
Interest Rate in the manner provided in the preceding paragraph, LIBOR for the
applicable Distribution Date will be LIBOR as determined on the previous Rate
Determination Date for such Class of LIBOR Certificates, or, in the case of the
first Rate Determination Date, % per annum.
The establishment of LIBOR by the Trustee and the Trustee's
subsequent calculation of the rates of interest applicable to each of the LIBOR
Certificates in the absence of manifest error, will be final and binding. After
a Rate Determination Date, the Trustee shall provide the Pass-Through Rates of
the LIBOR Certificates for the related Distribution Date to Beneficial Owners or
Holders of LIBOR Certificates who place a telephone call to the Trustee at
and make a request therefor.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior Certificates and the
Subordinate Certificates shall be substantially in the forms set forth in
Exhibits X-0, X-0, X-0, X-0, X-0, X-0, A-PO, A-WIO, A-R, A-LR, X-0, X-0, X-0,
X-0, X-0, B-6 and C (reverse of all Certificates) and shall, on original issue,
be executed by the Trustee and shall be countersigned and delivered by the
Trustee to or upon the order of the Depositor upon receipt by the Trustee of the
documents specified in Section 2.01. The Senior Certificates (other than the
Class A-PO, Class A-WIO and Class A-R Certificates) shall be available to
investors in interests representing minimum dollar Certificate Balances (or
notional amounts) of $ and integral multiples of $ in excess thereof.
The Class A-WIO Certificates shall be available to investors in interests
representing minimum dollar Certificate Balances of $ and integral multiples
of $ in excess thereof. The Subordinate Certificates and the Class A-PO
Certificates shall be available to investors in interests representing minimum
dollar Certificate Balances of $ and integral dollar multiples of $ in
excess thereof (except one Certificate of such Class may be issued with a
different Certificate Balance. The Class A-R and Class A-LR Certificates shall
be in a minimum denomination of $ . The Senior Certificates (other than the
Class A-R and Class A-LR Certificates) and the Class B-1, Class B-2 and Class
B-3 Certificates shall initially be issued in book-entry form through the
Depository and delivered to the Depository or, pursuant to the Depository's
instructions on behalf of the Depository to, and deposited with, the Certificate
Custodian, and all other Classes of Certificates shall initially be issued in
definitive, fully-registered form.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trustee shall bind the Trustee, notwithstanding that such individuals or any
of them have ceased to be so authorized prior to the execution and delivery of
such Certificates or did not hold such offices or positions at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless such Certificate shall have been
manually countersigned by the Trustee substantially in the form provided for
herein, and such countersignature upon any Certificate shall be conclusive
evidence, and the only
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evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
Section 6.02 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at an office or agency
in the city in which the Corporate Trust Office of the Trustee is located a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trustee shall
initially serve as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may
be exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute and the Trustee shall
authenticate, countersign and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall (if so required by the
Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or its attorney duly
authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the
name of the Depository or its nominee and at all times: (A)
registration of the Certificates may not be transferred by the Trustee
except to another Depository; (B) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (C)
ownership and transfers of registration of the Book-Entry Certificates
on the books of the Depository shall be governed by applicable rules
established by the Depository; (D) the Depository may collect its usual
and customary fees, charges and expenses from its Depository
Participants; (E) the Trustee shall deal with the Depository as the
representative of the Certificate Owners of the Book-Entry Certificates
for purposes of exercising the rights of Holders under this Agreement,
and requests and directions for and votes of the Depository shall not
be deemed to be inconsistent if they are made with respect to different
Certificate Owners; and (F) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or
indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry
Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall
only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
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(iii) If (A) (1) the Depository or the Depositor advises the
Trustee in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (2) the
Trustee or the Depositor is unable to locate a qualified successor, (B)
the Depositor at its option advises the Trustee in writing that it
elects to terminate the book-entry system through the Depository or (C)
after the occurrence of an Event of Default, Certificate Owners
representing at least 51% of the aggregate Class Certificate Balances
of the Book-Entry Certificates together advise the Trustee and the
Depository through the Depository Participants in writing that the
continuation of a book-entry system through the Depository is no longer
in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of definitive,
fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee
of the related Class of Certificates by the Depository (or by the
Certificate Custodian, if it holds such Class on behalf of the
Depository), accompanied by the instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. None
of the Servicer, the Depositor or the Trustee shall be liable for any
delay in delivery of such instruction and may conclusively rely on, and
shall be protected in relying on, such instructions. The Depositor
shall provide the Trustee with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon
the issuance of Definitive Certificates, the Trustee shall recognize
the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No transfer of a Private Certificate shall be made unless
such transfer is exempt from the registration requirements of the 1933 Act and
any applicable state securities laws or is made in accordance with the 1933 Act
and such laws. In the event of any such transfer, (i) unless such transfer is
made in reliance on Rule 144A under the 1933 Act, the Trustee or the Depositor
may require a written Opinion of Counsel (which may be in-house counsel)
acceptable to and in form and substance reasonably satisfactory to the Trustee
and the Depositor that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from the 1933 Act
and such laws or is being made pursuant to the 1933 Act and such laws, which
Opinion of Counsel shall not be an expense of the Trustee or the Depositor and
(ii) the Trustee shall require a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached hereto as Exhibit G-1
and a certificate from such Certificateholder's prospective transferee
substantially in the form attached hereto either as Exhibit G-2A or as Exhibit
G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
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(e) No transfer of an ERISA Restricted Certificate shall be
made unless the transferee delivers to the Trustee either (i) a representation
letter in the form of Exhibit H from the transferee of such Certificate, which
representation letter shall not be an expense of the Depositor, the Trustee or
the Servicer, or (ii) in the case of any ERISA Restricted Certificate presented
for registration in the name of an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code, or any
federal, state or local law ("Similar Law") which is similar to ERISA or the
Code (collectively, a "Plan"), or a trustee or custodian of any of the
foregoing, an Opinion of Counsel in form and substance satisfactory to the
Trustee and the Servicer to the effect that the purchase or holding of such
ERISA Restricted Certificate by or on behalf of such Plan will not result in the
assets of the Trust Estate being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA, the Code or Similar Law and will not
subject the Trustee, the Depositor or the Servicer to any obligation in addition
to those undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the Trustee or the Servicer. Any transferee of an ERISA Restricted
Certificate that does not comply with either clause (i) or (ii) of the preceding
sentence will be deemed to have made one of the representations set forth in
Exhibit H. Notwithstanding anything else to the contrary herein, any purported
transfer of an ERISA Restricted Certificate to or on behalf of a Plan without
the delivery to the Trustee and the Servicer of an Opinion of Counsel
satisfactory to the Trustee and the Servicer as described above shall be void
and of no effect.
Neither the Trustee nor the Certificate Registrar shall have
any liability for transfers of Book-Entry Certificates made through the
book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but
not limited to, ERISA), the Trustee shall be under no liability to any Person
for any registration of transfer of any ERISA Restricted Certificate that is in
fact not permitted by this Section 6.02 or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions,
and the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a
Residual Certificate unless such Ownership Interest is a pro rata undivided
interest.
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(iii) In connection with any proposed transfer of any
Ownership Interest in a Residual Certificate, the Trustee shall require
delivery to it, in form and substance satisfactory to it, of an affidavit
in the form of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a
proposed transferee under clause (iii) above, if a Responsible Officer of
the Trustee has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in a Residual
Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be
purchased by or transferred to any Person that is not a U.S. Person, unless
(A) such Person holds such Residual Certificate in connection with the
conduct of a trade or business within the United States and furnishes the
transferor and the Trustee with an effective Internal Revenue Service Form
W-8ECI (or successor thereto) or (B) the transferee delivers to both the
transferor and the Trustee an Opinion of Counsel from a
nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual Certificate
will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of this
Section 6.02 shall be absolutely null and void and shall vest no rights in
the purported transferee. If any purported transferee shall, in violation
of the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this
Section 6.02 or for making any distributions due on such Residual
Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of the Agreement so long as the
transfer was registered in accordance with this Section 6.02. The Trustee
shall be entitled to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time such distributions were
made all distributions made on such Residual Certificate. Any such
distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the prior Holder of such Residual Certificate
that is a Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Trustee, based on information
provided to the Trustee by the Servicer, will provide to the Internal
Revenue Service, and to the Persons specified in Section 860E(e)(3) and (6)
of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations. The expenses of the Trustee under this clause (vii) shall be
reimbursable by the Trust.
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(viii) No Ownership Interest in a Residual Certificate shall
be acquired by a Plan or any Person acting on behalf of a Plan.
(g) [Reserved]
(h) No service charge shall be imposed for any transfer or
exchange of Certificates of any Class, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange
shall be destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Trustee, the Depositor and the Certificate Registrar such security or
indemnity reasonably satisfactory to each, to save each of them harmless, then,
in the absence of actual notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor, Class
and Percentage Interest but bearing a number not contemporaneously outstanding.
Upon the issuance of any new Certificate under this Section, the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 6.04 Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, the Depositor, the Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Servicer,
the Trustee or the Certificate Registrar may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.01 and for all other purposes
whatsoever, and none of the Depositor, the Servicer, the Trustee, the
Certificate Registrar or any agent of the Servicer, the Trustee or the
Certificate Registrar shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Depositor and the Servicer herein. By way of
illustration and not limitation, the Depositor is not liable for the servicing
and administration of the Mortgage Loans, nor is it obligated by Section 8.01 to
assume any obligations of the Servicer or to appoint a designee to assume such
obligations,
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nor is it liable for any other obligation hereunder that it may, but is not
obligated to, assume unless it elects to assume such obligation in accordance
herewith.
Section 7.02 Merger or Consolidation of the Depositor or the
Servicer. The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a separate entity under the laws governing
its organization, and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or the Servicer shall be a party, or any
Person succeeding to the business of the Depositor or the Servicer, shall be the
successor of the Depositor or the Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Servicer shall
be qualified to service mortgage loans on behalf of FNMA or FHLMC.
Section 7.03 Limitation on Liability of the Depositor, the
Servicer and Others. None of the Depositor, the Servicer or any of the
directors, officers, employees or agents of the Depositor or of the Servicer
shall be under any liability to the Trust Estate or the Certificateholders for
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Servicer or any such Person
against any breach of warranties or representations made herein or any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Depositor, the Servicer and any
director, officer, employee or agent of the Depositor or 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 Depositor,
the Servicer and any director, officer, employee or agent of the Depositor or
the Servicer shall be indemnified by the Trust Estate and held harmless against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, 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 willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. Neither of the Depositor nor the Servicer shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that the
Depositor or the Servicer may in its discretion undertake any such action which
it may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Estate, and the Depositor and the Servicer shall be entitled to be
reimbursed therefor out of
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amounts attributable to the Mortgage Loans on deposit in the Servicer Custodial
Account as provided by Section 3.11.
Section 7.04 Depositor and Servicer Not to Resign. Subject to
the provisions of Section 7.02, neither the Depositor nor the Servicer shall
resign from its respective obligations and duties hereby imposed on it except
upon determination that its duties hereunder are no longer permissible under
applicable law. Any such determination permitting the resignation of the
Depositor or the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation by the Servicer shall
become effective until the Trustee or a successor Servicer shall have assumed
the Servicer's responsibilities and obligations in accordance with Section 8.05
hereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. If any one of the following
events ("Events of Default") shall occur and be continuing:
(a) any failure by the Servicer to deposit amounts in the
Servicer Custodial Account in the amount and manner provided herein so as to
enable the Trustee to distribute to Holders of Certificates any payment required
to be made under the terms of such Certificates and this Agreement (other than
the payments required to be made under Section 3.20) which continues unremedied
for a period of five days; or
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in the Certificates or in this Agreement, which covenants and
agreements continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Trustee or the Depositor, or to the Servicer,
the Depositor and the Trustee by the Holders of Certificates evidencing Voting
Rights aggregating not less than 25% of all Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the
Servicer, or for the winding up or liquidation of the Servicer's affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(d) the consent by the Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to substantially all of its property; or the
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
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(e) the failure of the Servicer to remit any Periodic Advance
required to be remitted by the Servicer pursuant to Section 3.20 which failure
continues unremedied at 3:00 p.m. on the related Distribution Date;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by the Servicer, either the Trustee or the Depositor may, and
at the direction of the Holders of Certificates evidencing Voting Rights
aggregating not less than 51% of all Certificates affected thereby shall, by
notice then given in writing to the Servicer (and to the Trustee, if given by
the Depositor, and to the Depositor, if given by the Trustee), terminate all of
the rights and obligations of the Servicer under this Agreement. If an Event of
Default described in clause (e) hereof shall occur, the Trustee shall, by notice
to the Servicer, terminate all of the rights and obligations of the Servicer
under this Agreement and in and to the Mortgage Loans and proceeds thereof and
the Trustee or a successor Servicer appointed pursuant to Section 8.05 shall
make the Advance which the Servicer failed to make. 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 Certificates or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section 8.01, unless and until such time as the Trustee shall appoint
a successor Servicer pursuant to Section 8.05, and, without limitation, the
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 the Mortgage Loans and related
documents, or otherwise, including, without limitation, the recordation of the
assignments of the Mortgage Loans to it. The Servicer agrees to cooperate with
the Trustee in effecting the termination of the responsibilities and rights of
the Servicer hereunder, including, without limitation, the transfer to the
Trustee for the administration by it of all cash amounts that have been
deposited by the Servicer in the Servicer Custodial Account or thereafter
received by the Servicer with respect to the Mortgage Loans. Upon obtaining
notice or knowledge of the occurrence of any Event of Default, the Person
obtaining such notice or knowledge shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency. All costs and expenses (including attorneys'
fees) incurred in connection with transferring the Mortgage Files to the
successor Servicer and amending this Agreement to reflect such succession as
Servicer pursuant to this Section 8.01 shall be paid by the predecessor
Servicer. Notwithstanding the termination of the Servicer pursuant hereto, the
Servicer shall remain liable for any causes of action arising out of any Event
of Default occurring prior to such termination.
Section 8.02 Remedies of Trustee. During the continuance of
any Event of Default, so long as such Event of Default shall not have been
remedied, the Trustee, in addition to the rights specified in Section 8.01,
shall have the right, in its own name as trustee of an express trust, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filing of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in
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addition to any other remedy and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
Section 8.03 Directions by Certificateholders and Duties of
Trustee During Event of Default. During the continuance of any Event of Default,
Holders of Certificates evidencing Voting Rights aggregating not less than 25%
of each Class of Certificates affected thereby may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Agreement;
provided, however, that the Trustee shall be under no obligation to pursue any
such remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (a) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto, and (b) the
terminating of the Servicer or any successor Servicer from its rights and duties
as servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby and, provided further,
that, subject to the provisions of Section 9.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Servicer and
upon Event of Default. In the event that the Trustee shall have actual knowledge
of any failure of the Servicer specified in Section 8.01(a) or (b) which would
become an Event of Default upon the Servicer's failure to remedy the same after
notice, the Trustee shall give notice thereof to the Servicer. If the Trustee
shall have knowledge of an Event of Default, the Trustee shall give prompt
written notice thereof to the Certificateholders.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 8.01, the Trustee shall be 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 be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof or shall appoint a successor
pursuant to Section 3.07. Notwithstanding anything provided herein to the
contrary, under no circumstances shall any provision of this Agreement be
construed to require the Trustee, acting in its capacity as successor to the
Servicer in its obligation to make Advances, to advance, expend or risk its own
funds or otherwise incur any financial liability in the performance of its
duties hereunder if it shall have reasonable grounds for believing that such
funds are non-recoverable. Subject to Section 8.05(b), as compensation therefor,
the Trustee shall be entitled to such compensation as the terminated Servicer
would have been entitled to hereunder if no such notice of termination had been
given. Notwithstanding the above, the Trustee may, if it shall be unwilling so
to act, or shall, if it is legally unable so to act, appoint, or petition a
court of competent jurisdiction to appoint, any established housing and home
finance institution having a net worth of not less than $10,000,000 as the
successor to the terminated Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Servicer hereunder;
provided, however, that
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any such institution appointed as successor Servicer shall not, as evidenced in
writing by each Rating Agency, adversely affect the then current rating of any
Class of Certificates immediately prior to the termination of the terminated
Servicer. The appointment of a successor Servicer shall not affect any liability
of the predecessor Servicer which may have arisen under this Agreement prior to
its termination as Servicer, nor shall any successor Servicer be liable for any
acts or omissions of the predecessor Servicer or for any breach by the Servicer
of any of its representations or warranties contained herein or in any related
document or agreement. Pending appointment of a successor to the terminated
Servicer hereunder, unless the Trustee is prohibited by law from so acting, the
Trustee shall act in such capacity as provided above. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
(b) In connection with the appointment of a successor Servicer
or the assumption of the duties of the Servicer, as specified in Section
8.05(a), the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans serviced by the predecessor Servicer
as it and such successor shall agree; provided, however, that any Person
assuming the duties of the Servicer shall pay to such predecessor an amount
equal to the market value of the portion of the Servicing Fee that will accrue
in the future due to the Servicing Fee Rate exceeding % per annum with respect
to any Mortgage Loan. The "market value" of such portion of the Servicing Fee
shall be determined by , on the basis of at least two quotations from
third parties actively engaged in the servicing of single-family mortgage loans.
If the successor Servicer does not agree that such market value is a fair price,
such successor shall obtain two quotations of market value from third parties
actively engaged in the servicing of single-family mortgage loans. The market
value of the excess portion of the Servicing Fee will then be equal to the
average of (i) the lowest figure obtained by , and (ii) the highest figure
obtained by the successor Servicer. Payment of the amount calculated above shall
be made to , by the successor Servicer no later than the last Business
Day of the month in which such successor Servicer becomes entitled to receive
the Servicing Fee under this Agreement. In no event will any portion of the
Trust Estate be used to pay amounts due to under this Section 8.05(b).
(c) Any successor, including the Trustee, to the Servicer as
servicer shall during the term of its service as servicer maintain in force (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 and agents to the same extent as the Servicer
is so required pursuant to Section 3.03.
Section 8.06 Notification to Certificateholders. Upon any
termination or appointment of a successor to the Servicer pursuant to this
Article VIII, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency.
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee.
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(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. In case an Event of Default has
occurred of which a Responsible Officer of the Trustee shall have actual
knowledge (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise as a reasonably prudent investor would
exercise or use under the circumstances in the conduct of such investor's own
affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act or its own willful misfeasance; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all such Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee by the Depositor or the Servicer and which on their face, do
not contradict the requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Trustee (in its individual capacity) shall not be
personally liable with respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the direction of
Certificateholders as provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any
default (other than a default in payment to the Trustee) specified in
clauses (a) and (b) of Section 8.01 or an Event of Default under clauses
(c), (d) and (e) of Section 8.01 unless a Responsible Officer of the
Trustee assigned to and working in the Corporate Trust Office obtains
actual knowledge of such failure or event or any officer of the Trustee
receives written notice of such failure or event at its Corporate Trust
Office from the Servicer, the Depositor or any Certificateholder; and
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(v) Except to the extent provided in Section 8.05, no
provision in this Agreement shall require the Trustee to expend or risk
its own funds (including, without limitation, the making of any Advance as
successor Servicer) or otherwise incur any personal financial liability in
the performance of any of its duties as Trustee hereunder, or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that repayment of funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Section 9.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 9.01:
(i) The Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default (which has not been cured or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent investor would exercise or use under the circumstances in the
conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders or Certificate or any Class evidencing, as to such Class,
Percentage Interests, aggregating not less than 50%; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
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assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability or payment of such estimated expenses as a condition
to so proceeding; and
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys.
Section 9.03 Trustee Not Liable for Certificates or Mortgage
Loans. The recitals contained herein and in the Certificates (other than the
execution of, and the counter-signature on the Certificates) shall be taken as
the statements of the Depositor or Servicer, as applicable, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or any Mortgage Loans save that the Trustee represents that,
assuming due execution and delivery by the other parties hereto, this Agreement
has been duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms, subject, as to enforcement of remedies, to applicable insolvency,
receivership, moratorium and other laws affecting the rights of creditors
generally, and to general principles of equity and the discretion of the court
(regardless of whether enforcement of such remedies is considered in a
proceeding in equity or at law). The Trustee shall not be accountable for the
use or application by the Depositor of funds paid to the Depositor in
consideration of the assignment of the Mortgage Loans hereunder by the
Depositor, or for the use or application of any funds paid to Subservicers or
the Servicer in respect of the Mortgage Loans or deposited into the Servicer
Custodial Account, or any other account hereunder (other than the Certificate
Account) by the Servicer.
The Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage or any Mortgage Loan, or the perfection and priority of any
Mortgage or the maintenance of any such perfection and priority or for or with
respect to the sufficiency of the Trust or its ability to generate the payments
to be distributed to Certificateholders under this Agreement, including, without
limitation: the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon (other than if
the Trustee shall assume the duties of the Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the successor Servicer); the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Servicer pursuant to Section 8.05 and thereupon only for the acts
or omissions of the Trustee as successor Servicer); the compliance by the
Depositor or the Servicer with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation; any investment of monies by or at the direction of the Servicer
or any loss resulting therefrom, it being understood that the Trustee shall
remain responsible for any Trust property that it may hold in its individual
capacity; the acts or omissions of any of the Depositor, the Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as successor
Servicer), any Subservicer or any Mortgagor; any action of the Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as successor
Servicer) or any Subservicer taken in the name of the Trustee; the
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failure of the Servicer or any Subservicer to act or perform any duties required
of it as agent of the Trustee hereunder; or any action by the Trustee taken at
the instruction of the Servicer (other than if the Trustee shall assume the
duties of the Servicer pursuant to Section 8.05 and thereupon only for the acts
or omissions of the Trustee as successor Servicer); provided, however, that the
foregoing shall not relieve the Trustee of its obligation to perform its duties
under this Agreement, including, without limitation, the Trustee's review of the
Mortgage Files pursuant to Section 2.02. The Trustee shall file any financing or
continuation statement in any public office at any time required to maintain the
perfection of any security interest or lien granted to it hereunder.
Section 9.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee and may otherwise deal
with the Servicer, any Subservicer or any of their respective affiliates with
the same right it would have if it were not the Trustee.
Section 9.05 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be (a) an institution the deposits of which are
fully insured by the FDIC and (b) a corporation or banking association organized
and doing business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority and (c) with respect to
every successor trustee hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least " " by and or
(ii) whose serving as Trustee hereunder would not result in the lowering of the
ratings originally assigned to any Class of Certificates. The Trustee shall not
be an affiliate of the Depositor or the Servicer. If such corporation or banking
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 9.05, the combined capital and surplus of such
corporation or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provision of this Section 9.05, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.06.
Section 9.06 Resignation and Removal of Trustee. The Trustee
may at any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Servicer and mailing a copy of such notice to all
Holders of record. The Trustee shall also mail a copy of such notice of
resignation to each Rating Agency. Upon receiving such notice of resignation,
the Servicer shall use their best efforts to promptly appoint a mutually
acceptable successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.05 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or
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insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Servicer may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of
the Voting Rights may at any time remove the Trustee by written instrument or
instruments delivered to the Servicer and the Trustee; the Servicer shall
thereupon use their best efforts to appoint a mutually acceptable successor
Trustee in accordance with this Section 9.06.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 9.06 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 9.07.
Section 9.07 Successor Trustee. Any successor Trustee
appointed as provided in Section 9.06 shall execute, acknowledge and deliver to
the Servicer and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee herein. The predecessor Trustee shall
duly assign, transfer, deliver and pay over to the successor Trustee the whole
of the Mortgage Files and related documents and statements held by it hereunder,
together with all instruments of transfer and assignment or other documents
properly executed as may be reasonably required to effect such transfer and such
of the records or copies thereof maintained by the predecessor Trustee in the
administration hereof as may be reasonably requested by the successor Trustee
and shall thereupon be discharged from all duties and responsibilities under
this Agreement; provided, however, that if the predecessor Trustee has been
terminated pursuant to the third paragraph of Section 9.06, all reasonable
expenses of the predecessor Trustee incurred in complying with this Section 9.07
shall be reimbursed by the Trust.
No successor Trustee shall accept appointment as provided in
this Section 9.07 unless at the time of such appointment such successor Trustee
shall be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 9.07, the Servicer shall cooperate to mail notice of
the succession of such Trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to each Rating Agency. If the
Servicer fail to mail such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
Section 9.08 Merger or Consolidation of Trustee. Any
corporation or banking association into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation or banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or banking association
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succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, if such corporation or
banking association is eligible under the provisions of Section 9.05, 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.
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Servicer and
the Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Trustee as
co-trustee or separate trustee of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provision of this Section
9.09, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within ten days after the receipt by it of a request
to do so, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 9.05 and no notice to Holders
of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 9.07.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 9.09, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Estate or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of the
Trustee. No trustee hereunder shall be held personally liable by reason of any
act or omission of any other trustee hereunder; provided, however, that no
appointment of a co-trustee or separate trustee hereunder shall relieve the
Trustee of its obligations hereunder.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article IX. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall become incapable of acting, resign or be removed, or shall
be
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adjudged a bankrupt or insolvent, or a receiver of its property shall be
appointed, or any public officer shall take charge or control of such trustee or
co-trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents. The Trustee may appoint
one or more authenticating agents ("Authenticating Agents") which shall be
authorized to act on behalf of the Trustee in authenticating or countersigning
Certificates. Initially, the Authenticating Agent shall be . Wherever
reference is made in this Agreement to the authentication or countersigning of
Certificates by the Trustee or the Trustee's certificate of authentication or
countersigning, such reference shall be deemed to include authentication or
countersigning on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication or countersignature executed on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent must be acceptable
to the Servicer and must be a corporation or banking association organized and
doing business under the laws of the United States of America or of any State,
having a principal office and place of business in New York, New York, having a
combined capital and surplus of at least $15,000,000, authorized under such laws
to do a trust business and subject to supervision or examination by Federal or
State authorities.
Any corporation or banking association into which any
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation or banking association resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any corporation or banking association succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Servicer. The Trustee
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the Servicer.
Upon receiving a notice of resignation or upon such a termination, or in case,
at any time any Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 9.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Servicer and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent.
Section 9.11 Trustee's Fees and Expenses. The Trustee, as
compensation for its activities hereunder, shall be entitled to receive on each
Distribution Date an amount equal to the Trustee Fee for such Distribution Date
pursuant to Section 5.02(a). The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Trust and held harmless against
any loss, liability or expense (including reasonable attorney's fees) (a)
incurred in connection with any claim or legal action relating to (i) this
Agreement, (ii) the Certificates, or (iii) the performance of any of the
Trustee's duties hereunder, other than any loss, liability or
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expense incurred by reason of willful misfeasance, bad faith or gross negligence
in the performance of any of the Trustee's duties hereunder, (b) resulting from
any tax or information return which was prepared by, or should have been
prepared by, the Servicer and (c) arising out of the transfer of any Private
Certificate not in compliance with ERISA. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trustee
hereunder. Without limiting the foregoing, except as otherwise agreed upon in
writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee's gross negligence, bad
faith or willful misconduct, the Trust shall reimburse the Trustee for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement to the extent
permitted by Treasury Regulations Section 1.860G-1(b)(3)(ii) and (iii);
provided, however, that the Depositor and the Trustee intend to enter into a
separate agreement for custody-related services. Except as otherwise provided
herein, the Trustee shall not be entitled to payment or reimbursement for any
routine ongoing expenses incurred by the Trustee in the ordinary course of its
duties as Trustee, Certificate Registrar or Paying Agent hereunder or for any
other expenses.
Section 9.12 Appointment of Custodian. The Trustee may at any
time on or after the Closing Date, with the consent of the Depositor and the
Servicer, appoint one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee, by entering into a custodial agreement
in a form acceptable to the Depositor and the Servicer. Subject to this Article
IX, the Trustee agrees to comply with the terms of each Custodial Agreement and
to enforce the terms and provisions thereof against the Custodian for the
benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File.
Section 9.13 Paying Agents. The Trustee may appoint one or
more Paying Agents (each, a "Paying Agent") which shall be authorized to act on
behalf of the Trustee in making withdrawals from the Certificate Account and
distributions to Certificateholders as provided in Section 3.08 and Section
5.02. Wherever reference is made in this Agreement to the withdrawal from the
Certificate Account by the Trustee, such reference shall be deemed to include
such a withdrawal on behalf of the Trustee by a Paying Agent. Initially, the
Paying Agent shall be . Whenever reference is made in
this Agreement to a distribution by the Trustee or the furnishing of a
statement to Certificateholders by the Trustee, such reference shall be deemed
to include such a distribution or furnishing on behalf of the Trustee by a
Paying Agent. Each Paying Agent shall provide to the Trustee such information
concerning the Certificate Account as the Trustee shall request from time to
time. Each Paying Agent must be reasonably acceptable to the Servicer and must
be a corporation or banking association organized and doing business under the
laws of the United States of America or of any state, having (except in the
case of the Trustee) a principal office and place of business in New York,
New York, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the
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corporate agency business of any Paying Agent, shall continue to be the Paying
Agent provided that such corporation after the consummation of such merger,
conversion, consolidation or succession meets the eligibility requirements of
this Section 9.13.
Any Paying Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Servicer; provided that the
Paying Agent has returned to the Certificate Account or otherwise accounted, to
the reasonable satisfaction of the Trustee, for all amounts it has withdrawn
from the Certificate Account. The Trustee may, upon prior written approval of
the Servicer, at any time terminate the agency of any Paying Agent by giving
written notice of termination to such Paying Agent and to the Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Trustee may appoint,
upon prior written approval of the Servicer, a successor Paying Agent, shall
give written notice of such appointment to the Servicer and shall mail notice of
such appointment to all Certificateholders. Any successor Paying Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Paying Agent. The Trustee shall remain liable
for any duties and obligations assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability. The Certificates are
executed by the Trustee, not in its individual capacity but solely as Trustee of
the Trust, in the exercise of the powers and authority conferred and vested in
it by this Agreement. Each of the undertakings and agreements made on the part
of the Trustee in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the purpose
of binding only the Trust.
Section 9.15 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such preceding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursement and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Certificateholders in respect of which such
judgment has been recovered.
Section 9.16 Suits for Enforcement. In case an Event of
Default or other default by the Servicer or the Depositor hereunder shall occur
and be continuing, the Trustee, in its discretion, may proceed to protect and
enforce its rights and the rights of the Holders of Certificates under this
Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this Agreement
or for the enforcement of any other legal, equitable or other remedy, as the
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Trustee and the Certificateholders.
Section 9.17 Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust,
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or any part thereof, may be located that the Trustee post a bond or other surety
with any court, agency or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Depositor or
Liquidation of All Mortgage Loans. Subject to Section 10.02, the respective
obligations and responsibilities of the Depositor, the Servicer and the Trustee
created hereby (other than the obligation of Trustee to make certain payments to
Certificateholders after the Final Distribution Date and to send certain notices
as hereinafter set forth and the obligations of the Trustee pursuant to Sections
5.04(b) and 5.05(b)) shall terminate upon the last action required to be taken
by the Trustee on the Final Distribution Date pursuant to this Article X
following the earlier of (a) the purchase by the Depositor of all Mortgage Loans
and all REO Property remaining in the Trust Estate at a price equal to the sum
of (i) 100% of the Stated Principal Balance of each Mortgage Loan (other than
any Mortgage Loan as to which REO Property has been acquired and whose fair
market value is included pursuant to clause (ii) below) and (ii) the fair market
value of such REO Property (as determined by the Depositor as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to the fourth
paragraph of this Article X), plus any Class Unpaid Interest Shortfall for any
Class of Certificates as well as one month's interest at the related Mortgage
Rate on the Stated Principal Balance of each Mortgage Loan (including any
Mortgage Loan as to which REO Property has been acquired) or (b) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Estate or the disposition of all REO
Property.
Regardless of the foregoing, in no event shall the Trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
The right of the Depositor to repurchase all of the Mortgage
Loans is conditioned upon the Pool Stated Principal Balance as of the Final
Distribution Date being less than 1% of the Cut-off Date Pool Principal Balance.
If such right is exercised, the Trustee shall, promptly following payment of the
purchase price, release to the Depositor or its designee the Mortgage Files
pertaining to the Mortgage Loans being purchased.
Notice of any termination, specifying the Final Distribution
Date (which shall be a date that would otherwise be a Distribution Date) upon
which the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and for cancellation, shall be given promptly
by the Depositor (if exercising its right to purchase the
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assets of the Trust) or by the Trustee (in any other case) by letter to
Certificateholders mailed not earlier than the 15th day and not later than the
20th day of the month next preceding the month of such final distribution
specifying (1) the Final Distribution Date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office or agency of the Trustee therein designated, (2) the amount of any such
final payment and (3) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office or agency of the Trustee therein
specified. If the Depositor is obligated to give notice to Certificateholders as
aforesaid, it shall give such notice to the Trustee and the Certificate
Registrar at the time such notice is given to Certificateholders. In the event
such notice is given by the Depositor, the Depositor shall deposit in the
Certificate Account on or before the Final Distribution Date in immediately
available funds an amount equal to the amount necessary to make the amount, if
any, on deposit in the Certificate Account on the Final Distribution Date equal
to the purchase price for the related assets of the Trust computed as above
provided together with a statement as to the amount to be distributed on each
Class of Certificates pursuant to the next succeeding paragraph.
Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to Certificateholders of each Class, in
the order set forth in Section 5.02 hereof, on the Final Distribution Date and
in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (I) as to each Class of
Certificates, the Class Certificate Balance thereof plus (a) accrued interest
thereon in the case of an interest bearing Certificate and (b) the Class A-PO
Deferred Amount with respect to the Class A-PO Certificates, and (II) as to the
Class A-R and A-LR Certificates, the amounts, if any, which remain on deposit in
the Upper-Tier Certificate Account and the Certificate Account, respectively
(other than the amounts retained to meet claims) after application pursuant to
clause (I) above. An amount shall be distributed in respect of interest and
principal to the Uncertificated Lower-Tier Interests in the same amounts as
distributed to their Corresponding Upper-Tier Class or Classes.
If all of the Certificateholders do not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Trustee shall on such date cause all funds in the
Certificate Account not distributed in final distribution to Certificateholders
to continue to be held by the Trustee in an Eligible Account for the benefit of
such Certificateholders and the Depositor (if it exercised its right to purchase
the assets of the Trust Estate) or the Trustee (in any other case) shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds on deposit in such Eligible Account.
Section 10.02 Additional Termination Requirements.
(a) If the Depositor exercises its purchase option as provided
in Section 10.01, the Trust shall be terminated in accordance with the following
additional requirements, unless the
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Trustee has received an Opinion of Counsel to the effect that the failure of the
Trust to comply with the requirements of this Section 10.02 will not (i) result
in the imposition of taxes on "prohibited transactions" of the Trust as defined
in Section 860F of the Code, or (ii) cause the Trust Estate to fail to qualify
as two separate REMICs at any time that any Certificates are outstanding:
(i) within 90 days prior to the Final Distribution Date set
forth in the notice given by the Depositor under Section 10.01, the
Trustee shall sell all of the assets of the Trust Estate to the
Depositor for cash; and
(ii) the notice given by the Depositor or the Trustee pursuant
to Section 10.01 shall provide that such notice constitutes the
adopting of a plan of complete liquidation of the Upper-Tier REMIC and
the Lower-Tier REMIC as of the date of such notice (or, if earlier, the
date on which such notice was mailed to Certificateholders). The
Trustee shall also specify such date in the final tax return of the
Upper-Tier REMIC and Lower-Tier REMIC.
(b) By their acceptance of the Residual Certificates, the
Holders thereof hereby agree to take such other action in connection with such
plan of complete liquidation as may be reasonably requested by the Depositor.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from
time to time by the Depositor, the Servicer and the Trustee without the consent
of any of the Certificateholders, (i) to cure any ambiguity or mistake, (ii) to
correct or supplement any provisions herein or therein which may be inconsistent
with any other provisions of this Agreement, any amendment to this Agreement or
the related Prospectus Supplement, (iii) to modify, eliminate or add to any of
its provisions to such extent as shall be necessary to maintain the
qualification of the Upper-Tier REMIC and the Lower-Tier REMIC as REMICs at all
times that any Certificates are outstanding or to avoid or minimize the risk of
the imposition of any tax on the REMIC pursuant to the Code that would be a
claim against the Trust Estate, provided that (a) the Trustee has received an
Opinion of Counsel to the effect that such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the imposition
of any such tax and (b) such action shall not, as evidenced by such Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, (iv) to change the timing and/or nature of deposits into the
Certificate Account provided that (a) such change shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder and (b) such change shall not adversely affect the
then-current rating of the Senior Certificates, the Class B-1 Certificates, the
Class B-2 Certificates, the Class B-3 Certificates, the Class B-4 Certificates
or the Class B-5 Certificates as evidenced by a letter from each Rating Agency
rating such Certificates to such effect, (v) to reduce the percentage of the
Pool Principal Balance at which the Depositor will have the option to purchase
all the remaining Mortgage Loans in accordance with Section 10.01, provided that
such reduction is considered necessary by the Depositor, as evidenced by an
Officer's Certificate delivered to the Trustee, to
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preserve the treatment of the transfer of the Mortgage Loans to the Depositor by
the Seller or to the Trust by the Depositor as sale for accounting purposes, and
(vi) to make any other provisions with respect to matters or questions arising
under this Agreement which shall not be materially inconsistent with the
provisions of this Agreement, provided that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Certificateholder, provided that the amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
and no Opinion of Counsel to that effect shall be required if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee, with the consent of the Holders of
Certificates of each Class of Certificates which is affected by such amendment,
evidencing, as to each such Class of Certificates, Percentage Interests
aggregating not less than 66-2/3%, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of such Certificates;
provided, however, that no such amendment shall (A) reduce in any manner the
amount of, or delay the timing of, collections of payments on Mortgage Loans or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate or (B) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the Holders of
all Certificates then Outstanding.
Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee with an Opinion of Counsel stating whether such amendment
would adversely affect the qualification of the Upper-Tier REMIC or the
Lower-Tier REMIC as REMICs and notice of the conclusion expressed in such
Opinion of Counsel shall be included with any such solicitation. An amendment
made with the consent of all Certificateholders and executed in accordance with
this Section 11.01 shall be permitted or authorized by this Agreement
notwithstanding that such Opinion of Counsel may conclude that such amendment
would adversely affect the qualification of the Upper-Tier REMIC or the
Lower-Tier REMIC as REMICs.
Promptly after the execution of any such amendment or consent
the Trustee shall furnish written notification of the substance of or a copy of
such amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
Section 11.02 Recordation of Agreement. This Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
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effected by the Servicer and at its expense on direction by the Trustee, who
will act at the direction of Holders of Certificates evidencing not less than
50% of all Voting Rights, but only upon direction of the Trustee accompanied by
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, as provided herein,
and unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of each Class of Certificates affected thereby
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit of
all Certificateholders. For the protection and enforcement of the provisions of
this Section 11.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
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APPLICATION OF THE CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS. Section 11.05 Notices. All demands, notices, instructions,
directions, requests and communications required to be delivered 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, (provided,
however, that notices to the Trustee may be delivered by facsimile and shall be
deemed effective upon receipt ) to (a) in the case of the Depositor, Wachovia
Asset Securitization, Inc., One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel and Chief Financial
Officer, (b) in the case of the Servicer, , ,
Attention: , , (c) in the case of the
Trustee, , , ,
Attention: , (d) in the case of ,
, , , ,
Attn: , and (e) in the case of , ,
, , Attn: ; or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 11.06 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid. It is
the intention of the Trustee that Certificateholders shall not be personally
liable for obligations of the Trust Estate, that the beneficial ownership
interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust Estate or for any reason whatsoever, and that
Certificates upon execution, countersignature and delivery thereof by the
Trustee pursuant to Section 6.01 are and shall be deemed fully paid.
Section 11.08 Access to List of Certificateholders. The
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within 15 days after the receipt of a request by the Trustee in writing, a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date for payment of
distributions to Certificateholders.
If three or more Certificateholders apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and is accompanied by a copy of the communication
which such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access
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during normal business hours to the most recent list of Certificateholders held
by the Trustee. If such a list is as of a date more than 90 days prior to the
date of receipt of such applicants' request, the Trustee shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list,
agrees with the Certificate Registrar and the Trustee that neither the
Certificate Registrar nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 11.09 Recharacterization. The parties to this
Agreement intend the conveyance by the Depositor to the Trustee of all of its
right, title and interest in and to the Mortgage Loans pursuant to this
Agreement to constitute a purchase and sale and not a loan. Notwithstanding the
foregoing, to the extent that such conveyance is held not to constitute a sale
under applicable law, it is intended that this Agreement shall constitute a
security agreement under applicable law and that the Depositor shall be deemed
to have granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
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IN WITNESS WHEREOF, the Depositor, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized to be hereunto affixed, all as of the day and
year first above written.
WACHOVIA ASSET SECURITIZATION, INC.,
as Depositor
By:_________________________________
Name:
Title:
[ ],
as Servicer
By:_________________________________
Name:
Title:
[ ],
as Trustee
By:_________________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
)
On the th day of , 200 , before me, a notary public in and for the
State of , personally appeared _________________, known to me who,
being by me duly sworn, did depose and say that s/he is a ________________ of
, a , one of the parties that executed the foregoing
instrument; and that s/he signed his/her name thereto by order of the Board of
Directors of such corporation.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF )
) ss.:
COUNTY OF )
)
On the th day of , 200 , before me, a notary public in
and for the State of , personally appeared , known to me who,
being by me duly sworn, did depose and say that s/he is the of Wachovia
Asset Securitization, Inc., a North Carolina corporation, one of the parties
that executed the foregoing instrument; and that she signed her name thereto by
order of the Board of Directors of such corporation.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF )
) ss.:
COUNTY OF )
)
On the th day of , 200 , before me, a notary public in
and for the State of , personally appeared , known to me who,
being by me duly sworn, did depose and say that he is the of , a
national banking association, one of the parties that executed the foregoing
instrument; and that he signed her name thereto by order of the Board of
Directors of such corporation.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-1
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as servicer
(the "Servicer"), and , as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the
A-1-2
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-2 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-2
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as servicer
(the "Servicer"), and , as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the
A-2-2
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-3 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-3
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the
A-3-2
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-4 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-4
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as servicer
(the "Servicer"), and , as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the
A-4-2
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
The Pass-Through Rate applicable with respect to the Distribution Date
in will be % per annum, and on each subsequent Distribution Date shall be
determined as provided in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-5 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-5
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-5
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Notional Amount of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Wachovia Asset
Securitization, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated , 200 (the "Pooling and
Servicing Agreement"), among the Depositor, , as servicer (the
"Servicer"), and , as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
This Class A-5 Certificate is not entitled to any distributions with
respect to principal on the Mortgage Loans in the Trust.
A-5-2
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
The Pass-Through Rate applicable with respect to the Distribution Date
in will be % per annum, and on each subsequent Distribution Date shall
be determined as provided in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-6 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-6
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-6
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the
A-6-2
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
A-6-3
EXHIBIT A-WIO
[FORM OF FACE OF CLASS A-WIO CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-WIO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-WIO
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Notional Amount of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Wachovia Asset
Securitization, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated , 200 (the "Pooling and
Servicing Agreement"), among the Depositor, , as servicer (the
"Servicer"), and , as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
This Class A-WIO Certificate is not entitled to any distributions with
respect to principal on the Mortgage Loans in the Trust.
A-WIO-2
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This Class A-WIO Certificate represents the right to receive interest
at the Pass-Through Rate for such Class on the Class A-WIO Notional Amount. The
Pass-Through Rate applicable with respect to any Distribution Date is the per
annum rate equal to (i) the weighted average of the Net Mortgage Interest Rates
of the Premium Mortgage Loans (based on the Stated Principal Balances of the
Premium Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date) minus (ii) %.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
A-WIO-3
EXHIBIT A-PO
[FORM OF FACE OF CLASS A-PO CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-PO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, EACH COMPONENT OF THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-PO
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the
A-PO-2
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This Class A-PO Certificate represents the right to receive principal
only.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
A-PO-3
EXHIBIT A-R
[FORM OF FACE OF CLASS A-R CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS RESIDUAL CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of a pool of mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT _________ is the registered owner of 100%
Percentage Interest evidenced by this Certificate in certain monthly
distributions with respect to a Trust consisting of the Mortgage Loans deposited
by Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
A-R-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class A-R
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class A-R Certificate shall be a Permitted Transferee
and shall promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee; (ii) no Person shall acquire an ownership
interest in this Class A-R Certificate unless such ownership interest is a pro
rata undivided interest; (iii) in connection with any proposed transfer of this
Class A-R Certificate, the Trustee shall require delivery to it, in form and
substance satisfactory to it, of an affidavit in the form of Exhibit I to the
Pooling and Servicing Agreement; (iv) notwithstanding the delivery of an
affidavit by a proposed transferee under clause (iii) above, if a Responsible
Officer of the Trustee has actual knowledge that the proposed transferee is not
a Permitted Transferee, no transfer of any Ownership Interest in this Residual
Certificate to such proposed transferee shall be effected; (v) this Residual
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Residual Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Trustee with an effective Internal Revenue
Service Form 4224 (or any successor thereto) or (B) the transferee delivers to
both the transferor and the Trustee an Opinion of Counsel from a
nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of this Residual Certificate will not be
disregarded for federal income tax purposes; (vi) any attempted or purported
transfer of this Class A-R Certificate in violation of the provisions of such
restrictions shall be absolutely null and void and shall vest no rights in the
purported transferee; and (vii) if any Person other than a Permitted Transferee
acquires the Class A-R Certificate in violation of such restrictions, then the
Trustee, based on information provided to the Trustee by the Servicer, will
provide to the Internal Revenue Service, and to the Persons specified in Section
860E(e)(3) and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
A-R-3
EXHIBIT A-LR
[FORM OF FACE OF CLASS A-LR CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-LR
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS A-LR CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS RESIDUAL CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class A-LR
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of a pool of mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
This certifies that _____________________ is the registered owner of
100% Percentage Interest evidenced by this Certificate in certain monthly
distributions with respect to a Trust consisting of the Mortgage Loans deposited
by Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the "Pooling and
Servicing Agreement"), among the Depositor, , as servicer
(the "Servicer"), and , as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
A-LR-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class A-LR Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class A-LR Certificate shall
be deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class A-LR
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class A-LR Certificate shall be a Permitted Transferee
and shall promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee; (ii) no Person shall acquire an ownership
interest in this Class A-LR Certificate unless such ownership interest is a pro
rata undivided interest; (iii) in connection with any proposed transfer of this
Class A-LR Certificate, the Trustee shall require delivery to it, in form and
substance satisfactory to it, of an affidavit in the form of Exhibit I to the
Pooling and Servicing Agreement; (iv) notwithstanding the delivery of an
affidavit by a proposed transferee under clause (iii) above, if a Responsible
Officer of the Trustee has actual knowledge that the proposed transferee is not
a Permitted Transferee, no transfer of any Ownership Interest in this Residual
Certificate to such proposed transferee shall be effected; (v) this Residual
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Residual Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Trustee with an effective Internal Revenue
Service Form 4224 (or any successor thereto) or (B) the transferee delivers to
both the transferor and the Trustee an Opinion of Counsel from a
nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of this Residual Certificate will not be
disregarded for federal income tax purposes; (vi) any attempted or purported
transfer of this Class A-LR Certificate in violation of the provisions of such
restrictions shall be absolutely null and void and shall vest no rights in the
purported transferee; and (vii) if any Person other than a Permitted Transferee
acquires the Class A-LR Certificate in violation of such restrictions, then the
Trustee, based on information provided to the Trustee by the Servicer, will
provide to the Internal Revenue Service, and to the Persons specified in Section
860E(e)(3) and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
A-LR-3
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-1
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
B-1-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AND CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-2
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
B-2-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1 AND CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT.
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-3
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
B-3-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES AS DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925
(JULY 12, 1995)), THERE IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH
GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON
BEHALF OF SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME
EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES
OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF
PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN
SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF
SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA, THE CODE
OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE TRUSTEE
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
B-4-2
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-4
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
B-4-3
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925
(JULY 12, 1995)), THERE IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH
GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON
BEHALF OF SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME
EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES
OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF
PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN
SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF
SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA, THE CODE
OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE TRUSTEE
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
B-5-2
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-5
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
B-5-3
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS B-5
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925
(JULY 12, 1995)), THERE IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH
GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON
BEHALF OF SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME
EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES
OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF
PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN
SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF
SUCH PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA, THE CODE
OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE TRUSTEE
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
B-6-2
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates, Series 200 -
Class B-6
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Wachovia Asset Securitization, Inc., as Depositor
Certificate No.:
Cut-Off Date:
First Distribution Date:
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $
Pass-Through Rate:
CUSIP No.:
ISIN No.:
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Class Certificate Balance of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Wachovia Asset Securitization, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated , 200 (the
"Pooling and Servicing Agreement"), among the Depositor, , as
servicer (the "Servicer"), and , as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
B-6-3
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
B-6-4
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
WACHOVIA ASSET SECURITIZATION, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Wachovia Asset Securitization, Inc. Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Pooling and Servicing
Agreement or, except as expressly provided in the Pooling and Servicing
Agreement, subject to any liability under the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for the interests, rights and limitations of rights, benefits, obligations and
duties evidenced thereby, and the rights, duties and immunities of the Trustee.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the day of each calendar month (or, if such day
is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement. The Record Date applicable to each Distribution Date is the
last Business Day of the month next preceding the month of such Distribution
Date.
On each Distribution Date, the Trustee shall distribute out of the
Certificate Account to each Certificateholder of record on the related Record
Date (other than respecting the final distribution) (a) by check mailed to such
Certificateholder entitled to receive a distribution on such Distribution Date
at the address appearing in the Certificate Register, or (b) upon written
request by the Holder of a Regular Certificate (in the event such
Certificateholder owns of record 100% of a Class of Certificates or holds
Certificates of any Class having denominations aggregating $1,000,000 or more),
by wire transfer or by such other means of payment as such Certificateholder and
the Trustee shall agree upon, such Certificateholder's Percentage Interest in
the amount to which the related Class of Certificates is entitled in accordance
with the priorities set forth in Section 5.02 of the Pooling and Servicing
Agreement; provided, however, that in the case of the Class A-4 and Class A-5
Certificates, distributions of principal to which such Class is entitled will be
made to the Holders of such Class as described in Section 5.09 of the Pooling
and Servicing Agreement. The final distribution on each Certificate will be made
in like manner, but only upon presentation and
surrender of such Certificate to the Trustee as contemplated by Section 10.01 of
the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Pooling and Servicing Agreement at any time by the Depositor, the Servicer and
the Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Pooling and Servicing Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register of the Trustee upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Certificate Registrar and the Trustee
and any agent of the Depositor, the Servicer, the Certificate Registrar or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Certificate Registrar, the Trustee or any such agent shall be affected by any
notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance is less than 10% of the aggregate Cut-Off Date Principal Balance, the
Depositor will have the option to repurchase, in whole, from the Trust all
remaining Mortgage Loans and all property acquired in respect of such Mortgage
Loans at a purchase price determined as provided in the Pooling and Servicing
Agreement. The 10% may be reduced by an amendment to the Pooling and Servicing
Agreement without Certificateholder consent under certain conditions set forth
in the Pooling
C-2
and Servicing Agreement. In the event that no such optional repurchase occurs,
the obligations and responsibilities created by the Pooling and Servicing
Agreement will terminate upon the later of the maturity or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust or the disposition of all property in respect thereof and the distribution
to Certificateholders of all amounts required to be distributed pursuant to the
Pooling and Servicing Agreement. In no event shall the Trust created by the
Pooling and Servicing Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
[ ],
as Trustee
By
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [___] Certificates referred to in the Pooling
and Servicing Agreement referenced herein.
[ ],
as Trustee
By
Authorized Signatory
C-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________ for the account
of ___________________, account number _________________________, or, if mailed
by check, to Applicable statements should be mailed to ___________________
This information is provided by ____________________________, the
assignee named above, or , as its agent.
C-5
EXHIBIT D
MORTGAGE LOAN SCHEDULE
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: [Trustee]
[ ]
[ ]
Attn: [ ]
Re: The Pooling and Servicing Agreement dated , 200 ,
among Wachovia Asset Securitization, Inc., as Depositor,
, as Servicer, and ,
as Trustee
In connection with the administration of the Mortgage Loans held by
you, as Custodian, pursuant to the above-captioned Pooling and Servicing
Agreement, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
--------------------
Mortgagor Name, Address & Zip Code:
----------------------------------
Reason for Requesting Documents (check one)
-------------------------------
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:
-----------------------------------
(authorized signer of
Wachovia Asset Securitization, Inc.)
Issuer:
--------------------------------
Address:
-------------------------------
Date:
----------------------------------
Custodian
---------
[Trustee]
Please acknowledge the execution of the above request by your signature and date
below:
---------------------------------- ---------------
Signature Date
Documents returned to Custodian:
----------------------------------- ----------------
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[Date]
[_______________] hereby certifies that it has established a
[__________] Account pursuant to Section [________] of the Pooling and Servicing
Agreement, dated , 200 , among Wachovia Asset Securitization, Inc., as
Depositor, , as Servicer, and , as Trustee.
[ ],
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[Trustee]
[ ]
[ ]
Re: Wachovia Asset Securitization, Inc., Mortgage Pass-Through
Certificates, Series 200 - , Class ___, having an initial
aggregate Certificate Balance as of , 200 of
$___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[______________] (the "Transferor") to [______________] (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated , 200 , among Wachovia Asset Securitization,
Inc., as Depositor, , as Servicer, and ,
as Trustee. All capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you, as Trustee,
that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a transfer, pledge or other disposition of
any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest
in a Transferred Certificate or any other similar security by means of
general advertising or in any other manner, or (e) taken any other
action with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security, which (in the
case of any of the acts described in clauses (a) through (e) hereof)
would constitute a distribution of the Transferred Certificates under
the Securities Act of 1933, as amended (the "1933 Act"), would render
the disposition of the Transferred Certificates a violation of Section
5 of the 1933 Act or
any state securities laws, or would require registration or
qualification of the Transferred Certificates pursuant to the 1933 Act
or any state securities laws.
Very truly yours,
--------------------------------------
(Transferor)
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT G-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[Trustee]
[ ]
[ ]
Re: Wachovia Asset Securitization, Inc., Mortgage Pass-Through
Certificates, Series 200 - , Class ___, having an initial
aggregate Certificate Balance as of , 200 of
$_________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________] (the "Transferor") to [_________________________________] (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated , 200 , among Wachovia Asset
Securitization, Inc., as Depositor, , as Servicer, and , as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Trustee, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the "1933
Act"), and has completed one of the forms of certification to that
effect attached hereto as Annex 1 and Annex 2. The Transferee is aware
that the sale to it is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own
account or for the account of another Qualified Institutional Buyer,
and understands that such Transferred Certificates may be resold,
pledged or transferred only (a) to a person reasonably believed to be a
Qualified Institutional Buyer that purchases for its own account or for
the account of another Qualified Institutional Buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on
Rule 144A, or (b) pursuant to another exemption from registration under
the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement and the Trust
created pursuant thereto, (e) any credit enhancement mechanism
associated with the Transferred Certificate, and (f) all related
matters, that it has requested.
3. If the Transferee proposes that the Transferred
Certificates be registered in the name of a nominee, such nominee has
completed the Nominee Acknowledgment below.
Very truly yours,
--------------------------------------------
(Transferor)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
G-2A-2
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
____________________________________________
(Nominee)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
G-2A-3
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________]
(the "Transferor") and , as Trustee, with respect to the mortgage
pass-through certificates (the "Transferred Certificates") described in the
Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar
--------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
G-2A-4
institution, which is supervised and examined by a state or
federal authority having supervision over any such
institutions, or is a foreign savings and loan association or
equivalent institute and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as
of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost
G-2A-5
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only if
such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
_________________________________
Print Name of Transferee
By:______________________________
Name:____________________________
Title:___________________________
Date:____________________________
G-2A-6
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") and , as Trustee, with respect to the mortgage
pass-through certificates (the "Transferred Certificates") described in the
Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $__________________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or
G-2A-7
investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
___________________________________
Print Name of Transferee or Adviser
By:_________________________________
Name:_______________________________
Title:______________________________
IF AN ADVISER:
____________________________________
Print Name of Transferee
By:_________________________________
Date:_______________________________
G-2A-8
EXHIBIT G-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[Trustee]
[ ]
[ ]
Re: Wachovia Asset Securitization, Inc., Mortgage Pass-Through
Certificates, Series 200 - , Class ___, having an initial
aggregate Certificate Principal Balance as of , 200
of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________] (the "Transferor") to [___________________] (the "Transferee")
of the captioned Certificates (the "Transferred Certificates"), pursuant to
Section 6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated , 200 , among Wachovia Asset Securitization,
Inc., as Depositor, , as Servicer, and , as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Trustee, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the 1933 Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless such resale or transfer is exempt from the registration requirements of
the 1933 Act and any applicable state securities laws or is made in accordance
with the 1933 Act and laws, in which case (i) unless the transfer is made in
reliance on Rule 144A under the 1933 Act, the Trustee or the Depositor may
require a written Opinion of Counsel (which may be in-house counsel) acceptable
to and in form and substance reasonably satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor and (ii) the
Trustee shall require a certificate from the Certificateholder desiring to
effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing except in compliance with
the provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS
CERTIFICATE WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE
MADE IN A TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE
(COLLECTIVELY, A "PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS"
WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS
CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO THE
TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT
ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN
TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE
SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE
COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED.
REG. 35925 (JULY 12, 1995)), THERE IS NO BENEFIT PLAN WITH RESPECT TO
WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR
THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH BENEFIT PLAN AND ALL OTHER
BENEFIT PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS
DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE
ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND
G-2B-2
LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED
UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND ALL
PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH
PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN
WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA,
THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE
SERVICER OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON WHO
ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO
HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER
REFERRED TO IN THE PRECEDING SENTENCE UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED
TO IN THE PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN
VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL
VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the 1933 Act, would render the disposition of the
Transferred Certificates a violation of Section 5 of the 1933 Act or any state
securities law or would require registration or qualification of the Transferred
Certificates pursuant thereto. The Transferee will not act, nor has it
authorized nor will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to the Transferred Certificates, any
interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans., (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
G-2B-3
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
_____________________________________________
(Transferee)
By:__________________________________________
Name:________________________________________
Title:_______________________________________
Date:________________________________________
G-2B-4
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
___________________________________________
(Nominee)
By:________________________________________
Name:______________________________________
Title:_____________________________________
G-2B-5
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR BENEFIT PLAN-RESTRICTED CERTIFICATES
[Trustee]
[ ]
[ ]
Re: Wachovia Asset Securitization, Inc., Mortgage Pass-Through
Certificates, Series 200 - , Class ___, having an initial
aggregate Certificate Principal Balance as of , 200
of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_____________] (the "Transferor") to [__________________] (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated , 200 , among Wachovia Asset Securitization, Inc., as
Depositor, , as Servicer, and , as Trustee. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Trustee, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan
or arrangement, including an individual retirement account, subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the
Internal Revenue Code of 1986, as amended (the "Code"), or any federal, state or
local law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) it is an insurance company and the source of funds used to purchase
the Transferred Certificates is an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE
95-60"), 60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to
which the amount of such general account's reserves and liabilities for the
contract(s) held by or on behalf of such Plan and all other Plans maintained by
the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization exceeds 10% of the total of all
reserves and liabilities of such general account (as such amounts are determined
under Section I(a) of PTE 95-60) at the date of acquisition and all Plans that
have an interest in such general account are Plans to which PTE 95-60 applies.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
___________________________________________
(Transferee)
By:________________________________________
Name:______________________________________
Title:_____________________________________
Date:______________________________________
H-2
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Wachovia Asset Securitization, Inc.
Mortgage Pass-Through Certificates,
Series 200 -
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________,
the proposed transferee (the "Transferee") of the Class A-R or Class A-LR
Certificate (the "Certificate") issued pursuant to the Pooling and Servicing
Agreement, dated , 200 , (the "Agreement"), relating to the
above-referenced Series, by and among Wachovia Asset Securitization, Inc., as
depositor (the "Depositor"), , as servicer, and ,
as trustee. Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Agreement. The Transferee has authorized
the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the transfer, a Permitted Transferee. The Transferee is acquiring the
Certificate either (i) for its own account or (ii) as nominee, trustee or agent
for another Person who is a Permitted Transferee and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record Holder of an interest in such entity. The
Transferee understands that, other than in the case of an "electing large
partnership" under Section 775 of the Code, such tax will not be imposed for any
period with respect to which the record Holder furnishes to the pass-through
entity an affidavit that such
record Holder is a Permitted Transferee and the pass-through entity does not
have actual knowledge that such affidavit is false. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the transfer and mandatory sales.
The Transferee expressly agrees to be bound by and to abide by the provisions of
Section 6.02 of the Agreement and the restrictions noted on the face of the
Certificate. The Transferee understands and agrees that any breach of any of the
representations included herein shall render the transfer to the Transferee
contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Certificate, and in connection with any transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
transfer the Certificate or cause the Certificate to be transferred to any
Person that the Transferee knows is not a Permitted Transferee.
7. The Transferee historically has paid its debts as they have become
due.
8. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
9. The Transferee's taxpayer identification number is _______________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax. The Transferee understands
that it may incur tax liabilities with respect to the Certificate in excess of
cash flows generated thereby, and agrees to pay taxes associated with holding
the Certificate as such taxes become due.
I-2
12. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
Print Name of Transferee
By:
Name:
Title:
Personally appeared before me the above-named
______________________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the _______________________ of the
Transferee, and acknowledged that he executed the same as his free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this _____ day of ________________, ____
__________________________________________
NOTARY PUBLIC
My Commission expires the ____ day of
______________, ____
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1
EXHIBIT J
CONTENTS OF THE SERVICER MORTGAGE FILE
1. Copies of Mortgage Loans Documents.
2. Residential loan application.
3. Mortgage Loan closing statement.
4. Verification of employment and income, if required.
5. Verification of acceptable evidence of source and amount of downpayment.
6. Credit report on Mortgagor, in a form acceptable to either FNMA or FHLMC.
7. Residential appraisal report.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property, unless a survey is not required by the
title insurer.
10. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, home owner association declarations, etc.
11. Copies of all required disclosure statements.
12. If applicable, termite report, structural engineer's report, water
potability and septic certification.
13. Sales Contract, if applicable.
14. The Primary Insurance Policy or certificate of insurance or an electronic
notation of the existence of such policy, where required pursuant to the
Agreement.
15. Evidence of electronic notation of the hazard insurance policy, and if
required by law, evidence of the flood insurance policy.
EXHIBIT K
FORM OF SPECIAL SERVICING AGREEMENT
This Special Servicing Agreement (the "Agreement") is made and entered
into as of ___________________, between (the "Servicer") and ___________
(the "Loss Mitigation Advisor").
PRELIMINARY STATEMENT
_________________ (the "Purchaser") is the holder of the entire
interest in Wachovia Asset Securitization, Inc.; Mortgage Pass-Through
Certificates, Series ______, Class ____ (the "Class B Certificates"). The Class
B Certificates were issued pursuant to a Pooling and Servicing Agreement dated
___________________among Wachovia Asset Securitization, Inc., as depositor (the
"Depositor"), the Servicer, and , as Trustee.
The Purchaser has requested the Servicer to engage the Loss Mitigation
Advisor, at the Purchaser's expense, to assist the Servicer with respect to
default management and reporting situations for the benefit of the Purchaser.
In consideration of the mutual agreements herein contained, the receipt
and sufficiency of which are hereby acknowledged, the Servicer hereby engages
the Loss Mitigation Advisor to provide advice in connection with default
management and reporting situations with respect to defaulted loans, including
providing to the Servicer recommendations with respect to foreclosures, the
acceptance of so-called short payoffs, deeds in lieu of or in aid of foreclosure
and deficiency notes, as well as with respect to the sale of REO properties. The
Loss Mitigation Advisor hereby accepts such engagement, and acknowledges that
its fees will be paid by the Purchaser and not the Servicer, and that it will
not look to the Servicer for financial remuneration. It is the intent of the
parties to this Agreement that the services of the Loss Mitigation Advisor are
provided without fee to the Servicer for the benefit of the Purchaser for the
life of the Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York are required or
authorized by law or executive order to be closed.
Commencement of Foreclosure: The first official action required under
local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, the posting, publishing, filing or
delivery of a notice of sale.
Delay of Foreclosure: The postponement for more than three Business
Days of the scheduled sale of Mortgaged Property to obtain satisfaction of a
Mortgage Loan.
Loss Mitigation Advisor: ______________.
Purchaser: _______________________, or the holder of record of the
Class B Certificates.
Short Payoff: Liquidation of a Mortgage Loan at less than the full
amount of the outstanding balance of the Mortgage Loan plus advances and costs
through a negotiated settlement with the borrower, which may include a
deed-in-lieu of foreclosure or sale of the property or of the promissory note
secured by the collateral property to a third party, in either case with or
without a contribution toward any resulting deficiency by the borrower.
Section 1.02. Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement shall
have the meanings assigned in the Pooling and Servicing Agreements.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the Pooling
and Servicing Agreement relating to the realization upon defaulted Mortgage
Loans, the Servicer shall use reasonable efforts to provide to the Loss
Mitigation Advisor with the following notices and reports. All such notices and
reports may be sent to the Loss Mitigation Advisor by telecopier, electronic
mail, express mail or regular mail.
(i) The Servicer shall within five Business Days after each
Distribution Date either: (A) provide to the Loss Mitigation Advisor a
written or electronic report, using the same methodology and
calculations as in its standard servicing reports, indicating for the
trust fund formed by the Pooling and Servicing Agreement, the number of
Mortgage Loans that are (1) sixty days delinquent, (2) ninety days or
more delinquent, (3) in foreclosure or (4) real estate owned (REO), and
indicating for each such Mortgage Loan the loan number, whether the
loan is in bankruptcy or paying under the terms of a
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repayment plan, the reason for default, and outstanding principal
balance; or (B) provide the information detailed in (A) to a data
service provider of the Loss Mitigation Advisor's choice in an
electronic format acceptable to that data service provider. Provision
of the information to a service provider other than that specified by
the Loss Mitigation Advisor is acceptable.
(ii) Prior to a Delay of Foreclosure in connection with any
Mortgage Loan, the Servicer shall provide the Loss Mitigation Advisor
with a notice of such proposed and imminent delay, stating the loan
number, the aggregate amount owing under the Mortgage Loan, and the
reason and justification for delaying foreclosure action. All notices
and supporting documentation pursuant to this subsection may be
provided via telecopier, express mail or electronic mail.
(iii) Prior to accepting any Short Payoff in connection with
any Mortgage Loan, the Servicer shall provide the Loss Mitigation
Advisor with a notice of such proposed and imminent Short Payoff,
stating the loan number, the aggregate amount owing under the Mortgage
Loan, and the justification for accepting the proposed Short Payoff.
Such notice may be sent by telecopier, express mail, electronic mail or
regular mail.
(iv) Within five (5) business days of each Distribution Date,
the Servicer shall provide the Loss Mitigation Advisor with a report
listing each loan that has resulted in a realized loss that has been
reported to the trustee. Such report shall specify the loan number, the
outstanding principal balance of the loan upon its liquidation, the
realized loss, and the following components of realized loss:
foreclosure costs, advances, mortgage insurance proceeds, marketing and
property rehabilitation costs, and other costs. Such report may be
provided by telecopier, express mail, regular mail or electronic mail.
The Loss Mitigation Advisor shall have at least ten (10) business days
in which to respond with reasonable questions or requests for
additional information regarding the amounts reported as realized
losses, and the Servicer shall within five (5) business days of receipt
of the Loss Mitigation Advisor's questions or additional information
requests provide responses to such questions and requests.
(v) Within five (5) business days of receipt by the Servicer
of an offer to acquire an REO property at an amount that is more than
15% below the most recent market valuation of that property obtained by
the Servicer (or if no such valuation has been obtained, the appraisal
used in connection with the originating of the related Mortgage Loan),
the Servicer shall notify the Loss Mitigation Advisor of such offer and
shall provide a justification for accepting such offer, if that is the
Servicer's recommendation.
(vi) Within five (5) business days of receipt by the Servicer
that a claim filed for mortgage insurance, or any part thereof, has
been rejected by the mortgage insurance provider, the Servicer shall
provide a copy of the rejected claim with explanations for the item or
items rejected to the Loss Mitigation Advisor.
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(vii) Within five (5) business days of providing the trustee
with any notice regarding a mortgage loan substitution, loan
modification, or loan repurchase, the Servicer shall provide the Loss
Mitigation Advisor with a copy of the notice.
(b) If requested by the Loss Mitigation Advisor, the Servicer
shall make its servicing personnel available during its normal business hours to
respond to reasonable inquiries, in writing by facsimile transmission, express
mail or electronic mail, by the Loss Mitigation Advisor in connection with any
Mortgage Loan identified in a report under subsection 2.01 (a)(i), (a)(ii),
(a)(iii) or (a)(iv) which has been given to the Loss Mitigation Advisor;
provided that the Servicer shall only be required to provide information that is
readily accessible to their servicing personnel.
(c) In addition to the foregoing, the Servicer shall provide
to the Loss Mitigation Advisor such information as the Loss Mitigation Advisor
may reasonably request concerning each Mortgage Loan that is at least sixty days
delinquent and each Mortgage Loan which has become real estate owned, provided
that the Servicer shall only be required to provide information that is readily
accessible to its servicing personnel.
(d) With respect to all Mortgage Loans which are serviced at
any time by the Servicer through a subservicer, the Servicer shall be entitled
to rely for all purposes hereunder, including for purposes of fulfilling its
reporting obligations under this Section 2.01, on the accuracy and completeness
of any information provided to it by the applicable subservicer.
Section 2.02. Loss Mitigation Advisor's Recommendations With Respect to
Defaulted Loans.
(a) All parties to this Agreement acknowledge that the Loss
Mitigation Advisor's advice is made in the form of recommendations, and that the
Loss Mitigation Advisor does not have the right to direct the Servicer in
performing its duties under the Pooling and Servicing Agreement. The Servicer
may, after review and analysis of the Loss Mitigation Advisor's recommendation,
accept or reject it, in the Servicer's sole discretion, subject to the standards
of the Servicer to protect the interest of the Certificateholders set forth in
the Pooling and Servicing Agreement.
(b) Within two (2) business days of receipt of a notice of a
foreclosure delay, the Loss Mitigation Advisor shall provide the Servicer with a
recommendation regarding the delay, provided, however, that if additional
information is required on which to base a recommendation, the Loss Mitigation
Advisor shall notify the Servicer of the additional information needed within
the allotted time, and the Servicer shall promptly provide such information and
the Loss Mitigation Advisor shall then submit to the Servicer its
recommendation. The Loss Mitigation Advisor may recommend that additional
procedures be undertaken to further analyze the property, the borrower, or
issues related to the default or foreclosure. Such additional procedures may
include asset searches, property valuations, legal analysis or other procedures
that are warranted by the circumstances of the property, borrower or
foreclosure. The Loss Mitigation Advisor may recommend such other actions as are
warranted by the circumstances of the property, borrower or foreclosure.
K-4
(c) Within two (2) business days of receipt of a notice of a
proposed Short Payoff, the Loss Mitigation Advisor shall provide the Servicer
with a recommendation regarding the proposed Short Payoff, provided, however,
that if additional information is required on which to base a recommendation,
the Loss Mitigation Advisor shall notify the Servicer of the additional
information needed within two business days, and the Servicer shall promptly
provide such information and the Loss Mitigation Advisor shall then submit to
the Servicer its recommendation. The Loss Mitigation Advisor's recommendation
may take the form of concurring with the proposed Short Payoff, recommending
against such Short Payoff, with a justification provided, or proposing a
counteroffer.
(d) Within two (2) business days of receipt of a notice of an
REO sale at an amount that is more than 15% below the recent market valuation of
that property, the Loss Mitigation Advisor shall provide the Servicer with its
recommendation. The Loss Mitigation Advisor's recommendation may take the form
of concurring with the proposed below-market sale, recommending against such
below-market sale, or proposing a counteroffer.
Section 2.03. Termination.
(a) With respect to all Mortgage Loans included in a trust
fund, the Servicer's obligations under Section 2.01 and Section 2.02 shall
terminate at such time as the Certificate Principal Balances of the related
Class B Certificates have been reduced to zero.
(b) The Loss Mitigation Advisor's responsibilities under this
Agreement shall terminate upon the termination of the fee agreement between the
Purchaser or its successor and the Loss Mitigation Advisor. The Loss Mitigation
Advisor shall promptly notify the Servicer of the date of termination of such
fee agreement, but in no event later than 5:00 P.M., EST, on the effective date
thereof.
(c) Neither the Servicer nor any of its directors, officers,
employees or agents shall be under any liability for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Servicer and the Loss Mitigation Advisor
and any director, officer, employee or agent thereof 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. Neither the Loss Mitigation
Advisor, its directors, officers, employees or agents shall be under any
liability for any actions taken by the Servicer based upon the recommendation
pursuant to this Agreement, provided they are made in good faith.
ARTICLE III
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MISCELLANEOUS PROVISIONS
Section 3.01. Amendment.
This Agreement may be amended from time to time by the Servicer and the
Loss Mitigation Advisor by written agreement signed by the Servicer and the Loss
Mitigation Advisor.
Section 3.02. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 3.03. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 3.04. Notices.
All demands, notices and direction hereunder shall be in writing or by
telecopier and shall be deemed effective upon receipt to:
(a) in the case of the Servicer,
[Servicer]
[ ]
[ ]
Attn: [ ]
or such other address as may hereafter be furnished in writing by the Servicer,
(b) in the case of the Loss Mitigation Advisor,
-----------------------
(c) in the case of the Purchaser:
-----------------------
K-6
Section 3.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever, including regulatory, 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.
Section 3.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto, and all such provisions shall inure to the benefit of the
Certificateholders.
(b) The Servicer shall notify the Loss Mitigation Advisor of
the assignment of its duties to any successor servicer within thirty (30) days
prior to such assignment, and shall provide the name, address, telephone number
and telecopier number for the successor to the Loss Mitigation Advisor.
Section 3.07. Article and Section Headings.
The article and section headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 3.08. Confidentiality.
The Servicer acknowledges the confidentiality of this Agreement and
will not release or republish its contents without the consent of the Loss
Mitigation Advisor except to the extent required by law, regulation or court
order.
The Loss Mitigation Advisor agrees that all information supplied by or
on behalf of the Servicer under this Agreement, is the property of the Servicer.
The Loss Mitigation Advisor shall keep in strictest confidence all information
relating to this Agreement, including, without limitation, individual account
information and other information supplied by or on behalf of the Servicer
pursuant to Section 2.01, and that information which may be acquired in
connection with or as a result of this Agreement. During the term of this
Agreement and at any time thereafter, without the prior written consent of the
Servicer, the Loss Mitigation Advisor shall not publish, communicate, divulge,
disclose or use any of such information. Upon termination or expiration of this
Agreement, the Loss Mitigation Advisor shall deliver all records, data,
information, and other documents and all copies thereof supplied by or on behalf
of the Servicer pursuant to Section 2.01 to the Servicer and such shall remain
the property of the Servicer.
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Section 3.09. Independent Contractor.
In all matters relating to this Agreement, the Loss Mitigation Advisor
shall be acting as an independent contractor. Neither the Loss Mitigation
Advisor nor any employees of the Loss Mitigation Advisor are employees or agents
of the Servicer under the meaning or application of any Federal or State
Unemployment or Insurance Laws or Workmen's Compensation Laws, or otherwise. The
Loss Mitigation Advisor shall assume all liabilities or obligations imposed by
any one or more of such laws with respect to the employees of the Loss
Mitigation Advisor in the performance of this Agreement. The Loss Mitigation
Advisor shall not have any authority to assume or create any obligation, express
or implied, on behalf of the Servicer, and the Loss Mitigation Advisor shall not
have the authority to represent itself as an agent, employee, or in any other
capacity of the Servicer.
K-8
IN WITNESS WHEREOF, the Servicer and the Loss Mitigation
Advisor have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above written.
[Servicer]
By:________________________________
Name:______________________________
Title:_____________________________
Loss Mitigation Advisor
-----------------------
By:________________________________
Name:
Title:
PURCHASER'S ACKNOWLEDGEMENT AND AGREEMENT
Purchaser executes this agreement for the purpose of acknowledging the limited
obligations of the Servicer in respect of the Loss Mitigation Advisor's
recommendation, as described in Section 2.02(a) hereof and confirming to the
Servicer that (i) it shall be solely responsible for the payment of the fees of
the Loss Mitigation Advisor pursuant to the terms of an agreement between
Purchaser and Loss Mitigation Advisor dated _____________, 20__ and (ii)
Purchaser upon transfer of its interest in any of the Class B Certificates or
any part thereof will require its successor to consent to this Special Servicing
Agreement and to pay any of the fees due to the Loss Mitigation Advisor pursuant
to the agreement referenced in clause (i) above.
Purchaser
By:________________________________
Name:______________________________
Title:_____________________________
K-9
EXHIBIT L
LIST OF RECORDATION STATES
