EXHIBIT 4.1
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WACHOVIA MORTGAGE LOAN TRUST, LLC,
as Depositor,
[ ],
as Servicer,
and
[ ],
as Trustee
POOLING AND SERVICING AGREEMENT
Dated, [ ] [ ], 200
_______________________
Mortgage Pass-Through Certificates
Series 200 -
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TABLE OF CONTENTS
Page
PRELIMINARY
STATEMENT........................................................1
ARTICLE I
DEFINITIONS...................................................3
Section 1.01.
Defined Terms...........................................3
Section 1.02.
Interest Calculations..................................25
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE OF
CERTIFICATES.................................................25
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..................39
Section 2.06.
Designation of Start-up Day............................39
Section 2.07.
REMIC Certificate Maturity Date........................39
Section 2.08.
Execution and Delivery of Certificates.................39
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...............39
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........................42
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........................................43
Section 3.07.
Trustee to Act as Servicer.............................43
Section 3.08.
Collection of Mortgage Loan Payments; Servicer
Custodial Account; Certificate Account; and
Upper-Tier Certificate Account.........................44
Section 3.09.
Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.................................47
Section 3.10.
Access to Certain Documentation and Information
Regarding the Mortgage Loans...........................48
Section 3.11.
Permitted Withdrawals from the Servicer Custodial
Account; Certificate Account and Upper-Tier
Certificate Account....................................48
Section 3.12.
Maintenance of Hazard Insurance........................50
Section 3.13.
Enforcement of Due-On-Sale Clauses; Assumption
Agreements.............................................51
Section 3.14.
Realization Upon Defaulted Mortgage Loans; REO
Property...............................................52
Section 3.15.
Trustee to Cooperate; Release of Mortgage Files........55
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.
Advances...............................................57
Section 3.19.
Modifications, Waivers, Amendments and Consents........57
-i-
ARTICLE IV
SERVICER'S CERTIFICATE and 1934 ACT REPORTING................59
Section 4.01.
Servicer's Certificate.................................59
Section 4.02.
Reports to the Securities and Exchange Commission......59
Section 4.03.
Annual Sarbanes-Oxley Certification....................59
Section 4.04.
Annual Servicing Criteria Assessment Report............60
Section 4.05.
Annual Independent Public Accountants' Attestation.....60
Section 4.06.
Annual Statement as to Compliance......................60
Section 4.07.
Required Information for Form 10-D.....................61
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC
ADMINISTRATION...............................................61
Section 5.01.
Distributions..........................................61
Section 5.02.
Priorities of Distributions............................62
Section 5.03.
Allocation of Losses...................................65
Section 5.04.
Statements to Certificateholders.......................66
Section 5.05.
Tax Returns and Reports to Certificateholders..........69
Section 5.06.
Tax Matters Person.....................................70
Section 5.07.
Rights of the Tax Matters Person in Respect of the
Trustee................................................70
Section 5.08.
REMIC Related Covenants................................70
Section 5.09.
Determination of LIBOR.................................71
ARTICLE VI
THE CERTIFICATES.............................................72
Section 6.01.
The Certificates.......................................72
Section 6.02.
Registration of Transfer and Exchange of
Certificates...........................................72
Section 6.03.
Mutilated, Destroyed, Lost or Stolen Certificates......77
Section 6.04.
Persons Deemed Owners..................................77
ARTICLE VII
THE DEPOSITOR AND THE SERVICER...............................77
Section 7.01.
Respective Liabilities of the Depositor and the
Servicer...............................................77
Section 7.02.
Merger or Consolidation of the Depositor or the
Servicer...............................................77
Section 7.03.
Limitation on Liability of the Depositor, the
Servicer and Others....................................78
Section 7.04.
Depositor and Servicer Not to Resign...................78
-ii-
ARTICLE VIII
DEFAULT......................................................79
Section 8.01.
Events of Default......................................79
Section 8.02.
Remedies of Trustee....................................80
Section 8.03.
Directions by Certificateholders and Duties of
Trustee During Event of Default........................80
Section 8.04.
Action upon Certain Failures of the Servicer and
upon Event of Default..................................81
Section 8.05.
Trustee to Act; Appointment of Successor...............81
Section 8.06.
Notification to Certificateholders.....................82
ARTICLE IX
THE TRUSTEE..................................................82
Section 9.01.
Duties of Trustee......................................82
Section 9.02.
Certain Matters Affecting the Trustee..................83
Section 9.03.
Trustee Not Liable for Certificates or Mortgage
Loans..................................................84
Section 9.04.
Trustee May Own Certificates...........................86
Section 9.05.
Eligibility Requirements for Trustee...................86
Section 9.06.
Resignation and Removal of Trustee.....................86
Section 9.07.
Successor Trustee......................................87
Section 9.08.
Merger or Consolidation of Trustee.....................87
Section 9.09.
Appointment of Co-Trustee or Separate Trustee..........87
Section 9.10.
Authenticating Agents..................................88
Section 9.11.
Trustee's Fees and Expenses............................89
Section 9.12.
Appointment of Custodian...............................90
Section 9.13.
Paying Agents..........................................90
Section 9.14.
Limitation of Liability................................91
Section 9.15.
Trustee May Enforce Claims Without Possession of
Certificates...........................................91
Section 9.16.
Suits for Enforcement..................................91
Section 9.17.
Waiver of Bond Requirement.............................91
Section 9.18.
Waiver of Inventory, Accounting and Appraisal
Requirement............................................91
ARTICLE X
TERMINATION..................................................92
Section 10.01. Termination upon Purchase by the Depositor or
Liquidation of All Mortgage Loans......................92
Section 10.02. Additional Termination
Requirements....................93
ARTICLE XI
COMPLIANCE WITH REGULATION AB................................94
Section 11.01. Intent of the Parties;
Reasonableness..................94
Section 11.02. Additional Representations and Warranties of the
Trustee................................................94
Section 11.03. Information to Be Provided by the
Trustee..............95
Section 11.04. Report on Assessment of Compliance and
Attestation.....95
Section 11.05. Indemnification
Remedies...............................96
ARTICLE XII
MISCELLANEOUS PROVISIONS.....................................96
Section 12.01.
Amendment..............................................96
Section 12.02. Recordation of
Agreement...............................98
Section 12.03. Limitation on Rights of
Certificateholders.............98
Section 12.04. Governing
Law..........................................99
Section 12.05.
Notices................................................99
Section 12.06. Severability of
Provisions.............................99
Section 12.07. Certificates Nonassessable and Fully
Paid..............99
Section 12.08. Access to List of
Certificateholders...................99
Section 12.09.
Recharacterization....................................100
-iii-
TABLE OF CONTENTS
(Cont'd)
EXHIBITS
Exhibit A-1
Form of Class A-1 Certificate
Exhibit A-2
Form of 1-A-R Certificate
Exhibit B
Form of Class B-1, B-2 and B-3 Certificate
Exhibit C
Form of Class B-4, B-5 and B-6 Certificate
Exhibit D
Mortgage Loan Schedule
Exhibit E
Request for Release of Documents
Exhibit F
Form of Certification of Establishment of Account
Exhibit G-1
Form of Transferor's Certificate
Exhibit G-2A
Form 1 of Transferee's Certificate
Exhibit G-2B
Form 2 of Transferee's Certificate
Exhibit H
Form of Transferee Representation Letter for ERISA
Restricted Certificates
Exhibit I-1
Form of Affidavit Regarding Transfer of Residual
Certificates
Exhibit I-2
Form of Transferor Certificate Regarding Transfer of
Residual Certificates
Exhibit J
Form of Lost Note Affidavit
Exhibit K
Form of Custodial Agreement
Exhibit L
Form of Initial Certification
Exhibit M
Form of Final Certification
Exhibit N
Form of 10-K Certification
Exhibit O
Servicing Criteria
-iv-
POOLING AND SERVICING AGREEMENT
THIS
POOLING
AND
SERVICING
AGREEMENT,
dated
[
]
[
],
200 is hereby
executed by and among
WACHOVIA
MORTGAGE
LOAN TRUST,
LLC, 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:
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):
-1-
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Initial Class
Integral
Certificate
Multiples
Balance or
Pass-Through
Minimum
In Excess
Classes
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.
-2-
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.
1934 Act:
The Securities Exchange Act of 1934, 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.
-3-
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 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
Mortgage
Loan
Trust,
LLC
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
Mortgage Loan Trust,
LLC 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.
-4-
Certificate
Registrar:
The
registrar
appointed
pursuant
to
Section 6.02.
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."
-5-
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.
Commission:
The United States Securities and Exchange Commission.
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
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
-6-
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
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.
-7-
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
Mortgage Loan Trust, LLC, a Delaware limited
liability
company,
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
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.
-8-
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:
Fannie Mae, or any successor thereto.
-9-
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.
-10-
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.
-11-
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.
-12-
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.
-13-
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 3.18, 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:
-14-
(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
;
(v)
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
(vi)
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) (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.
-15-
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
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).
-16-
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.
-17-
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.
-18-
Regular
Certificates:
As
defined in the
Preliminary
Statement
hereto.
Regulation
AB:
Subpart
229.1100
-
Asset
Backed
Securities
(Regulation
AB), 17 C.F.R.
ss.ss.229.1100-229.1123,
as such may be amended from
time to time, and subject to such
clarification
and
interpretation
as have
been
provided
by
the
Commission
in
the
adopting
release
(Asset-Backed
Securities,
Securities Act Release No.
33-8518,
70 Fed. Reg.
1,506,
1,531
(January
7, 2005)) or by the staff of the
Commission,
or as may be provided
by the Commission or its staff from time to time.
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.
-19-
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.
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).
Securitization
Transaction:
Any transaction
involving a sale or
other
transfer of mortgage
loans directly or indirectly to an issuing entity
in connection with an issuance of publicly offered or privately
placed,
rated
or unrated mortgage-backed securities.
[S&P:
Standard
&
Poor's,
a
Division
of
The
McGraw-Hill
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
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.
-20-
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).
-21-
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.
Servicing
Criteria:
The
"servicing
criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
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).
-22-
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.
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.
-23-
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.
Transaction Party:
As defined in Section 11.02(a).
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 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.
Trustee Information:
As specified in Section 11.05(a)(i)(A).
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.
-24-
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 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
penny with
one-half of one penny 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);
-25-
(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
Mortgage
Loan
Trust,
Inc.LLC
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 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;
-26-
(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
(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.
-27-
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 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.
-28-
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
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.
-29-
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.
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.
-30-
(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 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.
-31-
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 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.
-32-
(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 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.
-33-
(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 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.
-34-
(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
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.
-35-
(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 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.
-36-
(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
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.
-37-
(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 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.
-38-
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 [______], 20 .
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 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
3.19.
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.
-39-
In accordance with the standards of the preceding
paragraph,
the
Servicer
shall
<
