Exhibit 4.1
===============================================================================
WACHOVIA MORTGAGE LOAN TRUST, LLC,
as
Depositor,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Administrator
WELLS FARGO BANK, N.A. and NATIONAL CITY MORTGAGE CO.,
as Servicers
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated August 24, 2005
-----------------------
Mortgage Pass-Through Certificates
Series 2005-A
===============================================================================
<PAGE>
TABLE OF CONTENTS
Page
PRELIMINARY
STATEMENT........................................................1
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
...............................................4
Section 1.02 Interest Calculations.
.....................................33
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans..................................34
Section 2.02 Acceptance by the Custodian of the
Mortgage Loans.
..........37
Section 2.03 Representations, Warranties and
Covenants of the Servicers....39
Section 2.04 Assignment of Interest in the
Mortgage Loan Purchase Agreement;
Depositor Representations and Warranties.....................41
Section 2.05 Intent of Parties and Protection
of Title.....................43
Section 2.06 Designation of Interests in the
REMIC.........................44
Section 2.07 Designation of Start-up
Day...................................44
Section 2.08 REMIC Certificate Maturity
Date...............................45
Section 2.09 Execution and Delivery of
Certificates........................45
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage
Loans.
........................45
Section 3.02 Subservicing; Enforcement of the
Obligations of Servicers.....46
Section 3.03 Fidelity Bond; Errors and
Omissions Insurance.................47
Section 3.04 Access to Certain
Documentation...............................48
Section 3.05 Maintenance of Primary Insurance
Policy; Claims...............48
Section 3.06 Rights of the Depositor, the
Certificate Administrator
and the Trustee in Respect of the Servicers..................49
Section 3.07 Trustee to Act as
Servicer....................................49
Section 3.08 Collection of Mortgage Loan
Payments; Servicer Custodial
Accounts; Certificate Account; and Upper-Tier Certificate
Account......................................................50
Section 3.09 Collection of Taxes, Assessments
and Similar Items; Escrow
Accounts.....................................................53
Section 3.10 Access to Certain Documentation
and Information Regarding
the Mortgage Loans...........................................54
Section 3.11 Permitted Withdrawals from the
Servicer Custodial Accounts;
Certificate Account and Upper-Tier Certificate Account.......55
Section 3.12 Maintenance of Hazard
Insurance...............................56
Section 3.13 Enforcement of Due-On-Sale
Clauses; Assumption Agreements.....57
Section 3.14 Realization Upon Defaulted
Mortgage Loans; REO Property.......58
Section 3.15 Custodian to Cooperate; Release of
Mortgage Files.............60
Section 3.16 Documents, Records and Funds in
Possession of the Servicers
to be Held for the Trustee...................................61
Section 3.17 Servicing
Compensation........................................61
Section 3.18 Annual Statement as to
Compliance.............................62
Section 3.19 Annual Independent Public
Accountants' Servicing
Statement; Financial Statements..............................62
Section 3.20
Advances......................................................62
Section 3.21 Modifications, Waivers, Amendments
and Consents...............63
Section 3.22 Reports to the Securities and
Exchange Commission.............64
Section 3.23 Annual
Certification..........................................64
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's
Certificates.......................................65
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions.
..............................................66
Section 5.02 Priorities of
Distributions...................................66
Section 5.03 Allocation of
Losses..........................................70
Section 5.04 Statements to
Certificateholders..............................72
Section 5.05 Tax Returns and Reports to
Certificateholders.................74
Section 5.06 Tax Matters
Person............................................75
Section 5.07 Rights of the Tax Matters Person
in Respect of
the Certificate Administrator................................75
Section 5.08 REMIC Related
Covenants.......................................75
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.
...........................................77
Section 6.02 Registration of Transfer and
Exchange of Certificates.........77
Section 6.03 Mutilated, Destroyed, Lost or
Stolen Certificates.
..........82
Section 6.04 Persons Deemed Owners.
......................................82
ARTICLE VII
THE DEPOSITOR and THE SERVICERs
Section 7.01 Respective Liabilities of the
Depositor and the Servicers......82
Section 7.02 Merger or Consolidation of the
Depositor or a Servicer.........82
Section 7.03 Limitation on Liability of the
Depositor, the Servicers
and Others; Liability of Servicers...........................83
Section 7.04 Depositor and Servicers Not to
Resign.
......................84
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.
..........................................84
Section 8.02 Remedies of Trustee.
........................................86
Section 8.03 Directions by Certificateholders
and Duties of Trustee
During Event of Default......................................86
Section 8.04 Action upon Certain Failures of a
Servicer and upon
Event of Default.............................................87
Section 8.05 Trustee to Act; Appointment of
Successor......................87
Section 8.06 Notification to
Certificateholders.
.........................88
ARTICLE IX
THE TRUSTEE AND CERTIFICATE ADMINISTRATOR
Section 9.01 Duties of Trustee and the
Certificate Administrator...........88
Section 9.02 Certain Matters Affecting the
Trustee and Certificate
Administrator................................................90
Section 9.03 Neither Trustee nor Certificate
Administrator Liable for
Certificates or Mortgage Loans...............................92
Section 9.04 Trustee and Certificate
Administrator May Own Certificates....93
Section 9.05 Eligibility Requirements for
Trustee and Certificate
Administrator................................................93
Section 9.06 Resignation and Removal of Trustee
and the Certificate
Administrator................................................94
Section 9.07 Successor Trustee or Certificate
Administrator................95
Section 9.08 Merger or Consolidation of Trustee
or the Certificate
Administrator................................................95
Section 9.09 Appointment of Co-Trustee or
Separate Trustee.................96
Section 9.10 Authenticating Agents.
......................................97
Section 9.11 Trustee's Fees and Expenses and
Certificate
Administrator's Fees and Expenses............................97
Section 9.12
[Reserved]....................................................98
Section 9.13 Paying Agents.
..............................................98
Section 9.14 Limitation of Liability.
....................................99
Section 9.15 Trustee May Enforce Claims Without
Possession
of Certificates..............................................99
Section 9.16 Suits for Enforcement.
......................................99
Section 9.17 Waiver of Bond Requirement.
................................100
Section 9.18 Waiver of Inventory, Accounting
and Appraisal Requirement....100
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by
the Depositor or
Liquidation of All Mortgage Loans...........................100
Section 10.02 Additional Termination
Requirements..........................102
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
.................................................102
Section 11.02 Recordation of Agreement.
..................................104
Section 11.03 Limitation on Rights of
Certificateholders.
................104
Section 11.04 Governing Law.
.............................................105
Section 11.05
Notices......................................................105
Section 11.06 Severability of Provisions.
................................105
Section 11.07 Certificates Nonassessable
and Fully Paid.
.................105
Section 11.08 Access to List of
Certificateholders.........................106
<PAGE>
APPENDICES
Appendix 1
Calculation of Uncertificated Lower-Tier Regular
Interest Y Principal Reduction Amounts
EXHIBITS
Exhibit 1-A-1 -
Form
of Face of Class 1-A-1 Certificate
Exhibit 1-A-R -
Form
of Face of Class 1-A-R Certificate
Exhibit 2-A-1 -
Form
of Face of Class 2-A-1 Certificate
Exhibit 2-A-2 -
Form
of Face of Class 2-A-2 Certificate
Exhibit 3-A-1 -
Form
of Face of Class 3-A-1 Certificate
Exhibit 3-A-2 -
Form
of Face of Class 3-A-2 Certificate
Exhibit 4-A-1 -
Form
of Face of Class 4-A-1 Certificate
Exhibit 4-A-2 -
Form
of Face of Class 4-A-2 Certificate
Exhibit B-1
-
Form of Face of Class B-1 Certificate
Exhibit B-2
-
Form of Face of Class B-2 Certificate
Exhibit B-3
-
Form of Face of Class B-3 Certificate
Exhibit B-4
-
Form of Face of Class B-4 Certificate
Exhibit B-5
-
Form of Face of Class B-5 Certificate
Exhibit B-6
-
Form of Face of Class B-6 Certificate
Exhibit C
Form of Reverse of all Certificates......................C-1
Exhibit D-1
Mortgage Loan Schedule (Loan Group 1)..................D-1-1
Exhibit D-2
Mortgage Loan Schedule (Loan Group 2)..................D-2-1
Exhibit D-3 Mortgage Loan
Schedule (Loan Group 3)..................D-3-1
Exhibit D-4
Mortgage Loan Schedule (Loan Group 4)..................D-4-1
Exhibit E
Request for Release of Documents.........................E-1
Exhibit F
Form of Certification of Establishment of Account........F-1
Exhibit G-1 Form
of Transferor's Certificate.......................G-1-1
Exhibit G-2A Form 1 of
Transferee's Certificate....................G-2A-1
Exhibit G-2B Form 2 of
Transferee's Certificate....................G-2B-1
Exhibit H
Form of Transferee Representation Letter
for ERISA Restricted Certificates........................H-1
Exhibit I
Form of Affidavit Regarding Transfer of Residual
Certificates............................................I-1
Exhibit J
Contents of Servicing File...............................J-1
Exhibit K
Form of Special Servicing Agreement......................K-1
Exhibit L-1 Form
of Servicer's Certificate (Wells Fargo)...........L-1-1
Exhibit L-2 Form
of Servicer's Certificate (National City).........L-2-1
Exhibit M
Form of Lost Note Affidavit..............................M-1
Exhibit N
Form of Custodial Agreement..............................N-1
Exhibit O
Form of Initial Certification............................O-1
Exhibit P
Form of Final Certification..............................P-1
Exhibit Q
Form of Certification....................................Q-1
Exhibit R
Form of Certification to be Provided to Depositor........R-1
<PAGE>
-23-
POOLING AND SERVICING AGREEMENT
THIS
POOLING AND SERVICING AGREEMENT, dated August 24, 2005, is
hereby
executed by and among WACHOVIA MORTGAGE
LOAN TRUST, LLC, as Depositor, WACHOVIA
BANK, NATIONAL ASSOCIATION, as Certificate
Administrator, WELLS FARGO BANK, N.A.
("Wells Fargo"), as a Servicer, NATIONAL
CITY MORTGAGE CO. ("National City"), as
a Servicer, and U.S. BANK NATIONAL
ASSOCIATION, as 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 Servicers, the Certificate
Administrator and the Trustee agree as follows:
PRELIMINARY STATEMENT
In
exchange for the Certificates, the Depositor will convey the
Trust
Estate to the Trustee and create the
Trust.
Lower-Tier REMIC
As
provided herein, the Certificate Administrator, on behalf of
the
Trustee, will make an election to treat the
entire segregated pool of assets
described in the definition of Trust Estate
(including the Mortgage Loans), and
subject to this Agreement, as a real estate
mortgage investment conduit (a
"REMIC") for federal income tax purposes
and such segregated pool of assets will
be designated as the "Lower-Tier REMIC."
Component I of the Class 1-A-R
Certificates will represent ownership of
the sole class of "residual interests"
in the Lower-Tier REMIC for purposes of the
REMIC Provisions (as defined
herein).
The
following table irrevocably sets forth the designation,
Uncertificated
Pass-Through Rate and initial
Uncertificated Principal Balance for each of the
"regular interests" in the Lower-Tier REMIC
(the "Uncertificated Lower-Tier
Regular Interests") and the designation,
Pass-Through Rate and initial Class
Certificate Balance of Component I of the
Class 1-A-R Certificates. None of the
Uncertificated Lower-Tier Regular Interests
will be certificated. Solely for
purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of
the Uncertificated Lower-Tier
Regular Interests and Component I of the
Class 1-A-R Certificates shall be the
REMIC Certificate Maturity Date.
<PAGE>
-----------------------------------------------------------------------------
Designation
Uncertificated
Initial Uncertificated
Pass-Through Rate (or Principal Balance (or
Initial
Pass-Through Rate)
Class Certificate Balance)
-----------------------------------------------------------------------------
Y-1
Variable(1)
$57,266.24
-----------------------------------------------------------------------------
Y-2
Variable(1)
$93,786.88
-----------------------------------------------------------------------------
Y-3
Variable(1)
$39,002.06
-----------------------------------------------------------------------------
Y-4
Variable(1)
$34,208.52
-----------------------------------------------------------------------------
Z-1
Variable(1)
$114,475,223.64
-----------------------------------------------------------------------------
Z-2
Variable(1)
$187,479,978.83
-----------------------------------------------------------------------------
Z-3
Variable(1)
$77,974,371.72
-----------------------------------------------------------------------------
Z-4
Variable(1)
$68,390,956.03
-----------------------------------------------------------------------------
Component I of the
Variable(2)
$100.00
Class 1-A-R
-----------------------------------------------------------------------------
(1) Calculated in accordance with the
definition of "Uncertificated Pass-Through
Rate" herein.
(2) For each Distribution Date, interest
will accrue on Component I of the Class
1-A-R Certificates at a per
annum rate equal to the Net WAC for the Group 1
Mortgage Loans.
Upper-Tier REMIC
A
segregated pool of assets consisting of the Uncertificated
Lower-Tier
Regular Interests will be designated as the
"Upper-Tier REMIC" and the
Certificate Administrator will make a
separate REMIC election with respect
thereto. Each of the Certificates (other
than the Class 1-A-R Certificates) will
be "regular interests" in the Upper-Tier
REMIC (referred to collectively as the
"Regular Certificates") and Component II of
the Class 1-A-R Certificates will
represent ownership of the sole class of
"residual interests" in the Upper-Tier
REMIC for purposes of the REMIC Provisions.
Solely for purposes of satisfying
Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity
date," for each of the Regular Certificates
and Component II of the Class 1-A-R
Certificates shall be the REMIC Certificate
Maturity Date. The Certificates and
the Uncertificated Lower-Tier Regular
Interests will represent the entire
beneficial ownership interest in the
Trust.
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):
<PAGE>
=============== ==================
=========== ============= ==============
Classes
Initial Class
Pass-ThroughMinimum
Integral
Multiples
Certificate
In Excess
Balance
Rate
Denomination Of
Minimum
--------------- ------------------
----------- ------------- --------------
Class 1-A-1
$109,664,000.00 (1)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Component II
$0.00 (1)
(6)
N/A
of Class 1-A-R
--------------- ------------------
----------- ------------- --------------
Class 2-A-1
$171,967,000.00 (2)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class 2-A-2
$7,634,000.00 (2)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class 3-A-1
$71,522,000.00 (3)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class 3-A-2
$3,175,000.00 (3)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class 4-A-1
$62,732,000.00 (4)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class 4-A-2
$2,785,000.00 (4)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class B-1
$8,973,000.00 (5)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class B-2
$3,364,000.00 (5)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class B-3
$2,242,000.00 (5)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class B-4
$2,018,000.00 (5)
$ 10,000
$1
--------------- ------------------
----------- ------------- --------------
Class B-5
$1,569,000.00 (5)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
Class B-6
$899,793.92
(5)
$ 10,000 $1
--------------- ------------------
----------- ------------- --------------
---------------
(1) For each Distribution Date, interest
will accrue on these Certificates at a
per annum rate equal to the Net WAC for the
Group 1 Mortgage Loans.
(2) For each Distribution Date, interest
will accrue on these Certificates at a
per annum rate equal to the Net WAC for the
Group 2 Mortgage Loans.
(3) For each Distribution Date, interest
will accrue on these Certificates at a
per annum rate equal to the Net WAC for the
Group 3 Mortgage Loans.
(4) For each Distribution Date, interest
will accrue on these Certificates at a
per annum rate equal to the Net WAC for the
Group 4 Mortgage Loans.
(5) For each Distribution Date, interest
will accrue on these Certificates at a
per annum rate equal to Net WAC for
Mortgage Loans in each Loan Group, weighted
on the basis of the aggregate Stated
Principal Balances of the Mortgage Loans in
each Loan Group on the Due Date in the
month preceding the month of such
Distribution Date minus the Class
Certificate Balance of the related Classes of
Class A Certificates.
(6) Other than the 0.01% Percentage
Interest in the Class 1-A-R Certificates to
be held by the Seller, the minimum
denomination of the Class 1-A-R Certificates
will be 20% of the Percentage Interest of
the Class 1-A-R Certificates.
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms. Whenever used in this Agreement, the following
words and phrases, unless the context
otherwise requires, shall have the
meanings specified in this Article:
1933 Act: The
Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and
each
interest-bearing Class, one month's
interest accrued during the related Interest
Accrual Period at the applicable
Pass-Through Rate on the applicable Class
Certificate Balance.
Adjusted Pool Amount: With respect to any Distribution Date and
Loan
Group, the Cut-Off Date Pool Principal
Balance of the Mortgage Loans in such
Loan Group minus the sum of (i) all amounts
in respect of principal received in
respect of the Mortgage Loans in such Loan
Group (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, (ii) the principal portion of all
Realized Losses (other than Debt
Service Reductions) incurred on the
Mortgage Loans in such Loan Group from the
Cut-Off Date through the end of the month
preceding such Distribution Date and
(iii) any amounts capitalized as a result
of modifications to such Mortgage
Loans pursuant to Section 3.21.
Advance: A Periodic
Advance or a Servicing Advance.
Affiliate: With respect to any Person, any other Person
controlling,
controlled by or under common control with
such Person. For purposes of this
definition, "control" means the power to
direct the management and policies of a
Person, directly or indirectly, whether
through ownership of voting securities,
by contract or otherwise and "controlling"
and "controlled" shall have meanings
correlative to the foregoing.
Aggregate Subordinate Percentage: As to any Distribution Date,
the
aggregate Class Certificate Balance of the
Subordinate Certificates divided by
the aggregate Pool Stated Principal Balance
for all Loan Groups.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements
hereto.
Amount Held for Future Distribution: As to any Distribution Date
and
Loan Group, the total of the amounts held
in the related 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 on the
Mortgage Loans in such Loan Group in the
month of such Distribution Date and
(ii) payments which represent receipt of
Monthly Payments on the Mortgage Loans
in such Loan Group in respect of a Due Date
or Due Dates subsequent to the
related Due Date.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value
determined in an appraisal obtained by the
originator at origination of 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 assignment 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, Delaware,
the State of New York, each state in which
the servicing office of a Servicer is
located or the states in which the
Corporate Trust Offices of the Certificate
Administrator and the Trustee are 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 2005-A
that are issued pursuant to this
Agreement.
Certificate Account: The separate Eligible Account created and
maintained by the Certificate Administrator
pursuant to Section 3.08(c) in the
name of the Certificate Administrator, on
behalf of the Trustee, for the benefit
of the Certificateholders and designated
"Wachovia Bank, National Association,
in trust for registered holders of Wachovia
Mortgage Loan Trust, LLC Mortgage
Pass-Through Certificates, Series 2005-A."
Funds in the Certificate Account
shall be held in trust for the
Certificateholders for the uses and purposes set
forth in this Agreement.
Certificate Administrator: Wachovia Bank, National Association,
a
national banking association, and its
successors-in-interest and, if a successor
certificate administrator is appointed
hereunder, such successor, as certificate
administrator.
Certificate Administrator Fee: As to any Distribution Date, an
amount equal to one-twelfth of the
Certificate Administrator 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.
Certificate Administrator Fee Rate: 0.0075% per annum.
Certificate Balance: With respect to any Certificate at any
date,
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 Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of a
Book-Entry Certificate. With respect to
any Definitive Certificate, the
Certificateholder of such Certificate.
Certificate Register:
The register maintained pursuant to Section
6.02.
Certificate Registrar:
The registrar appointed pursuant to Section
6.02.
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, either 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, provided that none of the
Certificate Registrar, the Certificate
Administrator, or the Trustee shall be
responsible for knowing that any
Certificate is registered in the name of such
an affiliate unless a Responsible Officer
of any such party has actual
knowledge.
Class: The Class 1-A-1, Class 1-A-R, Class 2-A-1, Class 2-A-2,
Class
3-A-1, Class 3-A-2, Class 4-A-1, Class
4-A-2, 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 1-A-1, Class 1-A-R, Class
2-A-1,
Class 2-A-2, Class 3-A-1, Class 3-A-2,
Class 4-A-1 and Class 4-A-2 Certificates.
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 2-A-2 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit
Support Depletion Date, the amount, if
any, by which the Class Certificate Balance
of the Class 2-A-2 Certificates
would be reduced as a result of the
allocation of any Realized Loss pursuant to
Section 5.03(b) to such Class, without
regard to the operation of Section
5.03(e).
Class 3-A-2 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support
Depletion Date, the amount, if any, by
which the Class Certificate Balance of the
Class 3-A-2 Certificates would be
reduced as a result of the allocation of
any Realized Loss pursuant to Section
5.03(b) to such Class, without regard to
the operation of Section 5.03(e).
Class 4-A-2 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support
Depletion Date, the amount, if any, by
which the Class Certificate Balance of the
Class 4-A-2 Certificates would be
reduced as a result of the allocation of
any Realized Loss pursuant to Section
5.03(b) to such Class, without regard to
the operation of Section 5.03(e).
Class Certificate Balance: With respect to any Class 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), plus the
amount of any Subsequent Recoveries added
to the Class Certificate Balance of such
Class pursuant to Section 5.03(f).
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."
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: August
24, 2005.
Code: The Internal
Revenue Code of 1986, as amended.
Compensating Interest:
As defined in Section 3.17.
Co-op Shares: Shares
issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Certificate
Administrator, the principal office of the
Certificate Administrator 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 401 South
Tryon Street, 12th Floor, Charlotte, NC
28288, Attention: Structured Finance
Services - Wachovia Mortgage Loan Trust,
Series 2005-A. With respect to the
Trustee, 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
60 Livingston Avenue, EP-MN-WS3D, St.
Paul, Minnesota 55107, Attention:
Structured Finance/WMLT 2005-A.
Custodial Agreement: The Custodial Agreement, dated as of August
24,
2005, among the Depositor, the Custodian,
the Servicers and the Trustee, which
is attached hereto as Exhibit N, as the
same may be amended or modified from
time to time in accordance with the terms
thereof.
Custodian: Wachovia Bank, National Association, or its successor
in
interest under the Custodial Agreement.
Customary Servicing Procedures: With respect to a Servicer,
procedures (including collection
procedures) that such 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: August 1, 2005.
Cut-Off Date Pool Principal Balance: For each Loan Group the
aggregate of the Cut-Off Date Principal
Balances of the Mortgage Loans in such
Loan Group which is $114,532,589.88 for
Loan Group 1, $187,573,765.71 for Loan
Group 2, $78,013,373.78 for Loan Group 3
and $68,425,164.55 for Loan Group 4.
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
case initiated by or against the related
Mortgagor under the United States
Bankruptcy Code, as amended (Title 11,
U.S.C.); provided that no such excess
shall be considered a Debt Service
Reduction so long as (a) the Servicer
servicing such Mortgage Loan 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 immediately
prior to such bankruptcy case or (2)
Monthly Payments are being advanced by such
Servicer in accordance with the
terms of such Mortgage Loan as in effect
immediately prior to such bankruptcy
case.
Debt Service
Reduction Mortgage Loan: Any Mortgage Loan that
became the subject of a Debt Service
Reduction.
Defaulted Mortgage Loan: Any Mortgage Loan as to which (i) any
payment, or part thereof, remains unpaid
for 90 days or more after the original
due date for such payment, (ii) the related
Mortgagor is subject to any
bankruptcy or insolvency proceeding, (iii)
the related Mortgaged Property has
been foreclosed, sold pursuant to a power
of sale or trustee's sale or
repossessed, or proceedings for
foreclosure, sale or repossession have been
commenced or (iv) the Servicer servicing
such Mortgage Loan has determined,
consistent with its Customary Servicing
Procedures, that such Mortgage Loan is
not collectible and should be written off
in whole or in part.
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 value of the related
Mortgaged Property established by a
court of competent jurisdiction (pursuant
to an order which has become final and
nonappealable) as a result of a case
initiated by or against the related
Mortgagor under the United States
Bankruptcy Code, as amended (Title 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 servicing such Mortgage
Loan 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
immediately prior to such bankruptcy
case or (2) Monthly Payments are being
advanced by such Servicer in accordance
with the terms of such Mortgage Loan as in
effect immediately prior to such
bankruptcy case.
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 under this
Agreement.
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 of the New York Uniform
Commercial Code.
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 13th day of
the
month of the related Distribution Date or,
if such 13th day is not a Business
Day, the Business Day immediately preceding
such 13th day.
Distribution Date: The 20th day of each month beginning in
September
2005 (or, if such day is not a Business
Day, the next Business Day).
Distribution Date Statement: As defined in Section 5.04(b).
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) a federal or state chartered
depository
institution the short-term unsecured debt
obligations of which (or, in the case
of a depository institution 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, (ii) an account or
accounts in a depository institution 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 Certificate
Administrator and 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 in which such
account is maintained, (iii) a trust
account or accounts maintained with the
trust department of a federal or state
chartered depository institution, acting
in its fiduciary capacity or (iii) 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 institutions
acting as Certificate Administrator or
Trustee.
ERISA: The Employee
Retirement Income Security Act of 1974, as
amended.
ERISA Restricted
Certificates:
Any Class B-4, Class B-5 or
Class B-6 Certificate.
Escrow Account: As
defined in Section 3.09.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Insurance Policy premiums, fire and
hazard insurance premiums and other
payments as may be required to be escrowed
by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note
or Mortgage.
Event of Default: As
defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any
Liquidation Proceeds of such Mortgage
Loan received in the calendar month in
which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any
amounts previously reimbursed to the
related Servicer as Nonrecoverable Advances
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
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 Certificate Administrator.
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.
Fractional Interest:
As defined in Section 5.02(d).
Gross Margin: As to each Mortgage Loan, the fixed percentage
set
forth in the related Mortgage Note and
indicated in the Mortgage Loan Schedule
as the "Gross Margin," which percentage is
added to the Index on each Rate
Adjustment Date to determine (subject to
rounding, the Initial Cap, Periodic Cap
and the Lifetime Cap) the Mortgage Interest
Rate on such Mortgage Loan until the
next Rate Adjustment Date.
Group: Any of Group 1,
Group 2, Group 3 or Group 4.
Group 1: The Group 1-A
Certificates.
Group 1 Mortgage Loan:
Each Mortgage Loan listed on Exhibit
D-1 hereto.
Group 2: The Group 2-A
Certificates.
Group 2 Mortgage Loan:
Each Mortgage Loan listed on Exhibit
D-2 hereto.
Group 3: The Group 3-A
Certificates.
Group 3 Mortgage Loan:
Each Mortgage Loan listed on Exhibit
D-3 hereto.
Group 4: The Group 4-A
Certificates.
Group 4 Mortgage Loan:
Each Mortgage Loan listed on Exhibit
D-4 hereto.
Group 1-A Certificates: The Class 1-A-1 Certificates and
Class 1-A-R Certificates.
Group 2-A Certificates: The Class 2-A-1 Certificates and
Class 2-A-2 Certificates.
Group 3-A Certificates: The Class 3-A-1 Certificates and
Class 3-A-2 Certificates.
Group 4-A Certificates: The Class 4-A-1 Certificates and
Class 4-A-2 Certificates.
Group Subordinate Amount: With respect to any Distribution Date
and
any Loan Group, the excess of the Pool
Stated Principal Balance for such Loan
Group over the aggregate Class Certificate
Balance of the Senior Certificates of
the Related Group immediately prior to such
date.
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 each Servicer,
(ii) does not have any direct financial
interest or any material indirect
financial interest in the Depositor, either
Servicer or in an affiliate of any
of them, and (iii) is not connected with
the Depositor or either Servicer as an
officer, employee, promoter, underwriter,
trustee, partner, director or person
performing similar functions.
Index: As to any Group 1 Mortgage Loan, Group 3 Mortgage Loan
or
Group 4 Mortgage Loan and Rate Adjustment
Date, a rate per annum that is defined
to be the arithmetic mean of the London
interbank offered rate quotations for
one year U.S. Dollar-denominated deposits,
as published in The Wall Street
Journal and most recently available either
(i) as of the first Business Day in
the month preceding the month of the
applicable Rate Adjustment Date or (ii)
forty-five days before the applicable Rate
Adjustment Date or, in the event that
such index is no longer available, a
substitute index selected by National City,
as the applicable Servicer, in accordance
with the terms of the related Mortgage
Note. As to any Group 2 Mortgage Loan and
Rate Adjustment Date, a rate per annum
that is defined to be the weekly average
yield on U.S. Treasury securities
adjusted to a constant maturity of one
year, as reported by the Federal Reserve
Board in statistical Release No. H.15(519),
as most recently available either
(i) as of the date forty-five days,
thirty-five days or thirty days prior to the
Rate Adjustment Date or (ii) on the Rate
Adjustment Date as published in the
place specified in the related Mortgage
Note and as made available as of the
date specified in the related Mortgage Note
or, in the event that such index is
no longer available, a substitute index
selected by Wells Fargo, as the
applicable Servicer, in accordance with the
terms of the related Mortgage Note.
Initial Cap: For each
Mortgage Loan, the applicable limit on the
adjustment of the Mortgage Interest Rate
for the initial Rate Adjustment Date
specified in the applicable Mortgage Note
and designated as such in the Mortgage
Loan Schedule.
Initial Class Certificate Balance: As to each Class of
Certificates,
the Class Certificate Balance 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, the immediately preceding
calendar month.
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.
Lifetime Cap: As to any Mortgage Loan, the maximum Mortgage
Interest
Rate set forth in the related Mortgage Note
and indicated in the Mortgage Loan
Schedule.
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
related 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 Group: Any of
Loan Group 1, Loan Group 2, Loan Group 3 or
Loan Group 4.
Loan Group 1: The
Group 1 Mortgage Loans.
Loan Group 2: The
Group 2 Mortgage Loans.
Loan Group 3: The
Group 3 Mortgage Loans.
Loan Group 4: The
Group 4 Mortgage Loans.
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.
Lost Note Affidavit: With respect to any Mortgage Loan as to
which
the original Mortgage Note has been
permanently lost or destroyed and has not
been replaced, an affidavit from the Seller
certifying that the original
Mortgage Note has been lost, misplaced or
destroyed (together with a copy of the
related Mortgage Note, if available, and
indemnifying the Depositor and its
assignees against any loss, cost or
liability resulting from the failure to
deliver the original Mortgage Note) in the
form of Exhibit M hereto.
Lower-Tier Distribution Amount: For any Distribution Date, the
Pool
Distribution Amount for each Loan Group
shall be deemed distributed to the
Upper-Tier REMIC, as the holder of the
Uncertificated Lower-Tier Regular
Interests, and to Holders of the Class
1-A-R Certificates in respect of
Component I thereof, in the following
amounts and priority:
(a) To the
extent of the Pool Distribution Amount for Loan Group
1:
(i) first, to Uncertificated Lower-Tier Regular Interests Y-1
and Z-1,
concurrently, the Uncertificated Accrued Interest for such
regular
interests remaining unpaid from previous Distribution Dates,
pro
rata
according to their respective shares of such unpaid amounts;
(ii) second, to Uncertificated Lower-Tier Regular Interests
Y-1 and
Z-1, concurrently, the Uncertificated Accrued Interest for such
regular
interests for the current Distribution Date, pro rata according
to
their
respective Uncertificated Accrued Interest; and
(iii) third, to Uncertificated Lower-Tier Regular Interests
Y-1 and
Z-1, the Uncertificated Lower-Tier Regular Interest Y-1
Principal
Distribution Amount and the Uncertificated Lower-Tier Regular
Interest Z-1
Principal
Distribution Amount, respectively;
(b) To the
extent of the Pool Distribution Amount for Loan Group
2:
(i) first, to Uncertificated Lower-Tier Regular Interests Y-2
and Z-2,
concurrently, the Uncertificated Accrued Interest for such
regular
interests remaining unpaid from previous Distribution Dates,
pro
rata
according to their respective shares of such unpaid amounts;
(ii) second, to Uncertificated Lower-Tier Regular Interests
Y-2 and
Z-2, concurrently, the Uncertificated Accrued Interest for such
regular
interests for the current Distribution Date, pro rata according
to
their
respective Uncertificated Accrued Interest; and
(iii) third, to Uncertificated Lower-Tier Regular Interests
Y-2 and
Z-2, the Uncertificated Lower-Tier Regular Interest Y-2
Principal
Distribution Amount and the Uncertificated Lower-Tier Regular
Interest Z-2
Principal
Distribution Amount, respectively;
(c) To the
extent of the Pool Distribution Amount for Loan Group
3:
(i) first, to Uncertificated Lower-Tier Regular Interests Y-3
and Z-3,
concurrently, the Uncertificated Accrued Interest for such
regular
interests remaining unpaid from previous Distribution Dates,
pro
rata
according to their respective shares of such unpaid amounts;
(ii) second, to Uncertificated Lower-Tier Regular Interests
Y-3 and
Z-3, concurrently, the Uncertificated Accrued Interest for such
regular
interests for the current Distribution Date, pro rata according
to
their
respective Uncertificated Accrued Interest; and
(iii) third, to Uncertificated Lower-Tier Regular Interests
Y-3 and
Z-3, the Uncertificated Lower-Tier Regular Interest Y-3
Principal
Distribution Amount and the Uncertificated Lower-Tier Regular
Interest Z-3
Principal
Distribution Amount, respectively;
(d) To the
extent of the Pool Distribution Amount for Loan Group
4:
(i) first, to Uncertificated Lower-Tier Regular Interests Y-4
and Z-4,
concurrently, the Uncertificated Accrued Interest for such
regular
interests remaining unpaid from previous Distribution Dates,
pro
rata
according to their respective shares of such unpaid amounts;
(ii) second, to
Uncertificated Lower-Tier Regular Interests
Y-4 and
Z-4, concurrently, the Uncertificated Accrued Interest for such
regular
interests for the current Distribution Date, pro rata according
to
their
respective Uncertificated Accrued Interest; and
(iii) third, to Uncertificated Lower-Tier Regular Interests
Y-4 and
Z-4, the Uncertificated Lower-Tier Regular Interest Y-4
Principal
Distribution Amount and the Uncertificated Lower-Tier Regular
Interest Z-4
Principal
Distribution Amount, respectively; and
(e)...To the extent of the Pool Distribution Amount for each
Loan
Group for such Distribution Date remaining
after payment of the amounts pursuant
to paragraphs (a) through (d) of this
definition of "Lower-Tier Distribution
Amount":
(i) first, to each of the Uncertificated Lower-Tier Regular
Interests,
pro rata according to the amount of unreimbursed Realized
Losses
allocable to principal previously allocated to each such
regular
interests;
provided, however, that any amounts distributed pursuant to
this
paragraph (e)(i) of this definition of "Lower-Tier Distribution
Amount"
shall not cause a reduction in the Uncertificated Principal
Balances of any
of the Uncertificated Lower-Tier Regular Interests; and
(ii) second, to the Class 1-A-R Certificates in respect of
Component
I thereof, any remaining amount.
Lower-Tier Realized Losses: Realized Losses on each Loan Group
shall
be allocated to the Uncertificated
Lower-Tier Regular Interests as follows: (1)
the interest portion of Realized Losses on
Group 1 Mortgage Loans, if any, shall
be allocated among Uncertificated
Lower-Tier Regular Interests Y-1 and Z-1 pro
rata according to the amount of interest
accrued but unpaid thereon, in
reduction thereof; (2) the interest portion
of Realized Losses on Group 2
Mortgage Loans, if any, shall be allocated
among Uncertificated Lower-Tier
Regular Interests Y-2 and Z-2 pro rata
according to the amount of interest
accrued but unpaid thereon, in reduction
thereof; (3) the interest portion of
Realized Losses on Group 3 Mortgage Loans,
if any, shall be allocated among
Uncertificated Lower-Tier Regular Interests
Y-3 and Z-3 pro rata according to
the amount of interest accrued but unpaid
thereon, in reduction thereof; and (4)
the interest portion of Realized Losses on
Group 4 Mortgage Loans, if any, shall
be allocated among Uncertificated
Lower-Tier Regular Interests Y-4 and Z-4 pro
rata according to the amount of interest
accrued but unpaid thereon, in
reduction thereof. Any interest portion of
such Realized Losses in excess of the
amount allocated pursuant to the preceding
sentence shall be treated as a
principal portion of Realized Losses not
attributable to any specific Mortgage
Loan in such Loan Group and allocated
pursuant to the succeeding sentences. The
principal portion of Realized Losses with
respect to each Loan Group shall be
allocated to the Uncertificated Lower-Tier
Regular Interests as follows: (1) the
principal portion of Realized Losses on
Group 1 Mortgage Loans shall be
allocated, first, to Uncertificated
Lower-Tier Regular Interest Y-1 to the
extent of the Uncertificated Lower-Tier
Regular Interest Y-1 Principal Reduction
Amount in reduction of the Uncertificated
Principal Balance of such regular
interest and, second, the remainder, if
any, of such principal portion of such
Realized Losses shall be allocated to
Uncertificated Lower-Tier Regular Interest
Z-1 in reduction of the Uncertificated
Principal Balance thereof; (2) the
principal portion of Realized Losses on
Group 2 Mortgage Loans shall be
allocated, first, to Uncertificated
Lower-Tier Regular Interest Y-2 to the
extent of the Uncertificated Lower-Tier
Regular Interest Y-2 Principal Reduction
Amount in reduction of the Uncertificated
Principal Balance of such regular
interest and, second, the remainder, if
any, of such principal portion of such
Realized Losses shall be allocated to
Uncertificated Lower-Tier Regular Interest
Z-2 in reduction of the Uncertificated
Principal Balance thereof; (3) the
principal portion of Realized Losses on
Group 3 Mortgage Loans shall be
allocated, first, to Uncertificated
Lower-Tier Regular Interest Y-3 to the
extent of the Uncertificated Lower-Tier
Regular Interest Y-3 Principal Reduction
Amount in reduction of the Uncertificated
Principal Balance of such regular
interest and, second, the remainder, if
any, of such principal portion of such
Realized Losses shall be allocated to
Uncertificated Lower-Tier Regular Interest
Z-3 in reduction of the Uncertificated
Principal Balance thereof; and (4) the
principal portion of Realized Losses on
Group 4 Mortgage Loans shall be
allocated, first, to Uncertificated
Lower-Tier Regular Interest Y-4 to the
extent of the Uncertificated Lower-Tier
Regular Interest Y-4 Principal Reduction
Amount in reduction of the Uncertificated
Principal Balance of such regular
interest and, second, the remainder, if
any, of such principal portion of such
Realized Losses shall be allocated to
Uncertificated Lower-Tier Regular Interest
Z-4 in reduction of the Uncertificated
Principal Balance thereof.
Lower-Tier REMIC: As defined in the Preliminary Statement.
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.
Moody's: Moody's
Investors Service, Inc. or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating
a
lien on a Mortgaged Property securing a
Mortgage Note or creating a lien on a
leasehold interest.
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, as adjusted from time to time in
accordance with the provisions of the
related Mortgage Note, which rate is (a)
prior to the first Rate Adjustment Date
for each such Mortgage Loan, the Mortgage
Interest Rate for such Mortgage Loan
indicated on the Mortgage Loan Schedule and
(b) from and after such Rate
Adjustment Date, sum of the Index, as of
the Rate Adjustment Date applicable to
such Due Date, and the Gross Margin,
rounded as set forth in such Mortgage Note,
subject to the Initial Cap, Periodic Cap
and the Lifetime Cap applicable to such
Mortgage Loan at any time during the life
of such Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated August 24, 2005, between
Wachovia Bank, National Association,
as seller, and the Depositor, as
purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the applicable Servicer to
reflect the addition of Substitute
Mortgage Loans and the deletion of
Defective Mortgage Loans pursuant to the
provisions of this Agreement) attached
hereto as Exhibit D-1, Exhibit D-2,
Exhibit D-3 and Exhibit D-4. The Mortgage
Loan Schedule shall set 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 as of the
Cut-off Date; (vi) the Mortgage
Interest Rate as of the Cut-off Date; (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;
(xv) the Appraised Value; (xvi) the first
Rate Adjustment Date; (xvii) the Rate
Ceiling; (xviii) the Initial Cap; (xix) the
Periodic Cap; (xx) the Gross Margin;
and (xxi) the closing date of such Mortgage
Loan. With respect to the Mortgage
Loans in each Loan Group 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 Interest Rate of the
Mortgage Loans; and (iv) the weighted
average months to maturity of the Mortgage
Loans.
Mortgage Loans: The
mortgage loans 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.
National City: As
defined in the recitals hereto.
Net Mortgage Interest
Rate: As to any Mortgage Loan and any
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
Certificate Administrator Fee Rate.
Net WAC: As to any Loan Group and any Distribution Date, the
weighted average of the Net Mortgage
Interest Rates of the Mortgage Loans in
such Loan Group (based on Stated Principal
Balances of the Mortgage Loans in
such Loan Group on the Due Date in the
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 servicing such
Mortgage Loan, 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.
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 a
Servicer, as the case may be, and delivered
to the Trustee or the Certificate
Administrator, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee if such opinion is delivered to the
Trustee or acceptable to the
Certificate Administrator if such opinion
is delivered to the Certificate
Administrator, who may be counsel for the
Depositor or a Servicer, except that
any opinion of counsel relating to the
qualification of the Upper-Tier REMIC or
the Lower-Tier REMIC as a REMIC 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
2.25%
Class B-2
1.50%
Class B-3
1.00%
Class B-4
0.55%
Class B-5
0.20%
Class B-6
0.00%
Original Subordinate Certificate Balance: $19,065,793.92.
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 by the Initial
Class Certificate Balance of the Class of
which such Certificate is a part.
Periodic Advance: The payment required to be made by a Servicer
with
respect to any Distribution Date pursuant
to Section 3.20, the amount of any
such payment being equal to the aggregate
of Monthly Payments (net of the
Servicing Fee for such Servicer) on the
Mortgage Loans serviced by such Servicer
(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 such Servicer has
determined would constitute a
Nonrecoverable Advance if advanced.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate
for each Rate Adjustment Date (other
than the initial Rate Adjustment Date)
specified in the applicable Mortgage Note
and designated as such in the Mortgage Loan
Schedule.
Permitted Investments:
One or more of the following:
(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
"A-1+" by S&P, "F-1" by Fitch and "P-1" by Moody's;
(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
incorporated
under the laws of the United
States or any
state thereof,
rated not lower than
"A-1+" by S&P, "F-1" by
Fitch and "P-1"
by Moody's;
(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
"A-1+" by S&P,
"F-1" by Fitch
and "P-1" by
Moody's;
(v) investments in money market funds (including funds of the institutions
acting as
Trustee or Certificate
Administrator or its affiliates, or funds
for which an
affiliate of the institutions acting as Trustee or Certificate
Administrator
acts as advisor, as
well as funds for which the institutions
acting
as Trustee or Certificate Administrator and its respective
affiliates
may receive
compensation)
rated either "AAA" by
S&P, "AAA" by
Fitch and "Aaa"
by Moody's or otherwise approved in writing by each
Rating
Agency; and
(vi) other obligations or securities
that are acceptable to
each Rating Agency
(but which, in
no event, are rated
below the top two rating categories by
each Rating
Agency) and, as evidenced by an Opinion of Counsel obtained by
the Servicers,
will not affect the qualification of the Upper-Tier REMIC or
the Lower-Tier
REMIC as a REMIC;
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), (v) a U.S. Person
with respect to whom income is
attributable to a foreign permanent
establishment or fixed base (within the
meaning of an applicable income tax treaty)
of such Person or any other Person
and (vi) any other Person so designated by
the Servicer based on an Opinion of
Counsel to the effect that any transfer to
such Person may cause the Trust or
any other Holder of a Residual Certificate
to incur tax liability that would not
be imposed other than on account of such
transfer. The terms "United States,"
"State" and "international organization"
shall have the meanings set forth in
Code Section 7701 or successor
provisions.
Person:
Any individual, corporation, limited liability company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof, or any other entity or
organization, whether or not a legal entity.
Physical Certificates:
The Class 1-A-R, Class B-4, Class B-5
and Class B-6 Certificates.
Plan: As defined in
Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the excess of (a) the sum of (i) the
aggregate of (A) the interest
portion of any Monthly Payment on a
Mortgage Loan in such Loan Group (net of the
Servicing Fee for the Servicer of such Loan
Group) and the principal portion of
any Monthly Payment on a Mortgage Loan in
such Loan Group 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 such Servicer
in respect of such Loan Group and
Distribution Date deposited to the Servicer
Custodial Account pursuant to
Section 3.08(b)(vii); (ii) all Liquidation
Proceeds received on the Mortgage
Loans in such Loan Group during the
preceding calendar month and deposited to
the applicable Servicer Custodial Account
pursuant to Section 3.08(b)(iii);
(iii) all Principal Prepayments received on
the Mortgage Loans in such Loan
Group during the month preceding the month
of such Distribution Date and
deposited to the applicable Servicer
Custodial Account pursuant to Section
3.08(b)(i) during such period; (iv) in
connection with Defective Mortgage Loans
in such Loan Group, 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); (v) any
other amounts in the applicable
Servicer Custodial Account deposited
therein pursuant to Sections 3.08(b)(iv),
(v) and (viii) in respect of such
Distribution Date and such Loan Group; and
(vi) any Subsequent Recovery with respect
to such Distribution Date over (b) any
(i) amounts permitted to be withdrawn from
the applicable Servicer Custodial
Account pursuant to clauses (i) through
(ix), inclusive, of Section 3.11(a) in
respect of such Loan Group and (ii) amounts
permitted to be withdrawn from the
Certificate Account pursuant to clauses (i)
and (ii) of Section 3.11(b) in
respect of such Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and
Loan
Group, the aggregate Stated Principal
Balances of all Mortgage Loans in such
Loan Group that were Outstanding Mortgage
Loans immediately following the Due
Date in the month preceding the month in
which such Distribution Date occurs.
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 for the
Servicer servicing such Mortgage Loan) 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 Amount: As to any Distribution Date and a Loan Group,
the
sum of (a) the principal portion of each
Monthly Payment due on each Mortgage
Loan in such Loan Group on the related Due
Date, (b) the principal portion of
the Repurchase Price of each Mortgage Loan
in such Loan Group 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 in such Loan Group received
with respect to such Distribution
Date, (d) any Liquidation Proceeds
allocable to recoveries of principal of
Mortgage Loans in such Loan Group 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 in such Loan Group that became a
Liquidated Mortgage Loan during the
calendar month preceding the month of such
Distribution Date, the amount of
Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received
with respect to such Mortgage Loan
during the calendar month preceding the
month of such Distribution Date, (f) any
Subsequent Recoveries for such Distribution
Date, and (g) all Principal
Prepayments on the Mortgage Loans in such
Loan Group received during the
calendar month preceding the month of such
Distribution Date.
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 in any month subsequent to the
month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
Private Certificates:
The Class B-4, Class B-5 and Class B-6
Certificates.
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. Solely
with respect to Unscheduled Principal
Payments, the Pro Rata Share of a
Restricted Class shall be 0%. The Pro Rata
Share of a Class of Subordinate
Certificates may be computed for each of
clause (i) and clause (ii) of the
definition of "Subordinate Principal
Distribution Amount" in the event the
Restricted Classes differ with respect to
each clause.
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 Adjustment Date: As to each Mortgage Loan, the Due Date on
which an adjustment to the Mortgage
Interest Rate of such Mortgage Loan becomes
effective under the related Mortgage Note,
which Due Date is the date set forth
in the Mortgage Loan Schedule as the first
Rate Adjustment Date and each
subsequent anniversary thereof.
Rate Ceiling: The maximum per annum Mortgage Interest Rate
permitted
under the related Mortgage Note.
Rating Agency:
Each of S&P and Fitch. If any 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
Certificate Administrator and 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 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.
Regular Certificates:
As defined in the Preliminary Statement
hereto.
Related Group: With respect to Loan Group 1, means Group 1;
with
respect to Loan Group 2, means Group 2;
with respect to Loan Group 3, means
Group 3; and with respect to Loan Group 4,
means Group 4.
Related Loan Group: With respect to the Group 1-A Certificates,
Loan
Group 1, with respect to the Group 2-A
Certificates, Loan Group 2, with respect
to the Group 3-A Certificates, Loan Group
3, and with respect to the Group 4-A
Certificates, Loan Group 4.
Relief Act: The
Servicemembers' Civil Relief Act, 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 2.08.
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 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, (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 required to
be repurchased, and (iii) any costs
and damages incurred by the Trust in
connection with a breach of the
representation contained in Section 7(iii)
of the Mortgage Loan Purchase
Agreement as a result of any violation of
any predatory or abusive lending law
with respect to such Mortgage Loan.
Request for Release: The Request for Release submitted by the
Servicer to the Custodian, 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.
Residual Certificates:
The Class 1-A-R Certificates.
Responsible Officer: When used with respect to the Trustee or
the
Certificate Administrator, any officer of
the Corporate Trust Department of the
Trustee or Certificate Administrator, as
the case may be, 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 or Certificate Administrator,
as the case may be, customarily
performing functions similar to those
performed by any of the above designated
officers and, in each case, having
responsibility for the administration of this
Agreement.
Restricted Classes: As
defined in Section 5.02(d).
S&P: Standard & Poor's, a Division of The McGraw-Hill
Companies,
Inc., and its successors in interest.
Seller: Wachovia Bank,
National Association, 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 and a
Loan
Group, the percentage, carried six places
rounded up, obtained by dividing the
aggregate Class Certificate Balance of the
Senior Certificates of the Related
Loan Group immediately prior to such
Distribution Date by the Pool Stated
Principal Balance of such Loan Group
immediately prior to such Distribution
Date.
Senior Prepayment Percentage: For any Distribution Date and a
Loan
Group during the seven years beginning on
the first Distribution Date, 100%. The
Senior Prepayment Percentage for any
Distribution Date and a Loan Group
occurring on or after the seven year
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 for such Loan Group plus 70% of the
Subordinate Percentage for such Loan Group
for such Distribution Date; for any
Distribution Date in the second year
thereafter, the Senior Percentage for such
Loan Group plus 60% of the Subordinate
Percentage for such Loan Group for such
Distribution Date; for any Distribution
Date in the third year thereafter, the
Senior Percentage for such Loan Group plus
40% of the Subordinate Percentage for
such Loan Group for such Distribution Date;
for any Distribution Date in the
fourth year thereafter, the Senior
Percentage for such Loan Group plus 20% of
the Subordinate Percentage for such Loan
Group for such Distribution Date; and
for any Distribution Date in the fifth or
later years thereafter, the Senior
Percentage for such Loan Group for such
Distribution Date (unless on any of the
foregoing Distribution Dates the Total
Senior Percentage exceeds the initial
Total Senior Percentage, in which case the
Senior Prepayment Percentage for Loan
Group 1, Loan Group 2, Loan Group 3 and
Loan Group 4 for such Distribution Date
will once again equal 100%); provided,
however, if on any Distribution Date
prior to the September 2008 Distribution
Date, prior to giving effect to any
distributions, the Aggregate Subordinate
Percentage is greater than or equal to
twice such percentage calculated as of the
Closing Date, then the Senior
Prepayment Percentage for each Loan Group
for such Distribution Date will equal
the Senior Percentage for such Loan Group
plus 50% of the Subordinate Percentage
for such Loan Group; provided further,
however, if on or after the September
2008 Distribution Date, prior to giving
effect to any distributions, the
Aggregate Subordinate Percentage is greater
than or equal to twice such
percentage calculated as of the Closing
Date, then the Senior Prepayment
Percentage for each Loan Group for such
Distribution Date will equal the Senior
Percentage for such Loan Group.
Notwithstanding the foregoing, no decrease in
the Senior Prepayment Percentage for any
Loan Group will occur unless both of
the Senior Step Down Conditions are
satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group, the sum of (i) the Senior
Percentage for such Loan Group of the
amounts described in clauses (a) through
(d) of the definition of "Principal
Amount" for such Distribution Date and Loan
Group and (ii) the Senior Prepayment
Percentage for such Loan Group of the
amounts described in clauses (e), (f) and
(g) of the definition of "Principal Amount"
for such Distribution Date and Loan
Group.
Senior Step Down Conditions: As of any Distribution Date as to
which
any decrease in the Senior Prepayment
Percentage for any Loan Group 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, 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
September 2005 through August 2008
20%
September 2008 through August 2013
30%
September 2013 through August 2014
35%
September 2014 through August 2015
40%
September 2015 through August 2016
45%
September 2016 and thereafter
50%
Servicers: Wells Fargo, with respect to the Loan Group 2, and
National City, with respect to Loan Group
1, Loan Group 3 and Loan Group 4, or,
in either case, its successor in interest,
in its capacity as servicer of the
related Loan Group, 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: Each separate Eligible Account or
Accounts created and maintained by the
Servicers pursuant to Section 3.08(b).
Servicer's Certificate: The Monthly Report required by
Section 4.01.
Servicing Advances: All customary, reasonable and necessary "out
of
pocket" costs and expenses incurred in the
performance by a Servicer of its
servicing obligations, including, but not
limited to (i) the preservation,
restoration and protection of a Mortgaged
Property, (ii) expenses reimbursable
to such 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 Fee: With respect to each Mortgage Loan and
Distribution
Date, the amount of the fee payable to the
Servicer servicing such Mortgage
Loan, 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. A
Servicer's right to receive the
Servicing Fee for Mortgage Loans serviced
by such Servicer 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 such Servicer, or as
otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.25%
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 a Servicer involved in, or
responsible for, the administration and
servicing of the related Mortgage Loans
whose name appears on a list of servicing
officers furnished to the Certificate
Administrator and the Trustee by such
Servicer as such list may from time to
time be amended.
Similar Law: As
defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage
Loan as of the Due Date immediately
preceding such date as specified in the
amortization schedule at the time
relating thereto (before any adjustment to
such amortization schedule by reason
of any moratorium or similar waiver or
grace period) after giving effect to any
previous partial Principal Prepayments and
Liquidation Proceeds allocable to
principal (other than with respect to any
Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date
and irrespective of any delinquency in
payment by the related Mortgagor, and after
giving effect to any Deficient
Valuation, plus any amounts capitalized as
a result of modifications to such
Mortgage Loan pursuant to Section 3.21.
Subordinate Certificates: The Class B Certificates.
Subordinate
Percentage: As of any
Distribution Date and Loan
Group, 100% minus the Senior Percentage for
such Loan Group for such
Distribution Date.
Subordinate Prepayment
Percentage: As to any
Distribution Date and
Loan Group, 100% minus the Senior
Prepayment Percentage for such Loan Group for
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount
equal to the sum of (i) the
Subordinate Percentage for such Loan Group
of all amounts described in clauses
(a) through (d) of the definition of
"Principal Amount" for such Distribution
Date and Loan Group and (ii) the
Subordinate Prepayment Percentage of the
amounts described in clauses (e), (f) and
(g) of the definition of "Principal
Amount" for such Distribution Date and Loan
Group.
Subsequent Recovery: As to any Distribution Date and Loan Group,
the
sum of all amounts received during the
calendar month preceding the month of
such Distribution Date on each Mortgage
Loan in such Loan Group subsequent to
such Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Subservicer: Any Person with which a 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 related Servicer, need not be in
writing) between a 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 Gross Margin
equal to that of the Defective Mortgage
Loan; (v) have an Initial Cap, a Periodic
Cap and Rate Ceiling equal to that of
the Defective Mortgage Loan; (vi) have the
same Index and frequency of mortgage
interest rate adjustment as the Deleted
Mortgage Loan; (vii) have a remaining
term to maturity not greater than (and not
more than one year less than) that of
the Defective Mortgage Loan; and (viii)
comply, as of the date of substitution,
with each Mortgage Loan representation and
warranty set forth in this Agreement
relating to the Defective Mortgage Loan.
More than one Substitute Mortgage Loan
may be substituted for a Defective Mortgage
Loan if such Substitute Mortgage
Loans meet the foregoing attributes in the
aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner
provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss.
301.6231(a)(7)-1.
Total 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 Class A
Certificates immediately prior to such
Distribution Date by the aggregate Pool
Stated Principal Balance of all Loan
Groups immediately prior to such
Distribution Date.
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 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: U.S. Bank National Association, and its successors-in-
interest and, if a successor trustee is
appointed hereunder, such successor, as
trustee.
Uncertificated Accrued Interest: With respect to any
Uncertificated
Lower-Tier Regular Interest for any
Distribution Date, one month's interest at
the related Uncertificated Pass-Through
Rate for such Distribution Date, accrued
on the Uncertificated Principal Balance
immediately prior to such Distribution
Date. Uncertificated Accrued Interest for
the Uncertificated Lower-Tier Regular
Interests shall accrue on the basis of a
360-day year consisting of twelve
30-day months. For purposes of calculating
the amount of Uncertificated Accrued
Interest for the Uncertificated Lower-Tier
Regular Interests for any
Distribution Date, any Prepayment Interest
Shortfalls or Relief Act Reduction
(to the extent not covered by Compensating
Interest) shall be allocated among
the Uncertificated Lower-Tier Regular
Interests, pro rata, based on, and to the
extent of, Uncertificated Accrued Interest,
as calculated without application of
this sentence.
Uncertificated
Lower-Tier Regular
Interests:
As defined
in the
Preliminary Statement.
Uncertificated Lower-Tier Regular Interest Y Principal
Reduction
Amounts: For any Distribution Date, the
amounts by which the Uncertificated
Principal Balances of Uncertificated
Lower-Tier Regular Interests Y-1, Y-2, Y-3
and Y-4 will be reduced on such
Distribution Date by the allocation of Realized
Losses and the distribution of principal,
determined as described in Appendix 1.
Uncertificated Lower-Tier Regular Interest Y-1: A regular
interest
in the Lower-Tier REMIC that is held as an
asset of the Upper-Tier REMIC, that
has an initial principal balance equal to
the related Uncertificated Principal
Balance, that bears interest at the related
Uncertificated Pass-Through Rate,
and that has such other terms as are
described herein.
Uncertificated Lower-Tier Regular Interest Y-1 Principal
Distribution Amount: For any Distribution
Date, the excess, if any, of the
Uncertificated Lower-Tier Regular Interest
Y-1 Principal Reduction Amount for
such Distribution Date over the Realized
Losses allocated to Uncertificated
Lower-Tier Regular Interest Y-1 on such
Distribution Date in reduction of the
Uncertificated Principal Balance
thereof.
Uncertificated Lower-Tier Regular Interest Y-1 Principal
Reduction
Amount: The Uncertificated Lower-Tier
Regular Interest Y Principal Reduction
Amount for Uncertificated Lower-Tier
Regular Interest Y-1 as determined pursuant
to the provisions of Appendix 1.
Uncertificated Lower-Tier Regular Interest Y-2: A regular
interest
in the Lower-Tier REMIC that is held as an
asset of the Upper-Tier REMIC, that
has an initial principal balance equal to
the related Uncertificated Principal
Balance, that bears interest at the related
Uncertificated Pass-Through Rate,
and that has such other terms as are
described herein.
Uncertificated Lower-Tier Regular Interest Y-2 Principal
Distribution Amount: For any Distribution
Date, the excess, if any, of the
Uncertificated Lower-Tier Regular Interest
Y-2 Principal Reduction Amount for
such Distribution Date over the Realized
Losses allocated to Uncertificated
Lower-Tier Regular Interest Y-2 on such
Distribution Date in reduction of the
Uncertificated Principal Balance
thereof.
Uncertificated Lower-Tier Regular Interest Y-2 Principal
Reduction
Amount: The Uncertificated Lower-Tier
Regular Interest Y Principal Reduction
Amount for Uncertificated Lower-Tier
Regular Interest Y-2 as determined pursuant
to the provisions of Appendix 1.
Uncertificated Lower-Tier Regular Interest Y-3: A regular
interest
in the Lower-Tier REMIC that is held as an
asset of the Upper-Tier REMIC, that
has an initial principal balance equal to
the related Uncertificated Principal
Balance, that bears interest at the related
Uncertificated Pass-Through Rate,
and that has such other terms as are
described herein.
Uncertificated Lower-Tier Regular Interest Y-3 Principal
Distribution Amount: For any Distribution
Date, the excess, if any, of the
Uncertificated Lower-Tier Regular Interest
Y-3 Principal Reduction Amount for
such Distribution Date over the Realized
Losses allocated to Uncertificated
Lower-Tier Regular Interest Y-3 on such
Distribution Date in reduction of the
Uncertificated Principal Balance
thereof.
Uncertificated Lower-Tier Regular Interest Y-3 Principal
Reduction
Amount: The Uncertificated Lower-Tier
Regular Interest Y Principal Reduction
Amount for Uncertificated Lower-Tier
Regular Interest Y-3 as determined pursuant
to the provisions of Appendix 1.
Uncertificated Lower-Tier Regular Interest Y-4: A regular
interest
in the Lower-Tier REMIC that is held as an
asset of the Upper-Tier REMIC, that
has an initial principal balance equal to
the related Uncertificated Principal
Balance, that bears interest at the related
Uncertificated Pass-Through Rate,
and that has such other terms as are
described herein.
Uncertificated Lower-Tier Regular Interest Y-4 Principal
Distribution Amount: For any Distribution
Date, the excess, if any, of the
Uncertificated Lower-Tier Regular Interest
Y-4 Principal Reduction Amount for
such Distribution Date over the Realized
Losses allocated to Uncertificated
Lower-Tier Regular Interest Y-4 on such
Distribution Date in reduction of the
Uncertificated Principal Balance
thereof.
Uncertificated Lower-Tier Regular Interest Y-4 Principal
Reduction
Amount: The Uncertificated Lower-Tier
Regular Interest Y Principal Reduction
Amount for Uncertificated Lower-Tier
Regular Interest Y-4 as determined pursuant
to the provisions of Appendix 1.
Uncertificated Lower-Tier Y Regular Interests: Uncertificated
Lower-Tier Regular Interests Y-1, Y-2, Y-3
and Y-4.
Uncertificated Lower-Tier Regular Interest Z Principal
Reduction
Amounts: For any Distribution Date, the
amounts by which the Uncertificated
Principal Balances of Uncertificated
Lower-Tier Regular Interests Z-1, Z-2, Z-3
and Z-4 will be reduced on such
Distribution Date by the allocation of Realized
Losses and the distribution of principal,
which shall be in each case the excess
of (A) the sum of (x) the excess of the
Pool Distribution Amount for the related
Loan Group (i.e. the "related Loan Group"
for Uncertificated Lower-Tier Regular
Interest Z-1 is Loan Group 1, the "related
Loan Group" for Uncertificated
Lower-Tier Regular Interest Z-2 is the Loan
Group 2, the "related Loan Group"
for Uncertificated Lower-Tier Regular
Interest Z-3 is Loan Group 3 and the
"related Loan Group" for Uncertificated
Lower-Tier Regular Interest Z-4 is Loan
Group 4) over the sum of the amounts
thereof distributable (i) in respect of
interest on such regular interest and the
related Uncertificated Lower-Tier Y
Regular Interest, (ii) to such regular
interest and the related Uncertificated
Lower-Tier Y Regular Interest pursuant to
clause (e)(i) of the definition of
"Lower-Tier Distribution Amount" and (iii)
in the case of the Group 1 Mortgage
Loans, to the Class 1-A-R Certificates in
respect of Component I thereof and (y)
the amount of Realized Losses allocable to
principal for the related Loan Group
over (B) the related Uncertificated
Lower-Tier Regular Interest Y Principal
Reduction Amount.
Uncertificated Lower-Tier Regular Interest Z-1: A regular
interest
in the Lower-Tier REMIC that is held as an
asset of the Upper-Tier REMIC, that
has an initial principal balance equal to
the related Uncertificated Principal
Balance, that bears interest at the related
Uncertificated Pass-Through Rate,
and that has such other terms as are
described herein.
Uncertificated Lower-Tier Regular Interest Z-1 Principal
Distribution Amount: For any Distribution
Date, the excess, if any, of the
Uncertificated Lower-Tier Regular Interest
Z-1 Principal Reduction Amount for
such Distribution Date over the Realized
Losses allocated to Uncertificated
Lower-Tier Regular Interest Z-1 on such
Distribution Date in reduction of the
principal balance thereof.
Uncertificated Lower-Tier Regular Interest Z-1 Principal
Reduction
Amount: The Uncertificated Lower-Tier
Regular Interest Z Principal Reduction
Amount for Uncertificated Lower-Tier
Regular Interest Z-1 as determined pursuant
to the provisions of Appendix 1.
Uncertificated Lower-Tier Regular Interest Z-2: A regular
interest
in the Lower-Tier REMIC that is held as an
asset of the Upper-Tier REMIC, that
has an initial principal balance equal to
the related Uncertificated Principal
Balance, that bears interest at the related
Uncertificated Pass-Through Rate,
and that has such other terms as are
described herein.
Uncertificated Lower-Tier Regular Interest Z-2 Principal
Distribution Amount: For any Distribution
Date, the excess, if any, of the
Uncertificated Lower-Tier Regular Interest
Z-2 Principal Reduction Amount for
such Distribution Date over the Realized
Losses allocated to Uncertificated
Lower-Tier Regular Interest Z-2 on such
Distribution Date in reduction of the
principal balance thereof.
Uncertificated Lower-Tier Regular Interest Z-2 Principal
Reduction
Amount: The Uncertificated Lower-Tier
Regular Interest Z Principal Reduction
Amount for Uncertificated Lower-Tier
Regular Interest Z-2 as determined pursuant
to the provisions of Appendix 1.
Uncertificated Lower-Tier Regular Interest Z-3: A regular
interest
in the Lower-Tier REMIC that is held as an
asset of the Upper-Tier REMIC, that
has an initial principal balance equal to
the related Uncertificated Principal
Balance, that bears interest at the related
Uncertificated Pass-Through Rate,
and that has such other terms as are
described herein.
Uncertificated Lower-Tier Regular Interest Z-3 Principal
Distribution Amount: For any Distribution
Date, the excess, if any, of the
Uncertificated Lower-Tier Regular Interest
Z-3 Principal Reduction Amount for
such Distribution Date over the Realized
Losses allocated to Uncertificated
Lower-Tier Regular Interest Z-3 on such
Distribution Date in reduction of the
principal balance thereof.
Uncertificated Lower-Tier Regular Interest Z-3 Principal
Reduction
Amount: The Uncertificated Lower-Tier
Regular Interest Z Principal Reduction
Amount for Uncertificated Lower-Tier
Regular Interest Z-3 as determined pursuant
to the provisions of Appendix 1.
Uncertificated Lower-Tier Regular Interest Z-4: A regular
interest
in the Lower-Tier REMIC that is held as an
asset of the Upper-Tier REMIC, that
has an initial principal balance equal to
the related Uncertificated Principal
Balance, that bears interest at the related
Uncertificated Pass-Through Rate,
and that has such other terms as are
described herein.
Uncertificated Lower-Tier Regular Interest Z-4 Principal
Distribution Amount: For any Distribution
Date, the excess, if any, of the
Uncertificated Lower-Tier Regular Interest
Z-4 Principal Reduction Amount for
such Distribution Date over the Realized
Losses allocated to Uncertificated
Lower-Tier Regular Interest Z-4 on such
Distribution Date in reduction of the
principal balance thereof.
Uncertificated Lower-Tier Regular Interest Z-4 Principal
Reduction
Amount: The Uncertificated Lower-Tier
Regular Interest Z Principal Reduction
Amount for Uncertificated Lower-Tier
Regular Interest Z-4 as determined pursuant
to the provisions of Appendix 1.
Uncertificated Pass-Through Rate: With respect to any
Distribution
Date and (i) Uncertificated Lower-Tier
Regular Interests Y-1 and Z-1, the Net
WAC for Loan Group 1, (ii) Uncertificated
Lower-Tier Regular Interests Y-2 and
Z-2, the Net WAC for Loan Group 2, (iii)
Uncertificated Lower-Tier Regular
Interests Y-3 and Z-3, the Net WAC for Loan
Group 3 and (iv) Uncertificated
Lower-Tier Regular Interests Y-4 and Z-4,
the Net WAC for Loan Group 4.
Uncertificated Principal Balance: The principal amount of any
Uncertificated Lower-Tier Regular Interest
outstanding as of any date of
determination. The Uncertificated Principal
Balance of each Uncertificated
Lower-Tier Regular Interest shall never be
less than zero.
Underwriting Guidelines: With respect to Loan Group 1, Loan Group
3
and Loan Group 4, the underwriting
guidelines of National City. With respect to
Loan Group 2, the underwriting guidelines
of Wells Fargo.
Unscheduled Principal Payments: The amounts described in
clauses
(e), (f) and (g) of the definition of
Principal Amount.
Upper-Tier REMIC: As defined in the Preliminary Statement.
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) 1% of all Voting Rights
shall be allocated to the Holders of
the Residual Certificates and (b) 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.
Wells Fargo: As
defined in the recitals hereto.
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
Custodian, on behalf
of 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
either (A) in blank or
(B) in the following
form: "Pay to the
order of U.S.
Bank National
Association, 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 in and
to that Mortgage Note);
(ii) except as provided below, the original recorded Mortgage with
evidence
of a recording thereon, or if any such Mortgage has not been
returned from
the applicable
recording office or has been lost, or if such
public recording
office retains the original recorded Mortgage, a copy of
such
Mortgage certified by the Depositor as
being a true and correct copy
of the Mortgage,
if such copy is available;
(iii) subject to the provisos at the end of this
paragraph,
a duly
executed
Assignment
of Mortgage to "U.S.
Bank National
Association,
as
trustee for the
holders of the Wachovia Mortgage Loan Trust, LLC Mortgage
Pass-Through
Certificates,
Series 2005-A 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
copies of such interim
assignments certified
by the Depositor
as being true
and complete
copies 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 the related
Mortgage to the
assignee thereof);
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 servicing such Mortgage shall take all actions as are
necessary to
cause the Trust or the Trustee 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 mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension
agreements, if any, with evidence of recording thereon, if any;
(v) the original or
duplicate original mortgagee title insurance
policy and all
riders thereto;
(vi) the original of any guarantee executed in connection with the
Mortgage
Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential
long-term lease, a copy of the lease with evidence of recording
indicated
thereon, or, if the
lease is in the process of being recorded, a
photocopy
of the lease,
certified by an
officer of the
respective prior
owner of such
Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to
be a true
and correct copy
of the lease transmitted for recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent
document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals of
the following
documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed
UCC-1 financing statement with evidence of
recording thereon;
and
(G) Executed UCC-3 financing statements or other appropriate
UCC
financing statements,
evidencing
a complete
and unbroken line of
assignments 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 Custodian a
copy of such Assignment of Mortgage
in blank and has caused the Servicer
servicing the related Mortgage Loan 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 Lost Note Affidavit
together with a copy of such
Mortgage Note, if a copy is available, and
shall thereby be deemed to have
satisfied the document delivery
requirements of this Section 2.01(b).
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
servicing such Mortgage Loan 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 Custodian, 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 an
Officer's Certificate to such effect
to the Custodian. The Depositor shall
forward or cause to be forwarded to the
Custodian (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 related Servicer to the
Custodian. 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
servicing such Mortgage Loan shall prepare,
execute and deliver or cause to be
prepared, executed and delivered, on behalf
of the Trust, such a document to the
public recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30
days thereafter, the related 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 in
favor of the Trustee, except that,
with respect to any Assignment of a
Mortgage as to which the Servicer servicing
such Mortgage has not received the
information required to prepare such
assignment in recordable form, such
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 recording is not required by the
Rating Agencies to obtain the initial
ratings for the Certificates.
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 Custodian will cause the Servicer
servicing such Mortgage Loan to deposit in
the related Servicer Custodial Account the
amount of such payment in full.
It is agreed and understood by the parties to this Agreement
that
none of the Mortgage Loans are (a) loans
subject to 12 CFR Section 226.31, 12
CFR Section 226.32 or 12 CFR Section
226.34, as amended, or (b) "high cost
home," "covered" (excluding home loans
defined as "covered home loans" in the
New Jersey Home Ownership Security Act of
2002 that were originated between
November 26, 2003 and July 7, 2004), "high
risk home" or "predatory" loans under
any applicable state, federal or local law
(or a similarly classified loan using
different terminology under a law imposing
heightened regulatory scrutiny or
additional legal liability for residential
mortgage loans having high interest
rates, points and/or fees).
Section 2.02 Acceptance by the Custodian of
the Mortgage Loans.
Subject to the
provisions of the following paragraph,
pursuant to the
Custodial Agreement, the
Custodian, on behalf of the Trustee,
declares that it 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. Upon execution of this Agreement,
the Custodian will
deliver to the Depositor, the Certificate Administrator and the Trustee an
initial certification in the form of Exhibit O hereto, to the effect that,
except as may be specified in the list of
exceptions attached
thereto, it has
received the Mortgage File for each
Mortgage Loan on the Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this
Agreement,
the Custodian shall review the Mortgage
Files in its possession and will deliver
to the Depositor, the Certificate
Administrator and the Trustee a final
certification in the form of Exhibit P
hereto. If, in the course of such review,
the Custodian finds any document described
in Section 2.01(b)(i), (ii), (iii),
(v) and (ix)(A), (B), (C), (D), (F) and (G)
which does not meet the requirements
of Section 2.01 or is omitted from such
Mortgage File, the Custodian shall
promptly so notify the related Servicer and
the Depositor. In performing any
such review, 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 Custodian's review of the Mortgage
Files is limited solely to confirming
that the documents listed in Section
2.01(b)(i), (ii), (iii), (v) and (ix)(A),
(B), (C), (D), (F) and (G) 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. The Custodian shall not 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) repurchase 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 Custodian, on behalf of 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(b)(i). 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 conveyed to the Trust and
shall 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 related Servicer shall amend the Mortgage Loan Schedule 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 such
Servicer shall deliver the amended Mortgage
Loan Schedule to the Custodian and
the Trustee. 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 and
the Certificate Administrator 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
repurchase or substitution and the deposit
to the related Servicer Custodial
Account of any required Repurchase Price or
Substitution Adjustment Amount (as
described in the next paragraph), as
applicable, and receipt of a Request for
Release, the Custodian shall 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 transfer to
the Depositor, or its designee, any
Defective Mortgage Loan repurchased or
substituted for pursuant to this Section
2.02.
For any month in which the Depositor substitutes one or more
Substitute Mortgage Loans for one or more
Defective Mortgage Loans, the amount
(if any) by which the aggregate principal
balance of all such Substitute
Mortgage Loans in a Loan Group as of the
date of substitution is less than the
aggregate Stated Principal Balance of all
such Defective Mortgage Loans in such
Loan Group (the "Substitution Adjustment
Amount" for such Loan Group) 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 repurchased or replaced
hereunder.
The Custodian shall retain possession and custody of each
Mortgage
File in accordance with and subject to the
terms and conditions set forth in the
Custodial Agreement. Each Servicer shall
promptly deliver to the Custodian, 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 each Servicer's
possession from time to time.
It is understood and agreed that the obligation of the Depositor
to
substitute for or to repurchase 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.
None of the Certificate Administrator, the Trustee or the
Custodian
shall be under any 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)
and (ix)(E).
Section 2.03
Representations, Warranties and Covenants of the Servicers.
(a) Wells Fargo
hereby makes the following representations and warranties
to the Depositor, the Certificate Administrator and the Trustee, as of the
Closing Date:
(i) Wells Fargo 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 Wells
Fargo. Wells Fargo 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 Wells Fargo 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 Wells
Fargo,
except
as enforceability may be limited by (A) bankruptcy,
insolvency,
liquidation,
receivership, moratorium, reorganization or other
similar laws
affecting the enforcement of the creditors' rights generally
or creditors of national banks 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 Wells Fargo to make this
Agreement valid
and binding upon Wells Fargo in accordance with its terms.
(ii) No consent, approval, authorization or order is required
for the
transactions
contemplated
by this Agreement from
any court,
governmental
agency
or body, or federal or state regulatory authority having
jurisdiction
over Wells Fargo 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 Wells Fargo
and will
not result in
the breach of any term or provision of the charter or by-laws
of Wells
Fargo 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 Wells Fargo or its property is
subject,
or result in the
violation of any law, rule, regulation, order,
judgment or
decree to which Wells Fargo or its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or,
to the best
knowledge of Wells Fargo, threatened against Wells Fargo which,
either
individually
or in the aggregate, would result in any material
adverse change
in the business, operations, financial condition, properties
or assets of
Wells Fargo,
or in any material
impairment
of the right or
ability
of Wells Fargo 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 Wells
Fargo contemplated
herein, or which would
materially
impair the ability of
Wells Fargo to perform under the terms of
this
Agreement.
(v) Each Mortgage Loan serviced by Wells Fargo was originated (A)
by a
savings and loan
association, savings
bank, commercial bank, credit union,
insurance
company or similar institution that is supervised and examined
by
a federal or state authority, or (B) by a mortgagee approved by the
Secretary of
Housing and Urban Development pursuant to Sections 203 and 211
of the National
Housing Act, as amended.
The
representations and warranties made pursuant to this Section
2.03(a) shall survive delivery of the
respective Mortgage Files for Loan Group 2
to the Custodian.
(b) National
City hereby makes the following representations and warranties
to the Depositor, the Certificate Administrator and the Trustee, as of the
Closing Date:
(i) National City is a corporation duly organized, validly
existing,
and in
good standing under the laws of Ohio 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 National City.
National
City 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 National City 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 National City, 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 National City to make this Agreement
valid and
binding upon National City in accordance with its terms.
(ii) No consent, approval, authorization or order is required
for
the
transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having
jurisdiction over National City 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 National City and
will
not result
in the breach of any term or provision of the charter or
by-laws of
National City 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 National City or its
property
is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which National City or
its
property
is subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of National City, threatened against National
City
which, either individually or in the aggregate, would result in
any
material
adverse change in the business, operations, financial
condition,
properties
or assets of National City, or in any material impairment of
the right
or ability of National City 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 National City
contemplated herein, or which would materially impair the ability
of
National
City to perform under the terms of this Agreement.
(v) Each Mortgage Loan serviced by National City was originated
(A)
by a
savings and loan association, savings bank, commercial bank,
credit
union,
insurance company or similar institution that is supervised and
examined
by a federal or state authority, or (B) by a mortgagee approved
by the
Secretary of Housing and Urban Development pursuant to Sections
203
and 211 of
the National Housing Act, as amended.
The representations and warranties made pursuant to this
Section
2.03(b) shall survive delivery of the
respective Mortgage Files for Loan Group
1, Loan Group 3 or Loan Group 4 to the
Custodian.
Section 2.04 Assignment of Interest in
the Mortgage Loan Purchase Agreement;
Depositor Representations and
Warranties.
(a) The
Depositor hereby assigns to the Trustee all of its right, title
and
interest in the Mortgage Loan Purchase
Agreement,
including but not
limited to
the representations and warranties of the
Seller set forth in Section 7 thereof.
The obligations of the Seller under the Mortgage
Loan Purchase Agreement to
substitute or repurchase, as applicable, a Mortgage Loan as to which a
representation set forth in Section 7
thereof is breached shall be the Trustee's
and the Certificateholders' sole remedy for such breach. At
the request of the
Trustee, the Depositor shall take such
actions as may be necessary to enable the
Trustee to enforce such representations and the obligations of the Seller
with
respect thereto and shall execute such further documents as the Trustee may
reasonably require in order to enable the
Trustee to carry out such enforcement.
(b) If the
Depositor, a Servicer,
or the Trustee discovers a breach of any
of the representations and warranties set forth in the
Mortgage Loan Purchase
Agreement, which breach materially and adversely affects the value of the
interests of Certificateholders or the
Trustee in the related Mortgage Loan, the
party discovering the breach shall give prompt
written notice of the breach to
the other parties and the Seller. Upon receipt by the Custodian or the
applicable Servicer of the applicable
Substitute
Mortgage Loans, Repurchase
Prices, or Substitution Adjustment Amounts (as such terms are defined
in the
Mortgage Loan Purchase Agreement) from the Seller as provided in the
Mortgage
Loan Purchase Agreement, the Custodian and the applicable
Servicer shall notify
the Trustee, the Custodian shall release to the Seller the related
Mortgage
File, and the Trustee shall execute and
deliver all
instruments of transfer or
assignment furnished to it by the Seller,
without recourse,
representation or
warranty, as are necessary to transfer to the
Seller the Mortgage
Loan or any
property acquired with respect thereto.
The Custodian shall
amend the Mortgage
Loan Schedule to reflect such repurchase and shall promptly
notify the Trustee
of such amendment. If the Seller delivers a Substitute Mortgage Loan, the
Custodian shall examine the Mortgage File
for any Substitute
Mortgage Loan in
the manner set forth in Section
2.02(a).
(c) The
Depositor makes the following representations and warranties as
to
the Mortgage Loans on which the Trustee is
deemed to have relied in acquiring
the Mortgage Loans. Such representations and warranties
speak as of the Closing
Date, but shall survive until the termination of this Agreement. Such
representations and warranties shall not be
waived by any of the parties to this
Agreement:
(i) This Agreement
creates a valid and continuing security interest
(as defined in the Uniform Commercial Code as in force in the
relevant
jurisdiction) in
the Mortgage Loans in favor of the Trustee, which security
interest is
prior to all other liens, and is enforceable as such as against
creditors of and
purchasers from the Depositor.
(ii) The Mortgage Loans constitute "instruments" within the meaning
of
the Uniform
Commercial Code as in force in the relevant jurisdiction.
(iii) The Depositor owns and has good and marketable title to the
Mortgage
Loans free and clear of any lien,
claim or encumbrance of any
Person.
(iv) The Depositor has received all consents and approvals required
by
the terms of the
Mortgage Loans to the sale of the Mortgage Loans hereunder
to the
Trustee.
(v) The Depositor has caused or will have caused, within ten days,
the
filing of all
appropriate financing
statements in the proper filing office
in the
appropriate
jurisdictions under
applicable law in order to perfect
the security interest in the Mortgage Loans granted to the Trustee
hereunder.
(vi) Other than the security interest granted to the Trustee
pursuant
to this
Agreement, the Depositor has not pledged, assigned, sold, granted
a
security
interest in, or otherwise conveyed any of the Mortgage
Loans. The
Depositor
has not authorized the filing of and is not aware of any
financing
statements
against the Depositor
that include a
description of
collateral
covering the Mortgage
Loans other than any financing statement
relating to the
security interest
granted to the Trustee hereunder or that
has been terminated. Debtor is not aware of any judgment or tax lien
filings against
it.
(vii) The Custodian has in its possession all original copies of the
Mortgage Notes
that constitute or evidence the Mortgage Loans. The Mortgage
Notes that
constitute or evidence
the Mortgage Loans do not have any marks
or notations
indicating that they have been pledged, assigned or otherwise
conveyed to any
Person other than the
Trustee. All
financing statements
filed or to be
filed against
the Depositor in favor of the Trustee in
connection
herewith describing the Mortgage Loans contain a
statement to
the following
effect: "A purchase of or security interest in any collateral
described
in this financing statement will violate the rights of the
secured party as
more fully described
in, and subject to the terms of, the
related
transaction documents."
(d) The
Depositor hereby
covenants to maintain the perfection and priority
of the security interest of the Trustee
created by this Agreement.
Section 2.05 Intent of
Parties and Protection of Title.
(a) It is the
express intent of the parties hereto that the transfer of the
Mortgage Loans by the Depositor to the
Trustee pursuant to
Section 2.01(a)
be,
and be construed as, an absolute sale of
the Mortgage Loans. It is, further, not
the intention of the parties that such transfer be deemed the grant of a
security interest in the Mortgage Loans by the Depositor to the Trustee to
secure a debt or other obligation of the
Depositor. However, in
the event that,
notwithstanding the intent of the parties,
the Mortgage Loans are held to be the
property of the Depositor, or if for any other reason this
Agreement is held or
deemed to create a security interest in the Mortgage Loans, then: (1) this
Agreement shall constitute a security agreement, and (2) the transfer of the
Mortgage Loans provided for in Section
2.01(a) shall be
deemed to be a grant by
the Depositor to the Trustee of, and the
Depositor hereby grants to the Trustee,
to secure all of the Depositor's
obligations
hereunder, a security
interest in
all of the Depositor's right, title, and interest, whether now owned or
hereafter acquired, in and to (i) the
Mortgage Loans, (ii) all accounts, chattel
paper, deposit accounts, documents, general intangibles, goods, instruments,
investment property, letter-of-credit
rights, letters of credit, money, and oil,
gas, and other minerals, consisting of,
arising from, or relating to, any of the
foregoing; and (iii) all proceeds of the
foregoing.
(b) The
Depositor shall file such financing statements, and the Depositor,
the Servicers, and the Trustee at the direction
of the Depositor
shall, to the
extent consistent with this Agreement, take such other actions as may be
necessary to ensure that, if this Agreement were found to create a
security
interest in the Mortgage Loans, such security interest would be a perfected
security interest of first priority under
applicable law and will be maintained
as such throughout the term of the Agreement. In connection herewith, the
Trustee shall have all of the rights and
remedies of a secured
party under the
Uniform Commercial Code as in force in the
relevant jurisdiction.
(c) It is the
express intent of the parties hereto that the transfer of the
Uncertificated Lower-Tier Regular Interests by the Depositor to the Trustee
pursuant to this Agreement be, and be construed as, an absolute sale of the
Uncertificated Lower-Tier Regular Interests.
It is, further, not
the intention
of the parties that such transfer be deemed
the grant of a security interest in
the Uncertificated Lower-Tier Regular Interests by
the Depositor to the Trustee
to secure a debt or other obligation of the Depositor. However, in the event
that, notwithstanding the intent of the
parties, the Uncertificated Lower-Tier
Regular Interests are held to be the
property of the
Depositor, or if for
any
other reason this Agreement is held or deemed to
create a security
interest in
the Uncertificated Lower-Tier Regular
Interests, then: (1)
this Agreement shall
constitute a security agreement, and (2) the transfer of the Uncertificated
Lower-Tier Regular Interests provided for in this Agreement
shall be deemed to
be a grant by the Depositor to the Trustee
of, and the Depositor
hereby grants
to the Trustee, to secure all of the Depositor's obligations hereunder, a
security interest in all of the Depositor's
right, title, and interest, whether
now owned or hereafter acquired, in and to (i) the Uncertificated Lower-Tier
Regular Interests, including all rights represented thereby in and to the
Mortgage Loans and the proceeds
thereof, (ii) all accounts, chattel paper,
deposit accounts, documents, general
intangibles, goods, instruments, investment
property, letter-of-credit rights, letters of credit, money,
and oil, gas, and
other minerals, consisting of, arising from, or relating to, any of the
foregoing; and (iii) all proceeds of the
foregoing.
(d) The
Depositor shall file such financing statements, and the Depositor,
the Servicers, and the Trustee at the direction
of the Depositor
shall, to the
extent consistent with this Agreement, take such other actions as may be
necessary to ensure that, if this Agreement were found to create a
security
interest in the Uncertificated Lower-Tier Regular Interests, such security
interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. In connection herewith, the
Trustee shall have all of the rights and
remedies of a secured party under the
Uniform Commercial Code as in force in the
relevant jurisdiction.
Section
2.06 Designation
of Interests in the REMIC. The Depositor hereby
designates the Classes of Class A Certificates (other than the Class 1-A-R
Certificates) and the Classes of Class B Certificates as classes of "regular
interests" and Component II of the Class
1-A-R Certificates 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
each Uncertificated Lower-Tier Regular Interest as classes of "regular
interests" and Component I of the Class
1-A-R Certificates
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
2.07
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
2.08 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 August 1, 2035 (the
"REMIC Certificate Maturity Date").
Section
2.09 Execution
and Delivery of Certificates. The Trustee (i)
acknowledges the issuance of and hereby
declares that it holds the
Uncertificated Lower-Tier Regular 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 Regular 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 Regular Interests, evidence
ownership of the entire Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01
Servicers to Service
Mortgage Loans. For and on behalf of the
Certificateholders, National City (or any successor Servicer thereto) shall
service and administer the Mortgage Loans
in Loan Group 1, Loan Group 3 and Loan
Group 4, and Wells Fargo (or any successor
Servicer thereto) shall service and
administer the Mortgage Loans in Loan Group 2, in each
case in accordance
with
the terms of this Agreement, the Customary Servicing
Procedures
applicable to
such Servicer, applicable law and the terms of the related
Mortgage Notes and
Mortgages. In connection with such servicing
and administration,
each 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, the Certificate Administrator 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. Each
Servicer shall
represent and protect the interests of the Trust in the same manner as it
protects its own interests in mortgage
loans in its own
portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan and
shall not make or permit
any modification, waiver or amendment of any term of
any Mortgage Loan, except
as provided pursuant to Section 3.21.
Without limiting the generality of the
foregoing, each Servicer, in its own name or in the name of
any Subservicer or
the Depositor, the Certificate Administrator and the Trustee, is hereby
authorized and empowered by the Depositor,
the Certificate Administrator 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 Certificate Administrator, 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. Each
Servicer shall prepare and deliver to the
Depositor and/or the
Trustee and/or
the Certificate Administrator such
documents requiring execution and delivery by
any or all of them as are necessary or appropriate to enable such Servicer to
service and administer the Mortgage Loans it services to the extent
that such
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 and/or the Certificate Administrator, upon the direction of such
Servicer, shall promptly execute such documents and deliver them to such
Servicer.
In accordance with the standards of the preceding paragraph,
each
Servicer shall advance or cause to be
advanced funds as necessary for the
purpose of effecting the payment of taxes
and assessments on the Mortgaged
Properties relating to the Mortgage Loans
it services, which Servicing Advances
shall be reimbursable in the first instance
from related collections from the
Mortgagors pursuant to Section 3.09, and
further as provided in Section 3.11.
The costs, if any, incurred by a Servicer
in effecting the timely payments of
taxes and assessments on the Mortgaged
Properties and related insurance premiums
shall not, for the purpose of calculating
monthly distributions to the
Certificateholders, be added to the Stated
Principal Balances of the related
Mortgage Loans, notwithstanding that the
terms of such Mortgage Loans so permit.
However, advances for taxes may be
capitalized in accordance with a loan
modification pursuant to Section 3.21.
The relationship of each Servicer (and of any successor to such
Servicer as servicer under this Agreement)
to the Trustee, the
Certificateholders and the Certificate
Administrator under this Agreement is
intended by the parties to be that of an
independent contractor and not that of
a joint venturer, partner or agent.
Section 3.02......Subservicing; Enforcement
of the Obligations of Servicers.
(a) Each
Servicer may arrange for the subservicing of any Mortgage Loan
it
services by a Subservicer pursuant to a Subservicing Agreement; provided,
however, that such subservicing arrangement and the terms of the related
Subservicing Agreement must provide for the
servicing of such Mortgage Loan in a
manner consistent with the servicing arrangements contemplated hereunder.
Notwithstanding the provisions of any Subservicing Agreement, any of the
provisions of this Agreement relating to agreements or
arrangements
between a
Servicer and a Subservicer or reference to actions taken
through a Subservicer
or otherwise, the related Servicer shall remain obligated and liable to the
Depositor, the Trustee, the Certificate
Administrator and the Certificateholders
for the servicing and administration of the Mortgage Loans it services in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and
conditions as if such
Servicer alone
were servicing and administering those Mortgage Loans. All actions of each
Subservicer performed pursuant to the related
Subservicing
Agreement shall be
performed as agent of the related
Servicer with the same
force and effect as if
performed directly by such Servicer.
(b) For purposes
of this Agreement,
each Servicer shall be
deemed to have
received any collections, recoveries or payments with respect to the
Mortgage
Loans it services that are received by a
Subservicer regardless
of whether such
payments are remitted by the Subservicer to
such Servicer.
(c) As part of
its servicing activities hereunder, each Servicer, for the
benefit of the Certificate
Administrator, the Trustee and the
Certificateholders, shall use its best reasonable efforts to enforce the
obligations of each Subservicer engaged by such Servicer under the related
Subservicing Agreement, to the extent that the non-performance of any such
obligation would have a material and adverse
effect on a Mortgage
Loan. Such
enforcement, including, without limitation, the legal prosecution of
claims,
termination of Subservicing Agreements and the pursuit of other
appropriate
remedies, shall be in such form and
carried out to such an extent and at
such
time as such Servicer, in its good faith business
judgment, would
require were
it the owner of the related Mortgage Loans.
Such Servicer shall pay the costs of
such enforcement at its own expense,
and shall be
reimbursed therefor
only (i)
from a general recovery resulting from such enforcement to
the extent, if
any,
that such recovery exceeds all amounts due in respect
of the related
Mortgage
Loan or (ii) from a specific recovery of costs, expenses or attorneys fees
against the party against whom such enforcement is directed.
(d) Any
Subservicing
Agreement entered into by a Servicer
shall provide
that it may be assumed or terminated by the Trustee upon 120 days' written
notice, if the Trustee has assumed the
duties of a Servicer,
or any successor
Servicer, at the Trustee's or successor Servicer's option, as applicable,
without cost or obligation to the assuming or
terminating
party or the
Trust,
upon the assumption by such party of the
obligations of the Servicer pursuant to
Section 8.05. Each Servicer shall be solely responsible for any fees and
expenses payable to any Subservicer in connection with the assumption or
termination of any Subservicing
Agreement.
Any
Subservicing Agreement, and any other transactions or services
relating to the Mortgage Loans involving a
Subservicer, shall be deemed to be
between the related Servicer and such
Subservicer alone, and the Trustee, the
Certificate Administrator and the
Certificateholders shall not be deemed parties
thereto and shall have no obligations,
duties or liabilities to or with respect
to the Subservicer or its officers,
directors or employees, except as set forth
in Section 3.01.
Section
3.03 Fidelity
Bond; Errors and Omissions Insurance.
Each Servicer shall maintain, at its own expense, a blanket
fidelity
bond and an errors and omissions insurance
policy, with broad coverage on all
officers, employees or other persons acting
in any capacity requiring such
persons to handle funds, money, documents
or papers relating to the Mortgage
Loans it services. These policies must
insure the related Servicer against
losses resulting from dishonest or
fraudulent acts committed by such Servicer's
personnel, any employees of outside firms
that provide data processing services
for such Servicer, and temporary contract
employees or student interns. Such
fidelity bond shall also protect and insure
such Servicer against losses in
connection with the release or satisfaction
of a Mortgage Loan without having
obtained payment in full of the
indebtedness secured thereby. No provision of
this Section 3.03 requiring such fidelity
bond and errors and omissions
insurance shall diminish or relieve a
Servicer from its duties and obligations
as set forth in this Agreement. The minimum
coverage under any such bond and
insurance policy shall be at least equal to
the corresponding amounts required
by FNMA in the FNMA Servicing Guide or by
FHLMC in the FHLMC Sellers' &
Servicers' Guide, as amended or restated
from time to time, or in an amount as
may be permitted to the Servicer by express
waiver of FNMA or FHLMC.
Section
3.04 Access to
Certain Documentation.
Each Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities
supervising Holders of Subordinate
Certificates and the examiners and
supervisory agents of the OTS, the FDIC and
such other authorities, access to the
documentation required by applicable
regulations of the OTS and the FDIC with
respect to the Mortgage Loans. Such
access shall be afforded without charge,
but only upon reasonable and prior
written request and during normal business
hours at the offices designated by
each Servicer. Nothing in this Section 3.04
shall limit the obligation of a
Servicer to observe any applicable law and
the failure of such Servicer to
provide access as provided in this Section
3.04 as a result of such obligation
shall not constitute a breach of this
Section 3.04.
Section
3.05
Maintenance of Primary Insurance Policy; Claims.
With respect to each Mortgage Loan which was covered by a
Primary
Insurance Policy on the Cut-off Date, or
the date that such Mortgage Loan is
transferred to the Trustee, the Servicer
servicing such Mortgage Loan shall,
without any cost to the Trust Estate,
maintain or cause the Mortgagor to
maintain in full force and effect a Primary
Insurance Policy insuring that
portion of the Mortgage Loan in excess of a
percentage in conformity with FNMA
requirements. Each Servicer shall pay or
shall cause the Mortgagor to pay the
premium thereon on a timely basis, at least
until the Loan-to-Value Ratio of
such Mortgage Loan is reduced to 80% or
such other Loan-to-Value Ratio as may be
required by law. If such Primary Insurance
Policy is terminated, the related
Servicer shall obtain from another insurer
a comparable replacement policy, with
a total coverage equal to the remaining
coverage of such terminated Primary
Insurance Policy. If the insurer shall
cease to be an insurer acceptable to
FNMA, such Servicer shall notify the
Certificate Administrator and the Trustee
in writing, it being understood that such
Servicer shall not have any
responsibility or liability for any failure
to recover under the Primary
Insurance Policy for such reason. If the
related Servicer determines that
recoveries under the Primary Insurance
Policy are jeopardized by the financial
condition of the insurer, such Servicer
shall obtain from another insurer which
meets the requirements of this Section 3.05
a replacement insurance policy. No
Servicer shall take any action that would
result in noncoverage under any
applicable Primary Insurance Policy of any
loss that, but for the actions of the
related Servicer, would have been covered
thereunder. In connection with any
assumption or substitution agreement
entered into or to be entered into pursuant
to Section 3.13, the related Servicer shall
promptly notify the insurer under
the related Primary Insurance Policy, if
any, of such assumption or substitution
of liability in accordance with the terms
of such Primary Insurance Policy and
shall take all actions which may be
required by such insurer as a condition to
the continuation of coverage under such
Primary Insurance Policy. If such
Primary Insurance Policy is terminated as a
result of such assumption or
substitution of liability, such Servicer
shall obtain a replacement Primary
Insurance Policy as provided above.
In connection with its activities as servicer, each Servicer
agrees
to prepare and present, on behalf of
itself, the Trustee, and the
Certificateholders, claims to the insurer
under any Primary Insurance Policy in
a timely fashion in accordance with the
terms of such Primary Insurance Policy
and, in this regard, to take such action as
shall be necessary to permit
recovery under any Primary Insurance Policy
respecting a Defaulted Mortgage
Loan. Pursuant to Section 3.08(b)(iii), any
amounts collected by a Servicer
under any Primary Insurance Policy shall be
deposited in the related Servicer
Custodial Account, subject to withdrawal
pursuant to Section 3.11.
Each Servicer will comply with all provisions of applicable
state
and federal law relating to the
cancellation of, or collection of premiums with
respect to, Primary Insurance Policies,
including, but not limited to, the
provisions of the Homeowners Protection Act
of 1998, and all regulations
promulgated thereunder, as amended from
time to time.
Section 3.06
Rights of the Depositor, the Certificate Administrator and the
Trustee in Respect of the Servicers.
The Depositor may, but is not obligated to, enforce the
obligations
of either Servicer hereunder and may, but
is not obligated to, perform, or cause
a designee to perform, any defaulted
obligation of a Servicer hereunder and in
connection with any such defaulted
obligation to exercise the related rights of
a Servicer hereunder; provided that no
Servicer shall be relieved of any of its
obligations hereunder by virtue of such
performance by the Depositor or its
designee. Neither the Trustee, the
Certificate Administrator nor the Depositor
shall have any responsibility or liability
for any action or failure to act by a
Servicer nor shall the Trustee, the
Certificate Administrator or the Depositor
be obligated to supervise the performance
of a Servicer hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the
Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to
be between the Subservicer and the
related Servicer alone, and the Certificate
Administrator, the Trustee and
Certificateholders shall not be deemed
parties thereto and shall have no
obligations, duties or liabilities with
respect to the Subservicer except as set
forth in Section 3.07. Each Servicer shall
be solely liable for all fees owed by
it to any Subservicer, irrespective of
whether such Servicer's compensation
pursuant to this Agreement is sufficient to
pay such fees.
Section 3.07
Trustee to
Act as Servicer.
If a Servicer shall for any reason no longer be a Servicer
hereunder
(including by reason of an Event of
Default), the Trustee shall thereupon
assume, if it so elects, or shall appoint a
successor Servicer to assume, all of
the rights and obligations of such Servicer
hereunder arising thereafter (except
that the Trustee shall not be (a) liable
for losses of a Servicer pursuant to
Section 3.12 or any acts or omissions of
such predecessor Servicer hereunder,
(b) obligated to make Advances if it is
prohibited from doing so by applicable
law, (c) deemed to have made any
representations and warranties of such Servicer
hereunder), (d) be required or obligated,
in its capacity as successor Servicer,
to purchase, repurchase or substitute any
Mortgage Loan, or (e) fund any losses
on any Permitted Investment directed by any
other Servicer). Any such assumption
shall be subject to Section 8.05. If a
Servicer shall for any reason no longer
be a Servicer (including by reason of any
Event of Default), the Trustee or the
successor Servicer may elect to succeed to
any rights and obligations of such
Servicer under each Subservicing Agreement
or may terminate each Subservicing
Agreement to which such Servicer is a
party. If it has elected to assume the
Subservicing Agreement, the Trustee or the
successor Servicer shall be deemed to
have assumed all of the related Servicer's
interest therein and to have replaced
such Servicer as a party to any
Subservicing Agreement entered into by such
Servicer as contemplated by Section 3.02 to
the same extent as if the
Subservicing Agreement had been assigned to
the assuming party except that such
Servicer shall not be relieved of any
liability or obligations under any such
Subservicing Agreement.
Other than as set forth below with respect to the Trustee acting
as
Servicer, a Servicer that is no longer a
Servicer hereunder shall, upon request
of the Trustee, but at the expense of such
Servicer, deliver to the assuming
party all documents and records relating to
each Subservicing Agreement or
substitute servicing agreement and the
Mortgage Loans then being serviced
thereunder and an accounting of amounts
collected or held by it and otherwise
use its best efforts to effect the orderly
and efficient transfer of such
substitute Subservicing Agreement to the
assuming party. All costs incurred in
connection with the transition of the
servicing to the Trustee or the successor
Servicer shall be paid by the predecessor
Servicer and if not so paid shall be
reimbursed to the Trustee by the Trust. If
the Trustee is acting as Servicer
pursuant to either Section 7.05 or Section
8.05, all costs incurred by the
Trustee, acting as Servicer, in c
