--------------------------------------------------------------------------------
XXXXX FARGO ASSET SECURITIES CORPORATION
(Seller)
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
(Master Servicer)
and
----------
(Trustee)
and
POOLING AND SERVICING AGREEMENT
Dated as of , 200
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$
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Mortgage Asset-Backed Pass-Through Certificates
Series 200 -
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions..................................................................I-1
Section 1.02 Acts of Holders.............................................................I-48
Section 1.03 Effect of Headings and Table of Contents....................................I-49
Section 1.04 Benefits of Agreement.......................................................I-49
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF THE CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans................................................II-1
Section 2.02 Acceptance by Custodian.....................................................II-4
Section 2.03 Representations and Warranties of the Master Servicer and the Seller........II-6
Section 2.04 Execution and Delivery of Certificates.....................................II-12
Section 2.05 Designation of Certificates; Designation of Startup Day and Latest
Possible Maturity Date..................................................II-12
Section 2.06 Optional Substitution of Mortgage Loans....................................II-13
ARTICLE III
ADMINISTRATION OF THE TRUST ESTATE; SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Certificate Account........................................................III-1
Section 3.02 Permitted Withdrawals from the Certificate Account.........................III-2
Section 3.03 Advances by Master Servicer and Trustee....................................III-3
Section 3.04 Custodian to Cooperate; Release of Owner Mortgage Loan Files...............III-5
Section 3.05 Reports to the Trustee; Annual Compliance Statements.......................III-6
Section 3.06 Title, Management and Disposition of Any REO Mortgage Loan.................III-7
Section 3.07 Amendments to Servicing Agreements, Modification of
Standard Provisions.....................................................III-7
Section 3.08 Oversight of Servicing.....................................................III-8
Section 3.09 Termination and Substitution of Servicing Agreements......................III-11
Section 3.10 Application of Net Liquidation Proceeds...................................III-12
Section 3.11 Act Reports...............................................................III-12
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ARTICLE IV
DISTRIBUTIONS IN RESPECT OF CERTIFICATES;
PAYMENTS TO CERTIFICATEHOLDERS;
STATEMENTS AND REPORTS
Section 4.01 Distributions...............................................................IV-1
Section 4.02 Allocation of Realized Losses...............................................IV-7
Section 4.03 Paying Agent................................................................IV-8
Section 4.04 Statements to Certificateholders;
Reports to the Trustee and the Seller....................................IV-9
Section 4.05 Reports to Mortgagors and the Internal Revenue Service.....................IV-12
Section 4.06 Calculation of Amounts; Binding Effect of Interpretations and Actions
of Master Servicer......................................................IV-13
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................................V-1
Section 5.02 Registration of Certificates.................................................V-3
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............................V-6
Section 5.04 Persons Deemed Owners........................................................V-6
Section 5.05 Access to List of Certificateholders' Names and Addresses....................V-7
Section 5.06 Maintenance of Office or Agency..............................................V-7
Section 5.07 Definitive Certificates......................................................V-7
Section 5.08 Notices to Clearing Agency...................................................V-8
ARTICLE VI
THE SELLER AND THE MASTER SERVICER
Section 6.01 Liability of the Seller and the Master Servicer.............................VI-1
Section 6.02 Merger or Consolidation of the Seller or the Master Servicer................VI-1
Section 6.03 Limitation on Liability of the Seller, the Master Servicer and Others.......VI-1
Section 6.04 Resignation of the Master Servicer..........................................VI-2
Section 6.05 Compensation to the Master Servicer.........................................VI-2
Section 6.06 Assignment or Delegation of Duties by Master Servicer.......................VI-2
Section 6.07 Indemnification of Trustee and Seller by Master Servicer....................VI-3
ARTICLE VII
DEFAULT
Section 7.01 Events of Default..........................................................VII-1
Section 7.02 Other Remedies of Trustee..................................................VII-2
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Section 7.03 Directions by Certificateholders and Duties of Trustee During
Event of Default........................................................VII-3
Section 7.04 Action upon Certain Failures of the Master Servicer and upon
Event of Default........................................................VII-3
Section 7.05 Trustee to Act; Appointment of Successor...................................VII-3
Section 7.06 Notification to Certificateholders.........................................VII-5
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.........................................................VIII-1
Section 8.02 Certain Matters Affecting the Trustee.....................................VIII-2
Section 8.03 Trustee Not Required to Make Investigation................................VIII-2
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans.....................VIII-3
Section 8.05 Trustee May Own Certificates..............................................VIII-3
Section 8.06 The Master Servicer to Pay Fees and Expenses..............................VIII-3
Section 8.07 Eligibility Requirements..................................................VIII-3
Section 8.08 Resignation and Removal...................................................VIII-4
Section 8.09 Successor.................................................................VIII-5
Section 8.10 Merger or Consolidation...................................................VIII-5
Section 8.11 Authenticating Agent......................................................VIII-5
Section 8.12 Separate Trustees and Co-Trustees.........................................VIII-6
Section 8.13 Tax Matters; Compliance with REMIC Provisions.............................VIII-8
Section 8.14 Monthly Advances.........................................................VIII-10
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Purchase by the Seller or Liquidation of
All Mortgage Loans.......................................................IX-1
Section 9.02 Additional Termination Requirements.........................................IX-3
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment....................................................................X-1
Section 10.02 Recordation of Agreement.....................................................X-2
Section 10.03 Limitation on Rights of Certificateholders...................................X-2
Section 10.04 Governing Law; Jurisdiction..................................................X-3
Section 10.05 Notices......................................................................X-3
Section 10.06 Severability of Provisions...................................................X-4
Section 10.07 Special Notices to Rating Agencies...........................................X-4
Section 10.08 Covenant of Seller...........................................................X-5
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Section 10.09 Recharacterization...........................................................X-5
ARTICLE XI
TERMS FOR CERTIFICATES
Section 11.01 Class A Fixed Pass-Through Rate.............................................XI-1
Section 11.02 Cut-Off Date................................................................XI-1
Section 11.03 Cut-Off Date Aggregate Principal Balance....................................XI-1
Section 11.04 Original Class A Percentage.................................................XI-1
Section 11.05 Original Principal Balances of the Classes of Class A Certificates..........XI-1
Section 11.06 Original Class A Non-PO Principal Balance...................................XI-2
Section 11.07 Original Subordinated Percentage............................................XI-2
Section 11.08 Original Class B Principal Balance..........................................XI-2
Section 11.09 Original Principal Balances of the Classes of Class B Certificates..........XI-2
Section 11.10 Original Class B-1 Fractional Interest......................................XI-2
Section 11.11 Original Class B-2 Fractional Interest......................................XI-2
Section 11.12 Original Class B-3 Fractional Interest......................................XI-2
Section 11.13 Original Class B-4 Fractional Interest......................................XI-2
Section 11.14 Original Class B-5 Fractional Interest......................................XI-3
Section 11.15 Original Class B-1 Percentage...............................................XI-3
Section 11.16 Original Class B-2 Percentage...............................................XI-3
Section 11.17 Original Class B-3 Percentage...............................................XI-3
Section 11.18 Original Class B-4 Percentage...............................................XI-3
Section 11.19 Original Class B-5 Percentage...............................................XI-3
Section 11.20 Original Class B-6 Percentage...............................................XI-3
Section 11.21 Closing Date................................................................XI-3
Section 11.22 Right to Purchase...........................................................XI-3
Section 11.23 Wire Transfer Eligibility...................................................XI-3
Section 11.24 Single Certificate..........................................................XI-4
Section 11.25 Servicing Fee Rate..........................................................XI-4
Section 11.26 Master Servicing Fee Rate...................................................XI-4
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EXHIBITS
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EXHIBIT A-1 - Form of Face of Class A-1 Certificate
EXHIBIT A-2 - Form of Face of Class A-2 Certificate
EXHIBIT A-3 - Form of Face of Class A-3 Certificate
EXHIBIT A-4 - Form of Face of Class A-4 Certificate
EXHIBIT A-5 - Form of Face of Class A-5 Certificate
EXHIBIT A-6 - Form of Face of Class A-6 Certificate
EXHIBIT A-7 - Form of Face of Class A-7 Certificate
EXHIBIT A-8 - Form of Face of Class A-8 Certificate
EXHIBIT A-9 - Form of Face of Class A-9 Certificate
EXHIBIT A-10 - Form of Face of Class A-10 Certificate
EXHIBIT A-11 - Form of Face of Class A-11 Certificate
EXHIBIT A-12 - Form of Face of Class A-12 Certificate
EXHIBIT A-13 - Form of Face of Class A-13 Certificate
EXHIBIT A-14 - Form of Face of Class A-14 Certificate
EXHIBIT A-15 - Form of Face of Class A-15 Certificate
EXHIBIT A-16 - Form of Face of Class A-16 Certificate
EXHIBIT A-17 - Form of Face of Class A-17 Certificate
EXHIBIT A-PO - Form of Face of Class A-PO Certificate
EXHIBIT A-R - Form of Face of Class A-R Certificate
EXHIBIT A-LR - Form of Face of Class A-LR Certificate
EXHIBIT B-1 - Form of Face of Class B-1 Certificate
EXHIBIT B-2 - Form of Face of Class B-2 Certificate
EXHIBIT B-3 - Form of Face of Class B-3 Certificate
EXHIBIT B-4 - Form of Face of Class B-4 Certificate
EXHIBIT B-5 - Form of Face of Class B-5 Certificate
EXHIBIT B-6 - Form of Face of Class B-6 Certificate
EXHIBIT C - Form of Reverse of Series 200 - Certificates
EXHIBIT D - Reserved
EXHIBIT E - Custodial Agreement
EXHIBIT F-1 - Schedule of Type 1 Mortgage Loans
EXHIBIT F-2 - Schedule of Other Servicer Mortgage Loans
EXHIBIT G - Request for Release
EXHIBIT H - Affidavit Pursuant to Section 860E(e)(4) of the Internal Revenue
Code of 1986, as amended, and for Non-ERISA Investors
EXHIBIT I - Letter from Transferor of Residual Certificates
EXHIBIT J - Transferee's Letter (Class [B-4] [B-5] [B-6] Certificates)
EXHIBIT K - [Reserved]
EXHIBIT L - Servicing Agreements
EXHIBIT M - Form of Special Servicing Agreement
EXHIBIT N Form of Initial Certification of the Custodian
EXHIBIT O Form of Final Certification of the Custodian
SCHEDULE I - Applicable Unscheduled Principal Receipt Period
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This Pooling and Servicing Agreement, dated as of ________, 200_
executed by XXXXX FARGO ASSET SECURITIES CORPORATION, as Seller, XXXXX FARGO
BANK MINNESOTA, NATIONAL ASSOCIATION, as Master Servicer, and _____, 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
Seller, the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article.
Accepted Master Servicing Practices: Accepted Master Servicing
Practices shall consist of the customary and usual master servicing practices of
prudent master servicing institutions which service mortgage loans of the same
type as the Mortgage Loans in the jurisdictions in which the related Mortgaged
Properties are located, regardless of the date upon which the related Mortgage
Loans were originated.
Accretion Termination Date: The earlier to occur of (i) the
Distribution Date following the Distribution Date on which the Principal
Balances of the Class A-12, Class A-13, Class A-14, Class A-15 and Class A-16
Certificates have been reduced to zero or (ii) the Subordination Depletion Date.
Accrual Distribution Amount: As to any Distribution Date prior to the
Accretion Termination Date and the Class A-17 Certificates, an amount equal to
the sum of (i) the Class A Interest Percentage of such Certificates of the
Current Class A Interest Distribution Amount and (ii) the Class A Interest
Shortfall Percentage of such Certificates of the amount distributed in respect
of the Classes of Class A Certificates pursuant to Paragraph second of Section
4.01(a)(i) on such Distribution Date. As to any Distribution Date and the Class
A-17 Certificates on or after the Accretion Termination Date, zero.
Adjusted Pool Amount: With respect to any Distribution Date, the
Cut-Off Date Aggregate Principal Balance of the Mortgage Loans minus the sum of
(i) all amounts in respect of principal received in respect of the Mortgage
Loans (including, without limitation, amounts received as Monthly Payments,
Periodic Advances, Unscheduled Principal Receipts and Substitution Principal
Amounts) and distributed to Holders of the Certificates on such Distribution
Date and all prior Distribution Dates, (ii) the principal portion of all
Liquidated Loan Losses incurred on such Mortgage Loans for which the Liquidation
Proceeds were received from the Cut-Off Date through the end of the Applicable
Unscheduled Principal Receipt Period
I-1
with respect to Full Unscheduled Principal Receipts for such Distribution Date
and (iii) the principal portion of all Bankruptcy Losses (other than Debt
Service Reductions) incurred on the Mortgage Loans from the Cut-Off Date through
the end of the period corresponding to the Applicable Unscheduled Principal
Receipt Period with respect to Full Unscheduled Principal Receipts for such
Distribution Date.
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date, the sum of the amounts, calculated as follows, with respect to all
Outstanding Mortgage Loans: the product of (i) the PO Fraction for each such
Mortgage Loan and (ii) the remainder of (A) the Cut-Off Date Principal Balance
of such Mortgage Loan minus (B) the sum of (x) all amounts in respect of
principal received in respect of such Mortgage Loan (including, without
limitation, amounts received as Monthly Payments, Periodic Advances, Unscheduled
Principal Receipts and Substitution Principal Amounts) and distributed to
Holders of the Certificates on such Distribution Date and all prior Distribution
Dates, (y) the principal portion of any Liquidated Loan Losses incurred on such
Mortgage Loans for which Liquidation Proceeds were received from the Cut-Off
Date through the end of the Applicable Unscheduled Principal Receipt Period with
respect to Full Unscheduled Principal Receipts for such Distribution Date and
(z) the principal portion of all Bankruptcy Losses (other than Debt Service
Reductions) incurred on the Mortgage Loans from the Cut-Off Date through the end
of the period corresponding to the Applicable Unscheduled Principal Receipt
Period with respect to Full Unscheduled Principal Receipts for such Distribution
Date.
Adjusted Principal Balance: As to any Distribution Date and any Class
of Class B Certificates, the greater of (A) zero and (B) (i) the Principal
Balance of such Class with respect to such Distribution Date minus (ii) the
Adjustment Amount for such Distribution Date less the Principal Balances for any
Classes of Class B Certificates with higher numerical designations.
Adjustment Amount: For any Distribution Date, the difference between
(A) the sum of the Class A Principal Balance and the Class B Principal Balance
as of the related Determination Date and (B) the sum of (i) the sum of the Class
A Principal Balance and the Class B Principal Balance as of the Determination
Date succeeding such Distribution Date and (ii) the aggregate amount that would
have been distributed to all Classes as principal in accordance with Section
4.01(a)(i) for such Distribution Date without regard to the provisos in the
definitions of Class B-1 Optimal Principal Amount, Class B-2 Optimal Principal
Amount, Class B-3 Optimal Principal Amount, Class B-4 Optimal Principal Amount,
Class B-5 Optimal Principal Amount and Class B-6 Optimal Principal Amount.
Aggregate Class A Unpaid Interest Shortfall: As to any Distribution
Date, an amount equal to the sum of the Class A Unpaid Interest Shortfalls for
all the Classes of Class A Certificates.
Aggregate Non-PO Principal Balance: With respect to any Distribution
Date, the sum of the Class A Non-PO Principal Balance and the Class B Principal
Balance as of such Distribution Date.
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements hereto.
I-2
Applicable Unscheduled Principal Receipt Period: With respect to the
Mortgage Loans serviced by each Servicer and each of Full Unscheduled Principal
Receipts and Partial Unscheduled Principal Receipts, the Unscheduled Principal
Receipt Period specified on Schedule I hereto, as amended from time to time by
the Master Servicer pursuant to Section 10.01(b) hereof.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 8.11. There shall initially be no Authenticating
Agent for the Certificates.
Available Master Servicer Compensation: With respect to any
Distribution Date, the sum of (a) the Master Servicing Fee for such Distribution
Date, (b) interest earned through the business day preceding the applicable
Distribution Date on any Prepayments in Full remitted to the Master Servicer and
(c) the aggregate amount of Month End Interest remitted by the Servicers to the
Master Servicer pursuant to the related Servicing Agreements.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss
shall not be deemed a Bankruptcy Loss hereunder so long as the applicable
Servicer has notified the Master Servicer and the Trustee in writing that such
Servicer is diligently pursuing any remedies that may exist in connection with
the representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard
insurance policy and any related escrow payments in respect of such Mortgage
Loan are being advanced on a current basis by such Servicer without giving
effect to any Debt Service Reduction.
Beneficial Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency), as the case may be.
Book-Entry Certificate: Any one of the Class A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-6 Certificates, Class A-7 Certificates, Class A-8
Certificates, Class A-9 Certificates, Class A-10 Certificates, Class A-11
Certificates, Class A-12 Certificates, Class A-13 Certificates, Class A-14
Certificates, Class A-15 Certificates, Class A-16 Certificates, Class A-17
Certificates, Class A-PO Certificates, Class B-1 Certificates, Class B-2
Certificates and Class B-3 Certificates, beneficial ownership and transfers of
which shall be evidenced by, and made through, book entries by the Clearing
Agency as described in Section 5.01(b).
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
legal holiday in the City of New York, State of Iowa, State of Maryland, State
of Minnesota or State of North Carolina or (iii) a day on which banking
institutions in the City of New York, or the
X-0
Xxxxx xx Xxxx, Xxxxx xx Xxxxxxxx, Xxxxx of Minnesota or State of North Carolina
are authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Class A Certificates or Class B
Certificates.
Certificate Account: The separate trust account established and
maintained by the Master Servicer in the name of the Master Servicer on behalf
of the Trustee pursuant to Section 3.01. The Certificate Account shall be an
Eligible Account.
Certificate Custodian: Initially, ___________________; thereafter any
other Certificate Custodian acceptable to The Depository Trust Company and
selected by the Trustee.
Certificate Register and Certificate Registrar: Respectively, the
register maintained pursuant to and the registrar provided for in Section 5.02.
The initial Certificate Registrar is the Trustee.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
the taking of any action under Articles VII or VIII, any Certificate registered
in the name of the Master Servicer, a Servicer or any affiliate thereof shall be
deemed not to be outstanding and the Voting Interest evidenced thereby shall not
be taken into account in determining whether the requisite percentage of
Certificates necessary to effect any such action has been obtained.
Class: All certificates whose form is identical except for variations
in the Percentage Interest evidenced thereby.
Class A Certificate: Any one of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-6 Certificates, Class A-7 Certificates, Class A-8
Certificates, Class A-9 Certificates, Class A-10 Certificates, Class A-11
Certificates, Class A-12 Certificates, Class A-13 Certificates, Class A-14
Certificates, Class A-15 Certificates, Class A-16 Certificates, Class A-17
Certificates, Class A-PO Certificates, Class A-R Certificate or Class A-LR
Certificate.
Class A Certificateholder: The registered holder of a Class A
Certificate.
Class A Distribution Amount: As to any Distribution Date and any Class
of Class A Certificates (other than the Class A-11, Class A-17 and Class A-PO
Certificates), the amount distributable to such Class of Class A Certificates
pursuant to Paragraphs first, second and third clause (A) of Section 4.01(a)(i).
As to the Class A-11 Certificates, the amount distributable to such Class
pursuant to Paragraphs first and second of Section 4.01(a)(i). As to the Class
A-17 Certificates, (a) as to any Distribution Date prior to the Accretion
Termination Date, the amount distributable to such Certificates pursuant to the
provisos in Paragraphs first and second of Section 4.01(a)(i) and Paragraph
third clause (A) of Section 4.01(a)(i) and (b) as to any Distribution Date on or
after the Accretion Termination Date, the amount distributable to such
Certificates pursuant to Paragraphs first, second and third clause (A) of
Section 4.01(a)(i). As to any Distribution Date and the Class A-PO Certificates,
the amount distributable to the
I-4
Class A-PO Certificates pursuant to Paragraphs third clause (B) and fourth of
Section 4.01(a)(i) on such Distribution Date.
Class A Fixed Pass-Through Rate: As to any Distribution Date, the rate
per annum set forth in Section 11.01.
Class A Interest Accrual Amount: As to any Distribution Date, the sum
of the Interest Accrual Amounts for the Class A Certificates with respect to
such Distribution Date.
Class A Interest Percentage: As to any Distribution Date and any Class
of Class A Certificates, the percentage calculated by dividing the Interest
Accrual Amount of such Class (determined without regard to clause (ii) of the
definition thereof) by the Class A Interest Accrual Amount (determined without
regard to clause (ii) of the definition of each Interest Accrual Amount).
Class A Interest Shortfall Amount: As to any Distribution Date and any
Class of Class A Certificates, any amount by which the Interest Accrual Amount
of such Class with respect to such Distribution Date exceeds the amount
distributed in respect of such Class on such Distribution Date pursuant to
Paragraph first of Section 4.01(a)(i), including, in the case of the Class A-17
Certificates prior to the Accretion Termination Date, the amount included in the
Accrual Distribution Amount pursuant to clause (i) of the definition thereof.
Class A Interest Shortfall Percentage: As to any Distribution Date and
any Class of Class A Certificates, the percentage calculated by dividing the
Class A Unpaid Interest Shortfall for such Class by the Aggregate Class A Unpaid
Interest Shortfall determined as of the Business Day preceding the applicable
Distribution Date.
Class A Loss Denominator: As to any Determination Date, an amount
equal to the sum of (i) the Principal Balances of the Class A Certificates
(other than the Class A-17 and Class A-PO Certificates) and (ii) with respect to
the Class A-17 Certificates, the lesser of the Principal Balance of such
Certificates and the Original Principal Balance of such Certificates.
Class A Loss Percentage: As to any Determination Date and any Class of
Class A Certificates (other than the Class A-PO Certificates) then outstanding,
the percentage calculated by dividing the Principal Balance of such Class (or,
in the case of the Class A-17 Certificates, the Original Principal Balance of
such Class, if lower) by the Class A Loss Denominator (determined without regard
to any such Principal Balance of any Class of Class A Certificates not then
outstanding), in each case determined as of the preceding Determination Date.
Class A Non-PO Optimal Amount: As to any Distribution Date, the sum
for such Distribution Date of (i) the Class A Interest Accrual Amount, (ii) the
Aggregate Class A Unpaid Interest Shortfall and (iii) the Class A Non-PO Optimal
Principal Amount.
Class A Non-PO Optimal Principal Amount: As to any Distribution Date,
an amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan,
of the product of (x) the Non-PO Fraction with respect to such Mortgage Loan,
and (y) the sum of:
I-5
(i) the Class A Percentage of the principal portion of the
Monthly Payment due on the Due Date occurring in the month of such
Distribution Date on such Mortgage Loan;
(ii) the Class A Prepayment Percentage of all Unscheduled
Principal Receipts (other than Recoveries) that were received by a Servicer
with respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Class A Prepayment Percentage of the Scheduled
Principal Balance of such Mortgage Loan which, during the one month period
ending on the day preceding the Determination Date for such Distribution
Date, was repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class A Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such Mortgage
Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable Servicer,
the Master Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Class A Prepayment Percentage of the Non-PO Recovery for such
Distribution Date.
Class A Non-PO Principal Amount: As to any Distribution Date, the sum
of (i) the Accrual Distribution Amount, if any, with respect to such
Distribution Date and (ii) the Class A Non-PO Distribution Principal Amount with
respect to such Distribution Date.
Class A Non-PO Principal Balance: As of any date, an amount equal to
the Class A Principal Balance less the Principal Balance of the Class A-PO
Certificates.
Class A Non-PO Principal Distribution Amount: As to any Distribution
Date, the aggregate amount distributed in respect of the Class A Certificates
pursuant to Paragraph third clause (A) of Section 4.01(a)(i).
Class A Pass-Through Rate: As to the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-6, Class A-7, Class A-10, Class A-11, Class A-12, Class A-13,
Class A-14, Class A-15, Class A-16, Class A-17, Class A-R and Class A-LR
Certificates, the Class A Fixed Pass-Through Rate. As to the Class A-5
Certificates, ________% per annum. As to the Class A-8 Certificates, ________%
per annum. As to the Class A-9 Certificates, ________% per annum. The Class A-PO
Certificates are not entitled to interest and have no Class A Pass-Through Rate.
Class A Percentage: As to any Distribution Date occurring on or prior
to the Subordination Depletion Date, the lesser of (i) 100% and (ii) the
percentage obtained by dividing the Class A Non-PO Principal Balance (determined
as of the Determination Date preceding such Distribution Date) by the Pool
Balance (Non-PO Portion). As to any Distribution Date occurring subsequent to
the Subordination Depletion Date, 100% or such lesser percentage which will
I-6
cause the Class A Non-PO Principal Balance to decline to zero following the
distribution made on such Distribution Date.
Class A Prepayment Percentage: As to any Distribution Date to and
including the Distribution Date in __________ 200_, 100%. As to any Distribution
Date subsequent to ____________ 200_ to and including the Distribution Date in
__________ 200_, the Class A Percentage as of such Distribution Date plus 70% of
the Subordinated Percentage as of such Distribution Date. As to any Distribution
Date subsequent to __________ 200_ to and including the Distribution Date in
__________ 200_, the Class A Percentage as of such Distribution Date plus 60% of
the Subordinated Percentage as of such Distribution Date. As to any Distribution
Date subsequent to __________ 200_ to and including the Distribution Date in
_________ 200_, the Class A Percentage as of such Distribution Date plus 40% of
the Subordinated Percentage as of such Distribution Date. As to any Distribution
Date subsequent to _________ 200_ to and including the Distribution Date in
_________ 200_, the Class A Percentage as of such Distribution Date plus 20% of
the Subordinated Percentage as of such Distribution Date. As to any Distribution
Date subsequent to ________ 200_, the Class A Percentage as of such Distribution
Date. The foregoing is subject to the following: (i) if the aggregate
distribution to the Class A Certificates on any Distribution Date of the Class A
Prepayment Percentage provided above of Unscheduled Principal Receipts
distributable on such Distribution Date would reduce the Class A Non-PO
Principal Balance below zero, the Class A Prepayment Percentage for such
Distribution Date shall be the percentage necessary to bring the Class A Non-PO
Principal Balance to zero and thereafter the Class A Prepayment Percentage shall
be zero and (ii) if the Class A Percentage as of any Distribution Date is
greater than the Original Class A Percentage, the Class A Prepayment Percentage
for such Distribution Date shall be 100%. Notwithstanding the foregoing, with
respect to any Distribution Date on which the following criteria are not met,
the reduction of the Class A Prepayment Percentage described in the second
through sixth sentences of this definition of Class A Prepayment Percentage
shall not be applicable with respect to such Distribution Date. In such event,
the Class A Prepayment Percentage for such Distribution Date will be determined
in accordance with the applicable provision, as set forth in the first through
fifth sentences above, which was actually used to determine the Class A
Prepayment Percentage for the Distribution Date occurring in the _______________
preceding such Distribution Date (it being understood that for the purposes of
the determination of the Class A Prepayment Percentage for the current
Distribution Date, the current Class A Percentage and Subordinated Percentage
shall be utilized). No reduction in the Class A Prepayment Percentage referred
to in the second through sixth sentences hereof shall be applicable, with
respect to any Distribution Date if (a) the average outstanding principal
balance on such Distribution Date and for the preceding five Distribution Dates
on the Mortgage Loans that were delinquent 60 days or more (including for this
purpose any payments due with respect to Mortgage Loans in foreclosure and REO
Mortgage Loans) were greater than or equal to 50% of the current Class B
Principal Balance or (b) cumulative Realized Losses on the Mortgage Loans exceed
(1) 30% of the Original Class B Principal Balance if such Distribution Date
occurs between and including __________ 20__ and __________ 20__, (2) 35% of the
Original Class B Principal Balance if such Distribution Date occurs between and
including __________ 20__ and __________ 20__, (3) 40% of the Original Class B
Principal Balance if such Distribution Date occurs between and including
__________ 20__ and __________ 20__, (4) 45% of the Original Class B Principal
Balance if such Distribution Date occurs between and including _________ 20__
and _________ 20__, and (5) 50% of the Original Class B Principal Balance, if
such Distribution Date occurs during or after __________ 20__. With respect to
any
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Distribution Date on which the Class A Prepayment Percentage is reduced below
the Class A Prepayment Percentage for the prior Distribution Date, the Master
Servicer shall certify to the Trustee, based upon information provided by each
Servicer as to the Mortgage Loans serviced by it that the criteria set forth in
the preceding sentence are met.
Class A Principal Balance: As of any date, an amount equal to the sum
of the Principal Balances for the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-6 Certificates, Class A-7 Certificates, Class A-8
Certificates, Class A-9 Certificates, Class A-10 Certificates, Class A-12
Certificates, Class A-13 Certificates, Class A-14 Certificates, Class A-15
Certificates, Class A-16 Certificates, Class A-17 Certificates, Class A-PO
Certificates, Class A-R Certificate and Class A-LR Certificate.
Class A Unpaid Interest Shortfall: As to any Distribution Date and any
Class of Class A Certificates, the amount, if any, by which the aggregate of the
Class A Interest Shortfall Amounts for such Class for prior Distribution Dates
is in excess of the amounts distributed in respect of such Class (or in the case
of the Class A-17 Certificates prior to the Accretion Termination Date, the
amount included in the Accrual Distribution Amount pursuant to clause (ii) of
the definition thereof) on prior Distribution Dates pursuant to Paragraph second
of Section 4.01(a)(i).
Class A-1 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-1 and Exhibit C hereto.
Class A-1 Certificateholder: The registered holder of a Class A-1
Certificate.
Class A-2 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-2 and Exhibit C hereto.
Class A-2 Certificateholder: The registered holder of a Class A-2
Certificate.
Class A-3 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-3 and Exhibit C hereto.
Class A-3 Certificateholder: The registered holder of a Class A-3
Certificate.
Class A-4 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-4 and Exhibit C hereto.
Class A-4 Certificateholder: The registered holder of a Class A-4
Certificate.
Class A-5 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-5 and Exhibit C hereto.
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Class A-5 Certificateholder: The registered holder of a Class A-5
Certificate.
Class A-6 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-6 and Exhibit C hereto.
Class A-6 Certificateholder: The registered holder of a Class A-6
Certificate.
Class A-7 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-7 and Exhibit C hereto.
Class A-7 Certificateholder: The registered holder of a Class A-7
Certificate.
Class A-8 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-8 and Exhibit C hereto.
Class A-8 Certificateholder: The registered holder of a Class A-8
Certificate.
Class A-9 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-9 and Exhibit C hereto.
Class A-9 Certificateholder: The registered holder of a Class A-9
Certificate.
Class A-10 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-10 and Exhibit C hereto.
Class A-10 Certificateholder: The registered holder of a Class A-10
Certificate.
Class A-11 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-11 and Exhibit C hereto.
Class A-11 Certificateholder: The registered holder of a Class A-11
Certificate.
Class A-12 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-12 and Exhibit C hereto.
Class A-12 Certificateholder: The registered holder of a Class A-12
Certificate.
Class A-13 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-13 and Exhibit C hereto.
Class A-13 Certificateholder: The registered holder of a Class A-13
Certificate.
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Class A-14 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-14 and Exhibit C hereto.
Class A-14 Certificateholder: The registered holder of a Class A-14
Certificate.
Class A-15 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-15 and Exhibit C hereto.
Class A-15 Certificateholder: The registered holder of a Class A-15
Certificate.
Class A-16 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-16 and Exhibit C hereto.
Class A-16 Certificateholder: The registered holder of a Class A-16
Certificate.
Class A-17 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-17 and Exhibit C hereto.
Class A-17 Certificateholder: The registered holder of a Class A-17
Certificate.
Class A-L1 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Class A-L5 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Class A-L5 Interest Fraction: A fraction the numerator of which is
equal to __________% of the Principal Balance of the Class A-5 Certificates and
the denominator of which is equal to the Notional Amount.
Class A-L8 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Class A-L8 Interest Fraction: A fraction the numerator of which is
equal to the sum of __________% of the Principal Balance of the Class A-8
Certificates and ________________% of the Principal Balance of the Class A-9
Certificates and the denominator of which is equal to the Notional Amount.
Class A-LPO Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
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Class A-LR Certificate: The Certificate executed by the Trustee and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-LR and Exhibit C hereto.
Class A-LR Certificateholder: The registered holder of the Class A-LR
Certificate.
Class A-LUR Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Class A-PO Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-PO and Exhibit C hereto.
Class A-PO Certificateholder: The registered holder of a Class A-PO
Certificate.
Class A-PO Deferred Amount: For any Distribution Date prior to the
Subordination Depletion Date, the difference between (A) the sum of (x) the
amount by which the sum of the Class A-PO Optimal Principal Amounts for all
prior Distribution Dates exceeded the amounts distributed on the Class A-PO
Certificates on such prior Distribution Dates pursuant to Paragraph third clause
(B) of Section 4.01(a)(i) and (y) the sum of the product for each Discount
Mortgage Loan which became a Liquidated Loan at any time on or prior to the last
day of the Applicable Unscheduled Principal Receipt Period for Full Unscheduled
Principal Receipts for the current Distribution Date of (a) the PO Fraction for
such Discount Mortgage Loan and (b) an amount equal to the principal portion of
Realized Losses (other than Bankruptcy Losses due to Debt Service Reductions)
incurred with respect to such Mortgage Loan and (B) the sum of (x) the sum of
the Class A-PO Recoveries for such Distribution Date and prior Distribution
Dates and (y) amounts distributed on the Class A-PO Certificates on prior
Distribution Dates pursuant to Paragraph fourth of Section 4.01(a)(i). On and
after the Subordination Depletion Date, the Class A-PO Deferred Amount will be
zero. No interest will accrue on any Class A-PO Deferred Amount.
Class A-PO Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of (I) the sum as to each Outstanding Mortgage Loan, of
the product of (x) the PO Fraction with respect to such Mortgage Loan and (y)
the sum of:
(i) the principal portion of the Monthly Payment due on the Due Date
occurring in the month of such Distribution Date on such Mortgage Loan;
(ii) all Unscheduled Principal Receipts (other than Recoveries) that
were received by a Servicer with respect to such Mortgage Loan during the
Applicable Unscheduled Principal Receipt Period relating to such
Distribution Date for each applicable type of Unscheduled Principal
Receipt;
(iii) the Scheduled Principal Balance of each Mortgage Loan which,
during the one month period ending on the day preceding the Determination
Date for such Distribution Date, was repurchased by the Seller pursuant to
Section 2.02 or 2.03; and
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(iv) the excess of the unpaid principal balance of such Mortgage Loan
substituted for a Mortgage Loan during the one month period ending on the
day preceding the Determination Date for such Distribution Date over the
unpaid principal balance of such Mortgage Loan, less the amount allocable
to the principal portion of any unreimbursed Periodic Advances previously
made by the applicable Servicer, the Master Servicer or the Trustee in
respect of such Mortgage Loan; and
(II) the Class A-PO Recovery for such Distribution Date.
Class A-PO Recovery: As to any Distribution Date prior to the
Subordination Depletion Date, the lesser of (a) the Class A-PO Deferred Amount
for such Distribution Date (calculated without regard to the Class A-PO Recovery
for such Distribution Date) and (b) an amount equal to the sum as to each
Mortgage Loan as to which there has been a Recovery during the Applicable
Unscheduled Principal Receipt Period, of the product of (x) the PO Fraction with
respect to such Mortgage Loan and (y) the amount of the Recovery with respect to
such Mortgage Loan. As to any Distribution Date on or after the Subordination
Depletion Date, the amount determined in accordance with clause (b) above.
Class A-R Certificate: The Certificate executed by the Trustee and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-R and Exhibit C hereto.
Class A-R Certificateholder: The registered holder of the Class A-R
Certificate.
Class B Certificate: Any one of the Class B-1 Certificates, Class B-2
Certificates, Class B-3 Certificates, Class B-4 Certificates, Class B-5
Certificates or Class B-6 Certificates.
Class B Certificateholder: The registered holder of a Class B
Certificate.
Class B Distribution Amount: Any of the Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 or Class B-6 Distribution Amounts.
Class B Interest Accrual Amount: With respect to any Distribution
Date, the sum of the Interest Accrual Amounts for the Classes of Class B
Certificates with respect to such Distribution Date.
Class B Interest Percentage: With respect to any Distribution Date and
any Class of Class B Certificates, the percentage calculated by dividing the
Interest Accrual Amount of such Class (determined without regard to clause (ii)
of the definition thereof) by the Class B Interest Accrual Amount (determined
without regard to clause (ii) of the definition of each Interest Accrual
Amount).
Class B Interest Shortfall Amount: Any of the Class B-1 Interest
Shortfall Amount, Class B-2 Interest Shortfall Amount, Class B-3 Interest
Shortfall Amount, Class B-4 Interest Shortfall Amount, Class B-5 Interest
Shortfall Amount or Class B-6 Interest Shortfall Amount.
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Class B Loss Percentage: With respect to any Determination Date and
any Class of Class B Certificates then outstanding, the percentage calculated by
dividing the Principal Balance of such Class by the Class B Principal Balance
(determined without regard to any Principal Balance of any Class of Class B
Certificates not then outstanding), in each case determined as of the preceding
Determination Date.
Class B Pass-Through Rate: As to any Distribution Date, __________%
per annum.
Class B Percentage: Any one of the Class B-1 Percentage, Class B-2
Percentage, Class B-3 Percentage, Class B-4 Percentage, Class B-5 Percentage or
Class B-6 Percentage.
Class B Prepayment Percentage: Any of the Class B-1 Prepayment
Percentage, Class B-2 Prepayment Percentage, Class B-3 Prepayment Percentage,
Class B-4 Prepayment Percentage, Class B-5 Prepayment Percentage or Class B-6
Prepayment Percentage.
Class B Principal Balance: As of any date, an amount equal to the sum
of the Class B-1 Principal Balance, Class B-2 Principal Balance, Class B-3
Principal Balance, Class B-4 Principal Balance, Class B-5 Principal Balance and
Class B-6 Principal Balance.
Class B Unpaid Interest Shortfall: Any of the Class B-1 Unpaid
Interest Shortfall, Class B-2 Unpaid Interest Shortfall, Class B-3 Unpaid
Interest Shortfall, Class B-4 Unpaid Interest Shortfall, Class B-5 Unpaid
Interest Shortfall or Class B-6 Unpaid Interest Shortfall.
Class B-1 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-1 and Exhibit C hereto.
Class B-1 Certificateholder: The registered holder of a Class B-1
Certificate.
Class B-1 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-1 Certificates pursuant to
Paragraphs fifth, sixth and seventh of Section 4.01(a)(i).
Class B-1 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-1 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-1 Certificates on such Distribution Date pursuant to Paragraph fifth
of Section 4.01(a)(i).
Class B-1 Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of
the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-1 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-1 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage
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Loan during the Applicable Unscheduled Principal Receipt Period relating to
such Distribution Date for each applicable type of Unscheduled Principal
Receipt;
(iii) the Class B-1 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending on
the day preceding the Determination Date for such Distribution Date, was
repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-1 Percentage of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Class B-1 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-1 Optimal Principal Amount
will equal the lesser of (A) the Class B-1 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-1 Certificates.
Class B-1 Percentage: As to any Distribution Date, the percentage
calculated by multiplying the Subordinated Percentage by either (i) if any Class
B Certificates (other than the Class B-1 Certificates) are eligible to receive
principal distributions for such Distribution Date in accordance with Section
4.01(d), a fraction, the numerator of which is the Class B-1 Principal Balance
(determined as of the Determination Date preceding such Distribution Date) and
the denominator of which is the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive principal distributions for such
Distribution Date in accordance with the provisions of Section 4.01(d) or (ii)
except as set forth in Section 4.01(d)(ii), in the event that the Class B
Certificates (other than the Class B-1 Certificates) are not eligible to receive
distributions of principal in accordance with Section 4.01(d)(i), one.
Class B-1 Prepayment Percentage: As to any Distribution Date, the
percentage calculated by multiplying the Subordinated Prepayment Percentage by
either (i) if any Class B Certificates (other than the Class B-1 Certificates)
are eligible to receive principal distributions for such Distribution Date in
accordance with Section 4.01(d), a fraction, the numerator of which is the Class
B-1 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d) or (ii) except as set forth in Section 4.01(d)(ii), in the event
that the Class B Certificates (other than the Class B-1 Certificates) are not
eligible to receive distributions of principal in accordance with Section
4.01(d)(i), one.
Class B-1 Principal Balance: As to the first Determination Date, the
Original Class B-1 Principal Balance. As of any subsequent Determination Date,
the Original Class B-1
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Principal Balance less the sum of all amounts previously distributed in respect
of the Class B-1 Certificates on prior Distribution Dates (A) pursuant to
Paragraph seventh of Section 4.01(a)(i) and (B) as a result of a Principal
Adjustment; provided, however, if the Class B-1 Certificates are the most
subordinate Certificates outstanding, the Class B-1 Principal Balance will equal
the difference, if any, between the Adjusted Pool Amount as of the preceding
Distribution Date less the Class A Principal Balance as of such Determination
Date.
Class B-1 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-1 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-1 Certificates on prior Distribution Dates pursuant to
Paragraph sixth of Section 4.01(a)(i).
Class B-2 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-2 and Exhibit C hereto.
Class B-2 Certificateholder: The registered holder of a Class B-2
Certificate.
Class B-2 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-2 Certificates pursuant to
Paragraphs eighth, ninth and tenth of Section 4.01(a)(i).
Class B-2 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-2 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-2 Certificates on such Distribution Date pursuant to Paragraph
eighth of Section 4.01(a)(i).
Class B-2 Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of
the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-2 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-2 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled Principal
Receipt Period relating to such Distribution Date for each applicable type
of Unscheduled Principal Receipt;
(iii) the Class B-2 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending on
the day preceding the Determination Date for such Distribution Date, was
repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-2 Percentage of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal
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portion of any unreimbursed Periodic Advances previously made by the
applicable Servicer, the Master Servicer or the Trustee in respect of such
Mortgage Loan; and
(II) the Class B-2 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-2 Optimal Principal Amount
will equal the lesser of (A) the Class B-2 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-2 Certificates.
Class B-2 Percentage: As to any Distribution Date, except as set forth
in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-2 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-2 Certificates are not eligible to receive distributions of
principal in accordance with Section 4.01(d)(i), the Class B-2 Percentage for
such Distribution Date will be zero.
Class B-2 Prepayment Percentage: As to any Distribution Date, except
as set forth in the next sentence, the percentage calculated by multiplying (i)
the Subordinated Prepayment Percentage by (ii) a fraction, the numerator of
which is the Class B-2 Principal Balance (determined as of the Determination
Date preceding such Distribution Date) and the denominator of which is the sum
of the Principal Balances of the Classes of Class B Certificates eligible to
receive principal distributions for such Distribution Date in accordance with
the provisions of Section 4.01(d). Except as set forth in Section 4.01(d)(ii),
in the event that the Class B-2 Certificates are not eligible to receive
distributions of principal in accordance with Section 4.01(d)(i), the Class B-2
Prepayment Percentage for such Distribution Date will be zero.
Class B-2 Principal Balance: As to the first Determination Date, the
Original Class B-2 Principal Balance. As of any subsequent Determination Date,
the Original Class B-2 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-2 Certificates on prior Distribution Dates
(A) pursuant to Paragraph tenth of Section 4.01(a)(i) and (B) as a result of a
Principal Adjustment; provided, however, if the Class B-2 Certificates are the
most subordinate Certificates outstanding, the Class B-2 Principal Balance will
equal the difference, if any, between the Adjusted Pool Amount as of the
preceding Distribution Date less the sum of the Class A Principal Balance and
the Class B-1 Principal Balance as of such Determination Date.
Class B-2 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-2 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-2 Certificates on prior Distribution Dates pursuant to
Paragraph ninth of Section 4.01(a)(i).
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Class B-3 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-3 and Exhibit C hereto.
Class B-3 Certificateholder: The registered holder of a Class B-3
Certificate.
Class B-3 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-3 Certificates pursuant to
Paragraphs eleventh, twelfth and thirteenth of Section 4.01(a)(i).
Class B-3 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-3 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-3 Certificates on such Distribution Date pursuant to Paragraph
eleventh of Section 4.01(a)(i).
Class B-3 Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of
the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-3 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-3 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled Principal
Receipt Period relating to such Distribution Date for each applicable type
of Unscheduled Principal Receipt;
(iii) the Class B-3 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending on
the day preceding the Determination Date for such Distribution Date, was
repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-3 Percentage of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Class B-3 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-3 Optimal Principal Amount
will equal the lesser of (A) the Class B-3 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-3 Certificates.
Class B-3 Percentage: As to any Distribution Date, except as set forth
in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a
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fraction, the numerator of which is the Class B-3 Principal Balance (determined
as of the Determination Date preceding such Distribution Date) and the
denominator of which is the sum of the Principal Balances of the Classes of
Class B Certificates eligible to receive principal distributions for such
Distribution Date in accordance with the provisions of Section 4.01(d). Except
as set forth in Section 4.01(d)(ii), in the event that the Class B-3
Certificates are not eligible to receive distributions of principal in
accordance with Section 4.01(d)(i), the Class B-3 Percentage for such
Distribution Date will be zero.
Class B-3 Prepayment Percentage: As to any Distribution Date, except
as set forth in the next sentence, the percentage calculated by multiplying (i)
the Subordinated Prepayment Percentage by (ii) a fraction, the numerator of
which is the Class B-3 Principal Balance (determined as of the Determination
Date preceding such Distribution Date) and the denominator of which is the sum
of the Principal Balances of the Classes of Class B Certificates eligible to
receive principal distributions for such Distribution Date in accordance with
the provisions of Section 4.01(d). Except as set forth in Section 4.01(d)(ii),
in the event that the Class B-3 Certificates are not eligible to receive
distributions of principal in accordance with Section 4.01(d)(i), the Class B-3
Prepayment Percentage for such Distribution Date will be zero.
Class B-3 Principal Balance: As to the first Determination Date, the
Original Class B-3 Principal Balance. As of any subsequent Determination Date,
the Original Class B-3 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-3 Certificates on prior Distribution Dates
(A) pursuant to Paragraph thirteenth of Section 4.01(a)(i) and (B) as a result
of a Principal Adjustment; provided, however, if the Class B-3 Certificates are
the most subordinate Certificates outstanding, the Class B-3 Principal Balance
will equal the difference, if any, between the Adjusted Pool Amount as of the
preceding Distribution Date less the sum of the Class A Principal Balance, the
Class B-1 Principal Balance and the Class B-2 Principal Balance as of such
Determination Date.
Class B-3 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-3 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-3 Certificates on prior Distribution Dates pursuant to
Paragraph twelfth of Section 4.01(a)(i).
Class B-4 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-4 and Exhibit C hereto.
Class B-4 Certificateholder: The registered holder of a Class B-4
Certificate.
Class B-4 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-4 Certificates pursuant to
Paragraphs fourteenth, fifteenth and sixteenth of Section 4.01(a)(i).
Class B-4 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-4 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-4 Certificates on such Distribution Date pursuant to Paragraph
fourteenth of Section 4.01(a)(i).
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Class B-4 Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of
the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-4 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-4 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled Principal
Receipt Period relating to such Distribution Date for each applicable type
of Unscheduled Principal Receipt;
(iii) the Class B-4 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending on
the day preceding the Determination Date for such Distribution Date, was
repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-4 Percentage of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Class B-4 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-4 Optimal Principal Amount
will equal the lesser of (A) the Class B-4 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-4 Certificates.
Class B-4 Percentage: As to any Distribution Date, except as set forth
in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-4 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-4 Certificates are not eligible to receive distributions of
principal in accordance with Section 4.01(d)(i), the Class B-4 Percentage for
such Distribution Date will be zero.
Class B-4 Prepayment Percentage: As to any Distribution Date, except
as set forth in the next sentence, the percentage calculated by multiplying (i)
the Subordinated Prepayment Percentage by (ii) a fraction, the numerator of
which is the Class B-4 Principal Balance (determined as of the Determination
Date preceding such Distribution Date) and the denominator of which is the sum
of the Principal Balances of the Classes of Class B Certificates eligible to
receive principal distributions for such Distribution Date in accordance with
the provisions of Section 4.01(d). Except as set forth in Section 4.01(d)(ii),
in the event that the Class B-4
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Certificates are not eligible to receive distributions of principal in
accordance with Section 4.01(d)(i), the Class B-4 Prepayment Percentage for such
Distribution Date will be zero.
Class B-4 Principal Balance: As to the first Determination Date, the
Original Class B-4 Principal Balance. As of any subsequent Determination Date,
the Original Class B-4 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-4 Certificates on prior Distribution Dates
(A) pursuant to Paragraph sixteenth of Section 4.01(a)(i) and (B) as a result of
a Principal Adjustment; provided, however, if the Class B-4 Certificates are the
most subordinate Certificates outstanding, the Class B-4 Principal Balance will
equal the difference, if any, between the Adjusted Pool Amount as of the
preceding Distribution Date less the sum of the Class A Principal Balance, the
Class B-1 Principal Balance, the Class B-2 Principal Balance and the Class B-3
Principal Balance as of such Determination Date.
Class B-4 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-4 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-4 Certificates on prior Distribution Dates pursuant to
Paragraph fifteenth of Section 4.01(a)(i).
Class B-5 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-5 and Exhibit C hereto.
Class B-5 Certificateholder: The registered holder of a Class B-5
Certificate.
Class B-5 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-5 Certificates pursuant to
Paragraphs seventeenth, eighteenth and nineteenth of Section 4.01(a)(i).
Class B-5 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-5 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-5 Certificates on such Distribution Date pursuant to Paragraph
seventeenth of Section 4.01(a)(i).
Class B-5 Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of
the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-5 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-5 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled Principal
Receipt Period relating to such Distribution Date for each applicable type
of Unscheduled Principal Receipt;
(iii) the Class B-5 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending on
the day preceding the
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Determination Date for such Distribution Date, was repurchased by the
Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-5 Percentage of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Class B-5 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-5 Optimal Principal Amount
will equal the lesser of (A) the Class B-5 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-5 Certificates.
Class B-5 Percentage: As to any Distribution Date, except as set forth
in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-5 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-5 Certificates are not eligible to receive distributions of
principal in accordance with Section 4.01(d)(i), the Class B-5 Percentage for
such Distribution Date will be zero.
Class B-5 Prepayment Percentage: As to any Distribution Date, except
as set forth in the next sentence, the percentage calculated by multiplying (i)
the Subordinated Prepayment Percentage by (ii) a fraction, the numerator of
which is the Class B-5 Principal Balance (determined as of the Determination
Date preceding such Distribution Date) and the denominator of which is the sum
of the Principal Balances of the Classes of Class B Certificates eligible to
receive principal distributions for such Distribution Date in accordance with
the provisions of Section 4.01(d). Except as set forth in Section 4.01(d)(ii),
in the event that the Class B-5 Certificates are not eligible to receive
distributions of principal in accordance with Section 4.01(d)(i), the Class B-5
Prepayment Percentage for such Distribution Date will be zero.
Class B-5 Principal Balance: As to the first Determination Date, the
Original Class B-5 Principal Balance. As of any subsequent Determination Date,
the Original Class B-5 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-5 Certificates on prior Distribution Dates
(A) pursuant to Paragraph nineteenth of Section 4.01(a)(i) and (B) as a result
of a Principal Adjustment; provided, however, if the Class B-5 Certificates are
the most subordinate Certificates outstanding, the Class B-5 Principal Balance
will equal the difference, if any, between the Adjusted Pool Amount as of the
preceding Distribution Date less the sum of the Class A Principal Balance, the
Class B-1 Principal Balance, the Class B-2 Principal Balance, the Class B-3
Principal Balance and the Class B-4 Principal Balance as of such Determination
Date.
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Class B-5 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-5 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-5 Certificates on prior Distribution Dates pursuant to
Paragraph eighteenth of Section 4.01(a)(i).
Class B-6 Certificate: Any one of the Certificates executed by the
Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-6 and Exhibit C hereto.
Class B-6 Certificateholder: The registered holder of a Class B-6
Certificate.
Class B-6 Distribution Amount: As to any Distribution Date, any amount
distributable to the Holders of the Class B-6 Certificates pursuant to
Paragraphs twentieth, twenty-first and twenty-second of Section 4.01(a)(i).
Class B-6 Interest Shortfall Amount: As to any Distribution Date, any
amount by which the Interest Accrual Amount of the Class B-6 Certificates with
respect to such Distribution Date exceeds the amount distributed in respect of
the Class B-6 Certificates on such Distribution Date pursuant to Paragraph
twentieth of Section 4.01(a)(i).
Class B-6 Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan, of
the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-6 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-6 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled Principal
Receipt Period relating to such Distribution Date for each applicable type
of Unscheduled Principal Receipt;
(iii) the Class B-6 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending on
the day preceding the Determination Date for such Distribution Date, was
repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-6 Percentage of the excess of the unpaid principal balance
of such Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage Loan,
less the amount allocable to the principal portion of any unreimbursed
Periodic Advances previously made by the applicable Servicer, the Master
Servicer or the Trustee in respect of such Mortgage Loan; and
(II) the Class B-6 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-6 Optimal Principal Amount
will equal the lesser of (A) the
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Class B-6 Optimal Principal Amount calculated as described in the preceding
provisions and (B) the Adjusted Principal Balance for the Class B-6
Certificates.
Class B-6 Percentage: As to any Distribution Date, except as set forth
in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-6 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-6 Certificates are not eligible to receive distributions of
principal in accordance with Section 4.01(d)(i), the Class B-6 Percentage for
such Distribution Date will be zero.
Class B-6 Prepayment Percentage: As to any Distribution Date, except
as set forth in the next sentence, the percentage calculated by multiplying (i)
the Subordinated Prepayment Percentage by (ii) a fraction, the numerator of
which is the Class B-6 Principal Balance (determined as of the Determination
Date preceding such Distribution Date) and the denominator of which is the sum
of the Principal Balances of the Classes of Class B Certificates eligible to
receive principal distributions for such Distribution Date in accordance with
the provisions of Section 4.01(d). Except as set forth in Section 4.01(d)(ii),
in the event that the Class B-6 Certificates are not eligible to receive
distributions of principal in accordance with Section 4.01(d)(i), the Class B-6
Prepayment Percentage for such Distribution Date will be zero.
Class B-6 Principal Balance: As to the first Determination Date, the
Original Class B-6 Principal Balance. As of any subsequent Determination Date,
the Original Class B-6 Principal Balance less the sum of all amounts previously
distributed in respect of the Class B-6 Certificates on prior Distribution Dates
pursuant to Paragraph twenty-second of Section 4.01(a)(i); provided, however, if
the Class B-6 Certificates are outstanding, the Class B-6 Principal Balance will
equal the difference, if any, between the Adjusted Pool Amount as of the
preceding Distribution Date less the sum of the Class A Principal Balance, the
Class B-1 Principal Balance, the Class B-2 Principal Balance, the Class B-3
Principal Balance, the Class B-4 Principal Balance and the Class B-5 Principal
Balance as of such Determination Date.
Class B-6 Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Class B-6 Interest Shortfall
Amounts for prior Distribution Dates is in excess of the amounts distributed in
respect of the Class B-6 Certificates on prior Distribution Dates pursuant to
Paragraph twenty-first of Section 4.01(a)(i).
Class B-L1 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Class B-L2 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
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Class B-L3 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Class B-L4 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Class B-L5 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Class B-L6 Interest: A regular interest in the Lower-Tier REMIC which
is held as an asset of the Upper-Tier REMIC and is entitled to monthly
distributions as provided in Section 4.01(a)(ii) hereof.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
initial Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, financial
institution or other Person for whom a Clearing Agency effects book-entry
transfers of securities deposited with the Clearing Agency.
Closing Date: The date of initial issuance of the Certificates, as set
forth in Section 11.21.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time, any successor statutes thereto, and applicable U.S. Department of
the Treasury temporary or final regulations promulgated thereunder.
Compensating Interest: With respect to any Distribution Date, the
least of (a) the aggregate Prepayment Interest Shortfall on the Mortgage Loans
for such Distribution Date, (b) the product of (i) 1/12th of 0.20% and (ii) the
Pool Scheduled Principal Balance for such Distribution Date and (c) the
Available Master Servicing Compensation for such Distribution Date.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office, at the date of the execution of this instrument, is located at [___].
Corresponding Upper-Tier Class or Classes: As to the following
Uncertificated Lower-Tier Interests, the Corresponding Upper-Tier Class or
Classes as follows:
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Uncertificated Lower-Tier Interest Corresponding Upper-Tier Class or Classes
---------------------------------- -------------------------------------------------
Class A-L1 Interest Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates, Class A-4 Certificates,
Class A-6 Certificates, Class A-7 Certificates,
Class A-10 Certificates, Class A-12 Certificates,
Class A-13 Certificates, Class A-14 Certificates,
Class A-15 Certificates, Class A-16 Certificates
and Class A-17 Certificates
Class A-L5 Interest Class A-5 Certificates
Class A-L8 Interest Class A-8 Certificates and Class A-9 Certificates
Class A-LPO Interest Class A-PO Certificates
Class A-LUR Interest Class A-R Certificate
Class B-L1 Interest Class B-1 Certificates
Class B-L2 Interest Class B-2 Certificates
Class B-L3 Interest Class B-3 Certificates
Class B-L4 Interest Class B-4 Certificates
Class B-L5 Interest Class B-5 Certificates
Class B-L6 Interest Class B-6 Certificates
Current Class A Interest Distribution Amount: As to any Distribution
Date, the amount distributed in respect of the Class A Certificates pursuant to
Paragraph first of Section 4.01(a)(i) on such Distribution Date.
Current Class B Interest Distribution Amount: As to any Distribution
Date, the amount distributed in respect of the Classes of Class B Certificates
pursuant to Paragraphs fifth, eighth, eleventh, fourteenth, seventeenth and
twentieth of Section 4.01(a)(i) on such Distribution Date.
Current Class B-1 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the sum of the Principal Balances of the Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates by the sum of the Class A Non-PO Principal
Balance and the Class B Principal Balance. As to the first Distribution Date,
the Original Class B-1 Fractional Interest.
Current Class B-2 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the sum of the Principal Balances of the Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates by the sum of the Class A
I-25
Non-PO Principal Balance and the Class B Principal Balance. As to the first
Distribution Date, the Original Class B-2 Fractional Interest.
Current Class B-3 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the sum of the Principal Balances of the Class B-4, Class B-5 and Class B-6
Certificates by the sum of the Class A Non-PO Principal Balance and the Class B
Principal Balance. As to the first Distribution Date, the Original Class B-3
Fractional Interest.
Current Class B-4 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the sum of the Principal Balances of the Class B-5 and Class B-6 Certificates by
the sum of the Class A Non-PO Principal Balance and the Class B Principal
Balance. As to the first Distribution Date, the Original Class B-4 Fractional
Interest.
Current Class B-5 Fractional Interest: As to any Distribution Date
subsequent to the first Distribution Date, the percentage obtained by dividing
the Principal Balance of the Class B-6 Certificates by the sum of the Class A
Non-PO Principal Balance and the Class B Principal Balance. As to the first
Distribution Date, the Original Class B-5 Fractional Interest.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not
a Prepayment in Full.
Curtailment Interest Shortfall: On any Distribution Date with respect
to a Mortgage Loan which was the subject of a Curtailment:
(A) in the case where the Applicable Unscheduled Principal Receipt
Period is the Mid-Month Receipt Period and such Curtailment is
received by the Servicer on or after the Determination Date in
the month preceding the month of such Distribution Date but prior
to the first day of the month of such Distribution Date, the
amount of interest that would have accrued at the Net Mortgage
Interest Rate on the amount of such Curtailment from the day of
its receipt or, if earlier, its application by the Servicer
through the last day of the month preceding the month of such
Distribution Date; and
(B) in the case where the Applicable Unscheduled Principal Receipt
Period is the Prior Month Receipt Period and such Curtailment is
received by the Servicer during the month preceding the month of
such Distribution Date, the amount of interest that would have
accrued at the Net Mortgage Interest Rate on the amount of such
Curtailment from the day of its receipt or, if earlier, its
application by the Servicer through the last day of the month in
which such Curtailment is received.
Custodial Agreement: The Custodial Agreement, dated as of __________,
200_, among the Custodian, the Seller, the Master Servicer and the Trustee,
which agreement is attached hereto as Exhibit E, as the same may be amended or
modified from time to time in accordance with the terms thereof.
X-00
Xxxxxxxxx X&X Account: The Custodial P&I Account, as defined in each
of the Servicing Agreements, with respect to the Mortgage Loans. In determining
whether the Custodial P&I Account under any Servicing Agreement is "acceptable"
to the Master Servicer (as may be required by the definition of "Eligible
Account" contained in the Servicing Agreements), the Master Servicer shall
require that any such account shall be acceptable to each of the Rating
Agencies.
Custodian: ___________________, or its successor in interest under the
ustodial Agreement.
Cut-Off Date: The first day of the month of initial issuance of the
Certificates as set forth in Section 11.02.
Cut-Off Date Aggregate Principal Balance: The aggregate of the Cut-Off
Date Principal Balances of the Mortgage Loans as set forth in Section 11.03.
Cut-Off Date Principal Balance: As to each Mortgage Loan, its unpaid
principal balance as of the close of business on the Cut-Off Date (but without
giving effect to any Unscheduled Principal Receipts received or applied on the
Cut-Off Date), reduced by all payments of principal due on or before the Cut-Off
Date and not paid, and increased by scheduled monthly payments of principal due
after the Cut-Off Date but received by the related Servicer on or before the
Cut-Off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any scheduled Monthly
Payment that results in a permanent forgiveness of principal, which valuation or
reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificates: As defined in Section 5.01(b).
Denomination: The amount, if any, specified on the face of each
Certificate (other than the Class A-11 Certificates) representing the principal
portion of the Cut-Off Date Aggregate Principal Balance evidenced by such
Certificate. As to the Class A-11 Certificates, the amount specified on the face
of each such Certificate representing the portion of the Original Notional
Amount.
Determination Date: The 17th day of the month in which the related
Distribution Date occurs, or if such 17th day is not a Business Day, the
Business Day preceding such 17th day.
Discount Mortgage Loan: A Mortgage Loan with a Net Mortgage Interest
Rate of less than ______%.
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Distribution Date: The 25th day of any month, beginning in the month
following the month of initial issuance of the Certificates, or if such 25th day
is not a Business Day, the Business Day following such 25th day.
Document Transfer Event: The [__]th day following the day on which
either (i) WFHM is no longer the Servicer of any of the Mortgage Loans or (ii)
the senior, unsecured long-term debt rating of Xxxxx Fargo & Company is less
than "BBB-" by Fitch Ratings.
Due Date: With respect to any Mortgage Loan, the day of the month in
which the Monthly Payment on such Mortgage Loan is scheduled to be paid.
Eligible Account: One or more accounts (i) that are maintained with a
depository institution (which may be the Master Servicer) whose long-term debt
obligations (or, in the case of a depository institution which is part of a
holding company structure, the long-term debt obligations of such parent holding
company) at the time of deposit therein are rated at least "AA" (or the
equivalent) by each of the Rating Agencies, (ii) the deposits in which are fully
insured by the FDIC through either the Bank Insurance Fund or the Savings
Association Insurance Fund, (iii) the deposits in which are insured by the FDIC
through either the Bank Insurance Fund or the Savings Association Insurance Fund
(to the limit established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured, as evidenced by an Opinion of Counsel delivered
to the Trustee, such that the Trustee, on behalf of the Certificateholders has a
claim with respect to the funds in such accounts or a perfected first security
interest against any collateral securing such funds that is superior to claims
of any other depositors or creditors of the depository institution with which
such accounts are maintained, (iv) that are trust accounts maintained with the
trust department of a federal or state chartered depository institution or trust
company acting in its fiduciary capacity or (v) such other account that is
acceptable to each of the Rating Agencies and would not cause the Trust Estate
to fail to qualify as two separate REMICs or result in the imposition of any
federal tax on either of the Upper-Tier REMIC or the Lower-Tier REMIC.
Eligible Investments: At any time, any one or more of the following
obligations and securities which shall mature not later than the Business Day
preceding the Distribution Date next succeeding the date of such investment,
provided that such investments continue to qualify as "cash flow investments" as
defined in Code Section 860G(a)(6):
(i) obligations of the United States of America or any agency thereof,
provided such obligations are backed by the full faith and credit of the
United States of America;
(ii) general obligations of or obligations guaranteed by any state of
the United States of America or the District of Columbia receiving the
highest short-term or highest long-term rating of each Rating Agency, or
such lower rating as would not result in the downgrading or withdrawal of
the rating then assigned to any of the Certificates by either Rating Agency
or result in any of such rated Certificates being placed on credit review
status (other than for possible upgrading) by either Rating Agency;
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(iii) commercial or finance company paper which is then rated in the
highest long-term commercial or finance company paper rating category of
each Rating Agency or the highest short-term rating category of each Rating
Agency, or such lower rating category as would not result in the
downgrading or withdrawal of the rating then assigned to any of the
Certificates by either Rating Agency or result in any of such rated
Certificates being placed on credit review status (other than for possible
upgrading) by either Rating Agency;
(iv) certificates of deposit, demand or time deposits, federal funds
or banker's acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any state
thereof and subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or debt
obligations of such depository institution or trust company (or in the case
of the principal depository institution in a holding company system, the
commercial paper or debt obligations of such holding company) are then
rated in the highest short-term or the highest long-term rating category
for such securities of each of the Rating Agencies, or such lower rating
categories as would not result in the downgrading or withdrawal of the
rating then assigned to any of the Certificates by either Rating Agency or
result in any of such rated Certificates being placed on credit review
status (other than for possible upgrading) by either Rating Agency;
(v) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation acceptable to each Rating Agency at the time
of the issuance of such agreements;
(vi) repurchase agreements on obligations with respect to any security
described in clauses (i) or (ii) above or any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
in either case entered into with a depository institution or trust company
(acting as principal) described in (iv) above;
(vii) securities (other than stripped bonds or stripped coupon
securities) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any state thereof which, at the time of such investment or contractual
commitment providing for such investment, are then rated in the highest
short-term or the highest long-term rating category by each Rating Agency,
or in such lower rating category as would not result in the downgrading or
withdrawal of the rating then assigned to any of the Certificates by either
Rating Agency or result in any of such rated Certificates being placed on
credit review status (other than for possible upgrading) by either Rating
Agency;
(viii) such other investments acceptable to each Rating Agency as
would not result in the downgrading of the rating then assigned to the
Certificates by either Rating Agency or result in any of such rated
Certificates being placed on credit review status (other than for possible
upgrading) by either Rating Agency; and
(ix) any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to instruments
that otherwise would
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constitute Eligible Investments hereunder, including any such fund that is
managed by the Trustee or any affiliate of the Trustee or for which the
Trustee or any of its affiliates acts as an adviser as long as such fund is
rated in at least the highest rating category by each Rating Agency.
In no event shall an instrument be an Eligible Investment if such
instrument evidences either (i) a right to receive only interest payments with
respect to the obligations underlying such instrument, or (ii) both principal
and interest payments derived from obligations underlying such instrument and
the interest and principal payments with respect to such instrument provide a
yield to maturity at the date of investment of greater than 120% of the yield to
maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Prohibited Holder: As defined in Section 5.02(d).
Errors and Omissions Policy: As defined in each of the Servicing
Agreements.
Event of Default: Any of the events specified in Section 7.01.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
Fidelity Bond: As defined in each of the Servicing Agreements.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates is made pursuant to Section 9.01.
Final Scheduled Maturity Date: The Final Scheduled Maturity Date for
each Class of Certificates is ___________, 20__, which corresponds to the
"latest possible maturity date" for purposes of Section 860G(a)(1) of the
Internal Revenue Code of 1986, as amended.
Fixed Retained Yield: The fixed percentage of interest on each
Mortgage Loan with a Mortgage Interest Rate greater than the sum of (a) ______%,
(b) the applicable Servicing Fee Rate and (c) the Master Servicing Fee Rate,
which will be determined on a loan by loan basis and will equal the Mortgage
Interest Rate on each Mortgage Loan minus the sum of (a), (b) and (c), which is
not assigned to and not part of the Trust Estate.
Fixed Retained Yield Rate: With respect to each Mortgage Loan, a per
annum rate equal to the greater of (a) zero and (b) the Mortgage Interest Rate
on such Mortgage Loan minus the sum of (i) ______%, (ii) the applicable
Servicing Fee Rate and (iii) the Master Servicing Fee Rate.
Full Unscheduled Principal Receipt: Any Unscheduled Principal Receipt
with respect to a Mortgage Loan (i) in the amount of the outstanding principal
balance of such Mortgage Loan and resulting in the full satisfaction of such
Mortgage Loan or (ii) representing Liquidation Proceeds other than Partial
Liquidation Proceeds.
Holder: See "Certificateholder."
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Independent: When used with respect to any specified Person, such
Person who (i) is in fact independent of the Seller, the Master Servicer and any
Servicer, (ii) does not have any direct financial interest or any material
indirect financial interest in the Seller or the Master Servicer or any Servicer
or in an affiliate of either, and (iii) is not connected with the Seller, the
Master Servicer or any Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Insurance Policy: Any insurance or performance bond relating to a
Mortgage Loan or the Mortgage Loans, including any hazard insurance, special
hazard insurance, flood insurance, primary mortgage insurance, mortgagor
bankruptcy bond or title insurance.
Insurance Proceeds: Proceeds paid by any insurer pursuant to any
Insurance Policy covering a Mortgage Loan.
Insured Expenses: Expenses covered by any Insurance Policy covering a
Mortgage Loan.
Interest Accrual Amount: As to any Distribution Date and any Class of
Class A Certificates, (i) the product of (a) 1/12th of the Class A Pass-Through
Rate for such Class and (b) the Principal Balance of such Class or, in the case
of the Class A-11 Certificates, the Notional Amount, as of the Determination
Date immediately preceding such Distribution Date minus (ii) the Class A
Interest Percentage of such Class of (a) any Non-Supported Interest Shortfall
allocated to the Class A Certificates with respect to such Distribution Date,
(b) any Relief Act Shortfall allocated to the Class A Certificates and (c) the
interest portion of any Realized Losses allocated to the Class A Certificates on
or after the Subordination Depletion Date pursuant to Section 4.02(c). The Class
A-PO Certificates have no Interest Accrual Amount.
As to any Distribution Date and any Class of Class B Certificates, an
amount equal to (i) the product of 1/12th of the Class B Pass-Through Rate and
the Principal Balance of such Class as of the Determination Date preceding such
Distribution Date minus (ii) the Class B Interest Percentage of such Class of
the sum of any Non-Supported Interest Shortfall and any Relief Act Shortfall
allocated to the Class B Certificates with respect to such Distribution Date.
Liquidated Loan: A Mortgage Loan with respect to which the related
Mortgaged Property has been acquired, liquidated or foreclosed and with respect
to which the applicable Servicer determines that all Liquidation Proceeds which
it expects to recover have been recovered.
Liquidated Loan Loss: With respect to any Distribution Date, the
aggregate of the amount of losses with respect to each Mortgage Loan which
became a Liquidated Loan during the Applicable Unscheduled Principal Receipt
Period with respect to Full Unscheduled Principal Receipts for such Distribution
Date, equal to the excess of (i) the unpaid principal balance of each such
Liquidated Loan, plus accrued interest thereon in accordance with the
amortization schedule at the time applicable thereto at the applicable Net
Mortgage Interest Rate from the Due Date as to which interest was last paid with
respect thereto through the last day of the month preceding the month in which
such Distribution Date occurs, over (ii) Net Liquidation Proceeds with respect
to such Liquidated Loan.
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Liquidation Expenses: Expenses incurred by a Servicer in connection
with the liquidation of any defaulted Mortgage Loan or property acquired in
respect thereof (including, without limitation, legal fees and expenses,
committee or referee fees, and, if applicable, brokerage commissions and
conveyance taxes), any unreimbursed advances expended by such Servicer pursuant
to its Servicing Agreement or the Master Servicer or Trustee pursuant hereto
respecting the related Mortgage Loan, including any unreimbursed advances for
real property taxes or for property restoration or preservation of the related
Mortgaged Property. Liquidation Expenses shall not include any previously
incurred expenses in respect of an REO Mortgage Loan which have been netted
against related REO Proceeds.
Liquidation Proceeds: Amounts received by a Servicer (including
Insurance Proceeds) or PMI Advances made by a Servicer in connection with the
liquidation of defaulted Mortgage Loans or property acquired in respect thereof,
whether through foreclosure, sale or otherwise, including payments in connection
with such Mortgage Loans received from the Mortgagor, other than amounts
required to be paid to the Mortgagor pursuant to the terms of the applicable
Mortgage or to be applied otherwise pursuant to law.
Liquidation Profits: As to any Distribution Date and any Mortgage Loan
that became a Liquidated Loan during the Applicable Unscheduled Principal
Receipt Period with respect to Full Unscheduled Principal Receipts for such
Distribution Date, the excess, if any, of (i) Net Liquidation Proceeds in
respect of such Liquidated Loan over (ii) the unpaid principal balance of such
Liquidated Loan plus accrued interest thereon in accordance with the
amortization schedule at the time applicable thereto at the applicable Net
Mortgage Interest Rate from the Due Date to which interest was last paid with
respect thereto through the last day of the month preceding the month in which
such Distribution Date occurs.
Loan-to-Value Ratio: The ratio, expressed as a percentage, the
numerator of which is the principal balance of a particular Mortgage Loan at
origination and the denominator of which is the lesser of (x) the appraised
value of the related Mortgaged Property determined in the appraisal used by the
originator at the time of origination of such Mortgage Loan, and (y) if the
Mortgage is originated in connection with a sale of the Mortgaged Property, the
sale price for such Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 4.01(a)(ii).
Lower-Tier REMIC: One of two separate REMICs comprising the Trust
Estate, the assets of which consist of the Mortgage Loans (other than Fixed
Retained Yield), such amounts as shall from time to time be held in the
Certificate Account (other than Fixed Retained Yield), the insurance policies,
if any, relating to a Mortgage Loan and property which secured a Mortgage Loan
and which has been acquired by foreclosure or deed in lieu of foreclosure.
Master Servicer: Xxxxx Fargo Bank Minnesota, National Association, or
its successor in interest.
Master Servicing Fee: With respect to any Mortgage Loan and any
Distribution Date, the fee payable monthly to the Master Servicer pursuant to
Section 6.05 equal to a fixed
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percentage (expressed as a per annum rate) of the unpaid principal balance of
such Mortgage Loan.
Master Servicing Fee Rate: As set forth in Section 11.26.
MERS: The Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any MOM Mortgage Loan or any other Mortgage Loan
as to which MERS is (or is intended to be) the mortgagee of record and as to
which a MIN has been assigned.
MIN: A MERS Mortgage Identification Number assigned to a Mortgage Loan
in accordance with the MERS Procedure Manual.
MOM: A Mortgage Loan where the related Mortgage names MERS as the
original mortgagee thereof, as to which a MIN has been assigned, and which
Mortgage has not been assigned to any other person.
Mid-Month Receipt Period: With respect to each Distribution Date, the
one month period beginning on the Determination Date (or, in the case of the
first Distribution Date, from and including the Cut-Off-Date) occurring in the
calendar month preceding the month in which such Distribution Date occurs and
ending on the day preceding the Determination Date immediately preceding such
Distribution Date.
Month End Interest: As defined in each Servicing Agreement.
Monthly Payment: As to any Mortgage Loan (including any REO Mortgage
Loan) and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization schedule at the time applicable thereto (after
adjustment for any Curtailments and Deficient Valuations occurring prior to such
Due Date but before any adjustment to such amortization schedule, other than for
Deficient Valuations, by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period).
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on Mortgaged Property securing a Mortgage Note together with any
Mortgage Loan Rider, if applicable.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate at
which interest accrues on the unpaid principal balance thereof as set forth in
the related Mortgage Note, which rate is as indicated on the Mortgage Loan
Schedule.
Mortgage Loan Purchase Agreement: The mortgage loan purchase agreement
dated as of ___________, 200_ between WFHM, as seller, and the Seller, as
purchaser.
Mortgage Loan Rider: The standard Xxxxxx Xxx/Xxxxxxx Mac riders to the
Mortgage Note and/or Mortgage riders required when the Mortgaged Property is a
condominium unit or a unit in a planned unit development.
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Mortgage Loan Schedule: The list of the Mortgage Loans transferred to
the Trustee on the Closing Date as part of the Trust Estate and attached hereto
as Exhibits F-1 and F-2 which list may be amended following the Closing Date
upon conveyance of a Substitute Mortgage Loan pursuant to Section 2.02, 2.03 or
2.06 and which list shall set forth at a minimum the following information as of
the close of business on the Cut-Off Date (or, with respect to Substitute
Mortgage Loans, as of the close of business on the day of substitution) as to
each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the city, state and zip code of the Mortgaged Property;
(iii) the type of property;
(iv) the Mortgage Interest Rate;
(v) the Net Mortgage Interest Rate;
(vi) the Monthly Payment;
(vii) the original number of months to maturity;
(viii) the scheduled maturity date;
(ix) the Cut-Off Date Principal Balance;
(x) the Loan-to-Value Ratio at origination;
(xi) whether such Mortgage Loan is a Subsidy Loan;
(xii) whether such Mortgage Loan is covered by primary mortgage
insurance;
(xiii) the applicable Servicing Fee Rate;
(xiv) the Master Servicing Fee Rate;
(xv) Fixed Retained Yield Rate, if applicable; and
(xvi) for each Other Servicer Mortgage Loan, the name of the Servicer
with respect thereto.
Such schedule may consist of multiple reports that collectively set
forth all of the information required.
Mortgage Loans: Each of the mortgage loans transferred and assigned to
the Trustee on the Closing Date pursuant to Section 2.01 and any mortgage loans
substituted therefor pursuant to Section 2.02, 2.03 or 2.06, in each case as
from time to time are included in the Trust Estate as identified in the Mortgage
Loan Schedule.
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Mortgage Note: The note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan together with any related
Mortgage Loan Riders, if applicable.
Mortgaged Property: The property subject to a Mortgage, which may
include Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: As to any defaulted Mortgage Loan,
Liquidation Proceeds net of Liquidation Expenses.
Net Mortgage Interest Rate: With respect to each Mortgage Loan, a rate
equal to (i) the Mortgage Interest Rate on such Mortgage Loan minus (ii) the sum
of (a) the applicable Servicing Fee Rate, as set forth in Section 11.25 with
respect to such Mortgage Loan, (b) the Master Servicing Fee Rate, as set forth
in Section 11.26 with respect to such Mortgage Loan and (c) the Fixed Retained
Yield Rate, if any, with respect to such Mortgage Loan. Any regular monthly
computation of interest at such rate shall be based upon annual interest at such
rate on the applicable amount divided by twelve.
Net REO Proceeds: As to any REO Mortgage Loan, REO Proceeds net of any
related expenses of the Servicer.
Non-permitted Foreign Holder: As defined in Section 5.02(d).
Non-PO Fraction: With respect to any Mortgage Loan, the lesser of (i)
1.00 and (ii) the quotient obtained by dividing the Net Mortgage Interest Rate
for such Mortgage Loan by %.
Non-PO Recovery: As to any Distribution Date, the amount of all
Recoveries received during the Applicable Unscheduled Principal Receipt Periods
for such Distribution Date less the Class A-PO Recovery for such Distribution
Date.
Nonrecoverable Advance: Any portion of a Periodic Advance previously
made or proposed to be made in respect of a Mortgage Loan which has not been
previously reimbursed to the Servicer, the Master Servicer or the Trustee, as
the case may be, and which the Servicer, the Master Servicer or the Trustee
determines will not, or in the case of a proposed Periodic Advance would not, be
ultimately recoverable from Liquidation Proceeds or other recoveries in respect
of the related Mortgage Loan. The determination by the Servicer, the Master
Servicer or the Trustee (i) that it has made a Nonrecoverable Advance or (ii)
that any proposed Periodic Advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officer's Certificate of the Servicer
delivered to the Master Servicer for redelivery to the Trustee or, in the case
of a Master Servicer determination, an Officer's Certificate of the Master
Servicer delivered to the Trustee, in each case detailing the reasons for such
determination.
Non-Supported Interest Shortfall: With respect to any Distribution
Date, the sum of (i) the excess, if any, of the aggregate Prepayment Interest
Shortfall on the Mortgage Loans over the aggregate Compensating Interest with
respect to such Distribution Date and (ii)
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Curtailment Interest Shortfalls with respect to such Distribution Date. With
respect to each Distribution Date occurring on or after the Subordination
Depletion Date, the Non-Supported Interest Shortfall determined pursuant to the
preceding sentence will be increased by the amount of any Subordination
Depletion Date Interest Shortfall for such Distribution Date. Any Non-Supported
Interest Shortfall will be allocated to (a) the Class A Certificates according
to the percentage obtained by dividing the Class A Non-PO Principal Balance by
the sum of the Class A Non-PO Principal Balance and the Class B Principal
Balance and (b) the Class B Certificates according to the percentage obtained by
dividing the Class B Principal Balance by the sum of the Class A Non-PO
Principal Balance and the Class B Principal Balance.
Non-U.S. Person: As defined in Section 4.01(g).
Notional Amount: As to any Distribution Date, an amount equal to the
sum of __________% of the Principal Balance of the Class A-5 Certificates,
__________% of the Principal Balance of the Class A-8 Certificates
and _________% of the Principal Balance of the Class A-9 Certificates.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Officers' Certificate: With respect to any Person, a certificate
signed by the Chairman of the Board, the President or a Vice President, and by
the Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of such Person (or, in the case of a Person which is not a
corporation, signed by the person or persons having like responsibilities), and
delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, who may be outside
or salaried counsel for the Seller, a Servicer or the Master Servicer, or any
affiliate of the Seller, a Servicer or the Master Servicer, acceptable to the
Trustee if such opinion is to be delivered to the Trustee; provided, however,
that with respect to REMIC matters, matters relating to the determination of
Eligible Accounts or matters relating to transfers of Certificates, such counsel
shall be Independent.
Optimal Adjustment Event: With respect to any Class of Class B
Certificates and any Distribution Date, an Optimal Adjustment Event will occur
with respect to such Class if: (i) the Principal Balance of such Class on the
Determination Date succeeding such Distribution Date would have been reduced to
zero (regardless of whether such Principal Balance was reduced to zero as a
result of principal distribution or the allocation of Realized Losses) and (ii)
(a) the Principal Balance of any Class of Class A Certificates would be subject
to further reduction as a result of the third or fifth sentences of the
definition of Principal Balance or (b) the Principal Balance of a Class of Class
B Certificates with a lower numerical designation would be reduced with respect
to such Distribution Date as a result of the application of the proviso in the
definition of Class B-1 Principal Balance, Class B-2 Principal Balance, Class
B-3 Principal Balance, Class B-4 Principal Balance, Class B-5 Principal Balance
or Class B-6 Principal Balance.
Original Class A Non-PO Principal Balance: The sum of (i) the Original
Principal Balances of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6,
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Class A-7, Class A-8, Class A-9, Class A-10, Class A-12, Class A-13, Class A-14,
Class A-15, Class A-16, Class A-17, Class A-R and Class A-LR Certificates as set
forth in Section 11.05.
Original Class A Percentage: The Class A Percentage as of the Cut-Off
Date, as set forth in Section 11.04.
Original Class B Principal Balance: The sum of the Original Class B-1
Principal Balance, Original Class B-2 Principal Balance, Original Class B-3
Principal Balance, Original Class B-4 Principal Balance, Original Class B-5
Principal Balance and Original Class B-6 Principal Balance, as set forth in
Section 11.08.
Original Class B-1 Fractional Interest: As to the first Distribution
Date, the percentage obtained by dividing the sum of the Original Class B-2
Principal Balance, the Original Class B-3 Principal Balance, the Original Class
B-4 Principal Balance, the Original Class B-5 Principal Balance and the Original
Class B-6 Principal Balance by the sum of the Original Class A Non-PO Principal
Balance and the Original Class B Principal Balance. The Original Class B-1
Fractional Interest is specified in Section 11.10.
Original Class B-2 Fractional Interest: As to the first Distribution
Date, the percentage obtained by dividing the sum of the Original Class B-3
Principal Balance, the Original Class B-4 Principal Balance, the Original Class
B-5 Principal Balance and the Original Class B-6 Principal Balance by the sum of
the Original Class A Non-PO Principal Balance and the Original Class B Principal
Balance. The Original Class B-2 Fractional Interest is specified in Section
11.11.
Original Class B-3 Fractional Interest: As to the first Distribution
Date, the percentage obtained by dividing the sum of the Original Class B-4
Principal Balance, the Original Class B-5 Principal Balance and the Original
Class B-6 Principal Balance by the sum of the Original Class A Non-PO Principal
Balance and the Original Class B Principal Balance. The Original Class B-3
Fractional Interest is specified in Section 11.12.
Original Class B-4 Fractional Interest: As to the first Distribution
Date, the percentage obtained by dividing the sum of the Original Class B-5
Principal Balance and the Original Class B-6 Principal Balance by the sum of the
Original Class A Non-PO Principal Balance and the Original Class B Principal
Balance. The Original Class B-4 Fractional Interest is specified in Section
11.13.
Original Class B-5 Fractional Interest: As to the first Distribution
Date, the percentage obtained by dividing the Original Class B-6 Principal
Balance by the sum of the Original Class A Non-PO Principal Balance and the
Original Class B Principal Balance. The Original Class B-5 Fractional Interest
is specified in Section 11.14.
Original Class B-1 Percentage: The Class B-1 Percentage as of the
Cut-Off Date, as set forth in Section 11.15.
Original Class B-2 Percentage: The Class B-2 Percentage as of the
Cut-Off Date, as set forth in Section 11.16.
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Original Class B-3 Percentage: The Class B-3 Percentage as of the
Cut-Off Date, as set forth in Section 11.17.
Original Class B-4 Percentage: The Class B-4 Percentage as of the
Cut-Off Date, as set forth in Section 11.18.
Original Class B-5 Percentage: The Class B-5 Percentage as of the
Cut-Off Date, as set forth in Section 11.19.
Original Class B-6 Percentage: The Class B-6 Percentage as of the
Cut-Off Date, as set forth in Section 11.20.
Original Class B-1 Principal Balance: The Class B-1 Principal Balance
as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-2 Principal Balance: The Class B-2 Principal Balance
as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-3 Principal Balance: The Class B-3 Principal Balance
as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-4 Principal Balance: The Class B-4 Principal Balance
as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-5 Principal Balance: The Class B-5 Principal Balance
as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-6 Principal Balance: The Class B-6 Principal Balance
as of the Cut-Off Date, as set forth in Section 11.09.
Original Notional Amount: The Original Notional Amount as set forth in
Section 11.05.
Original Principal Balance: Any of the Original Principal Balances of
the Classes of Class A Certificates as set forth in Section 11.05; Original
Class B-1 Principal Balance, Original Class B-2 Principal Balance, Original
Class B-3 Principal Balance, Original Class B-4 Principal Balance, Original
Class B-5 Principal Balance or Original Class B-6 Principal Balance as set forth
in Section 11.09.
Original Subordinated Percentage: The Subordinated Percentage as of
the Cut-Off Date, as set forth in Section 11.07.
Other Servicer: Any of the Servicers other than WFHM.
Other Servicer Mortgage Loan: Any of the Mortgage Loans identified in
Exhibit F-3 hereto, as such Exhibit may be amended from time to time in
connection with a substitution pursuant to Section 2.02 or 2.06, which Mortgage
Loan is serviced under an Other Servicing Agreement.
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Other Servicing Agreements: The Servicing Agreements other than the
WFHM Servicing Agreement.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Mortgage Loan) which was not the subject of a Full Unscheduled
Principal Receipt prior to such Due Date and which was not repurchased by the
Seller prior to such Due Date pursuant to Section 2.02 or 2.03.
Owner Mortgage Loan File: A file maintained by the Custodian for each
Mortgage Loan that contains the documents specified in Section 2.01 and any
additional documents required to be added to the Owner Mortgage Loan File
pursuant to this Agreement.
Partial Liquidation Proceeds: Liquidation Proceeds received by a
Servicer prior to the Unscheduled Principal Receipt Period in which the related
Mortgage Loan became a Liquidated Loan.
Partial Unscheduled Principal Receipt: An Unscheduled Principal
Receipt which is not a Full Unscheduled Principal Receipt.
Paying Agent: The Person authorized on behalf of the Trustee, as agent
for the Master Servicer, to make distributions to Certificateholders with
respect to the Certificates and to forward to Certificateholders the periodic
and annual statements required by Section 4.04. The Paying Agent may be any
Person directly or indirectly controlling or controlled by or under common
control with the Master Servicer and may be the Trustee. The initial Paying
Agent is appointed in Section 4.03(a).
Payment Account: The account maintained pursuant to Section 4.03(b).
Percentage Interest: With respect to a Class A Certificate (other than
the Class A-11 Certificates), the undivided percentage interest obtained by
dividing the original principal balance of such Certificate by the Original
Principal Balance of such Class of Class A Certificates. With respect to a Class
A-11 Certificate, the undivided percentage interest obtained by dividing the
original notional amount evidenced by such Certificate by the Original Notional
Amount. With respect to a Class B Certificate of a Class, the undivided
percentage interest obtained by dividing the original principal balance of such
Certificate by the Original Principal Balance of such Class of Class B
Certificates.
Periodic Advance: The aggregate of the advances required to be made by
a Servicer on any Distribution Date pursuant to its Servicing Agreement or by
the Master Servicer or the Trustee hereunder, the amount of any such advances
being equal to the total of all Monthly Payments (adjusted, in each case (i) in
respect of interest, to the applicable Mortgage Interest Rate less the
applicable Servicing Fee in the case of Periodic Advances made by a Servicer and
to the applicable Net Mortgage Interest Rate in the case of Periodic Advances
made by the Master Servicer or Trustee and (ii) by the amount of any related
Debt Service Reductions or reductions in the amount of interest collectable from
the Mortgagor pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended, or similar legislation or regulations then in effect) on the
Mortgage Loans, that (x) were delinquent as of the close of business on the
related Determination Date, (y) were not the subject of a previous Periodic
Advance by such Servicer or
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of a Periodic Advance by the Master Servicer or the Trustee, as the case may be
and (z) have not been determined by the Master Servicer, such Servicer or
Trustee to be Nonrecoverable Advances.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan: As defined in Section 5.02(c).
PMI Advance: As defined in the related Servicing Agreement, if
applicable.
PO Fraction: With respect to any Discount Mortgage Loan, the
difference between 1.0 and the Non-PO Fraction for such Mortgage Loan; with
respect to any other Mortgage Loan, zero.
Pool Balance (Non-PO Portion): As of any Distribution Date, the sum of
the amounts for each Mortgage Loan that is an Outstanding Mortgage Loan of the
product of (i) the Non-PO Fraction for such Mortgage Loan and (ii) the Scheduled
Principal Balance of such Mortgage Loan.
Pool Balance (PO Portion): As of any Distribution Date, the sum of the
amounts for each Mortgage Loan that is an Outstanding Mortgage Loan of the
product of (i) the PO Fraction for such Mortgage Loan and (ii) the Scheduled
Principal Balance of such Mortgage Loan.
Pool Distribution Amount: As of any Distribution Date, the funds
eligible for distribution to the Class A Certificates and Class B Certificates
on such Distribution Date, which shall be the sum of (i) all previously
undistributed payments or other receipts on account of principal and interest on
or in respect of the Mortgage Loans (including, without limitation, the proceeds
of any repurchase of a Mortgage Loan by the Seller and any Substitution
Principal Amount) received by the Master Servicer with respect to the applicable
Remittance Date in the month of such Distribution Date and any Unscheduled
Principal Receipts received by the Master Servicer on or prior to the Business
Day preceding such Distribution Date, (ii) all Periodic Advances made by a
Servicer pursuant to the related Servicing Agreement or Periodic Advances made
by the Master Servicer or the Trustee pursuant to Section 3.03, (iii) any
remaining Reimbursement Amount as provided in Section 4.01(a) and (iv) all other
amounts required to be placed in the Certificate Account by the Servicer on or
before the applicable Remittance Date or by the Master Servicer or the Trustee
on or prior to the Distribution Date, but excluding the following:
(a) amounts received as late payments of principal or interest and
respecting which the Master Servicer or the Trustee has made one or more
unreimbursed Periodic Advances;
(b) the portion of Liquidation Proceeds used to reimburse any
unreimbursed Periodic Advances by the Master Servicer or the Trustee;
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(c) those portions of each payment of interest on a particular
Mortgage Loan which represent (i) the Fixed Retained Yield, if any, (ii)
the applicable Servicing Fee and (iii) the Master Servicing Fee;
(d) all amounts representing scheduled payments of principal and
interest due after the Due Date occurring in the month in which such
Distribution Date occurs;
(e) all Unscheduled Principal Receipts received by the Servicers after
the Applicable Unscheduled Principal Receipt Period relating to the
Distribution Date for the applicable type of Unscheduled Principal Receipt,
and all related payments of interest on such amounts;
(f) all repurchase proceeds with respect to Mortgage Loans repurchased
by the Seller pursuant to Section 2.02, 2.03 or 3.08 on or following the
Determination Date in the month in which such Distribution Date occurs and
the difference between the unpaid principal balance of a Mortgage Loan
substituted for a Mortgage Loan pursuant to Section 2.02, 2.03 or 2.06 on
or following the Determination Date in the month in which such Distribution
Date occurs and the unpaid principal balance of such Mortgage Loan;
(g) that portion of Liquidation Proceeds and REO Proceeds which
represents any unpaid Servicing Fee or Master Servicing Fee;
(h) all income from Eligible Investments that is held in the
Certificate Account for the account of the Master Servicer;
(i) all other amounts permitted to be withdrawn from the Certificate
Account in respect of the Mortgage Loans, to the extent not covered by
clauses (a) through (h) above, or not required to be deposited in the
Certificate Account under this Agreement;
(j) Liquidation Profits;
(k) Month End Interest; and
(l) all amounts reimbursable to a Servicer for PMI Advances.
Pool Scheduled Principal Balance: As to any Distribution Date, the
aggregate Scheduled Principal Balances of all Mortgage Loans that were
Outstanding Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date.
Prepayment In Full: With respect to any Mortgage Loan, a Mortgagor
payment consisting of a Principal Prepayment in the amount of the outstanding
principal balance of such loan and resulting in the full satisfaction of such
obligation.
Prepayment Interest Shortfall: On any Distribution Date, the amount of
interest, if any, that would have accrued on any Mortgage Loan which was the
subject of a Prepayment in Full at the Net Mortgage Interest Rate for such
Mortgage Loan from the date of its Prepayment in Full (but in the case of a
Prepayment in Full where the Applicable Unscheduled Principal Receipt Period is
the Mid-Month Receipt Period, only if the date of the Prepayment in Full is on
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or after the Determination Date in the month prior to the month of such
Distribution Date and prior to the first day of the month of such Distribution
Date) through the last day of the month prior to the month of such Distribution
Date.
Principal Adjustment: In the event that the Class B-1 Optimal
Principal Amount, Class B-2 Optimal Principal Amount, Class B-3 Optimal
Principal Amount, Class B-4 Optimal Principal Amount, Class B-5 Optimal
Principal Amount or Class B-6 Optimal Principal Amount is calculated in
accordance with the proviso in such definition with respect to any Distribution
Date, the Principal Adjustment for such Class of Class B Certificates shall
equal the difference between (i) the amount that would have been distributed to
such Class as principal in accordance with Section 4.01(a)(i) for such
Distribution Date, calculated without regard to such proviso and assuming there
are no Principal Adjustments for such Distribution Date and (ii) the Adjusted
Principal Balance for such Class.
Principal Balance: As of the first Determination Date and as to any
Class of Class A Certificates (other than the Class A-11 Certificates), the
Original Principal Balance of such Class. As of any subsequent Determination
Date prior to the Subordination Depletion Date and as to any Class of Class A
Certificates, the Original Principal Balance of such Class (increased in the
case of the Class A-17 Certificates by the Accrual Distribution Amounts with
respect to prior Distribution Dates) less the sum of all amounts previously
distributed in respect of such Class on prior Distribution Dates (i) pursuant to
Paragraph third clause (A) of Section 4.01(a)(i), (ii) as a result of a
Principal Adjustment and (iii), if applicable, from the Accrual Distribution
Amounts for such prior Distribution Dates. After the Subordination Depletion
Date, each such Principal Balance of a Class of Class A Certificates will also
be reduced (if clause (i) is greater than clause (ii)) or increased (if clause
(i) is less than clause (ii)) on each Determination Date by an amount equal to
the product of the Class A Loss Percentage of such Class and the difference, if
any, between (i) the Class A Non-PO Principal Balance as of such Determination
Date without regard to this sentence and (ii) the difference between (A) the
Adjusted Pool Amount for the preceding Distribution Date and (B) the Adjusted
Pool Amount (PO Portion) for the preceding Distribution Date.
As of any subsequent Determination Date prior to the Subordination
Depletion Date and as to the Class A-PO Certificates, the Original Principal
Balance of such Class less the sum of (a) all amounts previously distributed in
respect of the Class A-PO Certificates on prior Distribution Dates pursuant to
Paragraphs third clause (B) and fourth of Section 4.01(a)(i) and (b) the
Realized Losses allocated through such Determination Date to the Class A-PO
Certificates pursuant to Section 4.02(b). After the Subordination Depletion
Date, the Adjusted Pool Amount (PO Portion) for the preceding Distribution Date.
The Class A-11 Certificates are interest only Certificates and have no
Principal Balance.
As to the Class B Certificates, the Class B-1 Principal Balance, Class
B-2 Principal Balance, Class B-3 Principal Balance, Class B-4 Principal Balance,
Class B-5 Principal Balance and Class B-6 Principal Balance, respectively.
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Notwithstanding the foregoing, no Principal Balance of a Class will be
increased on any Determination Date such that the Principal Balance of such
Class exceeds its Original Principal Balance (plus any Accrual Distribution
Amounts previously added to the Principal Balance of the Class A-17
Certificates) less all amounts previously distributed in respect of such Class
on prior Distribution Dates pursuant to Paragraph third clause (A) of Section
4.01(a)(i), Paragraph third clause (B) of Section 4.01(a)(i), or Paragraphs
seventh, tenth, thirteenth, sixteenth, nineteenth or twenty-second of Section
4.01(a)(i).
Principal Prepayment: Any Mortgagor payment on a Mortgage Loan which
is received in advance of its Due Date and is not accompanied by an amount
representing scheduled interest for any period subsequent to the date of
prepayment.
Prior Month Receipt Period: With respect to each Distribution Date,
the calendar month preceding the month in which such Distribution Date occurs.
Prohibited Transaction Tax: Any tax imposed under Section 860F of the
Code.
Prospectus: The prospectus dated __________, 200_ as supplemented by
the prospectus supplement dated ________, 200_, relating to the Class A, Class
B-1, Class B-2 and Class B-3 Certificates.
Prudent Servicing Practices: The standard of care set forth in each
Servicing Agreement.
Rating Agency: Any nationally recognized statistical credit rating
agency, or its successor, that rated one or more Classes of the Certificates at
the request of the Seller at the time of the initial issuance of the
Certificates. The Rating Agencies for the Class A Certificates are _________
and ________. The Rating Agency for the Class B-1, Class B-2, Class B-3, Class
B-4 and Class B-5 Certificates is _________. If any such agency or a successor
is no longer in existence, "Rating Agency" shall be such statistical credit
rating agency, or other comparable Person, designated by the Seller, notice of
which designation shall be given to the Trustee and the Master Servicer.
References herein to the highest short-term rating category of a Rating Agency
shall mean ________ in the case of __________, _________ in the case
of __________ and in the case of any other Rating Agency shall mean its
equivalent of such ratings. References herein to the highest long-term rating
categories of a Rating Agency shall mean ________ in the case of ____________
and _________ in the case of _____________, and in the case of any other Rating
Agency shall mean its equivalent of such ratings without any plus or minus.
Realized Losses: With respect to any Distribution Date, (i) Liquidated
Loan Losses incurred on Liquidated Loans for which the Liquidation Proceeds were
received during the Applicable Unscheduled Principal Receipt Period with respect
to Full Unscheduled Principal Receipts with respect to such Distribution Date
and (ii) Bankruptcy Losses incurred during the period corresponding to the
Applicable Unscheduled Principal Receipt Period with respect to Full Unscheduled
Principal Receipts for such Distribution Date.
Record Date: The last Business Day of the month preceding the month of
the related Distribution Date.
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Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Loan.
Reimbursement Amount: As defined in Section 2.03(c).
Relief Act Shortfall: Any interest shortfalls arising as a result of
the reduction in the amount of monthly interest payments on any Mortgage Loans
as a result of the application of the Soldiers' and Sailors' Civil Relief Act of
1940, as amended or comparable state legislation. Any Relief Act Shortfall will
be allocated to (a) the Class A Certificates according to the percentage
obtained by dividing the Class A Non-PO Principal Balance by the sum of the
Class A Non-PO Principal Balance and the Class B Principal Balance and (b) the
Class B Certificates according to the percentage obtained by dividing the Class
B Principal Balance by the sum of the Class A Non-PO Principal Balance and the
Class B Principal Balance.
REMIC: A "real estate mortgage investment conduit" as defined in Code
Section 860D.
REMIC Provisions: Provisions of the federal income tax law relating to
REMICs, which appear at Sections 860A through 860G of Part IV of Subchapter M of
Chapter 1 of Subtitle A of the Code, and related provisions, and U.S. Department
of the Treasury temporary, proposed or final regulations promulgated thereunder,
as the foregoing are in effect (or with respect to proposed regulations, are
proposed to be in effect) from time to time.
Remittance Date: As defined in each of the Servicing Agreements.
REO Mortgage Loan: Any Mortgage Loan which is not a Liquidated Loan
and as to which the indebtedness evidenced by the related Mortgage Note is
discharged and the related Mortgaged Property is held as part of the Trust
Estate.
REO Proceeds: Proceeds received in respect of any REO Mortgage Loan
(including, without limitation, proceeds from the rental of the related
Mortgaged Property).
Request for Release: A request for release in substantially the form
attached as Exhibit G hereto.
Responsible Officer: When used with respect to the Trustee, the
Chairman or Vice-Chairman of the Board of Directors or Trustees, the Chairman or
Vice-Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the Chairman of the Committee on Trust Matters, any
Vice President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, the Cashier, any Assistant Cashier, any Trust Officer or
Assistant Trust Officer, the Controller and any Assistant Controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Retained Mortgage Loan File: A file maintained by WFHM prior to any
Document Transfer Event for each Mortgage Loan that contains the documents
specified in
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Section 2.01(b) and any additional documents required to be added to the
Retained Mortgage Loan File pursuant to this Agreement.
Rule 144A: Rule 144A promulgated under the Securities Act of 1933, as
amended.
Scheduled Principal Balance: As to any Mortgage Loan and Distribution
Date, the principal balance of such Mortgage Loan as of the Due Date in the
month preceding the month of such Distribution Date as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any bankruptcy (other than Deficient
Valuations) or similar proceeding or any moratorium or similar waiver or grace
period) after giving effect to (A) Unscheduled Principal Receipts received or
applied by the applicable Servicer during the related Unscheduled Principal
Receipt Period for each applicable type of Unscheduled Principal Receipt related
to the Distribution Date occurring in the month preceding such Distribution
Date, (B) Deficient Valuations incurred prior to such Due Date and (C) the
payment of principal due on such Due Date and irrespective of any delinquency in
payment by the related Mortgagor. Accordingly, the Scheduled Principal Balance
of a Mortgage Loan which becomes a Liquidated Loan at any time through the last
day of such related Unscheduled Principal Receipt Period shall be zero.
Seller: Xxxxx Fargo Asset Securities Corporation, or its successor in
interest.
Servicer Mortgage Loan File: As defined in each of the Servicing
Agreements.
Servicers: Each of WFHM, _________ and _________, as Servicer under
the related Servicing Agreement.
Servicing Agreements: Each of the Servicing Agreements executed with
respect to a portion of the Mortgage Loans by one of the Servicers, which
agreements are attached hereto, collectively, as Exhibit L.
Servicing Fee: With respect to any Servicer, as defined in its
Servicing Agreement.
Servicing Fee Rate: With respect to a Mortgage Loan, as set forth in
Section 11.25.
Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans.
Similar Law: As defined in Section 5.02(c).
Single Certificate: A Certificate of any Class that evidences the
smallest permissible Denomination for such Class, as set forth in Section 11.24.
Startup Day: As defined in Section 2.05.
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Subordinated Percentage: As to any Distribution Date, the percentage
which is the difference between 100% and the Class A Percentage for such date.
Subordinated Prepayment Percentage: As to any Distribution Date, the
percentage which is the difference between 100% and the Class A Prepayment
Percentage for such date.
Subordination Depletion Date: The Distribution Date preceding the
first Distribution Date on which the Class A Percentage (determined pursuant to
clause (ii) of the definition thereof) equals or exceeds 100%.
Subordination Depletion Date Interest Shortfall: With respect to any
Distribution Date that occurs on or after the Subordination Depletion Date with
respect to any Unscheduled Principal Receipt (other than a Prepayment in Full or
Curtailment):
(A) in the case where the Applicable Unscheduled Principal Receipt
Period is the Mid-Month Receipt Period and such Unscheduled
Principal Receipt is received by the Servicer on or after the
Determination Date in the month preceding the month of such
Distribution Date but prior to the first day of the month of such
Distribution Date, the amount of interest that would have accrued
at the Net Mortgage Interest Rate on the amount of such
Unscheduled Principal Receipt from the day of its receipt or, if
earlier, its application by the Servicer through the last day of
the month preceding the month of such Distribution Date; and
(B) in the case where the Applicable Unscheduled Principal Receipt
Period is the Prior Month Receipt Period and such Unscheduled
Principal Receipt is received by the Servicer during the month
preceding the month of such Distribution Date, the amount of
interest that would have accrued at the Net Mortgage Interest
Rate on the amount of such Unscheduled Principal Receipt from the
day of its receipt or, if earlier, its application by the
Servicer through the last day of the month in which such
Unscheduled Principal Receipt is received.
Subsidy Account: If the Trust Estate contains any Subsidy Loans, the
deposit account or accounts created and maintained by the Servicer for deposit
of Subsidy Funds and amounts payable under interest subsidy agreements relating
to mortgage loans other than the Mortgage Loans.
Subsidy Funds: If the Trust Estate contains any Subsidy Loans, funds
contributed by the employer of a Mortgagor in order to reduce the payments
required from the Mortgagor for a specified period in specified amounts.
Subsidy Loan: Any Mortgage Loan subject to a temporary interest
subsidy agreement pursuant to which the monthly interest payments made by the
related Mortgagor will be less than the scheduled monthly interest payments on
such Mortgage Loan, with the resulting difference in interest payments being
provided by the employer of the Mortgagor. Each Subsidy Loan will be identified
as such in the Mortgage Loan Schedule.
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Substitute Mortgage Loan: As defined in Section 2.02.
Substitution Principal Amount: With respect to any Mortgage Loan
substituted in accordance with Section 2.02 or pursuant to Section 2.03 or 2.06,
the excess of (x) the unpaid principal balance of the Mortgage Loan which is
substituted for over (y) the unpaid principal balance of the Substitute Mortgage
Loan, each balance being determined as of the date of substitution.
Trust Estate: The corpus of the trust created by this Agreement,
consisting of the Mortgage Loans (other than any Fixed Retained Yield), such
amounts as may be held from time to time in the Certificate Account (other than
any Fixed Retained Yield), the rights of the Trustee to receive the proceeds of
all insurance policies and performance bonds, if any, required to be maintained
hereunder or under the related Servicing Agreement, property which secured a
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure and all other property and rights described in the first paragraph
of Section 2.01.
Trustee: ___________, a national banking association with its
principal office located in ___________, or any successor trustee appointed as
herein provided.
Type 1 Mortgage Loan: Any of the Mortgage Loans identified in Exhibit
F-1 hereto, as such Exhibit may be amended from time to time in connection with
a substitution pursuant to Section 2.02 or 2.06, serviced under the WFHM
Servicing Agreement and having a Mid-Month Receipt Period with respect to all
types of Unscheduled Principal Receipts.
Uncertificated Lower-Tier Interest: Any of the Class A-L1 Interest,
the Class A-L5 Interest, the Class A-L8 Interest, the Class A-LPO Interest, the
Class A-LUR Interest, the Class B-L1 Interest, the Class B-L2 Interest, the
Class B-L3 Interest, the Class B-L4 Interest, the Class B-L5 Interest and the
Class B-L6 Interest.
Unpaid Interest Shortfalls: Each of the Class A Unpaid Interest
Shortfalls, the Class B-1 Unpaid Interest Shortfall, the Class B-2 Unpaid
Interest Shortfall, the Class B-3 Unpaid Interest Shortfall, the Class B-4
Unpaid Interest Shortfall, the Class B-5 Unpaid Interest Shortfall and the Class
B-6 Unpaid Interest Shortfall.
Unscheduled Principal Receipt: Any Principal Prepayment or other
recovery of principal on a Mortgage Loan, including, without limitation,
Liquidation Proceeds, Net REO Proceeds, Recoveries and proceeds received from
any condemnation award or proceeds in lieu of condemnation other than that
portion of such proceeds released to the Mortgagor in accordance with the terms
of the Mortgage or Prudent Servicing Practices, but excluding any Liquidation
Profits and proceeds of a repurchase of a Mortgage Loan by the Seller and any
Substitution Principal Amounts.
Unscheduled Principal Receipt Period: Either a Mid-Month Receipt
Period or a Prior Month Receipt Period.
Upper-Tier Certificate: Any one of the Class A Certificates (other
than the Class A-LR Certificate) and the Class B Certificates.
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Upper-Tier Certificate Account: The trust account established and
maintained pursuant to Section 4.01(e).
Upper-Tier REMIC: One of the two separate REMICs comprising the Trust
Estate, the assets of which consist of the Uncertificated Lower-Tier Interests
and such amounts as shall from time to time be held in the Upper-Tier
Certificate Account.
U.S. Person: As defined in Section 4.01(g).
Voting Interest: With respect to any provisions hereof providing for
the action, consent or approval of the Holders of all Certificates evidencing
specified Voting Interests in the Trust Estate, the Class A-11 Certificates will
be entitled to _____% of the aggregate Voting Interest represented by all
Certificates and each remaining Class of Certificates will be entitled to a pro
rata portion of the remaining Voting Interest equal to the ratio obtained by
dividing the Principal Balance of such Class by the sum of the Class A Principal
Balance and the Class B Principal Balance. Each Certificateholder of a Class
will have a Voting Interest equal to the product of the Voting Interest to which
such Class is collectively entitled and the Percentage Interest in such Class
represented by such Holder's Certificates. With respect to any provisions hereof
providing for action, consent or approval of each Class of Certificates or
specified Classes of Certificates, each Certificateholder of a Class will have a
Voting Interest in such Class equal to such Holder's Percentage Interest in such
Class.
WFHM: Xxxxx Fargo Home Mortgage, Inc., or its successor in interest.
WFHM Correspondents: The entities listed on the Mortgage Loan
Schedule, from which WFHM purchased the Mortgage Loans.
WFHM Servicing Agreement: The Servicing Agreement providing for the
servicing of the Type 1 Mortgage Loans initially by WFHM.
Section 1.02 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee, if made in the manner provided in this
Section 1.02. The Trustee shall promptly notify the Master Servicer in writing
of the receipt of any such instrument or writing.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. When such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
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The fact and date of the execution of any such instrument or writing, or the
authority of the individual executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee and the Authenticating Agent)
shall be proved by the Certificate Register, and neither the Trustee, the Seller
nor the Master Servicer shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action of the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, the
Seller or the Master Servicer in reliance thereon, whether or not notation of
such action is made upon such Certificate.
Section 1.03 Effect of Headings and Table of Contents.
The Article and Section headings in this Agreement and the Table of
Contents are for convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
Section 1.04 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates any benefit or any
legal or equitable right, power, remedy or claim under this Agreement.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF THE CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery hereof,
does hereby assign to the Trustee, without recourse all the right, title and
interest of the Seller in and to (a) the Trust Estate, including all interest
(other than the portion, if any, representing the Fixed Retained Yield) and
principal received by the Seller on or with respect to the Mortgage Loans after
the Cut-Off Date (and including scheduled payments of principal and interest due
after the Cut-Off Date but received by the Seller on or before the Cut-Off Date
and Unscheduled Principal Receipts received or applied on the Cut-Off Date, but
not including payments of principal and interest due on the Mortgage Loans on or
before the Cut-Off Date), (b) the Insurance Policies, (c) the obligations of the
Servicers under the Servicing Agreements with respect to the Mortgage Loans, (d)
the right to receive amounts, if any, payable on behalf of any Mortgagor from
the Subsidy Account relating to any Subsidy Loan and (e) proceeds of all the
foregoing.
In connection with such assignment, the Seller shall, with respect to
each Mortgage Loan, deliver, or cause to be delivered, to the Custodian, on or
before the Closing Date the following documents or instruments with respect to
each Mortgage Loan.
(i) The original Mortgage Note, endorsed in blank, with all prior and
intervening endorsements as may be necessary to show a complete chain of
endorsements or with respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost or destroyed and has not been
replaced, a Lost Note Affidavit with a copy of the Mortgage Note and, in
the case of any Mortgage Loan originated in the State of New York
documented by a NYCEMA, the NYCEMA, the new Mortgage Note, if applicable,
the consolidated Mortgage Note and the consolidated Mortgage;
(ii) A recorded original assignment of the related Mortgage from WFHM
assigning the related Mortgage to the Trustee (which may be assigned in blank),
certified by the recording office, or, if such assignment is in the process of
being recorded, a copy of the related Mortgage transmitted for recordation
certified by an officer of WFHM or applicable WFHM Correspondent to be a true
and correct copy of such assignment submitted for recordation; provided,
however, if recordation is not required as described below, an assignment in
recordable form (which may be assigned in blank) with respect to the related
Mortgage;
(iii) The original of each assumption agreement, modification, written
assurance or substitution agreement pertaining to such Mortgage Loan, if any,
or, if such document is in the process of being recorded, a copy of such
document, certified by an officer of WFHM or the applicable WFHM Correspondent
of such Mortgage Loan or by the applicable title insurance company, closing
agent, settlement agent, escrow agent or closing attorney to be a true and
correct copy of such document transmitted for recordation, if any; and
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(iv) For each Mortgage Loan secured by Co-op Shares, the originals of
the following documents or instruments:
(a) The loan security agreement;
(b) The stock certificate;
(c) The stock power, executed in blank;
(d) The executed proprietary lease;
(e) The executed recognition agreement;
(f) The executed assignment of recognition agreement;
(g) The executed UCC-1 financing statement with evidence of
recording thereon; and
(h) The executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken chain from the mortgagee to the
Trustee with evidence of recording thereon (or in a form
suitable for recordation).
(b) Following a Document Transfer Event, the Seller shall, with
respect to each Mortgage Loan, deliver, or cause to be delivered, to the
Custodian, within [__] days copies (which may be in electronic form) of the
following additional documents or instruments with respect to each Mortgage
Loan; provided, however, that originals of such documents or instruments shall
be delivered to the Custodian if originals are required under the law in which
the related Mortgaged Property is located in order to exercise all remedies
available to the Trust under applicable law following default by the related
Mortgagor:
(i) The original recorded Mortgage with evidence of recordation noted
thereon or attached thereto, together with any addenda or riders thereto, or a
copy of such recorded Mortgage with such evidence of recordation certified to be
true and correct by the appropriate governmental recording office; or a copy of
such recorded Mortgage with such evidence of recordation, or if the original
Mortgage has been submitted for recordation but has not been returned from the
applicable public recording office, a copy of the Mortgage certified by an
officer of WFHM or the applicable WFHM Correspondent to be a true and correct
copy of the original Mortgage submitted for recordation;
(ii) For each MERS Mortgage Loan that is not a MOM Mortgage Loan, the
original assignment showing MERS as the assignee of the Mortgage, with evidence
of recording thereon or copies thereof certified by an officer of WFHM or the
applicable WFHM Correspondent to have been submitted for recordation;
(iii) Each original recorded intervening assignment of the Mortgage as
may be necessary to show a complete chain of title from the Mortgage Loan
originator to WFHM, with
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evidence of recordation noted thereon or attached thereto, or a copy of such
assignment with such evidence of recordation to be true and correct by the
appropriate governmental recording office, or, if any such assignment has been
submitted for recordation but has not been returned from the applicable public
recording office or is not otherwise available, a copy of such assignment
certified by an officer of WFHM or the applicable WFHM Correspondent to be a
true and correct copy of the recorded assignment submitted for recordation; and
(iv) The original policy of the title insurance or certificate of
title insurance or a written commitment to issue such a title insurance policy
or certificate of title insurance, or a copy of such title insurance certified
as true and correct by the applicable insurer or any attorney's certificate of
title with an Officer's Certificate of WFHM or the applicable WFHM Correspondent
that such attorney's certificate of title is customarily used in lieu of a title
insurance policy in the jurisdiction in which the related mortgage property is
located;
If any assignment of a Mortgage to the Trustee is in the process of
being recorded on the Closing Date, the Seller shall use its best efforts to
cause each such original recorded document or certified copy thereof to be
delivered to the Custodian promptly following its recordation, but in no event
later than one (1) year following the Closing Date. If any Mortgage has been
recorded in the name of MERS or its designee, no assignment of Mortgage in favor
of the Trustee will be required to be prepared or delivered and instead, the
Master Servicer shall take all actions as are necessary to cause the Trust
Estate to be shown as the owner of the related Mortgage Loan on the records of
MERS for the purpose of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS. The Seller shall also cause to be
delivered to the Custodian any other original mortgage loan document included in
the Owner Mortgage Loan File if a copy thereof has been delivered. The Seller
shall pay from its own funds, without any right of reimbursement therefor, the
amount of any costs, liabilities and expenses incurred by the Trust Estate by
reason of the failure of the Seller to cause to be delivered to the Custodian
within one (1) year following the Closing Date any assignment of a Mortgage
(except with respect to any Mortgage recorded in the name of MERS) not delivered
to the Custodian on the Closing Date.
In lieu of recording an assignment of any Mortgage the Seller may,
deliver or cause to be delivered to the Custodian the assignment of the Mortgage
Loan to the Trustee in a form suitable for recordation, if (i) with respect to a
particular state the Trustee has received an Opinion of Counsel acceptable to it
that such recording is not required to make the assignment effective against the
parties to the Mortgage or subsequent purchasers or encumbrancers of the
Mortgaged Property or (ii) the Seller has been advised by each Rating Agency
that non-recordation in a state will not result in a reduction of the rating
assigned by that Rating Agency at the time of initial issuance of the
Certificates. In the event that the Custodian receives notice that recording is
required to protect the right, title and interest of the Trustee in and to any
such Mortgage Loan for which recordation of an assignment has not previously
been required, the Custodian shall promptly notify the Trustee and the Custodian
shall within five Business Days (or such other reasonable period of time
mutually agreed upon by the Custodian and the Trustee) of its receipt of such
notice deliver each previously unrecorded assignment to the related Servicer for
recordation.
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Except where endorsements in blank are authorized, endorsements of any
Mortgage Notes shall comply with the following format:
WITHOUT RECOURSE
PAY TO THE ORDER OF:
__________________________, AS
TRUSTEE under the pooling and servicing
agreement dated as of [date].
and its successors and assigns,
Xxxxx Fargo Home Mortgage, Inc.
[Signature of Officer]
[Officer's Name and Title]
Except where assignments in blank are authorized or in the case of any
Mortgage registered in the name of MERS, assignments of any Mortgage shall
comply with the following:
___________________________________, AS
TRUSTEE
and its successors and assigns
Section 2.02 Acceptance by Custodian.
Subject to the provisions of the following paragraph, pursuant to the
Custodial Agreement, the Custodian, on behalf of the Trustee, will declare that
it holds and will hold the documents delivered to it pursuant to Section 2.01
above and the other documents constituting a part of the Owner Mortgage Loan
Files or Retained Mortgage Loan Files (after the occurrence of a Document
Delivery Event) delivered to it in trust, upon the trusts herein set forth, for
the use and benefit of all present and future Certificateholders. Upon execution
of this Agreement, the Custodian will deliver to the Seller and the Trustee an
initial certification in the form of Exhibit N hereto, to the effect that,
except as may be specified in a list of exceptions attached thereto, it has
received the original Mortgage Notes relating to each Mortgage Loan on the
Mortgage Loan Schedule.
The Custodian will review each Owner Mortgage Loan File within 45 days
after execution of this Agreement. The Custodian will deliver no later than 30
days after completion of such review to the Seller and the Trustee a final
certification in the form of Exhibit O hereto to the effect that, except as may
be specified in a list of exceptions attached thereto, all required documents
set forth in Section 2.01(a) have been executed and received and appear regular
on their face, and that such documents relate to the Mortgage Loans identified
in the Mortgage Loan Schedule based on a comparison of the Mortgage Loan
identifying number, Mortgagor name and street address, and in so doing the
Custodian may rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon.
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If within such 45 day period the Custodian finds any document
constituting a part of an Owner Mortgage Loan File not to have been executed or
received or to be unrelated to the Mortgage Loans identified in the Mortgage
Loan Schedule or not to appear regular on its face, the Custodian shall promptly
(and in no event more than 30 days after completion of the review) notify the
Trustee and the Trustee shall notify the Seller. The Seller shall have a period
of 60 days after the date of such notice within which to correct or cure any
such defect. The Seller hereby covenants and agrees that, if any material defect
is not so corrected or cured, the Seller will, not later than 60 days after the
Trustee's notice to it referred to above respecting such defect, either (i)
repurchase the related Mortgage Loan or any property acquired in respect thereof
from the Trust Estate at a price equal to (a) 100% of the unpaid principal
balance of such Mortgage Loan plus (b) accrued interest at the Mortgage Interest
Rate (less any Fixed Retained Yield) through the last day of the month in which
such repurchase takes place or (ii) if within two years of the Startup Day, or
such other period permitted by the REMIC Provisions, substitute for any Mortgage
Loan to which such material defect relates, a new mortgage loan (a "Substitute
Mortgage Loan") having such characteristics so that the representations and
warranties of the Seller set forth in Section 2.03(b) hereof (other than Section
2.03(b)(i)) would not have been incorrect had such Substitute Mortgage Loan
originally been a Mortgage Loan. In no event shall any Substitute Mortgage Loan
have an unpaid principal balance, as of the date of substitution, greater than
the Scheduled Principal Balance (reduced by the scheduled payment of principal
due on the Due Date in the month of substitution) of the Mortgage Loan for which
it is substituted. In addition, such Substitute Mortgage Loan shall have a
Loan-to-Value Ratio less than or equal to and a Net Mortgage Interest Rate equal
to that of the Mortgage Loan for which it is substituted.
In the case of a repurchased Mortgage Loan or property, the purchase
price shall be deposited by the Seller in the Certificate Account maintained by
the Master Servicer pursuant to Section 3.01. In the case of a Substitute
Mortgage Loan, the Owner Mortgage Loan File (and Retained Mortgage Loan File, if
required pursuant to Section 2.01(b) hereof) relating thereto shall be delivered
to the Custodian and the Substitution Principal Amount, together with (i)
interest on such Substitution Principal Amount at the applicable Net Mortgage
Interest Rate to the following Due Date of such Mortgage Loan which is being
substituted for and (ii) an amount equal to the aggregate amount of unreimbursed
Periodic Advances in respect of interest previously made by the Servicer, the
Master Servicer or the Trustee with respect to such Mortgage Loan, shall be
deposited in the Certificate Account. The Monthly Payment on the Substitute
Mortgage Loan for the Due Date in the month of substitution shall not be part of
the Trust Estate. Upon receipt by the Custodian of a Request for Release signed
by an officer of the Seller, the Custodian shall release to the Seller the
related Owner Mortgage Loan File (and Retained Mortgage Loan File, if
applicable). The Trustee shall execute and deliver such instrument of transfer
or assignment (or, in the case of a Mortgage Loan registered in the name of MERS
or its designee, the Master Servicer shall take all necessary action to reflect
such assignment on the records of MERS), in each case without recourse, as shall
be necessary to vest in the Seller legal and beneficial ownership of such
substituted or repurchased Mortgage Loan or property. It is understood and
agreed that the obligation of the Seller to substitute a new Mortgage Loan for
or repurchase any Mortgage Loan or property as to which such a material defect
in a constituent document exists shall constitute the sole remedy respecting
such defect available to the Certificateholders or the Trustee on behalf of the
Certificateholders. The failure of the Custodian to give the final certification
or the Trustee to give any notice within the
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required time periods shall not affect or relieve the Seller's obligation to
repurchase any Mortgage Loan pursuant to this Section 2.02.
Section 2.03 Representations and Warranties of the Master Servicer
and the Seller.
(a) The Master Servicer hereby represents and warrants to the Trustee
for the benefit of Certificateholders that, as of the date of execution of this
Agreement:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States;
(ii) The execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not violate the Master Servicer's corporate charter or
by-laws or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material contract, agreement or other instrument to which the
Master Servicer is a party or which may be applicable to the Master
Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Seller, constitutes a valid, legal and
binding obligation of the Master Servicer, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Master Servicer is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or its properties
or might have consequences that would affect its performance hereunder; and
(v) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit its
entering into this Agreement or performing its obligations under this Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 2.03(a) shall survive delivery of the respective Owner
Mortgage Loan Files to the Trustee or the Custodian.
(b) The Seller hereby represents and warrants to the Trustee for the
benefit of Certificateholders that, as of the date of execution of this
Agreement, with respect to the Mortgage Loans, or each Mortgage Loan, as the
case may be:
(i) The information set forth in the Mortgage Loan Schedule was true
and correct in all material respects at the date or dates respecting which
such information is furnished as specified in the Mortgage Loan Schedule;
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(ii) Immediately prior to the transfer and assignment contemplated
herein, the Seller was the sole owner and holder of the Mortgage Loan free
and clear of any and all liens, pledges, charges or security interests of
any nature and has full right and authority to sell and assign the same;
(iii) The Mortgage is a valid, subsisting and enforceable first lien
on the property therein described, and the Mortgaged Property is free and
clear of all encumbrances and liens having priority over the first lien of
the Mortgage except for liens for real estate taxes and special assessments
not yet due and payable and liens or interests arising under or as a result
of any federal, state or local law, regulation or ordinance relating to
hazardous wastes or hazardous substances, and, if the related Mortgaged
Property is a condominium unit, any lien for common charges permitted by
statute or homeowners association fees; and if the Mortgaged Property
consists of shares of a cooperative housing corporation, any lien for
amounts due to the cooperative housing corporation for unpaid assessments
or charges or any lien of any assignment of rents or maintenance expenses
secured by the real property owned by the cooperative housing corporation;
and any security agreement, chattel mortgage or equivalent document related
to, and delivered to the Trustee or to the Custodian with, any Mortgage
establishes in the Seller a valid and subsisting first lien on the property
described therein and the Seller has full right to sell and assign the same
to the Trustee;
(iv) Neither the Seller nor any prior holder of the Mortgage or the
related Mortgage Note has modified the Mortgage or the related Mortgage
Note in any material respect, satisfied, canceled or subordinated the
Mortgage in whole or in part, released the Mortgaged Property in whole or
in part from the lien of the Mortgage, or executed any instrument of
release, cancellation, modification or satisfaction, except in each case as
is reflected in an agreement delivered to the Trustee or the Custodian
pursuant to Section 2.01;
(v) All taxes, governmental assessments, insurance premiums, and
water, sewer and municipal charges, which previously became due and owing
have been paid, or an escrow of funds has been established, to the extent
permitted by law, in an amount sufficient to pay for every such item which
remains unpaid; and the Seller has not advanced funds, or received any
advance of funds by a party other than the Mortgagor, directly or
indirectly (except pursuant to any Subsidy Loan arrangement) for the
payment of any amount required by the Mortgage, except for interest
accruing from the date of the Mortgage Note or date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the day which precedes by
thirty days the first Due Date under the related Mortgage Note;
(vi) The Mortgaged Property is undamaged by water, fire, earthquake,
earth movement other than earthquake, windstorm, flood, tornado or similar
casualty (excluding casualty from the presence of hazardous wastes or
hazardous substances, as to which the Seller makes no representations), so
as to affect adversely the value of the Mortgaged Property as security for
the Mortgage Loan or the use for which the premises were intended and to
the best of the Seller's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the Mortgaged Property;
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(vii) The Mortgaged Property is free and clear of all mechanics' and
materialmen's liens or liens in the nature thereof; provided, however, that
this warranty shall be deemed not to have been made at the time of the
initial issuance of the Certificates if a title policy affording, in
substance, the same protection afforded by this warranty is furnished to
the Trustee by the Seller;
(viii) Except for Mortgage Loans secured by Co-op Shares and Mortgage
Loans secured by residential long-term leases, the Mortgaged Property
consists of a fee simple estate in real property; all of the improvements
which are included for the purpose of determining the appraised value of
the Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property and no improvements on adjoining
properties encroach upon the Mortgaged Property (unless insured against
under the related title insurance policy); and to the best of the Seller's
knowledge, the Mortgaged Property and all improvements thereon comply with
all requirements of any applicable zoning and subdivision laws and
ordinances;
(ix) The Mortgage Loan meets, or is exempt from, applicable state or
federal laws, regulations and other requirements, pertaining to usury, and
the Mortgage Loan is not usurious;
(x) To the best of the Seller's knowledge, all inspections, licenses
and certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including, but not limited to, certificates of
occupancy and fire underwriting certificates, have been made or obtained
from the appropriate authorities;
(xi) All payments required to be made up to the Due Date immediately
preceding the Cut-Off Date for such Mortgage Loan under the terms of the
related Mortgage Note have been made and no Mortgage Loan had more than one
delinquency in the 12 months preceding the Cut-Off Date;
(xii) The Mortgage Note, the related Mortgage and other agreements
executed in connection therewith are genuine, and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law); and, to the best of the Seller's knowledge, all parties to the
Mortgage Note and the Mortgage had legal capacity to execute the Mortgage
Note and the Mortgage and each Mortgage Note and Mortgage has been duly and
properly executed by the Mortgagor;
(xiii) Each Mortgage Loan at the time it was originated complied in
all material respects with applicable federal, state and local laws
including, without limitation, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity, predatory
and abusive lending laws and disclosure laws;
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(xiv) The proceeds of the Mortgage Loans have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds therefor have been complied with
(except for escrow funds for exterior items which could not be completed
due to weather and escrow funds for the completion of swimming pools); and
all costs, fees and expenses incurred in making, closing or recording the
Mortgage Loan have been paid, except recording fees with respect to
Mortgages not recorded as of the Closing Date;
(xv) The Mortgage Loan (except any Mortgage Loan secured by a
Mortgaged Property located in any jurisdiction, as to which an opinion of
counsel of the type customarily rendered in such jurisdiction in lieu of
title insurance is instead received) is covered by an American Land Title
Association mortgagee title insurance policy or other generally acceptable
form of policy or insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued
by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac insuring the
originator, its successors and assigns, as to the first priority lien of
the Mortgage in the original principal amount of the Mortgage Loan and
subject only to (A) the lien of current real property taxes and assessments
not yet due and payable, (B) covenants, conditions and restrictions, rights
of way, easements and other matters of public record as of the date of
recording of such Mortgage acceptable to mortgage lending institutions in
the area in which the Mortgaged Property is located or specifically
referred to in the appraisal performed in connection with the origination
of the related Mortgage Loan, (C) liens created pursuant to any federal,
state or local law, regulation or ordinance affording liens for the costs
of clean-up of hazardous substances or hazardous wastes or for other
environmental protection purposes and (D) such other matters to which like
properties are commonly subject which do not individually, or in the
aggregate, materially interfere with the benefits of the security intended
to be provided by the Mortgage; the Seller is the sole insured of such
mortgagee title insurance policy, the assignment to the Trustee of the
Seller's interest in such mortgagee title insurance policy does not require
any consent of or notification to the insurer which has not been obtained
or made, such mortgagee title insurance policy is in full force and effect
and will be in full force and effect and inure to the benefit of the
Trustee, no claims have been made under such mortgagee title insurance
policy, and no prior holder of the related Mortgage, including the Seller,
has done, by act or omission, anything which would impair the coverage of
such mortgagee title insurance policy;
(xvi) The Mortgaged Property securing each Mortgage Loan is insured by
an insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire and
such hazards as are covered under a standard extended coverage endorsement,
in an amount which is not less than the lesser of 100% of the insurable
value of the Mortgaged Property and the outstanding principal balance of
the Mortgage Loan, but in no event less than the minimum amount necessary
to fully compensate for any damage or loss on a replacement cost basis; if
the Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the project; if upon origination
of the Mortgage Loan, the improvements on the Mortgaged Property were in an
area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards, a flood insurance policy meeting
the requirements of the current guidelines of
II-9
the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less
than the least of (A) the outstanding principal balance of the Mortgage
Loan, (B) the full insurable value of the Mortgaged Property and (C) the
maximum amount of insurance which was available under the National Flood
Insurance Act of 1968, as amended; and each Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost
and expense;
(xvii) To the best of the Seller's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage or
the related Mortgage Note and no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration; the
Seller has not waived any default, breach, violation or event of
acceleration; and no foreclosure action is currently threatened or has been
commenced with respect to the Mortgage Loan;
(xviii) No Mortgage Note or Mortgage is subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note or
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or Mortgage unenforceable, in whole or in part, or subject it to any right
of rescission, set-off, counterclaim or defense, including the defense of
usury, and no such right of rescission, set-off, counterclaim or defense
has been asserted with respect thereto;
(xix) Each Mortgage Note is payable in monthly payments, resulting in
complete amortization of the Mortgage Loan over a term of not more than 360
months; (xx) Each Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including realization by judicial foreclosure (subject to any
limitation arising from any bankruptcy, insolvency or other law for the
relief of debtors), and there is no homestead or other exemption available
to the Mortgagor which would interfere with such right of foreclosure;
(xxi) To the best of the Seller's knowledge, no Mortgagor is a debtor
in any state or federal bankruptcy or insolvency proceeding;
(xxii) Each Mortgaged Property is located in the United States and
consists of a one- to four-unit residential property, which may include a
detached home, townhouse, condominium unit or a unit in a planned unit
development or, in the case of Mortgage Loans secured by Co-op Shares,
leases or occupancy agreements;
(xxiii) The Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code;
(xxiv) With respect to each Mortgage where a lost note affidavit has
been delivered to the Trustee in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence;
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(xxv) In the event that the Mortgagor is an inter vivos "living"
trust, (i) such trust is in compliance with Xxxxxx Xxx or Xxxxxxx Mac
standards for inter vivos trusts and (ii) holding title to the Mortgaged
Property in such trust will not diminish any rights as a creditor including
the right to full title to the Mortgaged Property in the event foreclosure
proceedings are initiated;
(xxvi) If the Mortgage Loan is secured by a long-term residential
lease, (1) the lessor under the lease holds a fee simple interest in the
land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent
and the acquisition by the holder of the Mortgage of the rights of the
lessee upon foreclosure or assignment in lieu of foreclosure or provide the
holder of the Mortgage with substantially similar protections; (3) the
terms of such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled to
receive written notice of, and opportunity to cure, such default, (b) allow
the termination of the lease in the event of damage or destruction as long
as the Mortgage is in existence, (c) prohibit the holder of the Mortgage
from being insured (or receiving proceeds of insurance) under the hazard
insurance policy or policies relating to the Mortgaged Property or (d)
permit any increase in rent other than pre-established increases set forth
in the lease; (4) the original term of such lease is not less than 15
years; (5) the term of such lease does not terminate earlier than five
years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates
in transferring ownership in residential properties is a widely accepted
practice; and
(xxvii) No Mortgage Loan is a "high cost" loan as defined under any
federal, state or local law applicable to such Mortgage Loan at the time of
its origination.
Notwithstanding the foregoing, no representations or warranties are
made by the Seller as to the environmental condition of any Mortgaged Property;
the absence, presence or effect of hazardous wastes or hazardous substances on
any Mortgaged Property; any casualty resulting from the presence or effect of
hazardous wastes or hazardous substances on, near or emanating from any
Mortgaged Property; the impact on Certificateholders of any environmental
condition or presence of any hazardous substance on or near any Mortgaged
Property; or the compliance of any Mortgaged Property with any environmental
laws, nor is any agent, person or entity otherwise affiliated with the Seller
authorized or able to make any such representation, warranty or assumption of
liability relative to any Mortgaged Property. In addition, no representations or
warranties are made by the Seller with respect to the absence or effect of fraud
in the origination of any Mortgage Loan.
It is understood and agreed that the representations and warranties
set forth in this Section 2.03(b) shall survive delivery of the respective Owner
Mortgage Loan Files (and Retained Mortgage Loan Files, if applicable) to the
Custodian and shall inure to the benefit of the Trustee notwithstanding any
restrictive or qualified endorsement or assignment.
(c) Upon discovery by either the Seller, the Master Servicer, the
Trustee or the Custodian that any of the representations and warranties made in
subsection (b) above is not accurate (referred to herein as a "breach") and,
except for a breach of the representation and
II-11
warranty set forth in subsection (b)(i), where such breach is a result of the
Cut-Off Date Principal Balance of a Mortgage Loan being greater, by $5,000 or
greater, than the Cut-Off Date Principal Balance of such Mortgage Loan indicated
on the Mortgage Loan Schedule, that such breach materially and adversely affects
the interests of the Certificateholders in the related Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
(any Custodian being so obligated under a Custodial Agreement). Within 60 days
of the earlier of its discovery or its receipt of notice of any such breach, the
Seller shall cure such breach in all material respects or shall either (i)
repurchase the Mortgage Loan or any property acquired in respect thereof from
the Trust Estate at a price equal to (A) 100% of the unpaid principal balance of
such Mortgage Loan plus (B) accrued interest at the Net Mortgage Interest Rate
for such Mortgage Loan through the last day of the month in which such
repurchase took place or (ii) if within two years of the Startup Day, or such
other period permitted by the REMIC Provisions, substitute for such Mortgage
Loan in the manner described in Section 2.02. In addition to the foregoing, if a
breach of the representation set forth in clause (b)(xiii) of this Section 2.03
occurs as a result of a violation of an applicable predatory or abusive lending
law, the Seller shall reimburse the Trust for all costs and damages including,
but not limited to, reasonable attorneys' fees and costs, incurred by the Trust
as a result of the violation of such law (such amount, the "Reimbursement
Amount"). The purchase price of any repurchase described in this paragraph, the
Substitution Principal Amount, if any, plus accrued interest thereon and the
other amounts referred to in Section 2.02, and any Reimbursement Amount shall be
deposited in the Certificate Account. It is understood and agreed, except with
respect to the second preceding sentence, that the obligation of the Seller to
repurchase or substitute for any Mortgage Loan or property as to which such a
breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to Certificateholders or the Trustee on behalf
of Certificateholders, and such obligation shall survive until termination of
the Trust Estate hereunder.
Section 2.04 Execution and Delivery of Certificates.
The Trustee acknowledges (i) the assignment to it of the Mortgage
Loans and (ii) the issuance of and hereby declares that it holds the
Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC and
Certificateholders. The Trustee acknowledges the delivery of the Owner Mortgage
Loan Files to it, and, concurrently with such delivery has executed and
delivered to or upon the order of the Seller, in exchange for the Mortgage Loans
and Uncertificated Lower-Tier Interests, together with all other assets included
in the definition of "Trust Estate", receipt of which is hereby acknowledged,
Certificates in authorized denominations which, together with the Uncertificated
Lower-Tier Interests, evidence ownership of the entire Trust Estate.
Section 2.05 Designation of Certificates; Designation of Startup Day
and Latest Possible Maturity Date.
The Seller hereby designates the Classes of Class A Certificates
(other than the Class A-R and Class A-LR Certificates) and the Classes of Class
B Certificates as classes of "regular interests" and the Class A-R Certificate
as the single class of "residual interest" in the Upper-Tier REMIC for the
purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively. The Seller
hereby further designates the Class A-L1 Interest, Class A-L5 Interest, Class
A-L8 Interest, Class A-LPO Interest, Class A-LUR Interest, Class B-L1 Interest,
Class B-L2 Interest,
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Class B-L3 Interest, Class B-L4 Interest, Class B-L5 Interest and Class B-L6
Interest as classes of "regular interests" and the Class A-LR Certificate as the
single class of "residual interest" in the Lower-Tier REMIC for the purposes of
Code Sections 860G(a)(1) and 860G(a)(2), respectively. The Closing Date is
hereby designated as the "Startup Day" of each of the Upper-Tier REMIC and
Lower-Tier REMIC within the meaning of Code Section 860G(a)(9). The "latest
possible maturity date" of the regular interests in the Upper-Tier REMIC and
Lower-Tier REMIC is _______, 20__ for purposes of Code Section 860G(a)(1).
Section 2.06 Optional Substitution of Mortgage Loans.
During the three-month period beginning on the Startup Date, the
Seller shall have the right, but not the obligation, in its sole discretion for
any reason, to substitute for any Mortgage Loan a Substitute Mortgage Loan
meeting the requirements of Section 2.02. Any such substitution shall be carried
out in the manner described in Section 2.02. The Substitution Principal Amount,
if any, plus accrued interest thereon and the other amounts referred to in
Section 2.02, shall be deposited in the Certificate Account.
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ARTICLE III
ADMINISTRATION OF THE TRUST ESTATE; SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Certificate Account.
(a) The Master Servicer shall establish and maintain a Certificate
Account for the deposit of funds received by the Master Servicer with respect to
the Mortgage Loans serviced by each Servicer pursuant to each of the Servicing
Agreements. Such account shall be maintained as an Eligible Account. The Master
Servicer shall give notice to each Servicer and the Seller of the location of
the Certificate Account and of any change in the location thereof.
(b) The Master Servicer shall deposit into the Certificate Account on
the day of receipt thereof all amounts received by it from any Servicer pursuant
to any of the Servicing Agreements and shall, in addition, deposit into the
Certificate Account the following amounts, in the case of amounts specified in
clause (i), not later than the Distribution Date on which such amounts are
required to be distributed to Certificateholders and, in the case of the amounts
specified in clause (ii), not later than the Business Day next following the day
of receipt and posting by the Master Servicer:
(i) Periodic Advances pursuant to Section 3.03(a) made by the Master
Servicer or the Trustee, if any and any amounts deemed received by the
Master Servicer pursuant to Section 3.01(d); and
(ii) in the case of any Mortgage Loan that is repurchased by the
Seller pursuant to Section 2.02, 2.03 or 3.08 or that is auctioned by the
Master Servicer pursuant to Section 3.08 or purchased by the Master
Servicer pursuant to Section 3.08 or 9.01, the purchase price therefor or,
where applicable, any Substitution Principal Amount and any amounts
received in respect of the interest portion of unreimbursed Periodic
Advances.
(c) The Master Servicer shall cause the funds in the Certificate
Account to be invested in Eligible Investments. No such Eligible Investments
will be sold or disposed of at a gain prior to maturity unless the Master
Servicer has received an Opinion of Counsel or other evidence satisfactory to it
that such sale or disposition will not cause the Trust Estate to be subject to
Prohibited Transactions Tax, otherwise subject the Trust Estate to tax, or cause
either of the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC while any Certificates are outstanding. Any amounts deposited in the
Certificate Account prior to the Distribution Date shall be invested for the
account of the Master Servicer and any investment income thereon shall be
additional compensation to the Master Servicer for services rendered under this
Agreement. The amount of any losses incurred in respect of any such investments
shall be deposited in the Certificate Account by the Master Servicer out of its
own funds immediately as realized, without any right of reimbursement therefor
from the Trust Estate.
(d) For purposes of this Agreement, the Master Servicer will be deemed
to have received from a Servicer on the applicable Remittance Date for such
funds all amounts
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deposited by such Servicer into the Custodial P&I Account
maintained in accordance with the applicable Servicing Agreement, if such
Custodial P&I Account is not an Eligible Account as defined in this Agreement,
to the extent such amounts are not actually received by the Master Servicer on
such Remittance Date as a result of the bankruptcy, insolvency, receivership or
other financial distress of the depository institution in which such Custodial
P&I Account is being held. To the extent that amounts so deemed to have been
received by the Master Servicer are subsequently remitted to the Master
Servicer, the Master Servicer shall be entitled to retain such amounts.
Section 3.02 Permitted Withdrawals from the Certificate Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Certificate Account for the following purposes (limited, in the case of
Servicer reimbursements, to cases where funds in the respective Custodial P&I
Account are not sufficient therefor):
(i) to reimburse the Master Servicer, the Trustee or any Servicer for
Periodic Advances made by the Master Servicer or the Trustee pursuant to
Section 3.03(a) or any Servicer pursuant to any Servicing Agreement with
respect to previous Distribution Dates, such right to reimbursement
pursuant to this subclause (i) being limited to amounts received on or in
respect of particular Mortgage Loans (including, for this purpose,
Liquidation Proceeds, REO Proceeds and proceeds from the purchase, sale,
repurchase or substitution of Mortgage Loans pursuant to Section 2.02,
2.03, 2.06, 3.08 or 9.01) respecting which any such Periodic Advance was
made;
(ii) to reimburse any Servicer, the Master Servicer or the Trustee for
any Periodic Advances determined in good faith to have become
Nonrecoverable Advances provided, however, that any portion of
Nonrecoverable Advances representing Fixed Retained Yield shall be
reimbursable only from amounts constituting Fixed Retained Yield and not
from the assets of the Trust Estate;
(iii) to reimburse the Master Servicer or any Servicer from
Liquidation Proceeds for Liquidation Expenses and for amounts expended by
the Master Servicer or any Servicer pursuant hereto or to any Servicing
Agreement, respectively, in good faith in connection with the restoration
of damaged property or for foreclosure expenses;
(iv) from any Mortgagor payment on account of interest or other
recovery (including Net REO Proceeds) with respect to a particular Mortgage
Loan, to pay the Master Servicing Fee with respect to such Mortgage Loan to
the Master Servicer;
(v) to reimburse the Master Servicer, any Servicer or the Trustee (or,
in certain cases, the Seller) for expenses incurred by it (including taxes
paid on behalf of the Trust Estate) and recoverable by or reimbursable to
it pursuant to Section 3.03(c), 3.03(d) or 6.03 or the second sentence of
Section 8.13(a) or pursuant to such Servicer's Servicing Agreement,
provided such expenses are "unanticipated" within the meaning of the REMIC
Provisions;
(vi) to pay to the Seller or other purchaser with respect to each
Mortgage Loan or property acquired in respect thereof that has been
repurchased or replaced pursuant to
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Section 2.02, 2.03 or 2.06 or auctioned pursuant to Section 3.08 or to pay
to the Master Servicer with respect to each Mortgage Loan or property
acquired in respect thereof that has been purchased pursuant to Section
3.08 or 9.01, all amounts received thereon and not required to be
distributed as of the date on which the related repurchase or purchase
price or Scheduled Principal Balance was determined;
(vii) to remit funds to the Paying Agent in the amounts and in the
manner provided for herein;
(viii) to pay to the Master Servicer any interest earned on or
investment income with respect to funds in the Certificate Account;
(ix) to pay to the Master Servicer or any Servicer out of Liquidation
Proceeds allocable to interest the amount of any unpaid Master Servicing
Fee or Servicing Fee (as adjusted pursuant to the related Servicing
Agreement) and any unpaid assumption fees, late payment charges or other
Mortgagor charges on the related Mortgage Loan;
(x) to pay to the Master Servicer as additional master servicing
compensation any Liquidation Profits which a Servicer is not entitled to
pursuant to the applicable Servicing Agreement;
(xi) to withdraw from the Certificate Account any amount deposited in
the Certificate Account that was not required to be deposited therein;
(xii) to clear and terminate the Certificate Account pursuant to
Section 9.01; and
(xiii) to pay to WFHM from any Mortgagor payment on account of
interest or other recovery (including Net REO Proceeds) with respect to a
particular Mortgage Loan, the Fixed Retained Yield, if any, with respect to
such Mortgage Loan; provided, however, that with respect to any payment of
interest received by the Master Servicer in respect of a Mortgage Loan
(whether paid by the Mortgagor or received as Liquidation Proceeds,
Insurance Proceeds or otherwise) which is less than the full amount of
interest then due with respect to such Mortgage Loan, only that portion of
such payment of interest that bears the same relationship to the total
amount of such payment of interest as the Fixed Retained Yield Rate, if
any, in respect of such Mortgage Loan bears to the Mortgage Interest Rate
shall be allocated to the Fixed Retained Yield with respect thereto.
(b) The Master Servicer shall keep and maintain separate accounting,
on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
payment to and withdrawal from the Certificate Account.
Section 3.03 Advances by Master Servicer and Trustee.
(a) In the event an Other Servicer fails to make any required Periodic
Advances of principal and interest on a Mortgage Loan as required by the related
Other Servicing Agreement prior to the Distribution Date occurring in the month
during which such Periodic Advance is due, the Master Servicer shall make
Periodic Advances to the extent
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provided hereby. In the event WFHM fails to make any required Periodic Advances
of principal and interest on a Mortgage Loan as required by the WFHM Servicing
Agreement prior to the Distribution Date occurring in the month during which
such Periodic Advance is due, the Trustee shall, to the extent required by
Section 8.14, make such Periodic Advance to the extent provided hereby, provided
that the Trustee has previously received the certificate of the Master Servicer
described in the following sentence. The Master Servicer shall certify to the
Trustee with respect to any such Distribution Date (i) the amount of Periodic
Advances required of WFHM or such Other Servicer, as the case may be, (ii) the
amount actually advanced by WFHM or such Other Servicer, (iii) the amount that
the Trustee or Master Servicer is required to advance hereunder, and (iv)
whether the Master Servicer has determined that it reasonably believes that such
Periodic Advance is a Nonrecoverable Advance. Amounts advanced by the Trustee or
Master Servicer shall be deposited in the Certificate Account on the related
Distribution Date. Notwithstanding the foregoing, neither the Master Servicer
nor the Trustee will be obligated to make a Periodic Advance that it reasonably
believes to be a Nonrecoverable Advance. The Trustee may conclusively rely for
any determination to be made by it hereunder upon the determination of the
Master Servicer as set forth in its certificate.
(b) To the extent an Other Servicer fails to make an advance on
account of the taxes or insurance premiums with respect to a Mortgage Loan
required pursuant to the related Other Servicing Agreement, the Master Servicer
shall, if the Master Servicer knows of such failure of the Servicer, advance
such funds and take such steps as are necessary to pay such taxes or insurance
premiums. To the extent WFHM fails to make an advance on account of the taxes or
insurance premiums with respect to a Mortgage Loan required pursuant to the WFHM
Servicing Agreement, the Master Servicer shall, if the Master Servicer knows of
such failure of WFHM, certify to the Trustee that such failure has occurred.
Upon receipt of such certification, the Trustee shall advance such funds and
take such steps as are necessary to pay such taxes or insurance premiums.
(c) The Master Servicer and the Trustee shall each be entitled to be
reimbursed from the Certificate Account for any Periodic Advance made by it
under Section 3.03(a) to the extent described in Section 3.02(a)(i) and (a)(ii).
The Master Servicer and the Trustee shall be entitled to be reimbursed pursuant
to Section 3.02(a)(v) for any advance by it pursuant to Section 3.03(b). The
Master Servicer shall diligently pursue restoration of such amount to the
Certificate Account from the related Servicer. The Master Servicer shall, to the
extent it has not already done so, upon the request of the Trustee, withdraw
from the Certificate Account and remit to the Trustee any amounts to which the
Trustee is entitled as reimbursement pursuant to Section 3.02 (a)(i), (ii) and
(v).
(d) Except as provided in Section 3.03(a) and (b), neither the Master
Servicer nor the Trustee shall be required to pay or advance any amount which
any Servicer was required, but failed, to deposit in the Certificate Account.
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Section 3.04 Custodian to Cooperate; Release of Owner Mortgage Loan
Files and Retained Loan Files.
In connection with the deposit by a Servicer into the Certificate
Account of the proceeds from a Liquidated Loan or of a Prepayment in Full, the
Master Servicer or applicable Servicer shall confirm to the Trustee that all
amounts required to be remitted to the Certificate Account in connection with
such Mortgage Loan have been so deposited, and the Master Servicer or applicable
Servicer shall deliver two copies of such Request for Release to the Custodian.
The Custodian shall, within five Business Days of its receipt of such a Request
for Release, release the related Owner Mortgage Loan File (and Retained Mortgage
Loan File, if applicable) to the Master Servicer or such Servicer, as requested
by the Master Servicer or such Servicer. No expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the Certificate Account.
From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan, including but not limited to, collection under any
insurance policies, or to effect a partial release of any Mortgaged Property
from the lien of the Mortgage, the Servicer of such Mortgage Loan shall deliver
to the Master Servicer or Custodian two copies of a Request for Release in hard
copy or in electronic format acceptable to the Custodian. Upon the Master
Servicer's receipt of any such Request for Release, the Master Servicer shall
promptly forward such request in hard copy or in electronic format acceptable to
the Custodian. The Custodian shall, within five Business Days, release the
related Owner Mortgage Loan File (and Retained Mortgage Loan File, if
applicable) to the Master Servicer or such Servicer. Any such Request for
Release shall obligate the Master Servicer or such Servicer, as the case may be,
to return the Owner Mortgage Loan File (and Retained Mortgage Loan File, if
applicable) to the Custodian by the twenty-first day following the release
thereof, unless (i) the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Certificate
Account or (ii) the Owner Mortgage Loan File, Retained Mortgage Loan File, if
applicable, or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially. Upon receipt of two
copies of a Request for Release stating that such Mortgage Loan was liquidated
and that all amounts received or to be received in connection with such
liquidation which are required to be deposited into the Certificate Account have
been so deposited, or that such Mortgage Loan has become an REO Mortgage Loan,
the Custodian shall amend its records.
Upon written certification of the Master Servicer or the Servicer
pursuant to clause (ii) of the preceding paragraph, the Trustee shall execute
and deliver to the Master Servicer or such Servicer, as directed by the Master
Servicer, court pleadings, requests for trustee's sale or other documents
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity. Each such certification shall
include a request that such pleadings or documents be executed by the Trustee
and a statement as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee will not invalidate or
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otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure proceeding or trustee's sale.
Section 3.05 Reports to the Trustee; Annual Compliance Statements.
(a) Not later than 15 days after each Distribution Date, the Master
Servicer shall deliver to the Trustee a statement setting forth the status of
the Certificate Account as of the close of business on such Distribution Date
stating that all distributions required to be made by the Master Servicer under
this Agreement have been made (or, if any required distribution has not been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate amount of
deposits into and withdrawals from such account for each category of deposit and
withdrawal specified in Sections 3.01 and 3.02. Such statement may be in the
form of the then current Xxxxxx Xxx monthly accounting report for its Guaranteed
Mortgage Pass-Through Program with appropriate additions and changes, and shall
also include information as to the aggregate unpaid principal balance of all of
the Mortgage Loans as of the close of business as of the last day of the
calendar month immediately preceding such Distribution Date. Copies of such
statement shall be provided by the Trustee to any Certificateholder upon written
request, provided such statement is delivered, or caused to be delivered, by the
Master Servicer to the Trustee. Not later than 15 days after each Distribution
Date, the Master Servicer shall deliver to the Trustee a report identifying (i)
all requests made by Servicers for the release of documents by the Custodian
during the immediately preceding calendar month and (ii) all documents released
by the Custodian during the immediately preceding calendar month.
(b) The Master Servicer shall deliver to the Trustee on or before
April 30 of each year, a certificate signed by an officer of the Master
Servicer, certifying that (i) such officer has reviewed the activities of the
Master Servicer during the preceding calendar year or portion thereof and its
performance under this agreement and (ii) to the best of such officer's
knowledge, based on such review, the Master Servicer has performed and fulfilled
its duties, responsibilities and obligations under this agreement in all
material respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying each
such default known to such officer and the nature and status thereof, and, (iii)
(A) the Master Servicer has received from each Servicer any financial
statements, officer's certificates, accountant's statements or other information
required to be provided to the Master Servicer pursuant to the related Servicing
Agreement and (B) to the best of such officer's knowledge, based on a review of
the information provided to the Master Servicer by each Servicer as described in
(iii)(A) above, each Servicer has performed and fulfilled its duties,
responsibilities and obligations under the related Servicing Agreement in all
material respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying each
such default known to such officer and the nature and status thereof. Copies of
such officers' certificate shall be provided by the Trustee to any
Certificateholder upon written request provided such certificate is delivered,
or caused to be delivered, by the Master Servicer to the Trustee.
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Section 3.06 Title, Management and Disposition of Any REO Mortgage
Loan.
The Master Servicer shall ensure that each REO Mortgage Loan is
administered by the related Servicer at all times so that it qualifies as
"foreclosure property" under the REMIC Provisions and that it does not earn any
"net income from foreclosure property" which is subject to tax under the REMIC
Provisions. In the event that a Servicer is unable to dispose of any REO
Mortgage Loan within the period mandated by each of the Servicing Agreements,
the Master Servicer shall monitor such Servicer to verify that such REO Mortgage
Loan is auctioned to the highest bidder within the period so specified. In the
event of any such sale of a REO Mortgage Loan, the Custodian shall, at the
written request of the Master Servicer and upon being supported with appropriate
forms therefor, within five Business Days of the deposit by the Master Servicer
of the proceeds of such sale or auction into the Certificate Account, release or
cause to be released to the entity identified by the Master Servicer the related
Owner Mortgage Loan File, Retained Mortgage Loan File, if applicable, and
Servicer Mortgage Loan File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary to
vest in the auction purchaser title to the REO Mortgage Loan and the Custodian
shall have no further responsibility with regard to such Owner Mortgage Loan
File, Retained Mortgage Loan File, if applicable, or Servicer Mortgage Loan
File. Neither the Trustee, the Master Servicer nor any Servicer, acting on
behalf of the Trust Estate, shall provide financing from the Trust Estate to any
purchaser of an REO Mortgage Loan.
Section 3.07 Amendments to Servicing Agreements, Modification of
Standard Provisions.
(a) Subject to the prior written consent of the Trustee pursuant to
Section 3.07(b), the Master Servicer from time to time may, to the extent
permitted by the applicable Servicing Agreement, make such modifications and
amendments to such Servicing Agreement as the Master Servicer deems necessary or
appropriate to confirm or carry out more fully the intent and purpose of such
Servicing Agreement and the duties, responsibilities and obligations to be
performed by the Servicer thereunder. Such modifications may only be made if
they are consistent with the REMIC Provisions, as evidenced by an Opinion of
Counsel. Prior to the issuance of any modification or amendment, the Master
Servicer shall deliver to the Trustee such Opinion of Counsel and an Officer's
Certificate setting forth (i) the provision that is to be modified or amended,
(ii) the modification or amendment that the Master Servicer desires to issue and
(iii) the reason or reasons for such proposed amendment or modification.
(b) The Trustee shall consent to any amendment or supplement to a
Servicing Agreement proposed by the Master Servicer pursuant to Section 3.07(a),
which consent and amendment shall not require the consent of any
Certificateholder if it is (i) for the purpose of curing any mistake or
ambiguity or to further effect or protect the rights of the Certificateholders
or (ii) for any other purpose, provided such amendment or supplement for such
other purpose cannot reasonably be expected to adversely affect
Certificateholders. The lack of reasonable expectation of an adverse effect on
Certificateholders may be established through the delivery to the Trustee of (i)
an Opinion of Counsel to such effect or (ii) written notification from each
Rating Agency to the effect that such amendment or supplement will not result in
reduction of the current rating assigned by that Rating Agency to the
Certificates. Notwithstanding the two
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immediately preceding sentences, the Trustee may, in its discretion, decline to
enter into or consent to any such supplement or amendment if its own rights,
duties or immunities shall be adversely affected.
(c)(i) Notwithstanding anything to the contrary in this Section 3.07,
the Master Servicer from time to time may, without the consent of any
Certificateholder or the Trustee, enter into an amendment (A) to an Other
Servicing Agreement for the purpose of (i) eliminating or reducing Month End
Interest and (ii) providing for the remittance of Full Unscheduled Principal
Receipts by the applicable Servicer to the Master Servicer not later than the
24th day of each month (or if such day is not a Business Day, on the previous
Business Day) or (B) to the WFHM Servicing Agreement for the purpose of changing
the applicable Remittance Date to the 18th day of each month (or if such day is
not a Business Day, on the previous Business Day).
(ii) The Master Servicer may direct WFHM to enter into an amendment to
the WFHM Servicing Agreement for the purposes described in Sections
3.07(c)(i)(B) and 10.01(b)(iii).
Section 3.08 Oversight of Servicing.
The Master Servicer shall supervise, monitor and oversee the servicing
of the Mortgage Loans by each Servicer and the performance by each Servicer of
all services, duties, responsibilities and obligations (including the obligation
to maintain an Errors and Omissions Policy and Fidelity Bond) that are to be
observed or performed by the Servicer under its respective Servicing Agreement.
In performing its obligations hereunder, the Master Servicer shall act in a
manner consistent with Accepted Master Servicing Practices and with the
Trustee's and the Certificateholders' reliance on the Master Servicer, and in a
manner consistent with the terms and provisions of any insurance policy required
to be maintained by the Master Servicer or any Servicer pursuant to this
Agreement or any Servicing Agreement. The Master Servicer acknowledges that
prior to taking certain actions required to service the Mortgage Loans, each
Servicing Agreement provides that the Servicer thereunder must notify, consult
with, obtain the consent of or otherwise follow the instructions of the Master
Servicer. The Master Servicer is also given authority to waive compliance by a
Servicer with certain provisions of its Servicing Agreement. In each such
instance, the Master Servicer shall promptly instruct such Servicer or otherwise
respond to such Servicer's request. In no event will the Master Servicer
instruct such Servicer to take any action, give any consent to action by such
Servicer or waive compliance by such Servicer with any provision of such
Servicer's Servicing Agreement if any resulting action or failure to act would
be inconsistent with the requirements of the Rating Agencies that rated the
Certificates or would otherwise have an adverse effect on the
Certificateholders. Any such action or failure to act shall be deemed to have an
adverse effect on the Certificateholders if such action or failure to act either
results in (i) the downgrading of the rating assigned by any Rating Agency to
the Certificates, (ii) the loss by the Upper-Tier REMIC or the Lower-Tier REMIC
of REMIC status for federal income tax purposes or (iii) the imposition of any
Prohibited Transaction Tax or any federal taxes on either the Upper-Tier REMIC,
the Lower-Tier REMIC or the Trust Estate. The Master Servicer shall have full
power and authority in its sole discretion to take any action with respect to
the Trust Estate as may be necessary or advisable to avoid the circumstances
specified including clause (ii) or (iii) of the preceding sentence.
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For the purposes of determining whether any modification of a Mortgage
Loan shall be permitted by the Master Servicer, such modification shall be
construed as a substitution of the modified Mortgage Loan for the Mortgage Loan
originally deposited in the Trust Estate if it would be a "significant
modification" within the meaning of Section 1.860G-2(b) of the regulations of
the U.S. Department of the Treasury. No modification shall be approved unless
(i) the modified Mortgage Loan would qualify as a Substitute Mortgage Loan under
Section 2.02 and (ii) with respect to any modification that occurs more than
three months after the Closing Date and is not the result of a default or a
reasonably foreseeable default under the Mortgage Loan, there is delivered to
the Trustee an Opinion of Counsel (at the expense of the party seeking to modify
the Mortgage Loan) to the effect that such modification would not be treated as
giving rise to a new debt instrument for federal income tax purposes as
described in the preceding sentence; provided, however, that no such Opinion of
Counsel need be delivered if the sole purpose of the modification is to reduce
the Monthly Payment on a Mortgage Loan as a result of a Curtailment such that
the Mortgage Loan is fully amortized by its original maturity date.
During the term of this Agreement, the Master Servicer shall consult
fully with each Servicer as may be necessary from time to time to perform and
carry out the Master Servicer's obligations hereunder and otherwise exercise
reasonable efforts to encourage such Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by it under
its Servicing Agreement.
The relationship of the Master Servicer to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent.
The Master Servicer shall administer the Trust Estate on behalf of the
Trustee and shall have full power and authority, acting alone or (subject to
Section 6.06) through one or more subcontractors, to do any and all things in
connection with such administration which it may deem necessary or desirable.
Upon the execution and delivery of this Agreement, and from time to time as may
be required thereafter, the Trustee shall furnish the Master Servicer or its
subcontractors with any powers of attorney and such other documents as may be
necessary or appropriate to enable the Master Servicer to carry out its
administrative duties hereunder.
The Seller shall have a limited option to repurchase any defaulted
Mortgage Loan or REO Mortgage Loan during the following time periods: (i)
beginning on the first day of the second month following the month in which the
Master Servicer has reported that a Servicer has initiated foreclosure
proceedings with respect to such a defaulted Mortgage Loan, with such repurchase
option expiring on the last day of such second following month; (ii) beginning
on the first day of the second month following the month in which the Master
Servicer has reported that such defaulted Mortgage Loan has become an REO
Mortgage Loan, with such repurchase option expiring on the last day of such
second following month; and (iii) beginning on the day on which a Servicer
accepts a contractual commitment by a third party to purchase the Mortgaged
Property related to the defaulted Mortgage Loan or REO Mortgage Loan, with such
repurchase option expiring on the earlier of the last day of the month in which
such contractual commitment was accepted by the Servicer or the day immediately
prior to the day on which the closing occurs with respect to such third party
purchase of the Mortgaged Property related to the defaulted Mortgage Loan or REO
Mortgage Loan. The Seller shall be entitled to repurchase at its option
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any Mortgage Loan in the Trust Estate which, pursuant to paragraph 5(b) of the
Mortgage Loan Purchase Agreement, WFHM requests the Seller to repurchase and to
sell to WFHM to facilitate the exercise of WFHM's rights against the originator
or a prior holder of such Mortgage Loan. The purchase price for any Mortgage
Loan repurchased pursuant to this paragraph shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued interest thereon at the
Mortgage Interest Rate for such Mortgage Loan, through the last day of the month
in which such repurchase occurs. Upon the receipt of such purchase price, the
Master Servicer shall provide to the Trustee the certification required by
Section 3.04 and the Trustee and the Custodian, if any, shall promptly release
to the Seller the Owner Mortgage Loan File and Retained Mortgage Loan File, if
applicable, relating to the Mortgage Loan being repurchased.
In the event that (i) the Master Servicer determines at any time that,
notwithstanding the representations and warranties set forth in Section 2.03(b),
any Mortgage Loan is not a "qualified mortgage" within the meaning of Section
860G of the Code and (ii) the Master Servicer is unable to enforce the
obligation of the Seller to purchase such Mortgage Loan pursuant to Section 2.02
within two months of such determination, the Master Servicer shall cause such
Mortgage Loan to be auctioned to the highest bidder and sold out of the Trust
Estate no later than the date 90 days after such determination. In the event of
any such sale of a Mortgage Loan, the Custodian shall, at the written request of
the Master Servicer and upon being supported with appropriate forms therefor,
within five Business Days of the deposit by the Master Servicer of the proceeds
of such auction into the Certificate Account, release or cause to be released to
the entity identified by the Master Servicer the related Owner Mortgage Loan
File, Retained Mortgage Loan File, if applicable, and Servicer Mortgage Loan
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the auction
purchaser title to the Mortgage Loan and the Custodian shall have no further
responsibility with regard to such Owner Mortgage Loan File, Retained Mortgage
Loan File, if applicable, or Servicer Mortgage Loan File. Neither the Trustee,
the Custodian, the Master Servicer nor any Servicer, acting on behalf of the
Trustee, shall provide financing from the Trust Estate to any purchaser of a
Mortgage Loan.
The Master Servicer, on behalf of the Trustee, shall, pursuant to the
Servicing Agreements, object to the foreclosure upon, or other related
conversion of the ownership of, any Mortgaged Property by the related Servicer
if (i) the Master Servicer believes such Mortgaged Property may be contaminated
with or affected by hazardous wastes or hazardous substances or (ii) such
Servicer does not agree to administer such Mortgaged Property, once the related
Mortgage Loan becomes an REO Mortgage Loan, in a manner which would not result
in a federal tax being imposed upon the Trust Estate or the Upper-Tier REMIC or
the Lower-Tier REMIC.
The Master Servicer may enter into a special servicing agreement with
an unaffiliated holder of 100% Percentage Interest of a Class of Class B
Certificates or a holder of a class of securities representing interests in the
Class B Certificates and/or other subordinated Mortgage Asset-Backed
Pass-Through Certificates, such agreement to be substantially in the form of
Exhibit M hereto or subject to each Rating Agency's acknowledgment that the
ratings of the Certificates in effect immediately prior to the entering into of
such agreement would not be qualified, downgraded or withdrawn and the
Certificates would not be placed on credit review status (except for possible
upgrading) as a result of such agreement. Any such agreement may
III-10
contain provisions whereby such holder may instruct the Master Servicer to
instruct a Servicer to the extent provided in the applicable Servicing Agreement
to commence or delay foreclosure proceedings with respect to delinquent Mortgage
Loans and will contain provisions for the deposit of cash by the holder that
would be available for distribution to Certificateholders if Liquidation
Proceeds are less than they otherwise may have been had the Servicer acted in
accordance with its normal procedures.
Section 3.09 Termination and Substitution of Servicing Agreements.
Upon the occurrence of any event for which a Servicer may be
terminated pursuant to its Servicing Agreement, the Master Servicer shall
promptly deliver to the Seller and the Trustee an Officer's Certificate
certifying that an event has occurred which may justify termination of such
Servicing Agreement, describing the circumstances surrounding such event and
recommending what action should be taken by the Trustee with respect to such
Servicer. If the Master Servicer recommends that such Servicing Agreement be
terminated, the Master Servicer's certification must state that the breach is
material and not merely technical in nature. Upon written direction of the
Master Servicer, based upon such certification, the Trustee shall promptly
terminate such Servicing Agreement. Notwithstanding the foregoing, in the event
that (i) WFHM fails to make any advance, as a consequence of which the Trustee
is obligated to make an advance pursuant to Section 3.03 and (ii) the Trustee
provides WFHM written notice of the failure to make such advance and such
failure shall continue unremedied for a period of 15 days after receipt of such
notice, the Trustee shall terminate the WFHM Servicing Agreement without the
recommendation of the Master Servicer. The Master Servicer shall indemnify the
Trustee and hold it harmless from and against any and all claims, liabilities,
costs and expenses (including, without limitation, reasonable attorneys' fees)
arising out of, or assessed against the Trustee in connection with termination
of such Servicing Agreement at the direction of the Master Servicer. If the
Trustee terminates such Servicing Agreement, the Trustee may enter into a
substitute Servicing Agreement with the Master Servicer or, at the Master
Servicer's nomination, with another mortgage loan service company acceptable to
the Trustee, the Master Servicer and each Rating Agency under which the Master
Servicer or such substitute servicer, as the case may be, shall assume, satisfy,
perform and carry out all liabilities, duties, responsibilities and obligations
that are to be, or otherwise were to have been, satisfied, performed and carried
out by such Servicer under such terminated Servicing Agreement. Until such time
as the Trustee enters into a substitute servicing agreement with respect to the
Mortgage Loans previously serviced by such Servicer, the Master Servicer shall
assume, satisfy, perform and carry out all obligations which otherwise were to
have been satisfied, performed and carried out by such Servicer under its
terminated Servicing Agreement. However, in no event shall the Master Servicer
be deemed to have assumed the obligations of a Servicer to advance payments of
principal and interest on a delinquent Mortgage Loan in excess of the Master
Servicer's independent Periodic Advance obligation under Section 3.03 of this
Agreement. As compensation for the Master Servicer of any servicing obligations
fulfilled or assumed by the Master Servicer, the Master Servicer shall be
entitled to any servicing compensation to which a Servicer would have been
entitled if the Servicing Agreement with such Servicer had not been terminated.
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Section 3.10 Application of Net Liquidation Proceeds.
For all purposes under this agreement, Net Liquidation Proceeds
received from a Servicer shall be allocated first to accrued and unpaid interest
on the related Mortgage Loan and then to the unpaid principal balance thereof.
Section 3.11 Act Reports.
The Master Servicer shall, on behalf of the Seller, make all filings
required to be made by the Seller with respect to the Class A Certificates and
the Class B-1, Class B-2 and Class B-3 Certificates pursuant to the Securities
Exchange Act of 1934, as amended. The Master Servicer shall file directly with
the Securities and Exchange Commission the certification required under the
Xxxxxxxx-Xxxxx Act of 2002, which shall be signed by a senior officer in charge
of the master servicing function of the Master Servicer.
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ARTICL IV
DISTRIBUTIONS IN RESPECT OF CERTIFICATES;
PAYMENTS TO CERTIFICATEHOLDERS;
STATEMENTS AND REPORTS
Section 4.01 Distributions.
(a) (i) On each Distribution Date, the Pool Distribution Amount will
be applied in the following amounts, to the extent the Pool Distribution Amount
is sufficient therefor, in the manner and in the order of priority as follows:
first, to the Classes of Class A Certificates, pro rata, based upon
their respective Interest Accrual Amounts, in an aggregate amount up to the
Class A Interest Accrual Amount with respect to such Distribution Date; provided
that prior to the Accretion Termination Date, an amount equal to the amount that
would otherwise be distributable in respect of interest to the Class A-17
Certificates pursuant to this provision will instead be distributed in reduction
of the Principal Balances of certain Classes of Class A Certificates, in each
case in accordance with Section 4.01(b);
second, to the Classes of Class A Certificates, pro rata, based upon
their respective Class A Unpaid Interest Shortfalls, in an aggregate amount up
to the Aggregate Class A Unpaid Interest Shortfall; provided that prior to the
Accretion Termination Date, an amount equal to the amount that would otherwise
be distributable in respect of unpaid interest shortfalls to the Class A-17
Certificates pursuant to this provision will instead be distributed in reduction
of the Principal Balances of certain Classes of Class A Certificates, in each
case in accordance with Section 4.01(b);
third, concurrently, to the Class A Certificates (other than the Class
A-PO Certificates) and the Class A-PO Certificates, pro rata, based on their
respective Class A Non-PO Optimal Principal Amount and Class A-PO Optimal
Principal Amount, (A) to the Class A Certificates (other than the Class A-PO
Certificates), in an aggregate amount up to the Class A Non-PO Optimal Principal
Amount, such distribution to be allocated among such Classes in accordance with
Section 4.01(b) or Section 4.01(c), as applicable, and (B) to the Class A-PO
Certificates in an amount up to the Class A-PO Optimal Principal Amount;
fourth, to the Class A-PO Certificates in an amount up to the Class
A-PO Deferred Amount from amounts otherwise distributable (without regard to
this Paragraph fourth) first to the Class B-6 Certificates pursuant to Paragraph
twenty-second below, second to the Class B-5 Certificates pursuant to Paragraph
nineteenth below, third to the Class B-4 Certificates pursuant to Paragraph
sixteenth below, fourth to the Class B-3 Certificates pursuant to Paragraph
thirteenth below, fifth to the Class B-2 Certificates pursuant to Paragraph
tenth below, and sixth to the Class B-1 Certificates pursuant to Paragraph
seventh below;
fifth, to the Class B-1 Certificates, in an amount up to the Interest
Accrual Amount for the Class B-1 Certificates with respect to such Distribution
Date;
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sixth, to the Class B-1 Certificates in an amount up to the Class B-1
Unpaid Interest Shortfall;
seventh, to the Class B-1 Certificates in an amount up to the Class
B-1 Optimal Principal Amount; provided, however, that the amount distributable
to the Class B-1 Certificates pursuant to this Paragraph seventh will be reduced
by the amount, if any, that would have been distributable to the Class B-1
Certificates hereunder used to pay the Class A-PO Deferred Amount as provided in
Paragraph fourth above;
eighth, to the Class B-2 Certificates, in an amount up to the Interest
Accrual Amount for the Class B-2 Certificates with respect to such Distribution
Date;
ninth, to the Class B-2 Certificates in an amount up to the Class B-2
Unpaid Interest Shortfall;
tenth, to the Class B-2 Certificates in an amount up to the Class B-2
Optimal Principal Amount; provided, however, that the amount distributable to
the Class B-2 Certificates pursuant to this Paragraph tenth will be reduced by
the amount, if any, that would have been distributable to the Class B-2
Certificates hereunder used to pay the Class A-PO Deferred Amount as provided in
Paragraph fourth above;
eleventh, to the Class B-3 Certificates, in an amount up to the
Interest Accrual Amount for the Class B-3 Certificates with respect to such
Distribution Date;
twelfth, to the Class B-3 Certificates in an amount up to the Class
B-3 Unpaid Interest Shortfall;
thirteenth, to the Class B-3 Certificates in an amount up to the Class
B-3 Optimal Principal Amount; provided, however, that the amount distributable
to the Class B-3 Certificates pursuant to this Paragraph thirteenth will be
reduced by the amount, if any, that would have been distributable to the Class
B-3 Certificates hereunder used to pay the Class A-PO Deferred Amount as
provided in Paragraph fourth above;
fourteenth, to the Class B-4 Certificates in an amount up to the
Interest Accrual Amount for the Class B-4 Certificates with respect to such
Distribution Date;
fifteenth, to the Class B-4 Certificates in an amount up to the Class
B-4 Unpaid Interest Shortfall;
sixteenth, to the Class B-4 Certificates in an amount up to the Class
B-4 Optimal Principal Amount; provided, however, that the amount distributable
to the Class B-4 Certificates pursuant to this Paragraph sixteenth will be
reduced by the amount, if any, that would have been distributable to the Class
B-4 Certificates hereunder used to pay the Class A-PO Deferred Amount as
provided in Paragraph fourth above;
seventeenth, to the Class B-5 Certificates in an amount up to the
Interest Accrual Amount for the Class B-5 Certificates with respect to such
Distribution Date;
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eighteenth, to the Class B-5 Certificates in an amount up to the Class
B-5 Unpaid Interest Shortfall;
nineteenth, to the Class B-5 Certificates in an amount up to the Class
B-5 Optimal Principal Amount; provided, however, that the amount distributable
to the Class B-5 Certificates pursuant to this Paragraph nineteenth will be
reduced by the amount, if any, that would have been distributable to the Class
B-5 Certificates hereunder used to pay the Class A-PO Deferred Amount as
provided in Paragraph fourth above;
twentieth, to the Class B-6 Certificates in an amount up to the
Interest Accrual Amount for the Class B-6 Certificates with respect to such
Distribution Date;
twenty-first, to the Class B-6 Certificates in an amount up to the
Class B-6 Unpaid Interest Shortfall;
twenty-second, to the Class B-6 Certificates in an amount up to the
Class B-6 Optimal Principal Amount; provided, however, that the amount
distributable to the Class B-6 Certificates pursuant to this Paragraph
twenty-second will be reduced by the amount, if any, that would have been
distributable to the Class B-6 Certificates hereunder used to pay the Class A-PO
Deferred Amount as provided in Paragraph fourth above; and
twenty-third, to the Holder of the Class A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Account, and to the Holder of the Class
A-LR Certificate, any amounts remaining in the Payment Account.
Notwithstanding the foregoing, after the Principal Balance or Notional
Amount of any Class (other than the Class A-R or Class A-LR Certificate) has
been reduced to zero, such Class will be entitled to no further distributions of
principal or interest (including, without limitation, any Unpaid Interest
Shortfalls).
On each Distribution Date, any Reimbursement Amount shall be
distributed sequentially to the Classes of Certificates then outstanding which
bore the loss to which such Reimbursement Amount relates beginning with the most
senior of such Class of Certificates, up to, with respect to each Class, the
amount of loss borne by such Class. Any Reimbursement Amount remaining after the
application described in the preceding sentence shall be included in the Pool
Distribution Amount.
With respect to any Distribution Date, the amount of the Principal
Adjustment, if any, attributable to any Class of Class B Certificates will be
allocated to the Classes of Class A Certificates (other than the Class A-11 and
Class A-PO Certificates) and any Class of Class B Certificates with a lower
numerical designation pro rata based on their outstanding Principal Balances.
(ii) Distributions on the Uncertificated Lower-Tier Interests. On each
Distribution Date, each Uncertificated Lower-Tier Interest shall receive
distributions in respect of principal in an amount equal to the amount of
principal distributed to its respective Corresponding Upper-Tier Class or
Classes as provided herein. On each Distribution Date, each Uncertificated
Lower-Tier Interest (other than the Class A-L5 Interest, the Class A-L8 Interest
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and the Class A-LPO Interest) shall receive distributions in respect of interest
in an amount equal to the Interest Accrual Amounts and Unpaid Interest
Shortfalls, as the case may be, in respect of its Corresponding Upper-Tier Class
or Classes, in each case to the extent actually distributed (or, in the case of
the Class A-17 Certificates, added to their Principal Balance) thereon. On each
Distribution Date, the Class A-L5 Interest shall receive a distribution in
respect of interest in an amount equal to the sum of (i) the Interest Accrual
Amount and any distribution in respect of Class A Unpaid Interest Shortfalls in
each case actually distributed on the Class A-5 Certificates and (ii) the
product of the Class A-L5 Interest Fraction and the Interest Accrual Amount and
any distribution in respect of Class A Unpaid Interest Shortfalls in each case
actually distributed on the Class A-11 Certificates. On each Distribution Date,
the Class A-L8 Interest shall receive a distribution in respect of interest in
an amount equal to the sum of (i) the Interest Accrual Amount and any
distribution in respect of Class A Unpaid Interest Shortfalls in each case
actually distributed on the Class A-8 Certificates, (ii) the Interest Accrual
Amount and any distribution in respect of Class A Unpaid Interest Shortfalls in
each case actually distributed on the Class A-9 Certificates and (iii) the
product of the Class A-L8 Interest Fraction and the Interest Accrual Amount and
any distribution in respect of Class A Unpaid Interest Shortfalls in each case
actually distributed on the Class A-11 Certificates. Such amounts distributed to
the Uncertificated Lower-Tier Interests in respect of principal and interest
with respect to any Distribution Date are referred to herein collectively as the
"Lower-Tier Distribution Amount."
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Principal Balance of the respective Corresponding
Upper-Tier Class or Classes. The initial principal balance of each
Uncertificated Lower-Tier Interest equals the Original Principal Balances of the
respective Corresponding Upper-Tier Class or Classes.
The pass-through rate with respect to the Class A-L1 Interest, Class
A-L5 Interest, Class A-L8 Interest, Class A-LUR Interest, Class B-L1 Interest,
Class B-L2 Interest, Class B-L3 Interest, Class B-L4 Interest, Class B-L5
Interest and Class B-L6 Interest shall be __________% per annum. The Class A-LPO
Interest is a principal-only interest and is not entitled to distributions of
interest. Any Non-Supported Interest Shortfalls will be allocated to each
Uncertificated Lower-Tier Interest in the same relative proportions as interest
is allocated to such Uncertificated Lower-Tier Interest.
(b) The Class A-11 Certificates are interest-only Certificates and are
not entitled to distributions in respect of principal.
[INSERT PAYDOWNS]
(c) Notwithstanding the foregoing, on each Distribution Date occurring
on or subsequent to the Subordination Depletion Date, the Class A Non-PO
Principal Distribution Amount shall be distributed among the Class A
Certificates (other than the Class A-PO Certificates) and the Class A-PO
Certificates, pro rata, in accordance with their outstanding Principal Balances
without regard to either the proportions or the priorities set forth in Section
4.01(b).
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(d) (i) For purposes of determining whether the Classes of Class B
Certificates are eligible to receive distributions of principal with respect to
any Distribution Date, the following tests shall apply:
(A) if the Current Class B-1 Fractional Interest is less than the
Original Class B-1 Fractional Interest and the Class B-1 Principal Balance
is greater than zero, the Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates shall not be eligible to receive distributions of
principal; or
(B) if the Current Class B-2 Fractional Interest is less than the
Original Class B-2 Fractional Interest and the Class B-2 Principal Balance
is greater than zero, the Class B-3, Class B-4, Class B-5 and Class B-6
Certificates shall not be eligible to receive distributions of principal;
or
(C) if the Current Class B-3 Fractional Interest is less than the
Original Class B-3 Fractional Interest and the Class B-3 Principal Balance
is greater than zero, the Class B-4, Class B-5 and Class B-6 Certificates
shall not be eligible to receive distributions of principal; or
(D) if the Current Class B-4 Fractional Interest is less than the
Original Class B-4 Fractional Interest and the Class B-4 Principal Balance
is greater than zero, the Class B-5 and Class B-6 Certificates shall not be
eligible to receive distributions of principal; or
(E) if the Current Class B-5 Fractional Interest is less than the
Original Class B-5 Fractional Interest and the Class B-5 Principal Balance
is greater than zero, the Class B-6 Certificates shall not be eligible to
receive distributions of principal.
(ii) Notwithstanding the foregoing, if on any Distribution Date the
aggregate distributions to Holders of the Classes of Class B Certificates
entitled to receive distributions of principal would reduce the Principal
Balances of the Classes of Class B Certificates entitled to receive
distributions of principal below zero, first the Class B Prepayment Percentage
of any affected Class of Class B Certificates for such Distribution Date
beginning with the affected Class with the lowest numerical Class designation
and then, if necessary, the Class B Percentage of such Class of the Class B
Certificates for such Distribution Date shall be reduced to the respective
percentages necessary to bring the Principal Balance of such Class of Class B
Certificates to zero. The Class B Prepayment Percentages and the Class B
Percentages of the remaining Classes of Class B Certificates will be recomputed
substituting for the Subordinated Prepayment Percentage and Subordinated
Percentage in such computations the difference between (A) the Subordinated
Prepayment Percentage or Subordinated Percentage as the case may be, and (B) the
percentages determined in accordance with the preceding sentence necessary to
bring the Principal Balances of the affected Classes of Class B Certificates to
zero; provided, however, that if the Principal Balances of all the Classes of
Class B Certificates eligible to receive distributions of principal shall be
reduced to zero on such Distribution Date, the Class B Prepayment Percentage and
the Class B Percentage of the Class of Class B Certificates with the lowest
numerical Class designation which would otherwise be ineligible to receive
distributions of principal in accordance with this Section shall equal the
remainder of the Subordinated
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Prepayment Percentage for such Distribution Date minus the sum of the Class B
Prepayment Percentages of the Classes of Class B Certificates having lower
numerical Class designations, if any, and the remainder of the Subordinated
Percentage for such Distribution Date minus the sum of the Class B Percentages
of the Classes of Class B Certificates having lower numerical Class
designations, if any, respectively. Any entitlement of any Class of Class B
Certificates to principal payments solely pursuant to this clause (ii) shall not
cause such Class to be regarded as being eligible to receive principal
distributions for the purpose of applying the definition of its Class B
Percentage or Class B Prepayment Percentage.
(e) The Trustee shall establish and maintain the Upper-Tier
Certificate Account, which shall be a separate trust account and an Eligible
Account. On each Distribution Date other than the Final Distribution Date (if
such Final Distribution Date is in connection with a purchase of the assets of
the Trust Estate by the Seller), the Paying Agent shall, on behalf of the Master
Servicer, from funds available on deposit in the Payment Account, (i) deposit,
in immediately available funds, by wire transfer or otherwise, into the
Upper-Tier Certificate Account the Lower-Tier Distribution Amount and (ii)
distribute to the Class A-LR Certificateholder (other than as provided in
Section 9.01 respecting the final distribution to Certificateholders) by check
mailed to such Holder at the address of such Holder appearing in the Certificate
Register, the Class A Distribution Amount with respect to the Class A-LR
Certificate and all other amounts distributable to the Class A-LR Certificate.
The Trustee may clear and terminate the Upper-Tier Certificate Account pursuant
to Section 9.01.
(f) On each Distribution Date other than the Final Distribution Date
(if such Final Distribution Date is in connection with a purchase of the assets
of the Trust Estate by the Seller), the Paying Agent shall, on behalf of the
Master Servicer, from funds remitted to it by the Master Servicer, distribute to
each Certificateholder of record (other than the Class A-LR Certificateholder)
on the preceding Record Date (other than as provided in Section 9.01 respecting
the final distribution to Certificateholders or in the last paragraph of this
Section 4.01(f) respecting the final distribution in respect of any Class)
either in immediately available funds by wire transfer to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder holds Certificates having a Denomination at
least equal to that specified in Section 11.23, and has so notified the Master
Servicer or, if applicable, the Paying Agent at least seven Business Days prior
to the Distribution Date or, if such Holder holds Certificates having, in the
aggregate, a Denomination less than the requisite minimum Denomination or if
such Holder holds the Class A-R Certificate or has not so notified the Paying
Agent, by check mailed to such Holder at the address of such Holder appearing in
the Certificate Register, such Holder's share of the Class A Distribution Amount
with respect to each Class of Class A Certificates and the Class B Distribution
Amount with respect to each Class of Class B Certificates.
In the event that, on any Distribution Date prior to the Final
Distribution Date, the Principal Balance or Notional Amount of any Class of
Class A Certificates (other than the Class A-R or Class A-LR Certificates) or
the Principal Balance of any Class of Class B Certificates would be reduced to
zero, the Master Servicer shall, as soon as practicable after the Determination
Date relating to such Distribution Date, send a notice to the Trustee. The
Trustee will then send a notice to each Certificateholder of such Class with a
copy to the Certificate Registrar, specifying that the final distribution with
respect to such Class will be made on such
IV-6
Distribution Date only upon the presentation and surrender of such
Certificateholder's Certificates at the office or agency of the Trustee therein
specified; provided, however, that the failure to give such notice will not
entitle a Certificateholder to any interest beyond the interest payable with
respect to such Distribution Date in accordance with Section 4.01(a)(i).
(g) The Paying Agent (or if no Paying Agent is appointed by the Master
Servicer, the Master Servicer) shall withhold or cause to be withheld such
amounts as may be required by the Code (giving full effect to any exemptions
from withholding and related certifications required to be furnished by
Certificateholders and any reductions to withholding by virtue of any bilateral
tax treaties and any applicable certification required to be furnished by
Certificateholders with respect thereto) from distributions to be made to
Persons other than U.S. Persons ("Non-U.S. Persons"). Amounts withheld pursuant
to this Section 4.01(g) shall be treated as having been distributed to the
related Certificateholder for all purposes of this Agreement. For the purposes
of this paragraph, a "U.S. Person" is 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).
Section 4.02 Allocation of Realized Losses.
(a) With respect to any Distribution Date, the principal portion of
Realized Losses (other than Debt Service Reductions) will be allocated as
follows:
first, to the Class B-6 Certificates until the Class B-6 Principal
Balance has been reduced to zero;
second, to the Class B-5 Certificates until the Class B-5 Principal
Balance has been reduced to zero;
third, to the Class B-4 Certificates until the Class B-4 Principal
Balance has been reduced to zero;
fourth, to the Class B-3 Certificates until the Class B-3 Principal
Balance has been reduced to zero;
fifth, to the Class B-2 Certificates until the Class B-2 Principal
Balance has been reduced to zero;
sixth, to the Class B-1 Certificates until the Class B-1 Principal
Balance has been reduced to zero; and
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seventh, concurrently, to the Class A Certificates (other than the
Class A-PO Certificates) and the Class A-PO Certificates, pro rata, based on the
Non-PO Fraction and the PO Fraction, respectively.
This allocation of Realized Losses will be effected through the
reduction of the applicable Class's Principal Balance.
(b) Any Realized Losses allocated to a Class of Class A Certificates
or Class B Certificates pursuant to Section 4.02(a) shall be allocated among the
Certificates of such Class based on their Percentage Interests.
(c) After the Class B Principal Balance has been reduced to zero, the
interest portion of Realized Losses will be allocated among the outstanding
Classes of Class A Certificates based on their Class A Interest Percentages.
(d) Realized Losses allocated in accordance with this Section 4.02
will be allocated as follows: (i) Liquidated Loan Losses on Liquidated Loans for
which the Liquidation Proceeds were received during, and Bankruptcy Losses
incurred in a period corresponding to, an Unscheduled Principal Receipt Period
for Full Unscheduled Principal Receipts that is a Mid-Month Receipt Period will
be allocated on the Determination Date in the month following the month in which
such Mid-Month Receipt Period ended and (ii) Liquidated Loan Losses on
Liquidated Loans for which the Liquidation Proceeds were received during, and
Bankruptcy Losses incurred in a period corresponding to, an Unscheduled
Principal Receipt Period for Full Unscheduled Principal Receipts that is a Prior
Month Receipt Period will be allocated on the Determination Date in the second
month following the month which is such Prior Month Receipt Period.
(e) With respect to any Distribution Date, the principal portion of
Realized Losses and recoveries attributable to previously allocated Realized
Losses allocated pursuant to this Section 4.02 will be allocated to each
Uncertificated Lower-Tier Interest in an amount equal to the amount allocated to
its respective Corresponding Upper-Tier Class or Classes as provided above.
(f) With respect to any Distribution Date, the interest portion of
Realized Losses allocated pursuant to this Section 4.02 will be allocated to
each Uncertificated Lower-Tier Interest in the same relative proportions as
interest is allocated to such Uncertificated Lower-Tier Interest.
Section 4.03 Paying Agent.
(a) The Master Servicer hereby appoints the Trustee as initial Paying
Agent to make distributions to Certificateholders and to forward to
Certificateholders the periodic statements and the annual statements required by
Section 4.04 as agent of the Master Servicer.
The Master Servicer may, at any time, remove or replace the Paying
Agent.
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The Master Servicer shall cause any Paying Agent that is not the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent agrees with the Trustee that such Paying Agent shall:
(i) hold all amounts remitted to it by the Master Servicer for
distribution to Certificateholders in trust for the benefit of
Certificateholders until such amounts are distributed to Certificateholders
or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Master Servicer in
remitting any required amount; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all amounts
held in trust by such Paying Agent.
(b) The Paying Agent shall establish and maintain a Payment Account,
which shall be a separate trust account and an Eligible Account, in which the
Master Servicer shall cause to be deposited from funds in the Certificate
Account or, to the extent required hereunder, from its own funds (i) at or
before 10:00 a.m., New York time, on the Business Day preceding each
Distribution Date, by wire transfer of immediately available funds, any Periodic
Advance for such Distribution Date, pursuant to Section 3.03 and (ii) at or
before 10:00 a.m., New York time, on the Business Day preceding each
Distribution Date, by wire transfer of immediately available funds, an amount
equal to the Pool Distribution Amount. The Master Servicer may cause the Paying
Agent to invest the funds in the Payment Account. Any such investment shall be
in Eligible Investments, which shall mature not later than the Business Day
preceding the related Distribution Date (unless the Eligible Investments are
obligations of the Trustee, in which case such Eligible Investments shall mature
not later than the Distribution Date), and shall not be sold or disposed of
prior to maturity. All income and gain realized from any such investment shall
be for the benefit of the Master Servicer and shall be subject to its withdrawal
or order from time to time. The amount of any losses incurred in respect of any
such investments shall be deposited in the Payment Account by the Master
Servicer out of its own funds immediately as realized. The Paying Agent may
withdraw from the Payment Account any amount deposited in the Payment Account
that was not required to be deposited therein and may clear and terminate the
Payment Account pursuant to Section 9.01.
Section 4.04 Statements to Certificateholders; Reports to the
Trustee and the Seller.
Concurrently with each distribution pursuant to Section 4.01(f), the
Master Servicer, or the Paying Agent appointed by the Master Servicer (upon
receipt of such statement from the Master Servicer), shall forward or cause to
be forwarded by mail to each Holder of a Certificate and the Seller a statement
setting forth:
(i) the amount of such distribution to Holders of each Class of Class
A Certificates allocable to principal, separately identifying the aggregate
amount of any Unscheduled Principal Receipts included therein;
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(ii) (a) the amount of such distribution to Holders of each Class of
Class A Certificates allocable to interest, (b) the amount of the Current
Class A Interest Distribution Amount allocated to each Class of Class A
Certificates, (c) any Class A Interest Shortfall Amounts arising with
respect to such Distribution Date and any remaining Class A Unpaid Interest
Shortfall with respect to each Class after giving effect to such
distribution, (d) the amount of any Non-Supported Interest Shortfall
allocated to each Class of Class A Certificates for such Distribution Date
and (e) the amount of any Relief Act Shortfall allocated to each Class of
Class A Certificates for such Distribution Date;
(iii) the amount of such distribution to Holders of each Class of
Class B Certificates allocable to principal, separately identifying the
aggregate amount of any Unscheduled Principal Receipts included therein;
(iv) (a) the amount of such distribution to Holders of each Class of
Class B Certificates allocable to interest, (b) the amount of the Current
Class B Interest Distribution Amount allocated to each Class of Class B
Certificates (c) any Class B Interest Shortfall Amounts arising with
respect to such Distribution Date and any remaining Class B Unpaid Interest
Shortfall with respect to each Class of Class B Certificates after giving
effect to such distribution, (d) the amount of any Non-Supported Interest
Shortfall allocated to each Class of Class B Certificates for such
Distribution Date, and (e) the amount of any Relief Act Shortfall allocated
to each Class of Class B Certificates for such Distribution Date;
(v) the amount of any Periodic Advance by any Servicer, the Master
Servicer or the Trustee pursuant to the Servicing Agreements or this
Agreement;
(vi) the number of Mortgage Loans outstanding as of the preceding
Determination Date;
(vii) the Class A Principal Balance, the Principal Balance of each
Class of Class A Certificates the Class B Principal Balance and the
Principal Balance of each Class of Class B Certificates as of the following
Determination Date after giving effect to the distributions of principal
made, and the principal portion of Realized Losses, if any, allocated with
respect to such Distribution Date;
(viii) the Adjusted Pool Amount, the Adjusted Pool Amount (PO
Portion), the Pool Scheduled Principal Balance of the Mortgage Loans for
such Distribution Date and the aggregate Scheduled Principal Balance of the
Discount Mortgage Loans for such Distribution Date;
(ix) the aggregate Scheduled Principal Balances of the Mortgage Loans
serviced by WFHM and, collectively, by the Other Servicers as of such
Distribution Date;
(x) the Class A Percentage for such Distribution Date;
(xi) the Class A Prepayment Percentage for such Distribution Date;
IV-10
(xii) the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Percentages for such Distribution Date;
(xiii) the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Prepayment Percentages for such Distribution Date;
(xiv) the number and aggregate principal balances of Mortgage Loans
delinquent (a) one month, (b) two months and (c) three months or more;
(xv) the number and aggregate principal balances of the Mortgage Loans
in foreclosure as of the preceding Determination Date;
(xvi) the book value of any real estate acquired through foreclosure
or grant of a deed in lieu of foreclosure;
(xvii) the principal and interest portions of Realized Losses
allocated as of such Distribution Date;
(xviii) the amount by which the Principal Balance of each Class of
Class B Certificates has been reduced as a result of Realized Losses
allocated as of such Distribution Date;
(xix) the unpaid principal balance of any Mortgage Loan as to which
the Servicer of such Mortgage Loan has determined not to foreclose because
it believes the related Mortgaged Property may be contaminated with or
affected by hazardous wastes or hazardous substances;
(xx) the amount of the aggregate Servicing Fees and Master Servicing
Fees paid (and not previously reported) with respect to the related
Distribution Date and the amount by which the aggregate Available Master
Servicer Compensation has been reduced by the Prepayment Interest Shortfall
for the related Distribution Date;
(xxi) in the case of the Class A-11 Certificates, the Notional Amount,
if any;
(xxii) the Class A-PO Deferred Amount if any;
(xxiii) the amount of PMI Advances made by a Servicer, if any; and
(xxiv) such other customary information as the Master Servicer deems
necessary or desirable to enable Certificateholders to prepare their tax
returns;
and shall deliver a copy of each type of statement to the Trustee, who shall
provide copies thereof to Persons making written request therefor at the
Corporate Trust Office.
In the case of information furnished with respect to a Class of Class
A Certificates pursuant to clauses (i) and (ii) above and with respect to a
Class of Class B Certificates pursuant to clauses (iii) and (iv) above, the
amounts shall be expressed as a dollar amount per Class A or Class B Certificate
(other than the Class A-R and Class A-LR Certificates) with a $1,000
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Denomination, and as a dollar amount per Class A-R and Class A-LR Certificates
with a $50 Denomination.
Within a reasonable period of time after the end of each calendar
year, the Master Servicer shall furnish or cause to be furnished to each Person
who at any time during the calendar year was the Holder of a Certificate a
statement containing the information set forth in clauses (i) and (ii)(a) above
in the case of a Class A Certificateholder and the information set forth in
clauses (iii) and (iv)(a) above in the case of a Class B Certificateholder
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Master Servicer
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Master Servicer pursuant to any
requirements of the Code from time to time in force.
Prior to the close of business on the third Business Day preceding
each Distribution Date, the Master Servicer shall furnish a statement to the
Trustee, any Paying Agent and the Seller (the information in such statement to
be made available to Certificateholders by the Master Servicer on written
request) setting forth the Class A Distribution Amount with respect to each
Class of Class A Certificates and the Class B Distribution Amount with respect
to each Class of Class B Certificates. The determination by the Master Servicer
of such amounts shall, in the absence of obvious error, be presumptively deemed
to be correct for all purposes hereunder and the Trustee and the Paying Agent
shall be protected in relying upon the same without any independent check or
verification.
In addition to the reports required pursuant to this Section 4.04, the
Paying Agent shall make available upon request to each Holder and each proposed
transferee of a Class B-4, Class B-5 or, Class B-6 Certificate such additional
information, if any, as may be required to permit the proposed transfer to be
effected pursuant to Rule 144A, which information shall be provided on a timely
basis to the Paying Agent by the Master Servicer.
Section 4.05 Reports to Mortgagors and the Internal Revenue Service.
The Master Servicer shall, in each year beginning after the Cut-Off
Date, make the reports of foreclosures and abandonments of any Mortgaged
Property as required by Code Section 6050J. In order to facilitate this
reporting process, the Master Servicer shall request that each Servicer, on or
before January 15th of each year, shall provide to the Internal Revenue Service,
with copies to the Master Servicer, reports relating to each instance occurring
during the previous calendar year in which such Servicer (i) on behalf of the
Trustee acquires an interest in a Mortgaged Property through foreclosure or
other comparable conversion in full or partial satisfaction of a Mortgage Loan
serviced by such Servicer, or (ii) knows or has reason to know that a Mortgaged
Property has been abandoned. Reports from the Servicers shall be in form and
substance sufficient to meet the reporting requirements imposed by Code Section
6050J. In addition, each Servicer shall provide the Master Servicer with
sufficient information to allow the Master Servicer to, for each year ending
after the Cut-Off Date, provide, or cause to be provided, to the Internal
Revenue Service and the Mortgagors such information as is required under Code
Sections 6050H (regarding payment of interest) and 6050P (regarding cancellation
of indebtedness).
IV-12
Section 4.06 Calculation of Amounts; Binding Effect of
Interpretations and Actions of Master Servicer.
The Master Servicer will compute the amount of all distributions to be
made on the Certificates and all losses to be allocated to the Certificates. In
the event that the Master Servicer concludes that any ambiguity or uncertainty
exists in any provisions of this Agreement relating to distributions to be made
on the Certificates, the allocation of losses to the Certificates or otherwise,
the interpretation of such provisions and any actions taken by the Master
Servicer in good faith to implement such interpretation shall be binding upon
Certificateholders.
IV-13
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Class A and Class B Certificates shall be issued only in
minimum Denominations of a Single Certificate and, except for the Class A-R and
Class A-LR Certificates, integral multiples of $1,000 in excess thereof (except,
if necessary, for one Certificate of each Class (other than the Class A-R and
Class A-LR Certificates) that evidences one Single Certificate plus such
additional principal portion or notional amount as is required in order for all
Certificates of such Class to equal the aggregate Original Principal Balance or
Original Notional Amount of such Class, as the case may be), and shall be
substantially in the respective forms set forth as Exhibits X-0, X-0, X-0, X-0,
X-0, X-0, X-0, X-0, X-0, X-00, X-00, X-00, X-00, X-00, X-00, X-00, X-00, X-XX,
X-X, A-LR, X-0, X-0, X-0, X-0, X-0, B-6 and C (reverse side of Certificates)
hereto. On original issue the Certificates shall be executed and delivered by
the Trustee to or upon the order of the Seller upon receipt by the Trustee or
the Custodian of the documents specified in Section 2.01. The aggregate
principal portion (or notional amount) evidenced by the Class A and Class B
Certificates shall be the sum of the amounts specifically set forth in the
respective Certificates. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trustee by any Responsible Officer thereof.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Trustee shall bind the Trustee
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless manually countersigned by a Responsible Officer of the Trustee, or unless
there appears on such Certificate a certificate of authentication executed by
the Authenticating Agent by manual signature, and such countersignature or
certificate upon a Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Until such time as Definitive Certificates are issued pursuant to
Section 5.07, each Book-Entry Certificate shall bear the following legend:
"Unless this certificate is presented by an authorized representative
of [the Clearing Agency] to the Seller or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of [the Clearing Agency] or such other name as requested by an authorized
representative of [the Clearing Agency] and any payment is made to [the Clearing
Agency], any transfer, pledge or other use hereof for value or otherwise by or
to any person is wrongful since the registered owner hereof, [the Clearing
Agency], has an interest herein."
(b) Upon original issuance, the Book-Entry Certificates shall be
issued in the form of one or more typewritten certificates, to be delivered to
The Depository Trust Company, the initial Clearing Agency, by, or on behalf of,
the Seller or to, and deposited with the
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Certificate Custodian, on behalf of The Depository Trust Company, if directed to
do so pursuant instructions from The Depository Trust Company. Such Certificates
shall initially be registered in the Certificate Register in the name of the
nominee of the initial Clearing Agency, and no Beneficial Owner will receive a
definitive certificate representing such Beneficial Owner's interest in the
Book-Entry Certificates, except as provided in Section 5.07. Unless and until
definitive, fully registered certificates ("Definitive Certificates") have been
issued to Beneficial Owners pursuant to Section 5.07:
(i) the provisions of this Section 5.01(b) shall be in full force and
effect;
(ii) the Seller, the Master Servicer, the Certificate Registrar and
the Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Book-Entry Certificates and the taking
of actions by the Holders of Book-Entry Certificates) as the authorized
representative of the Beneficial Owners;
(iii) to the extent that the provisions of this Section 5.01(b)
conflict with any other provisions of this Agreement, the provisions of
this Section 5.01(b) shall control;
(iv) the rights of Beneficial Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law, the
rules, regulations and procedures of the Clearing Agency and agreements
between such Beneficial Owners and the Clearing Agency and/or the Clearing
Agency Participants, and all references in this Agreement to actions by
Certificateholders shall, with respect to the Book-Entry Certificates,
refer to actions taken by the Clearing Agency upon instructions from the
Clearing Agency Participants, and all references in this Agreement to
distributions, notices, reports and statements to Certificateholders shall,
with respect to the Book-Entry Certificates, refer to distributions,
notices, reports and statements to the Clearing Agency or its nominee, as
registered holder of the Book-Entry Certificates, as the case may be, for
distribution to Beneficial Owners in accordance with the procedures of the
Clearing Agency; and
(v) the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit distributions of
principal and interest on the Certificates to the Clearing Agency
Participants, for distribution by such Clearing Agency Participants to the
Beneficial Owners or their nominees.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
Book-Entry Certificates evidencing specified Voting Interests, such direction or
consent shall be given by Beneficial Owners having the requisite Voting
Interests, acting through the Clearing Agency.
Unless and until Definitive Certificates have been issued to
Beneficial Owners pursuant to Section 5.07, copies of the reports or statements
referred to in Section 4.04 shall be available to Beneficial Owners upon written
request to the Trustee at the Corporate Trust Office.
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Section 5.02 Registration of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be maintained in accordance with the provisions of Section 5.06 a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trustee shall
act as, or shall appoint, a Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency maintained for such purpose pursuant to Section 5.06 (and
subject to the provisions of this Section 5.02) the Trustee shall execute, and
shall date, authenticate (or cause the Authenticating Agent to authenticate) and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of a like aggregate principal portion or Percentage Interest
and of the same Class.
At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized Denominations of a like aggregate principal
portion or Percentage Interest and of the same Class upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute, and
shall date, authenticate (or cause the Authenticating Agent to authenticate) and
deliver, the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar or the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
All Certificates surrendered for transfer and exchange shall be
canceled by the Certificate Registrar, the Trustee or the Authenticating Agent
in accordance with their standard procedures.
(b) No transfer of a Class B-4, Class B-5 or Class B-6 Certificate
shall be made unless the registration requirements of the Securities Act of
1933, as amended, and any applicable State securities laws are complied with, or
such transfer is exempt from the registration requirements under said Act and
laws. In the event that a transfer is to be made in reliance upon an exemption
from said Act or laws, (i) unless such transfer is made in reliance on Rule
144A, the Trustee or the Seller may, if such transfer is to be made within three
years after the later of (i) the date of the initial sale of Certificates or
(ii) the last date on which the Seller or any affiliate thereof was a Holder of
the Certificates proposed to be transferred, require a Class B-4, Class B-5 or
Class B-6 Certificateholder to deliver a written Opinion of Counsel acceptable
to and in form and substance satisfactory to the Trustee and the Seller, to the
effect that such transfer may be made pursuant to an exemption, describing the
applicable exemption
V-3
and the basis therefor, from said Act and laws or is being made pursuant to said
Act and laws, which Opinion of Counsel shall not be an expense of the Trustee,
the Seller or the Master Servicer, and (ii) the Trustee shall require the
transferee (other than an affiliate of the Seller on the Closing Date) to
execute an investment letter in the form of Exhibit J hereto certifying to the
Seller and the Trustee the facts surrounding such transfer, which investment
letter shall not be an expense of the Trustee, the Seller or the Master
Servicer. The Holder of a Class B-4, Class B-5 or Class B-6 Certificate desiring
to effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the Seller, the Master Servicer and any Paying Agent acting on behalf of the
Trustee against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws. Neither the
Seller nor the Trustee is under an obligation to register the Class B-4, Class
B-5 or Class B-6 Certificates under said Act or any other securities law.
(c) No transfer of a Class B-4, Class B-5 or Class B-6 Certificate
shall be made unless the Trustee and the Seller shall have received (i) a
representation letter from the transferee in the form of Exhibit J hereto, to
the effect that either (a) such transferee is not an employee benefit plan or
other retirement arrangement subject to Title I of ERISA or Code Section 4975,
or a governmental plan, as defined in Section 3(32) of ERISA, subject to any
federal, state or local law ("Similar Law") which is to a material extent
similar to the foregoing provisions of ERISA or the Code (collectively, a
"Plan") and is not a person acting on behalf of or using the assets of any such
Plan, which representation letter shall not be an expense of the Trustee, the
Seller or the Master Servicer or (b) if such transferee is an insurance company,
(A) the source of funds used to purchase the Class B-4, Class B-5 or Class B-6
Certificate is an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"),
60 Fed. Reg. 35925 (July 12, 1995)), (B) there is no Plan with respect to which
the amount of such general account's reserves and liabilities for the
contract(s) held by or on behalf of such Plan and all other Plans maintained by
the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization exceeds 10% of the total of all
reserves and liabilities of such general account (as such amounts are determined
under Section I(a) of PTE 95-60) at the date of acquisition and (C) the purchase
and holding of such Class B-4, Class B-5 or Class B-6 Certificate is covered by
Sections I and III of PTE 95-60 or (ii) in the case of any such Class B-4, Class
B-5 or Class B-6 Certificate presented for registration in the name of a Plan,
or a trustee of any such Plan, (A) an Opinion of Counsel satisfactory to the
Trustee and the Seller to the effect that the purchase or holding of such Class
B-4, Class B-5 or Class B-6 Certificate will not result in the assets of the
Trust Estate being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA, the Code or Similar Law and will not subject
the Trustee, the Seller or the Master Servicer to any obligation in addition to
those undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Seller or the Master Servicer and (B) such other
opinions of counsel, officer's certificates and agreements as the Seller or the
Master Servicer may require in connection with such transfer, which opinions of
counsel, officers' certificates and agreements shall not be an expense of the
Trustee, the Seller or the Master Servicer. The Class B-4, Class B-5 and Class
B-6 Certificates shall bear a legend referring to the foregoing restrictions
contained in this paragraph.
(d) No legal or beneficial interest in all or any portion of the Class
A-R or Class A-LR Certificate may be transferred directly or indirectly to a
"disqualified organization"
V-4
within the meaning of Code Section 860E(e)(5) or an agent of a disqualified
organization (including a broker, nominee, or middleman), to a Plan or a Person
acting on behalf of or investing the assets of a Plan (such Plan or Person, an
"ERISA Prohibited Holder") or to an individual, corporation, partnership or
other person unless such transferee (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds the Class A-R or Class A-LR Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Trustee with an effective Internal Revenue
Service Form 4224 or (iii) is a Non-U.S. Person that has delivered to both the
transferor and the Trustee an opinion of a nationally recognized tax counsel to
the effect that the transfer of the Class A-R or Class A-LR Certificate to it is
in accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of the Class A-R or Class A-LR Certificate
will not be disregarded for federal income tax purposes (any such person who is
not covered by clauses (i), (ii) or (iii) above being referred to herein as a
"Non-permitted Foreign Holder"), and any such purported transfer shall be void
and have no effect. The Trustee shall not execute, and shall not authenticate
(or cause the Authenticating Agent to authenticate) and deliver, a new Class A-R
or Class A-LR Certificate in connection with any such transfer to a disqualified
organization or agent thereof (including a broker, nominee or middleman), an
ERISA Prohibited Holder or a Non-permitted Foreign Holder, and neither the
Certificate Registrar nor the Trustee shall accept a surrender for transfer or
registration of transfer, or register the transfer of, the Class A-R or Class
A-LR Certificate, unless the transferor shall have provided to the Trustee an
affidavit, substantially in the form attached as Exhibit H hereto, signed by the
transferee, to the effect that the transferee is not such a disqualified
organization, an agent (including a broker, nominee, or middleman) for any
entity as to which the transferee has not received a substantially similar
affidavit, an ERISA Prohibited Holder or a Non-permitted Foreign Holder, which
affidavit shall contain the consent of the transferee to any such amendments of
this Agreement as may be required to further effectuate the foregoing
restrictions on transfer of the Class A-R or Class A-LR Certificate to
disqualified organizations, ERISA Prohibited Holders or Non-permitted Foreign
Holders. Such affidavit shall also contain the statement of the transferee that
(i) the transferee has historically paid its debts as they have come due and
intends to do so in the future, (ii) the transferee understands that it may
incur liabilities in excess of cash flows generated by the residual interest,
(iii) the transferee intends to pay taxes associated with holding the residual
interest as they become due and (iv) the transferee will not cause income from
the Class A-R or Class A-LR Certificate to be attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such transferee or any other Person, and (v) the
transferee will not transfer the Class A-R or Class A-LR Certificate to any
Person who does not provide an affidavit substantially in the form attached as
Exhibit H hereto.
The affidavit described in the preceding paragraph, if not executed in
connection with the initial issuance of the Class A-R or Class A-LR Certificate,
shall be accompanied by a written statement in the form attached as Exhibit I
hereto, signed by the transferor, to the effect that as of the time of the
transfer, the transferor has no actual knowledge that the transferee is a
disqualified organization, ERISA Prohibited Holder or Non-permitted Foreign
Holder, and has no knowledge or reason to know that the statements made by the
transferee with respect to clauses (i) and (iii) of the last sentence of the
preceding paragraph are not true. The Class A-R and Class A-LR Certificates
shall bear a legend referring to the foregoing restrictions contained in this
paragraph and the preceding paragraph.
V-5
Upon notice to the Master Servicer that any legal or beneficial
interest in any portion of the Class A-R or Class A-LR Certificate has been
transferred, directly or indirectly, to a disqualified organization or agent
thereof (including a broker, nominee, or middleman) in contravention of the
foregoing restrictions, (i) such transferee shall be deemed to hold the Class
A-R or Class A-LR Certificate in constructive trust for the last transferor who
was not a disqualified organization or agent thereof, and such transferor shall
be restored as the owner of such Class A-R or Class A-LR Certificate as
completely as if such transfer had never occurred, provided that the Master
Servicer may, but is not required to, recover any distributions made to such
transferee with respect to the Class A-R or Class A-LR Certificate, and (ii) the
Master Servicer agrees to furnish to the Internal Revenue Service and to any
transferor of the Class A-R or Class A-LR Certificate or such agent (within 60
days of the request therefor by the transferor or agent) such information
necessary to the application of Code Section 860E(e) as may be required by the
Code, including but not limited to the present value of the total anticipated
excess inclusions with respect to the Class A-R or Class A-LR Certificate (or
portion thereof) for periods after such transfer. At the election of the Master
Servicer, the cost to the Master Servicer of computing and furnishing such
information may be charged to the transferor or such agent referred to above;
however, the Master Servicer shall in no event be excused from furnishing such
information.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Trustee or the
Authenticating Agent, or the Trustee or the Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee or the Authenticating
Agent such security or indemnity as may be required by them to hold each of them
harmless, then, in the absence of notice to the Trustee or the Authenticating
Agent that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and authenticate (or cause the Authenticating Agent to
authenticate) and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
principal portion or Percentage Interest and of the same Class. Upon the
issuance of any new Certificate under this Section, the Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expense (including the fees and expenses of the Trustee or the
Authenticating Agent) in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust Estate, as if originally issued, whether or not the lost,
stolen, or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners.
Prior to the due presentation of a Certificate for registration of
transfer, the Seller, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Seller, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.01, and for all other purposes whatsoever,
and neither the Seller, the Master Servicer, the Trustee, the Certificate
Registrar nor any agent of the Seller, the Master Servicer, the Trustee or the
Certificate Registrar shall be affected by notice to the contrary.
V-6
Section 5.05 Access to List of Certificateholders' Names and
Addresses.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar shall furnish or cause to be furnished to the Trustee,
within 15 days after receipt by the Certificate Registrar of a request by the
Trustee in writing, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Certificateholders of each Class as of the
most recent Record Date.
(b) If five or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days following the
receipt of such application, afford such applicants access during normal
business hours to the most recent list of Certificateholders held by the
Trustee. If such a list is as of the date more than 90 days prior to the date of
receipt of such applicants' request and the Trustee is not the Certificate
Registrar, the Trustee shall promptly request from the Certificate Registrar a
current list as provided in paragraph (a) hereof, and shall afford such
applicants access to such list promptly upon receipt.
(c) Every Certificateholder, by receiving and holding a Certificate,
agrees with the Seller, the Master Servicer, the Certificate Registrar and the
Trustee that neither the Seller, the Master Servicer, the Certificate Registrar
nor the Trustee shall be held accountable by reason of the disclosure of any
such information as to the names, addresses and Percentage Interests of the
Certificateholders hereunder, regardless of the source from which such
information was delivered.
Section 5.06 Maintenance of Office or Agency.
The Trustee will maintain, at its expense, an office or agency where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Certificate Registrar in respect of the
Certificates and this Agreement may be served. The Trustee initially designates
the Corporate Trust Office and the principal corporate trust office of the
Authenticating Agent, if any, as its offices and agencies for said purposes.
Section 5.07 Definitive Certificates.
If (i)(A) the Master Servicer advises the Trustee in writing that the
Clearing Agency is no longer willing or able properly to discharge its
responsibilities as depository with respect to the Book-Entry Certificates, and
(B) the Master Servicer is unable to locate a qualified successor, (ii) the
Master Servicer, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of dismissal or resignation of the Master Servicer, Beneficial Owners
representing aggregate Voting Interests of not less than 51% of the aggregate
Voting Interests of each outstanding Class of Book-Entry Certificates advise the
Trustee through the Clearing Agency and Clearing Agency Participants in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Beneficial Owners, the Trustee shall notify
the Beneficial
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Owners, through the Clearing Agency, of the occurrence of any such event and of
the availability of Definitive Certificates to Beneficial Owners requesting the
same. Upon surrender to the Trustee by the Clearing Agency of the Certificates
held of record by its nominee, accompanied by reregistration instructions and
directions to execute and authenticate new Certificates from the Master
Servicer, the Trustee shall execute and authenticate Definitive Certificates for
delivery at its Corporate Trust Office. The Master Servicer shall arrange for,
and will bear all costs of, the printing and issuance of such Definitive
Certificates. Neither the Seller, the Master Servicer nor the Trustee shall be
liable for any delay in delivery of such instructions by the Clearing Agency and
may conclusively rely on, and shall be protected in relying on, such
instructions.
Section 5.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of Book-Entry
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to Beneficial Owners pursuant to Section
5.07, the Trustee shall give all such notices and communications specified
herein to be given to Holders of Book-Entry Certificates to the Clearing Agency.
V-8
ARTICLE VI
THE SELLER AND THE MASTER SERVICER
Section 6.01 Liability of the Seller and the Master Servicer.
The Seller and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically imposed by this
Agreement and undertaken hereunder by the Seller and the Master Servicer.
Section 6.02 Merger or Consolidation of the Seller or the Master
Servicer.
Subject to the following paragraph, the Seller and the Master Servicer
each will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation, and will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
The Seller or the Master Servicer may be merged or consolidated with
or into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Seller or Master Servicer shall be a party, or any Person succeeding
to the business of the Seller or Master Servicer, shall be the successor of the
Seller or Master Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that, in the case of
the Master Servicer, any such successor or resulting Person shall be qualified
to service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac.
Section 6.03 Limitation on Liability of the Seller, the Master
Servicer and Others.
Neither the Seller nor the Master Servicer nor any subcontractor nor
any of the partners, directors, officers, employees or agents of any of them
shall be under any liability to the Trust Estate or the Certificateholders and
all such Persons shall be held harmless for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect any
such Person against any breach of warranties or representations made herein or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Seller,
the Master Servicer, any subcontractor, and any partner, director, officer,
employee or agent of any of them shall be entitled to indemnification by the
Trust Estate and will be held harmless against any loss, liability or expense
incurred in connection with the performance of its duties and obligations and
any legal action relating to this Agreement or the Certificates, including
without limitation, any legal action against the Trustee in its capacity as
Trustee hereunder, other than any loss, liability or expense (including without
limitation, expenses payable by the Master Servicer under Section 8.06) incurred
by reason of willful misfeasance,
VI-1
bad faith or gross negligence in the performance of his or its duties hereunder
or by reason of reckless disregard of his or its obligations and duties
hereunder. The Seller, the Master Servicer and any of the directors, officers,
employees or agents of either may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any Person respecting
any matters arising hereunder. Neither the Seller nor the Master Servicer shall
be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and
which in its opinion does not involve it in any expense or liability; provided,
however, that the Seller or the Master Servicer may in its discretion undertake
any such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder if the Certificateholders offer to the Seller
or the Master Servicer, as the case may be, reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Estate, and the Seller or the Master Servicer shall be entitled to be
reimbursed therefor out of the Certificate Account, and such amounts shall, on
the following Distribution Date or Distribution Dates, be allocated in reduction
of distributions on the Class A Certificates and Class B Certificates in the
same manner as Realized Losses are allocated pursuant to Section 4.02(a).
Section 6.04 Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon determination that its duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities, duties,
liabilities and obligations hereunder.
Section 6.05 Compensation to the Master Servicer.
The Master Servicer shall be entitled to receive a monthly fee equal
to the Master Servicing Fee, as compensation for services rendered by the Master
Servicer under this Agreement. The Master Servicer also will be entitled to any
late reporting fees paid by a Servicer pursuant to its Servicing Agreement, any
investment income on funds on deposit in the Certificate Account and any
Liquidation Profits to which a Servicer is not entitled under its Servicing
Agreement.
Section 6.06 Assignment or Delegation of Duties by Master Servicer.
The Master Servicer shall not assign or transfer any of its rights,
benefits or privileges under this Agreement to any other Person, or delegate to
or subcontract with, or authorize or appoint any other Person to perform any of
the duties, covenants or obligations to be performed by the Master Servicer
without the prior written consent of the Trustee, and any agreement, instrument
or act purporting to effect any such assignment, transfer, delegation or
appointment shall be void. Notwithstanding the foregoing, the Master Servicer
shall have the right without the prior written consent of the Trustee (i) to
assign its rights and delegate its duties
VI-2
and obligations hereunder; provided, however, that (a) the purchaser or
transferee accepting such assignment or delegation is qualified to service
mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, is satisfactory to the Trustee, in
the exercise of its reasonable judgment, and executes and delivers to the
Trustee an agreement, in form and substance reasonably satisfactory to the
Trustee, which contains an assumption by such purchaser or transferee of the due
and punctual performance and observance of each covenant and condition to be
performed or observed by the Master Servicer hereunder from and after the date
of such agreement; and (b) each applicable Rating Agency's rating of any
Certificates in effect immediately prior to such assignment, sale or transfer is
not reasonably likely to be qualified, downgraded or withdrawn as a result of
such assignment, sale or transfer and the Certificates are not reasonably likely
to be placed on credit review status by any such Rating Agency; and (ii) to
delegate to, subcontract with, authorize, or appoint an affiliate of the Master
Servicer to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Master Servicer under this Agreement and hereby
agrees so to delegate, subcontract, authorize or appoint to an affiliate of the
Master Servicer any duties, covenants or obligations to be performed and carried
out by the Master Servicer to the extent that such duties, covenants or
obligations are to be performed in any state or states in which the Master
Servicer is not authorized to do business as a foreign corporation but in which
the affiliate is so authorized. In no case, however, shall any permitted
assignment and delegation relieve the Master Servicer of any liability to the
Trustee or the Seller under this Agreement, incurred by it prior to the time
that the conditions contained in clause (i) above are met.
Section 6.07 Indemnification of Trustee and Seller by Master Servicer.
The Master Servicer shall indemnify and hold harmless the Trustee and
the Seller and any director, officer or agent thereof against any loss,
liability or expense, including reasonable attorney's fees, arising out of, in
connection with or incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties of the Master Servicer under this
Agreement or by reason of reckless disregard of its obligations and duties under
this Agreement. Any payment pursuant to this Section made by the Master Servicer
to the Trustee or the Seller shall be from such entity's own funds, without
reimbursement therefor. The provisions of this Section 6.07 shall survive the
termination of this Agreement.
VI-3
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
In case one or more of the following Events of Default by the Master
Servicer shall occur and be continuing, that is to say:
(i) any failure by the Master Servicer (a) to remit any funds to the
Paying Agent as required by Section 4.03 or (b) to distribute or cause to
be distributed to Certificateholders any payment required to be made by the
Master Servicer under the terms of this Agreement which, in either case,
continues unremedied for a period of three business days after the date
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee or to
the Master Servicer and the Trustee by the holders of Certificates
evidencing in the aggregate not less than 25% of the aggregate Voting
Interest represented by all Certificates;
(ii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Master Servicer in the Certificates or in this Agreement
which continues unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Trustee, or to the Master
Servicer and the Trustee by the holders of Certificates evidencing in the
aggregate not less than 25% of the aggregate Voting Interest represented by
all Certificates;
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged and unstayed for a period of 60
days;
(iv) the Master Servicer shall consent to the appointment of a
trustee, conservator, receiver or liquidator or liquidating committee in
any bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
the Master Servicer, or of or relating to all or substantially all of its
property;
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment
of its obligations;
(vi) the Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets; or consolidate with or merge into
another entity or shall
VII-1
permit another entity to consolidate or merge into it, such that the
resulting entity does not meet the criteria for a successor servicer, as
specified in Section 6.02 hereof; or
(vii) the Master Servicer and any subservicer appointed by it becomes
ineligible to service for both Xxxxxx Mae and Xxxxxxx Mac, which
ineligibility continues unremedied for a period of 90 days.
then, and in each and every such case, subject to applicable law, so long as an
Event of Default shall not have been remedied, either the Trustee or the holders
of Certificates evidencing in the aggregate not less than 66 2/3% of the
aggregate Voting Interest represented by all Certificates, by notice in writing
to the Master Servicer (and to the Trustee if given by the Certificateholders)
may terminate all of the rights and obligations of the Master Servicer under
this Agreement and in and to the Mortgage Loans, but without prejudice to any
rights which the Master Servicer may have to the aggregate Master Servicing Fees
due prior to the date of transfer of the Master Servicer's responsibilities
hereunder, reimbursement of expenses to the extent permitted by this Agreement,
Periodic Advances and other advances of its own funds. Upon receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section, subject to the provisions of Section 7.05; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder and shall promptly provide the
Trustee all documents and records reasonably requested by it to enable it to
assume the Master Servicer's functions hereunder and shall promptly also
transfer to the Trustee all amounts which then have been or should have been
deposited in the Certificate Account by the Master Servicer or which are
thereafter received by the Master Servicer with respect to the Mortgage Loans.
Section 7.02 Other Remedies of Trustee.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name as trustee of
an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filing of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
VII-2
Section 7.03 Directions by Certificateholders and Duties of Trustee
During Event of Default.
During the continuance of any Event of Default, Holders of
Certificates evidencing in the aggregate not less than 25% of the aggregate
Voting Interest represented by all Certificates may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided, however, that the Trustee shall be under no obligation to pursue any
such remedy, or to exercise any of the rights or powers vested in it by this
agreement (including, without limitation, (i) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto and (ii) the
terminating of the Master Servicer from its rights and duties as servicer
hereunder) at the request, order or direction of any of the Certificateholders,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which may be
incurred therein or thereby and, provided further, that, subject to the
provisions of Section 8.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee, in accordance with an Opinion of
Counsel, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the nonassenting Certificateholders.
Section 7.04 Action upon Certain Failures of the Master Servicer and
upon Event of Default.
In the event that the Trustee shall have knowledge of any failure of
the Master Servicer specified in Section 7.01(i) or (ii) which would become an
Event of Default upon the Master Servicer's failure to remedy the same after
notice, the Trustee may, but need not if the Trustee deems it not in the
Certificateholders' best interest, give notice thereof to the Master Servicer.
For all purposes of this Agreement, in the absence of actual knowledge by a
corporate trust officer of the Trustee, the Trustee shall not be deemed to have
knowledge of any failure of the Master Servicer as specified in Section 7.01(i)
and (ii) or any Event of Default unless notified thereof in writing by the
Master Servicer or by a Certificateholder.
Section 7.05 Trustee to Act; Appointment of Successor.
When the Master Servicer receives notice of termination pursuant to
Section 7.01 or the Trustee receives the resignation of the Master Servicer
evidenced by an Opinion of Counsel pursuant to Section 6.04, the Trustee shall
be the successor in all respects to the Master Servicer in its capacity as
master servicer under this Agreement and the transactions set forth or provided
for herein and shall have the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and in its capacity as such
successor shall have the same limitation of liability herein granted to the
Master Servicer. In the event that the Trustee is succeeding to the Master
Servicer as the Master Servicer, as compensation therefor, the Trustee shall be
entitled to receive monthly such portion of the Master Servicing Fee, together
with such other servicing compensation as is agreed to at such time by the
Trustee and the Master Servicer, but in no event more than 25% thereof until the
date of final cessation of the Master Servicer's servicing activities hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is
VII-3
unable to so act or to obtain a qualifying bid as described below, appoint, or
petition a court of competent jurisdiction to appoint, any housing and home
finance institution, bank or mortgage servicing institution having a net worth
of not less than $10,000,000 and meeting such other standards for a successor
servicer as are set forth herein, as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder; provided, however, that until
such a successor master servicer is appointed and has assumed the
responsibilities, duties and liabilities of the Master Servicer hereunder, the
Trustee shall continue as the successor to the Master Servicer as provided
above. The compensation of any successor master servicer so appointed shall not
exceed the compensation specified in Section 6.05 hereof. In the event the
Trustee is required to solicit bids as provided above, the Trustee shall
solicit, by public announcement, bids from housing and home finance
institutions, banks and mortgage servicing institutions meeting the
qualifications set forth in the preceding sentence for the purchase of the
master servicing functions. Such public announcement shall specify that the
successor master servicer shall be entitled to the full amount of the Master
Servicing Fee as compensation together with the other servicing compensation in
the form of late reporting fees or otherwise as provided in Section 6.05. Within
30 days after any such public announcement, the Trustee shall negotiate and
effect the sale, transfer and assignment of the master servicing rights and
responsibilities hereunder to the qualified party submitting the highest
qualifying bid. The Trustee shall deduct all costs and expenses of any public
announcement and of any sale, transfer and assignment of the servicing rights
and responsibilities hereunder from any sum received by the Trustee from the
successor to the Master Servicer in respect of such sale, transfer and
assignment. After such deductions, the remainder of such sum shall be paid by
the Trustee to the Master Servicer at the time of such sale, transfer and
assignment to the Master Servicer's successor. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. The Master Servicer agrees to cooperate with the
Trustee and any successor servicer in effecting the termination of the Master
Servicer's servicing responsibilities and rights hereunder and shall promptly
provide the Trustee or such successor master servicer, as applicable, all
documents and records reasonably requested by it to enable it to assume the
Master Servicer's function hereunder and shall promptly also transfer to the
Trustee or such successor master servicer, as applicable, all amounts which then
have been or should have been deposited in the Certificate Account by the Master
Servicer or which are thereafter received by the Master Servicer with respect to
the Mortgage Loans. Neither the Trustee nor any other successor master servicer
shall be deemed to be in default hereunder by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof caused by
(i) the failure of the Master Servicer to deliver, or any delay in delivering,
cash, documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. Notwithstanding anything
to the contrary contained in Section 7.01 above or this Section 7.05, the Master
Servicer shall retain all of its rights and responsibilities hereunder, and no
successor (including the Trustee) shall succeed thereto, if the assumption
thereof by such successor would cause the rating assigned to any Certificates to
be revoked, downgraded or placed on credit review status (other than for
possible upgrading) by either Rating Agency and the retention thereof by the
Master Servicer would avert such revocation, downgrading or review.
VII-4
Section 7.06 Notification to Certificateholders.
Upon any termination of the Master Servicer or appointment of a
successor master servicer, in each case as provided herein, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register. The Trustee shall also, within
45 days after the occurrence of any Event of Default known to the Trustee, give
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register, unless such Event of Default shall have
been cured or waived within said 45 day period.
VII-5
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured),
the Trustee, subject to the provisions of Sections 7.01, 7.03, 7.04 and 7.05,
shall exercise such of the rights and powers vested in it by this Agreement, and
use the same degree of care and skill in its exercise as a prudent investor
would exercise or use under the circumstances in the conduct of such investor's
own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any certificate, statement,
instrument, report, notice or other document furnished by the Master Servicer or
the Servicers pursuant to Articles III, IV and IX.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee, and conforming
to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of holders of Certificates which evidence in
the aggregate not less than 25% of the Voting Interest represented by all
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee under this Agreement; and
(iii) The Trustee shall not be liable for any error of judgment made
in good faith by any of its Responsible Officers, unless it shall be proved
that the Trustee or such Responsible Officer, as the case may be, was
negligent in ascertaining the pertinent facts.
VIII-1
None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if there is reasonable ground for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the manner of obtaining
consents and evidencing the authorization of the execution thereof shall be
subject to such reasonable regulations as the Trustee may prescribe;
(ii) The Trustee may consult with counsel, and any written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) Subject to Section 7.04, the Trustee shall not be accountable,
shall have no liability and makes no representation as to any acts or
omissions hereunder of the Master Servicer until such time as the Trustee
may be required to act as Master Servicer pursuant to Section 7.05 and
thereupon only for the acts or omissions of the Trustee as successor Master
Servicer; and
(v) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
Section 8.03 Trustee Not Required to Make Investigation.
Prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default which may have occurred, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond, Mortgage, Mortgage Note or other paper
or document (provided the same appears regular on its face), unless requested in
writing to do so by holders of Certificates evidencing in the aggregate not less
than 51% of the Voting Interest represented by all Certificates; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement, the
Trustee may require
VIII-2
reasonable indemnity against such expense or liability as a condition to so
proceeding. The reasonable expense of every such investigation shall be paid by
the Master Servicer or, if paid by the Trustee, shall be repaid by the Master
Servicer upon demand.
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
certificate of authentication on the Certificates) shall be taken as the
statements of the Seller, and the Trustee assumes no responsibility as to the
correctness of the same. The Trustee makes no representation for the correctness
of the same. The Trustee makes no representation as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document. Subject to Section 2.04, the Trustee shall not be accountable
for the use or application by the Seller of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Master Servicer in respect of the Mortgage Loans deposited into the
Certificate Account by the Master Servicer or, in its capacity as trustee, for
investment of any such amounts.
Section 8.05 Trustee May Own Certificates.
The Trustee and any agent thereof, in its individual or any other
capacity, may become the owner or pledgee of Certificates with the same rights
it would have if it were not Trustee or such agent and may transact banking
and/or trust business with the Seller, the Master Servicer or their Affiliates.
Section 8.06 The Master Servicer to Pay Fees and Expenses.
The Master Servicer covenants and agrees to pay to the Trustee from
time to time, from its own funds, and the Trustee shall be entitled to receive,
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee and,
except as otherwise agreed by the Master Servicer and the Trustee, the Master
Servicer will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement, or advance as
may arise from its negligence or bad faith. The Trustee shall have no right of
reimbursement from the Trust Estate for any such expenses, disbursements and
advances not paid or reimbursed to it by the Master Servicer.
Section 8.07 Eligibility Requirements.
The Trustee hereunder shall at all times (i) be a corporation or
association having its principal office in a state and city acceptable to the
Seller, organized and doing business under the laws of such state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, or shall
be a member of a bank holding system, the aggregate combined capital and surplus
of which is at least $50,000,000, provided that its separate capital and surplus
shall at all times be at least the
VIII-3
amount specified in Section 310(a)(2) of the Trust Indenture Act of 1939, (ii)
be subject to supervision or examination by federal or state authority and (iii)
have a credit rating or be otherwise acceptable to the Rating Agencies such that
neither of the Rating Agencies would reduce their respective then current
ratings of the Certificates (or have provided such security from time to time as
is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.08.
Section 8.08 Resignation and Removal.
The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice of resignation to the Master Servicer,
such resignation to be effective upon the appointment of a successor trustee.
Upon receiving such notice of resignation, the Master Servicer shall promptly
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning entity and one copy to its
successor. If no successor trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.07 and shall fail to resign after written
request for its resignation by the Master Servicer, or if at any time the
Trustee shall become incapable of acting, or an order for relief shall have been
entered in any bankruptcy or insolvency proceeding with respect to such entity,
or a receiver of such entity or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of the property or
affairs of the Trustee for the purpose of rehabilitation, conversion or
liquidation, or the Master Servicer shall deem it necessary in order to change
the situs of the Trust Estate for state tax reasons, then the Master Servicer
shall remove the Trustee and appoint a successor trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
The Holders of Certificates evidencing in the aggregate not less than
51% of the Voting Interests represented by all Certificates (except that any
Certificate registered in the name of the Seller, the Master Servicer or any
affiliate thereof will not be taken into account in determining whether the
requisite Voting Interests has been obtained) may at any time remove the Trustee
and appoint a successor by written instrument or instruments, in triplicate,
signed by such holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set of which shall be delivered to the entity or entities so removed and one
complete set of which shall be delivered to the successor so appointed.
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Any resignation or removal of the Trustee and appointment of a
successor pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor as provided in Section
8.09.
Section 8.09 Successor.
Any successor trustee appointed as provided in Section 8.08 shall
execute, acknowledge and deliver to the Master Servicer and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective, and
such successor, without any further act, deed or reconveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to its successor all documents and
statements held by it hereunder, and the Seller, the Master Servicer and the
predecessor entity shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations. No successor shall accept appointment as provided in this Section
unless at the time of such acceptance such successor shall be eligible under the
provisions of Section 8.07.
Upon acceptance of appointment by a successor as provided in this
Section, the Master Servicer shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Master Servicer fails to mail such notice within
ten days after acceptance of the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Master Servicer.
Section 8.10 Merger or Consolidation.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, to which it may sell or transfer its corporate
trust business and assets as a whole or substantially as a whole or any Person
resulting from any merger, sale, transfer, conversion or consolidation to which
the Trustee shall be a party, or any Person succeeding to the business of such
entity, shall be the successor of the Trustee, hereunder; provided, however,
that (i) such Person shall be eligible under the provisions of Section 8.07,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding, and
(ii) the Trustee shall deliver an Opinion of Counsel to the Seller and the
Master Servicer to the effect that such merger, consolidation, sale or transfer
will not subject either the Upper-Tier REMIC or the Lower-Tier REMIC to federal,
state or local tax or cause either the Upper-Tier REMIC or the Lower-Tier REMIC
to fail to qualify as a REMIC, which Opinion of Counsel shall be at the sole
expense of the Trustee.
Section 8.11 Authenticating Agent.
The Trustee may appoint an Authenticating Agent, which shall be
authorized to act on behalf of the Trustee in authenticating Certificates.
Wherever reference is made in this Agreement to the authentication of
Certificates by the Trustee or the Trustee's countersignature, such reference
shall be deemed to include authentication on behalf of the Trustee by the
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by the
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Authenticating Agent. The Authenticating Agent must be acceptable to the Seller
and the Master Servicer and must be a corporation organized and doing business
under the laws of the United States of America or of any state, having a
principal office and place of business in a state and city acceptable to the
Seller and the Master Servicer, having a combined capital and surplus of at
least $15,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Seller and the
Master Servicer. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice thereof to the Authenticating
Agent, the Seller and the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.11, the Trustee promptly shall appoint a successor
Authenticating Agent, which shall be acceptable to the Master Servicer, and
shall give written notice of such appointment to the Seller, and shall mail
notice of such appointment to all Certificateholders. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 8.11.
The Authenticating Agent shall have no responsibility or liability for
any action taken by it as such at the direction of the Trustee. Any reasonable
compensation paid to the Authenticating Agent shall be a reimbursable expense
under Section 8.06.
Section 8.12 Separate Trustees and Co-Trustees.
The Trustee shall have the power from time to time to appoint one or
more persons or corporations to act either as co-trustees jointly with the
Trustee, or as separate trustees, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan outside
the state where the Trustee has its principal place of business, where such
separate trustee or co-trustee is necessary or advisable (or the Trustee is
advised by the Master Servicer that such separate trustee or co-trustee is
necessary or advisable) under the laws of any state in which a Mortgaged
Property is located or for the purpose of otherwise conforming to any legal
requirement, restriction or condition in any state in which a Mortgaged Property
is located or in any state in which any portion of the Trust Estate is located.
The Master Servicer shall advise the Trustee when, in its good faith opinion, a
separate trustee or co-trustee is necessary or advisable as aforesaid. The
separate trustees or co-trustees so appointed shall be trustees for the benefit
of all of the Certificateholders and shall have such powers, rights and remedies
as shall be specified in the instrument of appointment; provided, however, that
no such
VIII-6
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee. The Seller and the Master Servicer shall join in any such
appointment, but such joining shall not be necessary for the effectiveness of
such appointment.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee, in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder) the Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding of
title to the Trust Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee;
(iii) no separate trustee or co-trustee hereunder shall be personally
liable by reason of any act or omission of any other separate trustee or
co-trustee hereunder; and
(iv) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee so appointed by it, if such resignation
or removal does not violate the other terms of this Agreement.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee, or custodian shall refer to this Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee, or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be furnished to the Trustee.
Any separate trustee, co-trustee, or custodian may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee to the extent permitted by law, without the appointment
of a new or successor trustee.
No separate trustee or co-trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 8.07 hereunder and
no notice to Certificateholders of the appointment thereof shall be required
under Section 8.09 hereof.
VIII-7
The Trustee agrees to instruct its co-trustees, if any, to the extent
necessary to fulfill such entity's obligations hereunder.
The Master Servicer shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 8.06 hereof.
Section 8.13 Tax Matters; Compliance with REMIC Provisions.
(a) Each of the Trustee and the Master Servicer covenants and agrees
that it shall perform its duties hereunder in a manner consistent with the REMIC
Provisions and shall not knowingly take any other action or fail to take any
action that would (i) affect the determination of the Trust Estate's status as
two separate REMICs; or (ii) cause the imposition of any federal, state or local
income, prohibited transaction, contribution or other tax on either the
Upper-Tier REMIC, the Lower-Tier REMIC or the Trust Estate. The Master Servicer,
or, in the case of any tax return or other action required by law to be
performed directly by the Trustee, the Trustee, shall (i) prepare or cause to be
prepared, timely cause to be signed by the Trustee and file or cause to be filed
annual federal and applicable state and local income tax returns for each of the
Upper-Tier REMIC and the Lower-Tier REMIC using a calendar year as the taxable
year and the accrual method of accounting; (ii) in the first such federal tax
returns, make, or cause to be made, elections satisfying the requirements of the
REMIC Provisions, on behalf of the Trust Estate, to treat each of the Upper-Tier
REMIC and the Lower-Tier REMIC as a REMIC; (iii) prepare, execute and forward,
or cause to be prepared, executed and forwarded, to the Certificateholders all
information reports or tax returns required with respect to the Trust Estate, as
and when required to be provided to the Certificateholders, and to the Internal
Revenue Service and any other relevant governmental taxing authority in
accordance with the REMIC Provisions and any other applicable federal, state or
local laws, including without limitation information reports relating to
"original issue discount" and "market discount" as defined in the Code based
upon the issue prices, prepayment assumption and cash flows provided by the
Seller to the Trustee and calculated on a monthly basis by using the issue
prices of the Certificates; (iv) make available information necessary for the
application of any tax imposed on transferors of residual interests to
"disqualified organizations" (as defined in the REMIC Provisions); (v) file Form
8811 and apply for an Employee Identification Number with a Form SS-4 or any
other permissible method and respond to inquiries by Certificateholders or their
nominees concerning information returns, reports or tax returns; (vi) maintain
(or cause to be maintained by the Servicers) such records relating to the
Upper-Tier REMIC and the Lower-Tier REMIC, including but not limited to the
income, expenses, individual Mortgage Loans (including REO Mortgage Loans),
other assets and liabilities of each REMIC, and the fair market value and
adjusted basis of the property of each REMIC determined at such intervals as may
be required by the Code, as may be necessary to prepare the foregoing returns or
information reports; (vii) exercise reasonable care not to allow the creation of
any "interests" in either the Upper-Tier REMIC or the Lower-Tier REMIC within
the meaning of Code Section 860D(a)(2) other than the interests in the
Upper-Tier REMIC represented by the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11,
Class A-12, Class A-13, Class A-14, Class A-15, Class A-16, Class A-17, Class
A-PO, Class A-R, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6 Certificates and the interests in the Lower-Tier REMIC represented by the
Class A-L1, Class A-L5, Class A-L8, Class A-LPO, Class A-LUR, Class B-L1, Class
B-L2, Class B-L3, Class B-L4, Class B-L5 and
VIII-8
Class B-L6 Interests and the Class A-LR Certificate; (viii) exercise reasonable
care not to allow the occurrence of any "prohibited transactions" within the
meaning of Code Section 860F(a), unless the Master Servicer shall have provided
an Opinion of Counsel to the Trustee that such occurrence would not (a) result
in a taxable gain, (b) otherwise subject any of the Upper-Tier REMIC, the
Lower-Tier REMIC or the Trust Estate to tax or (c) cause the Trust Estate to
fail to qualify as two separate REMICs; (ix) exercise reasonable care not to
allow the either the Upper-Tier REMIC or the Lower-Tier REMIC to receive income
from the performance of services or from assets not permitted under the REMIC
Provisions to be held by a REMIC; (x) pay (on behalf of the Upper-Tier REMIC or
the Lower-Tier REMIC) the amount of any federal income tax, including, without
limitation, prohibited transaction taxes, taxes on net income from foreclosure
property, and taxes on certain contributions to a REMIC after the Startup Day,
imposed on the Upper-Tier REMIC or the Lower-Tier REMIC, as the case may be,
when and as the same shall be due and payable (but such obligation shall not
prevent the Master Servicer or any other appropriate Person from contesting any
such tax in appropriate proceedings and shall not prevent the Master Servicer
from withholding or depositing payment of such tax, if permitted by law, pending
the outcome of such proceedings); and (xi) if required or permitted by the Code
and applicable law, act as "tax matters person" for the Upper-Tier REMIC and the
Lower-Tier REMIC within the meaning of Treasury Regulations Section 1.860F-4(d),
and the Master Servicer is hereby designated as agent of the Class A-R and Class
A-LR Certificateholders for such purpose (or if the Master Servicer is not so
permitted, the Holders of the Class A-R and Class A-LR Certificates shall be the
tax matters persons for the Upper-Tier REMIC and Lower-Tier REMIC, respectively,
in accordance with the REMIC Provisions). The Master Servicer shall be entitled
to be reimbursed pursuant to Section 3.02 for any taxes paid by it pursuant to
clause (x) of the preceding sentence, except to the extent that such taxes are
imposed as a result of the bad faith, willful misfeasance or gross negligence of
the Master Servicer in the performance of its obligations hereunder. The Trustee
shall sign the tax returns referred to in clause (i) of the second preceding
sentence.
In order to enable the Master Servicer or the Trustee, as the case may
be, to perform its duties as set forth above, the Seller shall provide, or cause
to be provided, to the Master Servicer within ten days after the Closing Date
all information or data that the Master Servicer determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including, without limitation, the price, yield, prepayment assumption and
projected cash flows of each Class of Certificates and the Mortgage Loans in the
aggregate. Thereafter, the Seller shall provide to the Master Servicer or the
Trustee, as the case may be, promptly upon request therefor, any such additional
information or data that the Master Servicer or the Trustee, as the case may be,
may from time to time request in order to enable the Master Servicer to perform
its duties as set forth above. The Seller hereby indemnifies the Master Servicer
or the Trustee, as the case may be, for any losses, liabilities, damages, claims
or expenses of the Master Servicer or the Trustee arising from any errors or
miscalculations by the Master Servicer or the Trustee pursuant to this Section
that result from any failure of the Seller to provide, or to cause to be
provided, accurate information or data to the Master Servicer or the Trustee, as
the case may be, on a timely basis. The Master Servicer hereby indemnifies the
Seller and the Trustee for any losses, liabilities, damages, claims or expenses
of the Seller or the Trustee arising from the Master Servicer's willful
misfeasance, bad faith or gross negligence in preparing any of the federal,
state and local tax returns of either REMIC as described above. In the event
that the Trustee prepares any of the federal, state and local tax returns of
either REMIC as described
VIII-9
above, the Trustee hereby indemnifies the Seller and the Master Servicer for any
losses, liabilities, damages, claims or expenses of the Seller or the Master
Servicer arising from the Trustee's willful misfeasance, bad faith or negligence
in connection with such preparation.
(b) Notwithstanding anything in this Agreement to the contrary, each
of the Master Servicer and the Trustee shall pay from its own funds, without any
right of reimbursement therefor, the amount of any costs, liabilities and
expenses incurred by the Trust Estate (including, without limitation, any and
all federal, state or local taxes, including taxes imposed on "prohibited
transactions" within the meaning of the REMIC Provisions) if and to the extent
that such costs, liabilities and expenses arise from a failure of the Master
Servicer or the Trustee, respectively, to perform its obligations under this
Section 8.13.
Section 8.14 Monthly Advances.
In the event that WFHM fails to make a Periodic Advance required to be
made pursuant to the WFHM Servicing Agreement on or before the Distribution
Date, the Trustee shall make a Periodic Advance as required by Section 3.03
hereof; provided, however, the Trustee shall not be required to make such
Periodic Advances if prohibited by law or if it determines that such Periodic
Advance would be a Nonrecoverable Advance. With respect to those Periodic
Advances which should have been made by WFHM, the Trustee shall be entitled,
pursuant to Section 3.02(a)(i), (ii) or (v) hereof, to be reimbursed from the
Certificate Account for Periodic Advances and Nonrecoverable Advances made by
it.
VIII-10
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Purchase by the Seller or Liquidation
of All Mortgage Loans.
Subject to Section 9.02, the respective obligations and
responsibilities of the Seller, the Master Servicer and the Trustee created
hereby (other than the obligation of the Trustee to make certain payments after
the Final Distribution Date to Certificateholders and the obligation of the
Master Servicer to send certain notices as hereinafter set forth and the tax
reporting obligations under Sections 4.05 and 8.13 hereof) shall terminate upon
the last action required to be taken by the Trustee on the Final Distribution
Date pursuant to this Article IX following the earlier of (i) the purchase by
the Seller of all Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Estate at a price equal to the sum of (x)
100% of the unpaid principal balance of each Mortgage Loan (other than any REO
Mortgage Loan) as of the Final Distribution Date, and (y) the fair market value
of the Mortgaged Property related to any REO Mortgage Loan (as determined by the
Master Servicer as of the close of business on the third Business Day next
preceding the date upon which notice of any such termination is furnished to
Certificateholders pursuant to the third paragraph of this Section 9.01), plus
any accrued and unpaid interest through the last day of the month preceding the
month of such purchase at the applicable Mortgage Interest Rate less any Fixed
Retained Yield on each Mortgage Loan (including any REO Mortgage Loan) and (ii)
the final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan remaining in the Trust Estate (including for this purpose
the discharge of any Mortgagor under a defaulted Mortgage Loan on which a
Servicer is not obligated to foreclose due to environmental impairment) or the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
The right of the Seller to purchase all the assets of the Trust Estate
pursuant to clause (i) of the preceding paragraph are subject to Section 9.02
and conditioned upon the Pool Scheduled Principal Balance of the Mortgage Loans
as of the Final Distribution Date being less than the amount set forth in
Section 11.22. In the case of any purchase by the Seller pursuant to said clause
(i), the Seller shall provide to the Trustee the certification required by
Section 3.04 and the Trustee and the Custodian shall, promptly following payment
of the purchase price, release to the Seller the Owner Mortgage Loan Files
pertaining to the Mortgage Loans being purchased.
Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders mailed not earlier than the 15th day
of the month preceding the month of such final distribution and not later than
the
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twentieth day of the month of such final distribution specifying (A) the Final
Distribution Date upon which final payment of the Certificates will be made upon
presentation and surrender of Certificates at the office or agency of the
Trustee therein designated, (B) the amount of any such final payment and (C)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made (except in the case of any Class A Certificate
surrendered on a prior Distribution Date pursuant to Section 4.01) only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. In the event the Seller is exercising its right to
purchase, the Seller shall deposit in the Certificate Account on or before the
Final Distribution Date in immediately available funds an amount equal to the
purchase price for the assets of the Trust Estate computed as above provided.
Failure to give notice of termination as described herein shall not entitle a
Certificateholder to any interest beyond the interest payable on the Final
Distribution Date.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to Certificateholders on the Final Distribution Date in
proportion to their respective Percentage Interests an amount equal to (i) as to
the Classes of Class A Certificates, the respective Principal Balance together
with any related Class A Unpaid Interest Shortfall and one month's interest in
an amount equal to the respective Interest Accrual Amount, (ii) as to the
Classes of Class B Certificates, the respective Principal Balance together with
any related Class B Unpaid Interest Shortfall and one month's interest in an
amount equal to the respective Interest Accrual Amount and (iii) as to the Class
A-R and Class A-LR Certificates, the amounts, if any, which remain on deposit in
the Upper-Tier Certificate Account and the Certificate Account, respectively
(other than amounts retained to meet claims) after application pursuant to
clauses (i), (ii) and (iii) above and payment to the Master Servicer of any
amounts it is entitled as reimbursement or otherwise hereunder. Such amount
shall be distributed in respect of interest and principal in respect of the
Uncertificated Lower-Tier Interests in the same amounts as distributed to their
Corresponding Upper-Tier Class or Classes in the manner specified in Section
4.01(a)(ii). Notwithstanding the foregoing, if the price paid pursuant to clause
(i) of the first paragraph of this Section 9.01, after reimbursement to the
Servicers, the Master Servicer and the Trustee of any Periodic Advances, is
insufficient to pay in full the amounts set forth in clauses (i), (ii) and (iii)
of this paragraph, then any shortfall in the amount available for distribution
to Certificateholders shall be allocated in reduction of the amounts otherwise
distributable on the Final Distribution Date in the same manner as Realized
Losses are allocated pursuant to Sections 4.02(a) and (e) hereof. Such
distribution on the Final Distribution Date shall be in lieu of the distribution
otherwise required to be made on such Distribution Date in respect of each Class
of Certificates.
In the event that all of the Certificateholders shall not surrender
their Certificates for final payment and cancellation within three months
following the Final Distribution Date, the Trustee shall on such date cause all
funds, if any, in the Certificate Account not distributed in final distribution
to Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate escrow account for the
benefit of such Certificateholders, and the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
three months after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning
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surrender of their Certificates, and the cost thereof shall be paid out of the
funds on deposit in such escrow account.
Section 9.02 Additional Termination Requirements.
In the event of a termination of the Trust Estate upon the exercise by
the Seller of its purchase option as provided in Section 9.01, the Trust Estate
shall be terminated in accordance with the following additional requirements,
unless the Trustee has received an Opinion of Counsel to the effect that any
other manner of termination (i) will constitute a "qualified liquidation" of the
Trust Estate within the meaning of Code Section 860F(a)(4)(A) and (ii) will not
subject either the Upper-Tier REMIC or the Lower-Tier REMIC to federal tax or
cause the Trust Estate to fail to qualify as two separate REMICs at any time
that any Certificates are outstanding:
(i) The notice given by the Trustee under Section 9.01 shall provide
that such notice constitutes the adoption of a plan of complete liquidation
of the Upper-Tier REMIC and the Lower-Tier REMIC as of the date of such
notice (or, if earlier, the date on which the first such notice is mailed
to Certificateholders). The Master Servicer shall also specify such date in
a statement attached to the final tax returns of the Upper-Tier REMIC and
the Lower-Tier REMIC; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the Final Distribution Date, the Trustee
shall sell all of the assets of the Trust Estate to the Seller for cash at
the purchase price specified in Section 9.01 and shall distribute such cash
within 90 days of such adoption in the manner specified in Section 9.01.
IX-3
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
(a) This Agreement or the Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer and the Trustee without the consent
of any of the Certificateholders, (i) to cure any ambiguity or mistake, (ii) to
correct or supplement any provisions herein or therein which may be inconsistent
with any other provisions herein or therein or in the related Prospectus, (iii)
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Trust Estate as two separate
REMICs at all times that any Certificates are outstanding or to avoid or
minimize the risk of the imposition of any federal tax on the Trust Estate, the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Estate, provided that (a) the Trustee has received an
Opinion of Counsel to the effect that such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the imposition
of any such tax and (b) such action shall not, as evidenced by such Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, (iv) to change the timing and/or nature of deposits into the
Upper-Tier Certificate Account and the Lower-Tier Certificate Account provided
that such change shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder, (v) to
modify, eliminate or add to the provisions of Section 5.02 or any other
provisions hereof restricting transfer of the Certificates, provided that the
Master Servicer for purposes of Section 5.02 has determined in its sole
discretion that any such modifications to this Agreement will neither adversely
affect the rating on the Certificates nor give rise to a risk that either the
Upper-Tier REMIC or the Lower-Tier REMIC or any of the Certificateholders will
be subject to a tax caused by a transfer to a non-permitted transferee and (vi)
to make any other provisions with respect to matters or questions arising under
this Agreement or such Custodial Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder. Notwithstanding the
foregoing, any amendment pursuant to clause (iv) or (vi) shall not be deemed to
adversely affect in any material respect the interest of Certificateholders and
no Opinion of Counsel to that effect shall be required if the person requesting
the amendment instead obtains a letter from each Rating Agency stating that the
amendment would not result in the downgrading or withdrawal of the respective
ratings then assigned to the Certificates.
This Agreement or the Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer and the Trustee with the consent
of the Holders of Certificates evidencing in the aggregate not less than 66-2/3%
of the aggregate Voting Interests of each Class of Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or such Custodial Agreement
or of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall (i) reduce in any manner
the amount of, or delay the timing of, payments received on Mortgage Loans which
are required to be distributed
X-1
on any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interest of the Holders of
Certificates of any Class in a manner other than as described in clause (i)
hereof without the consent of Holders of Certificates of such Class evidencing,
as to such Class, Voting Interests aggregating not less than 66-2/3% or (iii)
reduce the aforesaid percentage of Certificates of any Class the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all Certificates of such Class then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel to the effect that such amendment will not
subject either the Upper-Tier REMIC or the Lower-Tier REMIC to tax or cause
either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment requiring the consent of
Certificateholders, the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01(a) to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(b) [Reserved]
Section 10.02 Recordation of Agreement.
This Agreement (or an abstract hereof, if acceptable to the applicable
recording office) is subject to recordation in all appropriate public offices
for real property records in all the towns or other comparable jurisdictions in
which any or all of the Mortgaged Properties are situated, and in any other
appropriate public office or elsewhere, such recordation to be effected by the
Master Servicer and at its expense on direction by the Trustee, but only upon
direction accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Estate, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust Estate, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
X-2
Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right to
vote or in any manner otherwise control the operation and management of the
Trust Estate, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association, nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates evidencing not less than 25% of the Voting Interest
represented by all Certificates shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the cost, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 10.04 Governing Law; Jurisdiction.
This Agreement shall be construed in accordance with the laws of the
State of New York (without regard to conflicts of laws principles), and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 10.05 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by certified or registered mail, return receipt requested (i) in the case of the
Seller, to Xxxxx Fargo Asset Securities Corporation, 0000 Xxx Xxxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Vice President Structured Finance, or such
other address as may hereafter be furnished to the Master Servicer and the
Trustee in writing by the Seller, (ii) in the case of the Master Servicer, to
Xxxxx Fargo Bank Minnesota, National Association, 0000 Xxx Xxxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Vice President, Structured Finance or such
other address as may hereafter be furnished to the Seller and the Trustee in
writing by the Master Servicer and (iii) in the case of the Trustee, to the
Corporate Trust Office or such other address as may hereafter be furnished to
X-3
the Seller and the Master Servicer in writing by the Trustee, in each case
Attention: Corporate Trust Department. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice mailed or transmitted within the time prescribed in this Agreement shall
be conclusively presumed to have been duly given, whether or not the addressee
receives such notice, provided, however, that any demand, notice or
communication to or upon the Seller, the Master Servicer or the Trustee shall
not be effective until received.
For all purposes of this Agreement, in the absence of actual knowledge
by an officer of the Master Servicer, the Master Servicer shall not be deemed to
have knowledge of any act or failure to act of any Servicer unless notified
thereof in writing by the Trustee, the Servicer or a Certificateholder.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Special Notices to Rating Agencies.
(a) The Trustee shall give prompt notice to each Rating Agency of the
occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 10.01(a);
(ii) any sale or transfer of the Class B Certificates pursuant to
Section 5.02 to an affiliate of the Seller;
(iii) any assignment by the Master Servicer of its rights and
delegation of its duties pursuant to Section 6.06;
(iv) any resignation of the Master Servicer pursuant to Section 6.04;
(v) the occurrence of any of the Events of Default described in
Section 7.01;
(vi) any notice of termination given to the Master Servicer pursuant
to Section 7.01;
(vii) the appointment of any successor to the Master Servicer pursuant
to Section 7.05; or
(viii) the making of a final payment pursuant to Section 9.01.
(b) The Master Servicer shall give prompt notice to each Rating Agency
of the occurrence of any of the following events:
X-4
(i) the resignation of the Custodian or the appointment of a successor
Custodian pursuant to the Custodial Agreement;
(ii) the resignation or removal of the Trustee pursuant to Section
8.08;
(iii) the appointment of a successor trustee pursuant to Section 8.09;
or
(iv) the sale, transfer or other disposition in a single transaction
of 50% or more of the equity interests in the Master Servicer.
(c) The Master Servicer shall deliver to each Rating Agency:
(i) reports prepared pursuant to Section 3.05; and
(ii) statements prepared pursuant to Section 4.04.
Section 10.08 Covenant of Seller.
The Seller shall not amend Article Third of its Certificate of
Incorporation without the prior written consent of each Rating Agency rating the
Certificates.
Section 10.09 Recharacterization.
The Parties intend the conveyance by the Seller to the Trustee of all
of its right, title and interest in and to the Mortgage Loans pursuant to this
Agreement to constitute a purchase and sale and not a loan. Notwithstanding the
foregoing, to the extent that such conveyance is held not to constitute a sale
under applicable law, it is intended that this Agreement shall constitute a
security agreement under applicable law and that the Seller shall be deemed to
have granted to the Trustee a first priority security interest in all of the
Seller's right, title and interest in and to the Mortgage Loans.
X-5
ARTICLE XI
TERMS FOR CERTIFICATES
Section 11.01 Class A Fixed Pass-Through Rate.
The Class A Fixed Pass-Through Rate is __________% per annum.
Section 11.02 Cut-Off Date.
The Cut-Off Date for the Certificates is __________ 1, 200_.
Section 11.03 Cut-Off Date Aggregate Principal Balance.
The Cut-Off Date Aggregate Principal Balance is $__________.
Section 11.04 Original Class A Percentage.
The Original Class A Percentage is __________%.
Section 11.05 Original Principal Balances of the Classes of Class A
Certificates.
As to the following Classes of Class A Certificates, the Principal
Balance of such Class as of the Cut-Off Date, is as follows:
Original
Class Principal Balance
------------- -----------------
Class A-1 $_____.
Class A-2 $_____.
Class A-3 $_____.
Class A-4 $_____.
Class A-5 $_____.
Class A-6 $_____.
Class A-7 $_____.
Class A-8 $_____.
Class A-9 $_____.
Class A-10 $_____.
Class A-12 $_____.
Class A-13 $_____.
Class A-14 $_____.
Class A-15 $_____.
Class A-16 $_____.
Class A-17 $_____.
Class A-PO $_____.
Class A-R $_____.
Class A-LR $_____.
XI-1
Section 11.05 Original Notional Amount
The Original Notional Amount is $__________.
Section 11.06 Original Class A Non-PO Principal Balance.
The Original Class A Non-PO Principal Balance is $__________.
Section 11.07 Original Subordinated Percentage.
The Original Subordinated Percentage is __________%.
Section 11.08 Original Class B Principal Balance.
The Original Class B Principal Balance is $__________.
Section 11.09 Original Principal Balances of the Classes of Class B
Certificates.
As to the following Classes of Class B Certificate, the Principal
Balance of such Class as of the Cut-Off Date, is as follows:
Original
Class Principal Balance
------------- -----------------
Class B-1 $_____.
Class B-2 $_____.
Class B-3 $_____.
Class B-4 $_____.
Class B-5 $_____.
Class B-6 $_____.
Section 11.10 Original Class B-1 Fractional Interest.
The Original Class B-1 Fractional Interest is __________%.
Section 11.11 Original Class B-2 Fractional Interest.
The Original Class B-2 Fractional Interest is __________%.
Section 11.12 Original Class B-3 Fractional Interest.
The Original Class B-3 Fractional Interest is __________%.
Section 11.13 Original Class B-4 Fractional Interest.
The Original Class B-4 Fractional Interest is __________%.
XI-2
Section 11.14 Original Class B-5 Fractional Interest.
The Original Class B-5 Fractional Interest is __________%.
Section 11.15 Original Class B-1 Percentage.
The Original Class B-1 Percentage is __________%.
Section 11.16 Original Class B-2 Percentage.
The Original Class B-2 Percentage is __________%.
Section 11.17 Original Class B-3 Percentage.
The Original Class B-3 Percentage is __________%.
Section 11.18 Original Class B-4 Percentage.
The Original Class B-4 Percentage is __________%.
Section 11.19 Original Class B-5 Percentage.
The Original Class B-5 Percentage is __________%.
Section 11.20 Original Class B-6 Percentage.
The Original Class B-6 Percentage is __________%.
Section 11.21 Closing Date.
The Closing Date is __________, 200_.
Section 11.22 Right to Purchase.
The right of the Seller to purchase all of the Mortgage Loans pursuant
to Section 9.01 hereof shall be conditioned upon the Pool Scheduled Principal
Balance of the Mortgage Loans being less than $__________ (____% of the Cut-Off
Date Aggregate Principal Balance) at the time of any such purchase.
Section 11.23 Wire Transfer Eligibility.
With respect to the Class A Certificates (other than the Class A-11,
Class A-17, Class A-PO, Class A-R and Class A-LR) and the Class B Certificates,
the minimum Denomination eligible for wire transfer on each Distribution Date is
$500,000. With respect to the Class A-11 Certificates, the minimum Denomination
eligible for wire transfer on each Distribution Date is 10% Percentage Interest.
The Class A-17, Class A-PO, Class A-R and Class A-LR Certificates are not
eligible for wire transfer, except that the Class A-17 and Class A-PO
Certificates shall be eligible for wire transfer so long as the Holder is the
Clearing Agency or its nominee.
XI-3
Section 11.24 Single Certificate.
A Single Certificate for each Class of Class A Certificates (other
than the Class A-11, Class A-R and Class A-LR Certificates) represents a
$__________ Denomination. A Single Certificate for the Class A-11 Certificates
represents a $__________ Denomination. A Single Certificate for the Class A-12,
Class B-1, Class B-2 and Class B-3 Certificates represents a $__________
Denomination. A Single Certificate for the Class B-4 and Class B-6 Certificates
represents a $__________ Denomination. A Single Certificate for the Class B-5
Certificates represents a $__________ Denomination. A Single Certificate for the
Class A-R and Class A-LR Certificates represents a $__________ Denomination.
Section 11.25 Servicing Fee Rate.
The rate used to calculate the Servicing Fee is equal to such rate as
is set forth on the Mortgage Loan Schedule with respect to a Mortgage Loan.
Section 11.26 Master Servicing Fee Rate.
The rate used to calculate the Master Servicing Fee for each Mortgage
Loan is _______% per annum.
XI-4
IN WITNESS WHEREOF, the Seller, the Master Servicer and the Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above written.
XXXXX FARGO ASSET SECURITIES CORPORATION
as Seller
By: ____________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
as Master Servicer
By: ____________________________________
Name:
Title:
as Trustee
By: ____________________________________
Name:
Title:
Attest:
By: ____________________________________
Name: __________________________________
Title: _________________________________
STATE OF____)
ss.:
COUNTY OF___)
On this __th day of _________, 200_, before me, a notary public in
and for the State of Maryland, personally appeared __________, known to me who,
being by me duly sworn, did depose and say that he resides in __________; that
he is a __________ of __________, a __________, one of the parties that executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said association.
_________________________
Notary Public
[NOTARIAL SEAL]
STATE OF____)
ss.:
COUNTY OF___)
On this __th day of __________, 200_, before me, a notary public in
and for the State of Maryland, personally appeared __________, known to me who,
being by me duly sworn, did depose and say that he resides in __________; that
he is a __________ of __________, a __________, one of the parties that executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said association.
_________________________
Notary Public
[NOTARIAL SEAL]
STATE OF____)
ss.:
COUNTY OF___)
On this __th day of __________, 200_, before me, a notary public in
and for the State of Maryland, personally appeared __________, known to me who,
being by me duly sworn, did depose and say that he resides in __________; that
he is a __________ of __________, a __________, one of the parties that executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said association.
_________________________
Notary Public
[NOTARIAL SEAL]
STATE OF____)
ss.:
COUNTY OF___)
On this __th day of __________, 200_, before me, a notary public in
and for the State of Maryland, personally appeared __________, known to me who,
being by me duly sworn, did depose and say that he resides in __________; that
he is a __________ of __________, a __________, one of the parties that executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said association.
_________________________
Notary Public
[NOTARIAL SEAL]
SCHEDULE I
Xxxxx Fargo Asset Securities Corporation,
Mortgage Asset-Backed Pass-Through Certificates, Series 200 -
Applicable Unscheduled Principal Receipt Period
Full Unscheduled Partial Unscheduled
Servicer Principal Receipts Principal Receipts
--------------------- ------------------ -------------------
WFHM (Exhibit F-1) Mid-Month Mid-Month
[Other Servicers]
EXHIBIT A-1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200__-__, CLASS A-1
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: __________, 20__
CUSIP No.: ___________________ First Distribution Date: __________, 20__
Percentage Interest evidenced Denomination: $__________
by this Certificate: ________%
Final Scheduled Maturity Date: __________, 20__
THIS CERTIFIES THAT ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class A-1 Certificates with respect to a Trust Estate
consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of __________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and ________________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-1 Certificates required to be distributed to
Holders of the Class A-1 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-1 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-1 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-1-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _________________________
_______________________________________,
Trustee
By______________________________________
Authorized Officer
Countersigned:
____________________________________,
Trustee
By ___________________________________
Authorized Officer
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-2 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200__-__, CLASS A-2
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: __________, 20__
CUSIP No.: ___________________ First Distribution Date: __________, 20__
Percentage Interest evidenced Denomination: $__________
by this Certificate: ________%
Final Scheduled Maturity Date: __________, 20__
THIS CERTIFIES THAT ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class A-2 Certificates with respect to a Trust Estate
consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of __________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and ________________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-2 Certificates required to be distributed to
Holders of the Class A-2 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-2 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-2 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-2-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _________________________
_______________________________________,
Trustee
By______________________________________
Authorized Officer
Countersigned:
____________________________________,
Trustee
By ___________________________________
Authorized Officer
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-3 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200__-__, CLASS A-3
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: __________, 20__
CUSIP No.: ___________________ First Distribution Date: __________, 20__
Percentage Interest evidenced Denomination: $__________
by this Certificate: ________%
Final Scheduled Maturity Date: __________, 20__
THIS CERTIFIES THAT ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class A-3 Certificates with respect to a Trust Estate
consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of __________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and ________________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-3 Certificates required to be distributed to
Holders of the Class A-3 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-3 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-3 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-3-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _________________________
_______________________________________,
Trustee
By______________________________________
Authorized Officer
Countersigned:
___________________________________,
Trustee
By___________________________________
Authorized Officer
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-4 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200__-__, CLASS A-4
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: __________, 20__
CUSIP No.: ___________________ First Distribution Date: __________, 20__
Percentage Interest evidenced Denomination: $__________
by this Certificate: ________%
Final Scheduled Maturity Date: __________, 20__
THIS CERTIFIES THAT ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class A-4 Certificates with respect to a Trust Estate
consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of __________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and ________________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-4 Certificates required to be distributed to
Holders of the Class A-4 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-4 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-4 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-4-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _________________________
________________________________________,
Trustee
By_______________________________________
Authorized Officer
Countersigned:
___________________________________,
Trustee
By _________________________________
Authorized Officer
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-5 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200__-__, CLASS A-5
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: __________, 20__
CUSIP No.: ___________________ First Distribution Date: __________, 20__
Percentage Interest evidenced Denomination: $__________
by this Certificate:_________%
Final Scheduled Maturity Date: __________, 20__
THIS CERTIFIES THAT _________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class A-5 Certificates with respect to a Trust Estate
consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of __________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and ________________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-5 Certificates required to be distributed to
Holders of the Class A-5 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-5 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-5 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-5-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _________________________
________________________________________,
Trustee
By_______________________________________
Authorized Officer
Countersigned:
___________________________________,
Trustee
By _________________________________
Authorized Officer
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-6 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200__-__, CLASS A-6
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No._______________ Cut-Off Date: __________, 20__
CUSIP No.: ___________________ First Distribution Date: __________, 20__
Percentage Interest evidenced Denomination: $__________
by this Certificate: ________%
Final Scheduled Maturity Date: ___________, 20__
THIS CERTIFIES THAT ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class A-6 Certificates with respect to a Trust Estate
consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of __________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and ________________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-6 Certificates required to be distributed to
Holders of the Class A-6 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-6 Certificates applicable to each Distribution Date will be _______% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-6 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-6-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-6-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _________________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-7 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-7
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. _____________ Cut-Off Date: _____, 20__
CUSIP No.: _________________ First Distribution Date: _______________, 20__
Percentage Interest evidenced Denomination: $__________
by this Certificate: _______%
Final Scheduled Maturity Date: _____________, 20__
THIS CERTIFIES THAT ___________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate in monthly distributions
to the Holders of the Class A-7 Certificates with respect to a Trust Estate
consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of _________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and _____________________, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-7 Certificates required to be distributed to
Holders of the Class A-7 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-7 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-7 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-7-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-7-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-8 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-8
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ____________ Cut-Off Date: ____________________, 20__
CUSIP No.: __________________ First Distribution Date: __________, 20__
Percentage Interest evidenced Denomination: $_____________
by this Certificate: _______%
Final Scheduled Maturity Date: _______, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-8 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of _________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and _______________________, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-8 Certificates required to be distributed to
Holders of the Class A-8 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-8 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-8 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-8-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-8-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: ______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS A-9 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-9
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: _________________, 20__
CUSIP No.: __________________ First Distribution Date: _______, 20__
Percentage Interest evidenced Denomination: $________________
by this Certificate: ________%
Final Scheduled Maturity Date: ____________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
wner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-9 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of _________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and _____________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-9 Certificates required to be distributed to
Holders of the Class A-9 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-9 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-9 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-9-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-9-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
A-9-4
EXHIBIT A-10
[FORM OF FACE OF CLASS A-10 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISfSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-10
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. _____________ Cut-Off Date: _________________, 20__
CUSIP No.: __________________ First Distribution Date: _______, 20__
Percentage Interest evidenced Denomination: $_______
by this Certificate: __________%
Final Scheduled Maturity Date:_____________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-10 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of _________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and _______________________, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-10 Certificates required to be distributed
to Holders of the Class A-10 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-10 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-10 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-10-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-10-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
A-10-4
EXHIBIT A-11
[FORM OF FACE OF CLASS A-11 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-11
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN THE MANNER
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE OUTSTANDING
NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL
NOTIONAL AMOUNT REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: _________________, 20__
CUSIP No.: __________________ First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $_____________ (Initial
by this Certificate: __% Notional Amount)
Final Scheduled Maturity Date: _________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-11 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of _________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and _______________________, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the Business Day preceding
such Distribution Date, in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the Class A Distribution Amount for
the Class A-11 Certificates required to be distributed to Holders of the Class
A-11 Certificates on such Distribution Date, subject to adjustment in certain
events as specified in the Agreement. The Class A-11 Certificates are not
entitled to distributions in respect of principal. Distributions of principal
will be allocated among the Classes of Class A Certificates in accordance with
the provisions of the Agreement. The pass-through rate on the Class A-11
Certificates applicable to each Distribution Date will be ____% per annum. The
amount of interest which accrues on this Certificate in any month will be
subject to reduction with respect to any Non-Supported Interest Shortfall, any
Relief Act Shortfall and the interest portion of certain Realized Losses
allocated to the Class A-11 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency specified by the Trustee for that purpose in
the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-11-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-11-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: ______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
A-11-4
EXHIBIT A-12
[FORM OF FACE OF CLASS A-12 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-12
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date:__________________, 20__
CUSIP No.: _________________ First Distribution Date:_______, 20__
Percentage Interest evidenced Denomination: $_______________
by this Certificate: _________%
Final Scheduled Maturity Date: _________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-12 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of _______, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and __________________, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-12 Certificates required to be distributed
to Holders of the Class A-12 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-12 Certificates applicable to each Distribution Date will be ____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-12 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-12-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-12-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: ______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
A-12-4
EXHIBIT A-13
[FORM OF FACE OF CLASS A-13 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-13
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. _____________ Cut-Off Date: _________________, 20__
CUSIP No.: __________________ First Distribution Date: _______, 20__
Percentage Interest evidenced Denomination: $_________
by this Certificate: __%
Final Scheduled Maturity Date: __________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-13 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and _____________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-13 Certificates required to be distributed
to Holders of the Class A-13 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-13 Certificates applicable to each Distribution Date will be _____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-13 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-13-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-13-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
A-13-4
EXHIBIT A-14
[FORM OF FACE OF CLASS A-14 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-14
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. _____________ Cut-Off Date: __________________, 20__
CUSIP No.: _________________ First Distribution Date: _______, 20__
Percentage Interest evidenced Denomination: $________________
by this Certificate: ________%
Final Scheduled Maturity Date: __________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-14 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of _______, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and __________________, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-14 Certificates required to be distributed
to Holders of the Class A-14 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-14 Certificates applicable to each Distribution Date will be _____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-14 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-14-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-14-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: ______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
A-14-4
EXHIBIT A-15
[FORM OF FACE OF CLASS A-15 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-15
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: __________________, 20__
CUSIP No.: __________________ First Distribution Date: _______, 20__
Percentage Interest evidenced Denomination: $____________
by this Certificate: ________%
Final Scheduled Maturity Date: _________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-15 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ___________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and ________________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinafter. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-15 Certificates required to be distributed
to Holders of the Class A-15 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-15 Certificates applicable to each Distribution Date will be _____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-15 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-15-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-15-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: ______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
_________________________,
Trustee
By _________________________
Authorized Officer
A-15-4
EXHIBIT A-16
[FORM OF FACE OF CLASS A-16 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-16
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ______________ Cut-Off Date: __________________, 20__
CUSIP No.: __________________ First Distribution Date: _______, 20__
Percentage Interest evidenced Denomination: $______________
by this Certificate: _________%
Final Scheduled Maturity Date:__________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-16 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans, other than the Fixed Retained Yield, if any, with
respect thereto (the "Mortgage Loans"), formed by Xxxxx Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of __________, 20__ (the
"Agreement") among the Seller, Xxxxx Fargo Bank Minnesota, National Association,
as master servicer (the "Master Servicer") and ____________________________, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-16 Certificates required to be distributed
to Holders of the Class A-16 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-16 Certificates applicable to each Distribution Date will be _____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-16 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
A-16-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-16-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _____________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
A-16-4
EXHIBIT A-17
[FORM OF FACE OF CLASS A-17 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-17
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
UNTIL THE ACCRETION TERMINATION DATE, THE INTEREST THAT ACCRUES ON THE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL NOT BE PAYABLE. BECAUSE SUCH UNPAID
INTEREST IS ADDED TO THE PRINCIPAL BALANCE OF THIS CERTIFICATE AND BECAUSE
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE WILL BE MADE IN THE MANNER
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN), THE OUTSTANDING PRINCIPAL
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE MORE OR LESS THAN THE INITIAL
PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. _______________ Cut-Off Date:_____________, 20__
CUSIP No.: _________________ First Distribution Date:_____________, 20__
Percentage Interest evidenced Denomination: $_____________
by this Certificate:___________%
Final Scheduled Maturity Date:_____________, 20__
THIS CERTIFIES THAT ___________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-17 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans, other than the Fixed Retained Yield, if any, with respect thereto (the
"Mortgage Loans"), formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of _____, 20__ (the "Agreement") among
the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer") and __________, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereinafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to such terms in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-17 Certificates required to be distributed
to Holders of the Class A-17 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-17 Certificates applicable to each Distribution Date will be _____% per
annum. Prior to the Accretion Termination Date, no distribution of interest on
this Certificate will be made. Prior to the such Accretion Termination Date,
interest otherwise available for distribution on this Certificate will be added
to the Principal Balance of the Class A-17 Certificates on each Distribution
Date. The amount of interest which accrues on this Certificate in any month will
be subject to reduction with respect to any Non-Supported Interest Shortfall,
any Relief Act Shortfall and the interest portion of certain Realized Losses
allocated to the Class A-17 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-17-2
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-17-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _____________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
A-17-4
EXHIBIT A-PO
[FORM OF FACE OF CLASS A-PO CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-PO
evidencing an interest in a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien,
one- to four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No._____________ Cut-Off Date:
CUSIP No.:__________________ First Distribution Date:_________, 20__
Denomination: $______________
Percentage Interest evidenced
by this Certificate:_______% Final Scheduled Maturity Date:_________, 20__
THIS CERTIFIES THAT ____________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class A-PO Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans, other than the Fixed Retained Yield, if any, with respect thereto (the
"Mortgage Loans"), formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of _______, 20__ (the "Agreement")
among the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master
servicer (the "Master Servicer") and ____________, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth
hereinafter. To the extent not defined herein, the capitalized terms used herein
have the meanings ascribed to such terms in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
Distribution Amount for the Class A-PO Certificates required to be distributed
to Holders of the Class A-PO Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. The Class A-PO
Certificates are not entitled to distributions in respect of interest.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-PO-2
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _____________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
A-PO-3
EXHIBIT A-R
[Form of Face of Class A-R Certificate]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(d) OF THE
AGREEMENT (AS DEFINED HEREIN), AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO
THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, IT IS NOT
A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5),
AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR A DISQUALIFIED
ORGANIZATION OR A NON-PERMITTED FOREIGN HOLDER, AS DEFINED IN SECTION 5.02(d) OF
THE AGREEMENT AND TO HAVE AGREED TO SUCH AMENDMENTS TO AGREEMENT AS MAY BE
REQUIRED TO FURTHER EFFECTUATE THE RESTRICTIONS ON TRANSFERS TO DISQUALIFIED
ORGANIZATIONS, AGENTS THEREOF OR NON-PERMITTED FOREIGN HOLDERS.
THE HOLDER OF THIS CLASS A-R CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO
HAVE AGREED TO THE DESIGNATION OF THE MASTER SERVICER AS ITS AGENT TO ACT AS
"TAX MATTERS PERSON" OF THE UPPER-TIER REMIC TO PERFORM THE FUNCTIONS OF A "TAX
MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE
CODE, OR, IF SO REQUESTED BY THE MASTER SERVICER, TO ACT AS TAX MATTERS PERSON
OF THE UPPER-TIER REMIC.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-R
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No._____________ Cut-Off Date:________, 20__
CUSIP No.:__________________ First Distribution Date:_______, 20__
Percentage Interest evidenced Denomination: $__________
by this Certificate:___%
Final Scheduled Maturity Date:________, 20__
A-R-2
THIS CERTIFIES THAT __________________________ is the registered owner
of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holder of the Class A-R Certificate with respect to a Trust
Estate consisting of a pool of fixed interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans,
other than the Fixed Retained Yield, if any, with respect thereto (the "Mortgage
Loans"), formed by Xxxxx Fargo Asset Securities Corporation (hereinafter called
the "Seller", which term includes any successor entity under the Agreement
referred to below). The Trust Estate was created pursuant to a Pooling and
Servicing Agreement dated as of _______, 20__ (the "Agreement") among the
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer") and ______, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereinafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to such terms in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-R Certificate required to be distributed to
the Holder of the Class A-R Certificate on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-R Certificate applicable to each Distribution Date will be _____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-R Certificate, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-R-3
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-R-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:______________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
A-R-5
EXHIBIT A-LR
[Form of Face of Class A-LR Certificate]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(d) OF THE
AGREEMENT (AS DEFINED HEREIN), AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO
THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, IT IS NOT
A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5),
AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR A DISQUALIFIED
ORGANIZATION OR A NON-PERMITTED FOREIGN HOLDER, AS DEFINED IN SECTION 5.02(d) OF
THE AGREEMENT AND TO HAVE AGREED TO SUCH AMENDMENTS TO AGREEMENT AS MAY BE
REQUIRED TO FURTHER EFFECTUATE THE RESTRICTIONS ON TRANSFERS TO DISQUALIFIED
ORGANIZATIONS, AGENTS THEREOF OR NON-PERMITTED FOREIGN HOLDERS.
THE HOLDER OF THIS CLASS A-LR CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO
HAVE AGREED TO THE DESIGNATION OF THE MASTER SERVICER AS ITS AGENT TO ACT AS
"TAX MATTERS PERSON" OF THE LOWER-TIER REMIC TO PERFORM THE FUNCTIONS OF A "TAX
MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE
CODE, OR, IF SO REQUESTED BY THE MASTER SERVICER, TO ACT AS TAX MATTERS PERSON
OF THE LOWER-TIER REMIC.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_ -__, CLASS A-LR
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No._____________ Cut-Off Date:________, 20__
CUSIP No.:__________________ First Distribution Date:______, 20__
Percentage Interest evidenced Denomination: $_____________
by this Certificate:____%
Final Scheduled Maturity Date:_________, 20__
A-LR-2
THIS CERTIFIES THAT __________________________ is the registered owner
of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holder of the Class A-LR Certificate with respect to a
Trust Estate consisting of a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans, other than the Fixed Retained Yield, if any, with respect thereto (the
"Mortgage Loans"), formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of _______, 20__ (the "Agreement")
among the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master
servicer (the "Master Servicer") and ______, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth
hereinafter. To the extent not defined herein, the capitalized terms used herein
have the meanings ascribed to such terms in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-LR Certificate required to be distributed to
the Holder of the Class A-LR Certificate on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-LR Certificate applicable to each Distribution Date will be _____% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-LR Certificate, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-LR-3
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-LR-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:________________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
A-LR-5
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-1
evidencing an interest in a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential
mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No._____________ Cut-Off Date:________, 20__
CUSIP No.:__________________ First Distribution Date:_____, 20__
Percentage Interest evidenced Denomination: $______________
by this Certificate:____%
Final Scheduled Maturity Date:__________, 20__
THIS CERTIFIES THAT ____________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class B-1 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans, other than the Fixed Retained Yield, if any, with respect thereto (the
"Mortgage Loans") formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of ________, 20__(the "Agreement")
among the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master
servicer (the "Master Servicer") and ______________, as trustee (the "Trustee"),
a summary of certain of the pertinent provisions of which is set forth
hereinafter. To the extent not defined herein, the capitalized terms used herein
have the meanings ascribed to such terms in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates as specified in the Agreement, any
Class B-1 Distribution Amount required to be distributed to Holders of the Class
B-1 Certificates on such Distribution Date, subject to adjustment, in certain
events, as specified in the Agreement. The pass-through rate on the Class B-1
Certificates applicable to each Distribution Date will be _____ % per annum. The
amount of interest which accrues on this Certificate in any month will be
subject to reduction with respect to any Non-Supported Interest Shortfall and
Relief Act Shortfall allocated to the Class B-1 Certificates, as described in
the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
B-1-2
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:________________________
____________________________________,
Trustee
By ____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
B-1-4
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AND THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN).
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-2
evidencing an interest in a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential
mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. _____________ Cut-Off Date: _________, 20__
CUSIP No.: __________________ First Distribution Date: ______, 20__
Percentage Interest evidenced Denomination: $________
by this Certificate: _____%
Final Scheduled Maturity Date: ______, 20__
THIS CERTIFIES THAT ____________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class B-2 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans, other than the Fixed Retained Yield, if any, with respect thereto (the
"Mortgage Loans") formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of _________, 20__ (the "Agreement")
among the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master
servicer (the "Master Servicer") and _____________, as trustee (the "Trustee"),
a summary of certain of the pertinent provisions of which is set forth
hereinafter. To the extent not defined herein, the capitalized terms used herein
have the meanings ascribed to such terms in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-2 Distribution Amount required to be distributed to
Holders of the Class B-2 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-2 Certificates applicable to each Distribution Date will be
_____ % per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-2
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
B-2-2
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-2-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: ________________________
____________________________________,
Trustee
By ____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
B-2-4
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-3
evidencing an interest in a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential
mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ____________ Cut-Off Date: ________, 20__
CUSIP No.: _________________ First Distribution Date: ________, 20__
Percentage Interest evidenced Denomination: $ ____________
by this Certificate: ___%
Final Scheduled Maturity Date: _______, 20__
THIS CERTIFIES THAT _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class B-3 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans, other than the Fixed Retained Yield, if any, with respect thereto (the
"Mortgage Loans") formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of _______, 20__ (the "Agreement")
among the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master
servicer (the "Master Servicer") and _________, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth
hereinafter. To the extent not defined herein, the capitalized terms used herein
have the meanings ascribed to such terms in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-3 Distribution Amount required to be distributed to
Holders of the Class B-3 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-3 Certificates applicable to each Distribution Date will be
_____ % per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-3
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
B-3-2
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-3-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: ________________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
B-3-4
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE
CLASS B-3 CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT REFERRED TO HEREIN, THIS
CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT
DELIVERED A REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS
SET FORTH IN THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-4
evidencing an interest in a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential
mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ____________ Cut-Off Date:________, 20__
CUSIP No.: _________________ First Distribution Date:________, 20__
Percentage Interest evidenced Denomination: $____________
by this Certificate: ___%
Final Scheduled Maturity Date:_______, 20__
B-4-2
THIS CERTIFIES THAT ____________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class B-4 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans, other than the Fixed Retained Yield, if any, with respect thereto (the
"Mortgage Loans") formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of _________, 20__ (the "Agreement")
among the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master
servicer (the "Master Servicer") and __________, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth
hereinafter. To the extent not defined herein, the capitalized terms used herein
have the meanings ascribed to such terms in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-4 Distribution Amount required to be distributed to
Holders of the Class B-4 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-4 Certificates applicable to each Distribution Date will be
_____ % per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-4
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
No transfer of a Class B-4 Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is desired
to be made by the Holder hereof, (i) the transferee will be required to execute
an investment letter in the form described in the Agreement and (ii) if such
transfer is to be made within three years from the later of (a) the date of
initial issuance of the Certificates or (b) the last
B-4-3
date on which the Seller or any affiliate thereof was a Holder of the
Certificates proposed to be transferred, and unless such transfer is made in
reliance on Rule 144A of the Securities Act of 1933, as amended, the Trustee or
the Seller may require the Holder to deliver an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee and the Seller that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act of 1933, as amended, and of any applicable statute of any state.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Seller, the Master Servicer, and any Paying Agent
acting on behalf of the Trustee against any liability that may result if the
transfer is not so exempt or is not made in accordance with such Federal and
state laws. In connection with any such transfer, the Trustee will also require
(i) a representation letter, in the form as described in the Agreement, stating
either (a) that the transferee is not a Plan and is not acting on behalf of a
Plan or using the assets of a Plan to effect such purchase or (b) subject to
certain conditions described in the Agreement, that the source of funds used to
purchase this Certificate is an "insurance company general account," or (ii) if
such transferee is a Plan, (a) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee and the Seller with respect to certain
matters and (b) such other documentation as the Seller or the Master Servicer
may require, as described in the Agreement.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-4-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _____________________
____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
B-4-5
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS
B-3 CERTIFICATES AND THE CLASS B-4 CERTIFICATES AS DESCRIBED IN THE AGREEMENT
(AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT REFERRED TO HEREIN, THIS
CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT
DELIVERED A REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS
SET FORTH IN THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-5
evidencing an interest in a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential
mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ___________ Cut-Off Date:_________, 20__
CUSIP No.: _________________ First Distribution Date:______, 20__
Percentage Interest evidenced Denomination: $___________
by this Certificate: ___%
Final Scheduled Maturity Date:________, 20__
B-5-2
THIS CERTIFIES THAT ____________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holders of the Class B-5 Certificates with respect to a
Trust Estate consisting of a pool of fixed interest rate, conventional, monthly
pay, fully amortizing, first lien, one- to four-family residential mortgage
loans, other than the Fixed Retained Yield, if any, with respect thereto (the
"Mortgage Loans") formed by Xxxxx Fargo Asset Securities Corporation
(hereinafter called the "Seller", which term includes any successor entity under
the Agreement referred to below). The Trust Estate was created pursuant to a
Pooling and Servicing Agreement dated as of _____, 20__ (the "Agreement") among
the Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer") and ____________, as trustee (the "Trustee"), a summary
of certain of the pertinent provisions of which is set forth hereinafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to such terms in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-5 Distribution Amount required to be distributed to
Holders of the Class B-5 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-5 Certificates applicable to each Distribution Date will be
_____ % per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-5
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
No transfer of a Class B-5 Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is desired
to be made by the Holder hereof, (i) the transferee will be required to execute
an investment letter in the form described in the Agreement and (ii) if such
transfer is to be made within three years from the later of (a) the date of
initial issuance of the Certificates or (b) the last date on which the Seller or
any affiliate thereof was a Holder of the Certificates proposed to be
transferred, and unless such transfer is made in reliance on Rule 144A of the
Securities Act of 1933, as amended, the Trustee or the Seller may require the
Holder to deliver an opinion of counsel
B-5-3
acceptable to and in form and substance satisfactory to the Trustee and the
Seller that such transfer is exempt (describing the applicable exemption and the
basis therefor) from or is being made pursuant to the registration requirements
of the Securities Act of 1933, as amended, and of any applicable statute of any
state. The Holder hereof desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Seller, the Master Servicer, and any Paying
Agent acting on behalf of the Trustee against any liability that may result if
the transfer is not so exempt or is not made in accordance with such Federal and
state laws. In connection with any such transfer, the Trustee will also require
(i) a representation letter, in the form as described in the Agreement, stating
either (a) that the transferee is not a Plan and is not acting on behalf of a
Plan or using the assets of a Plan to effect such purchase or (b) subject to
certain conditions described in the Agreement, that the source of funds used to
purchase this Certificate is an "insurance company general account," or (ii) if
such transferee is a Plan, (a) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee and the Seller with respect to certain
matters and (b) such other documentation as the Seller or the Master Servicer
may require, as described in the Agreement.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-5-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: ______________________
____________________________________,
Trustee
By ____________________________________
Authorized Officer
Countersigned:
________________________,
Trustee
By ________________________
Authorized Officer
B-5-5
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS
B-3 CERTIFICATES, THE CLASS B-4 CERTIFICATES AND THE CLASS B-5 CERTIFICATES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT, THIS CERTIFICATE MAY NOT
BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT DELIVERED A
REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN
"INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 200__-__, CLASS B-6
evidencing an interest in a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans sold by
XXXXX FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND
IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. ____________________ Cut-Off Date: _________, 20__
CUSIP No.: _________________________ First Distribution Date: _________, 20___
Percentage Interest evidenced Denomination: $_______
by this Certificate: _____%
Final Scheduled Maturity Date: _________, 20___
B-6-2
THIS CERTIFIES THAT ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in monthly distributions to
the Holders of the Class B-6 Certificates with respect to a Trust Estate
consisting of a pool of fixed interest rate, conventional, monthly pay, fully
amortizing, first lien, one- to four-family residential mortgage loans, other
than the Fixed Retained Yield, if any, with respect thereto (the "Mortgage
Loans") formed by Xxxxx Fargo Asset Securities Corporation (hereinafter called
the "Seller", which term includes any successor entity under the Agreement
referred to below). The Trust Estate was created pursuant to a Pooling and
Servicing Agreement dated as of , 20 (the "Agreement") among the
----------- --
Seller, Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer") and , as trustee (the "Trustee"), a summary of
---------
certain of the pertinent provisions of which is set forth hereinafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to such terms in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-6 Distribution Amount required to be distributed to
Holders of the Class B-6 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-6 Certificates applicable to each Distribution Date will be
_____ % per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-6
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
No transfer of a Class B-6 Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is desired
to be made by the Holder hereof, (i) the transferee will be required to execute
an investment letter in the form described in the Agreement and (ii) if such
transfer is to be made within three years from the later of (a) the date of
initial issuance of the Certificates or (b) the last
B-6-3
date on which the Seller or any affiliate thereof was a Holder of the
Certificates proposed to be transferred, and unless such transfer is made in
reliance on Rule 144A of the Securities Act of 1933, as amended, the Trustee or
the Seller may require the Holder to deliver an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee and the Seller that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act of 1933, as amended, and of any applicable statute of any state.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Seller, the Master Servicer, and any Paying Agent
acting on behalf of the Trustee against any liability that may result if the
transfer is not so exempt or is not made in accordance with such Federal and
state laws. In connection with any such transfer, the Trustee will also require
(i) a representation letter, in the form as described in the Agreement, stating
either (a) that the transferee is not a Plan and is not acting on behalf of a
Plan or using the assets of a Plan to effect such purchase or (b) subject to
certain conditions described in the Agreement, that the source of funds used to
purchase this Certificate is an "insurance company general account," or (ii) if
such transferee is a Plan, (a) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee and the Seller with respect to certain
matters and (b) such other documentation as the Seller or the Master Servicer
may require, as described in the Agreement.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined in Section 860G(a)(1)
and Section 860D, respectively, of the Internal Revenue Code of 1986, as
amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-6-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated: _____________________________
_____________________________________,
Trustee
By _____________________________________
Authorized Officer
Countersigned:
________________________________,
Trustee
By _________________________________
Authorized Officer
B-6-5
EXHIBIT C
[Form of Reverse of Series 200__-__Certificates]
XXXXX FARGO ASSET SECURITIES CORPORATION
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 200__-__
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage asset-backed pass-through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event funds are
advanced with respect to any Mortgage Loan by a Servicer, the Master Servicer or
the Trustee, such advances are reimbursable to such Servicer, the Master
Servicer or the Trustee to the extent provided in the Agreement, from related
recoveries on such Mortgage Loan or from other cash that would have been
distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Certificate Account
created for the benefit of Certificateholders may be made by the Master Servicer
from time to time for purposes other than distributions to Certificateholders,
such purposes including reimbursement to a Servicer, the Master Servicer or the
Trustee, as applicable, of advances made by such Servicer, the Master Servicer
or the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Seller, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Seller, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Voting Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency appointed by the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar, duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized Denominations
evidencing the same Class and aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and Denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of
C-1
authorized Denominations evidencing the same Class and aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee or the Certificate Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Seller, the Master Servicer, the Trustee and the Certificate
Registrar, and any agent of the Seller, the Master Servicer, the Trustee or the
Certificate Registrar, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Seller, the
Master Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement in respect of the
Certificates and the Trust Estate created thereby shall terminate upon the last
action required to be taken by the Trustee on the Final Distribution Date
pursuant to the Agreement following the earlier of (i) the payment or other
liquidation (or advance with respect thereto) of the last Mortgage Loan subject
thereto or the disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan, and (ii) the purchase by the Seller
from the Trust Estate of all remaining Mortgage Loans and all property acquired
in respect of such Mortgage Loans; provided, however, that the Trust Estate will
in no event continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date of the
Agreement. The Agreement permits, but does not require, the Seller to purchase
all remaining Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such option will effect early retirement of the Certificates, the Seller's
right to exercise such option being subject to the Pool Scheduled Principal
Balance of the Mortgage Loans as of the Distribution Date upon which the
proceeds of such repurchase are distributed being less than ten percent of the
Cut-Off Date Aggregate Principal Balance.
C-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Mortgage asset-backed
pass-through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Estate.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like Denomination or Percentage Interest and Class, to the
above named assignee and deliver such Certificate to the following address:
========================================================
Social Security or other Identifying Number of Assignee:
--------------------------------------------------------
Dated: _____________________________
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
C-3
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, if the assignee is eligible to receive
distributions in immediately available funds, by wire transfer or otherwise, in
immediately available funds to _________________________________________________
for the account of _______________________________________________ account
number _____________, or, if mailed by check, to _______________________________
______________________________.
Applicable statements should be mailed to ______________________________________
________________________________________________________________.
This information is provided by ______________________, the assignee
named above, or ___________________________________, as its agent.
C-4
EXHIBIT D
RESERVED
EXHIBIT E
[Custodial Agreement]
EXHIBIT F-1
[Schedule of Type 1 Mortgage Loans]
EXHIBIT G
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank Minnesota, National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx., XX 00000
Attn: _________________
Re: Custodial Agreement, dated as of _______________, 20__,
among _________, as Trustee, Xxxxx Fargo Asset Securities Corporation,
as Seller, Xxxxx Fargo Bank Minnesota, National Association, as Master
Servicer, and Xxxxx Fargo Bank Minnesota, National Association, as
Custodian, relating to the Xxxxx Fargo Asset Securities Corporation;
Mortgage asset-backed pass-through Certificates, Series 200__-__.
In connection with the administration of the Mortgage Loans held by
you as Custodian for the Trust Estate pursuant to the above-captioned Custodial
Agreement, we request the release, and hereby acknowledge receipt, of the
Custodian's Owner Mortgage Loan File for the Mortgage Loan described below, for
the reason indicated.
Mortgage Loan Number: ________________________
Mortgagor Name, Address & Zip Code: ___________________
Reason for Requesting Documents (check one):
__________ 1. Mortgage Paid in Full
__________ 2. Foreclosure
__________ 3. Substitution
__________ 4. Other Liquidation (Repurchases, etc.)
__________ 5. Nonliquidation
Reason: ___________________________________
By: _______________________________________
(authorized signer)
Issuer:____________________________________
Address: __________________________________
__________________________________
Date: _____________________________________
Custodian
Xxxxx Fargo Bank Minnesota, National Association
Please acknowledge the execution of the above request by your
signature and date below:
____________________________________ _______________________________________
Signature Date
Documents returned to Custodian:
____________________________________ _______________________________________
Custodian Date
G-2
EXHIBIT H
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4)
OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, AND FOR NON-ERISA INVESTORS
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Purchaser] (the
"Purchaser"), a [description of type of entity] duly organized and existing
under the laws of the [State of __] [United States], on behalf of which he makes
this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [_________].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5),of the Internal Revenue Code of 1986, as amended
(the "Code"), or an ERISA Prohibited Holder, and will not be a "disqualified
organization" or an ERISA Prohibited Holder, as of [date of transfer], and that
the Purchaser is not acquiring Xxxxx Fargo Asset Securities Corporation Mortgage
asset-backed pass-through Certificates, Series 200__-__, Class [A-R][A-LR]
Certificate (the "Class [A-R][A-LR] Certificate") for the account of, or as
agent (including a broker, nominee, or other middleman) for, any person or
entity from which it has not received an affidavit substantially in the form of
this affidavit. For these purposes, a "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (other than an instrumentality if all of its activities are
subject to tax and a majority of its board of directors is not selected by such
governmental entity), any cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as described in Code
Section 1381(a)(2)(C), or any organization (other than a farmers' cooperative
described in Code Section 521) that is exempt from taxation under the Code
unless such organization is subject to the tax on unrelated business income
imposed by Code Section 511. For these purposes, an "ERISA Prohibited Holder"
means an employee benefit plan or other retirement arrangement subject to Title
I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or Code Section 4975 or a governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code (collectively,
a "Plan") or a Person acting on behalf of or investing the assets of such a
Plan.
4. That the Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class [A-R][A-LR]
Certificate as they become due.
5. That the Purchaser understands that it may incur tax liabilities
with respect to the Class [A-R][A-LR] Certificate in excess of cash flows
generated by the Class [A-R][A-LR] Certificate.
6. That the Purchaser will not transfer the Class [A-R][A-LR]
Certificate to any person or entity from which the Purchaser has not received an
affidavit substantially in the form of this affidavit and as to which the
Purchaser has actual knowledge that the requirements set forth in paragraph 3, 4
or 7 hereof are not satisfied or that the Purchaser has reason to know does not
satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser (i) is a U.S. Person or (ii) is a person other
than a U.S. Person (a "Non-U.S. Person") that holds the Class [A-R][A-LR]
Certificate in connection with the conduct of a trade or business within the
United States and has furnished the transferor and the Trustee with an effective
Internal Revenue Service Form W-8ECI or successor form at the time and in the
manner required by the Code or (iii) is a Non-U.S. Person that has delivered to
both the transferor and the Trustee an opinion of a nationally recognized tax
counsel to the effect that the transfer of the Class [A-R][A-LR] Certificate to
it is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of the Class [A-R][A-LR]
Certificate will not be disregarded for federal income tax purposes. "U.S.
Person" means 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).
8. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [A-R][A-LR] Certificate to such a "disqualified
organization," an agent thereof, an ERISA Prohibited Holder or a person that
does not satisfy the requirements of paragraph 4, paragraph 5 and paragraph 7
hereof.
9. That the Purchaser consents to the designation of the Master
Servicer as its agent to act as "tax matters person" of the [Upper-Tier
REMIC][Lower-Tier REMIC] pursuant to Section 8.14 of the Pooling and Servicing
Agreement, and if such designation is not permitted by the Code and applicable
law, to act as tax matters person if requested to do so.
H-2
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ___ day of _______, 20__.
[Name of Purchaser]
By: ____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer], of the Purchaser, and acknowledged to me that he
[she] executed the same as his [her] free act and deed and the free act and deed
of the Purchaser.
Subscribed and sworn before me this __ day of __________, 20__.
Notary Public
COUNTY OF ___________________
STATE OF ____________________
My commission expires the __ day of __________, 20__.
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EXHIBIT I
[Letter from Transferor of Class A-R Certificate]
[Date]
_____________________________
_____________________________
Re: Xxxxx Fargo Asset Securities Corporation,
Series 200__-__ , Class A-R
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and
has no actual knowledge that such affidavit is not true and has no reason to
know that the information contained in paragraph 4 thereof is not true.
Very truly yours,
[Transferor]
________________________________________
EXHIBIT J
XXXXX FARGO ASSET SECURITIES CORPORATION
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 200__- __
CLASS [B-4][B-5][B-6] CERTIFICATES
TRANSFEREE'S LETTER
________________ __, ____
_________________________
_________________________
Xxxxx Fargo Asset Securities Corporation
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
The undersigned (the "Purchaser") proposes to purchase Xxxxx Fargo
Asset Securities Corporation Mortgage asset-backed pass-through Certificates,
Series 200__-__, Class [B-4][B-5][B-6] Certificates (the "Class [B-4][B-5][B-6]
Certificates") in the principal amount of $___________. In doing so, the
Purchaser hereby acknowledges and agrees as follows:
Section 1.Definitions. Each capitalized term used herein and not
otherwise defined herein shall have the meaning ascribed to it in the Pooling
and Servicing Agreement, dated as of _________, 20__ (the "Pooling and Servicing
Agreement") among Xxxxx Fargo Asset Securities Corporation, as seller (the
"Seller"), Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer") and _________________, as trustee (the "Trustee"), of
Xxxxx Fargo Asset Securities Corporation Mortgage asset-backed pass-through
Certificates, Series 200__-__.
Section 2.Representations and Warranties of the Purchaser. In
connection with the proposed transfer, the Purchaser represents and warrants to
the Seller, the Master Servicer and the Trustee that:
(a) The Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which the Purchaser is organized,
is authorized to invest in the Class [B-4][B-5][B-6] Certificates, and to enter
into this Agreement, and duly executed and delivered this Agreement.
(b) The Purchaser is acquiring the Class [B-4][B-5][B-6] Certificates
for its own account as principal and not with a view to the distribution
thereof, in whole or in part.
[(c) The Purchaser has knowledge of financial and business matters and
is capable of evaluating the merits and risks of an investment in the Class
[B-4][B-5][B-6] Certificates; the
Purchaser has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Purchaser is able to
bear the economic risk of an investment in the Class [B-4][B-5][B-6]
Certificates and can afford a complete loss of such investment.]
[(c) The Purchaser is a "Qualified Institutional Buyer" within the
meaning of Rule 144A of the Act.]
(d) The Purchaser confirms that (a) it has received and reviewed a
copy of the Private Placement Memorandum dated __________ __, 20__, relating to
the Class [B-4][B-5][B-6] Certificates and reviewed, to the extent it deemed
appropriate, the documents attached thereto or incorporated by reference
therein, (b) it has had the opportunity to ask questions of, and receive answers
from the Seller concerning the Class [B-4][B-5][B-6] Certificates and all
matters relating thereto, and obtain any additional information (including
documents) relevant to its decision to purchase the Class [B-4][B-5][B-6]
Certificates that the Seller possesses or can possess without unreasonable
effort or expense and (c) it has undertaken its own independent analysis of the
investment in the Class [B-4][B-5][B-6] Certificates. The Purchaser will not use
or disclose any information it receives in connection with its purchase of the
Class [B-4][B-5][B-6] Certificates other than in connection with a subsequent
sale of Class [B-4][B-5][B-6] Certificates.
(e) Either (i) the Purchaser is not an employee benefit plan or other
retirement arrangement subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended, ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or a governmental plan, as
defined in Section 3(32) of ERISA subject to any federal, state or local law
("Similar Law") which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (collectively, a "Plan"), an agent acting on
behalf of a Plan, or a person utilizing the assets of a Plan or (ii) if the
Purchaser is an insurance company, (A) the source of funds used to purchase the
Class [B-4][B-5][B-6] Certificate is an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995), (B) there is no Plan
with respect to which the amount of such general account's reserves and
liabilities for the contract(s) held by or on behalf of such Plan and all other
Plans maintained by the same employer (or affiliate thereof as defined in
Section V(a)(1) of PTE 95-60) or by the same employee organization exceeds 10%
of the total of all reserves and liabilities of such general account (as such
amounts are determined under Section I(a) of PTE 95-60) at the date of
acquisition and (C) the purchase and holding of such Class [B-4][B-5][B-6]
Certificates are covered by Sections I and III of PTE 95-60 or (iii) the
Purchaser has provided (a) a "Benefit Plan Opinion" satisfactory to the Seller
and the Trustee of the Trust Estate and (b) such other opinions of counsel,
officers' certificates and agreements as the Seller or the Master Servicer may
have required. A Benefit Plan Opinion is an opinion of counsel to the effect
that the proposed transfer will not cause the assets of the Trust Estate to be
regarded as "plan assets" and subject to the prohibited transaction provisions
of ERISA, the Code or Similar Law and will not subject the Trustee, the Seller
or the Master Servicer to any obligation in addition to those undertaken in the
Pooling and Servicing Agreement (including any liability for civil penalties or
excise taxes imposed pursuant to ERISA, Section 4975 of the Code or Similar
Law).
(f) If the Purchaser is a depository institution subject to the
jurisdiction of the Office of the Comptroller of the Currency ("OCC"), the Board
of Governors of the Federal Reserve System ("FRB"), the Federal Deposit
Insurance Corporation ("FDIC"), the Office of Thrift
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Supervision ("OTS") or the National Credit Union Administration ("NCUA"), the
Purchaser has reviewed the "Supervisory Policy Statement on Securities
Activities" dated January 28, 1992 of the Federal Financial Institutions
Examination Council and the April 15, 1994 Interim Revision thereto as adopted
by the OCC, FRB, FDIC, OTS and NCUA (with modifications as applicable), as
appropriate, other applicable investment authority, rules, supervisory policies
and guidelines of these agencies and, to the extent appropriate, state banking
authorities and has concluded that its purchase of the Class [B-4][B-5][B-6]
Certificates is in compliance therewith.
Section 3. Transfer of Class [B-4][B-5][B-6] Certificates.
(a) The Purchaser understands that the Class [B-4][B-5][B-6]
Certificates have not been registered under the Securities Act of 1933 (the
"Act") or any state securities laws and that no transfer may be made unless the
Class [B-4][B-5][B-6] Certificates are registered under the Act and applicable
state law or unless an exemption from registration is available. The Purchaser
further understands that neither the Seller, the Master Servicer nor the Trustee
is under any obligation to register the Class [B-4][B-5][B-6] Certificates or
make an exemption available. In the event that such a transfer is to be made in
reliance upon an exemption from the Act or applicable state securities laws, (i)
the Trustee shall require, in order to assure compliance with such laws, that
the Certificateholder's prospective transferee certify to the Seller and the
Trustee as to the factual basis for the registration or qualification exemption
relied upon, and (ii) unless the transferee is a "Qualified Institutional Buyer"
within the meaning of Rule 144A of the Act, the Trustee or the Seller may, if
such transfer is made within three years from the later of (a) the Closing Date
or (b) the last date on which the Seller or any affiliate thereof was a holder
of the Certificates proposed to be transferred, require an Opinion of Counsel
that such transfer may be made pursuant to an exemption from the Act and state
securities laws, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Seller. Any such Certificateholder desiring
to effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the Master Servicer, any Paying Agent acting on behalf of the Trustee and the
Seller against any liability that may result if the transfer is not so exempt or
is not made in accordance with such federal and state laws.
(b) No transfer of a Class [B-4][B-5][B-6] Certificate shall be made
unless the transferee provides the Seller and the Trustee with a Transferee's
Letter, substantially in the form of this Agreement.
(c) The Purchaser acknowledges that its Class [B-4][B-5][B-6]
Certificates bear a legend setting forth the applicable restrictions on
transfer.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
validly executed by its duly authorized representative as of the day and the
year first above written.
[PURCHASER]
By: ____________________________________
Its: ___________________________________
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EXHIBIT K
[RESERVED]
EXHIBIT L
SERVICING AGREEMENTS
Xxxxx Fargo Home Mortgage, Inc. Servicing Agreement
EXHIBIT M
[FORM OF SPECIAL SERVICING AGREEMENT]
SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT
This SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT (the "Agreement")
is made and entered into as of ___________, between Xxxxx Fargo Bank Minnesota,
National Association (the "Company" and "Xxxxx Fargo Bank") and ________________
(the "Purchaser").
PRELIMINARY STATEMENT
______________________ is the holder of the entire interest in Xxxxx
Fargo Asset Securities Corporation Mortgage asset-backed pass-through
Certificates, Series 200__-__, Class ____ (the "Class B Certificates"). The
Class B Certificates were issued pursuant to a Pooling and Servicing Agreement
dated as of ___________, 20__ among Xxxxx Fargo Asset Securities Corporation, as
seller (the "Seller"), Xxxxx Fargo Bank Minnesota, National Association, as
Master Servicer and_______________ , as Trustee.
______________________ intends to resell all of the Class B
Certificates directly to the Purchaser on or promptly after the date hereof.
In connection with such sale, the parties hereto have agreed that the
Company will cause, to the extent that the Company as Master Servicer is granted
such authority in the related Servicing Agreements, the related servicers (each
a related "Servicer"), which service the Mortgage Loans which comprise the Trust
Estate related to the above referenced series under the related servicing
agreements (each a related "Servicing Agreement"), to engage in certain special
servicing procedures relating to foreclosures for the benefit of the Purchaser,
and that the Purchaser will deposit funds in a collateral fund to cover any
losses attributable to such procedures as well as all advances and costs in
connection therewith, as set forth herein.
In consideration of the mutual agreements herein contained, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser agree that the following provisions shall become effective and shall
be binding on and enforceable by the Company and the Purchaser:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York are required or
authorized by law or executive order to be closed.
Collateral Fund: The fund established and maintained pursuant to
Section 3.01 hereof.
Collateral Fund Permitted Investments: Either (i) obligations of, or
obligations fully guaranteed as to principal and interest by, the United States,
or any agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States, (ii) a money market fund
rated in the highest rating category by a nationally recognized rating agency
selected by the Company, (iii) cash, (iv) mortgage asset-backed pass-through
certificates issued or guaranteed by Government National Mortgage Association,
FNMA or FHLMC, (v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date), the issuer of which may be an affiliate of the Company, having
at the time of such investment a rating of at least P-1 by Xxxxx'x Investors
Service, Inc. ("Moody's") or at least A-1 by Standard & Poor's, a division of
The XxXxxx-Xxxx Companies, Inc. ("S&P") or (vi) demand and time deposits in,
certificates of deposit of, any depository institution or trust company (which
may be an affiliate of the Company) incorporated under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state banking authorities, so long as at the time
of such investment either (x) the long-term debt obligations of such depository
institution or trust company have a rating of at least AA by S&P or Aa2 by
Moody's, (y) the certificate of deposit or other unsecured short-term debt
obligations of such depository institution or trust company have a rating of at
least A-1 by Fitch or P-1 by Moody's or (z) the depository institution or trust
company is one that is acceptable to either S&P or Moody's and, for each of the
preceding clauses (i), (iv), (v) and (vi), the maturity thereof shall be not
later than the earlier to occur of (A) 30 days from the date of the related
investment and (B) the next succeeding Distribution Date as defined in the
related Pooling and Servicing Agreement.
Commencement of Foreclosure: The first official action required under
local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, posting, the publishing, filing or
delivery of a notice of sale, but not including in either case (x) any notice of
default, notice of intent to foreclose or sell or any other action prerequisite
to the actions specified in (i) or (ii) above, (y) the acceptance of a
deed-in-lieu of foreclosure (whether in connection with a sale of the related
property or otherwise) or (z) initiation and completion of a short pay-off.
Current Appraisal: With respect to any Mortgage Loan as to which the
Purchaser has made an Election to Delay Foreclosure, an appraisal of the related
Mortgaged Property obtained by the Purchaser at its own expense from an
independent appraiser (which shall not be an affiliate of the Purchaser)
acceptable to the Company as nearly contemporaneously as practicable to the time
of the Purchaser's election, prepared based on the Company's customary
requirements for such appraisals.
Election to Delay Foreclosure: Any election by the Purchaser to delay
the Commencement of Foreclosure, made in accordance with Section 2.02(b).
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Election to Foreclose: Any election by the Purchaser to proceed with
the Commencement of Foreclosure, made in accordance with Section 2.03(a).
Monthly Advances: Principal and interest advances and servicing
advances including costs and expenses of foreclosure.
Required Collateral Fund Balance: As of any date of determination, an
amount equal to the aggregate of all amounts previously required to be deposited
in the Collateral Fund pursuant to Section 2.02(d) (after adjustment for all
withdrawals and deposits pursuant to Section 2.02(e)) and Section 2.03(b) (after
adjustment for all withdrawals and deposits pursuant to Section 2.03(c)) and
Section 3.02 to be reduced by all withdrawals therefrom pursuant to Section
2.02(g) and Section 2.03(d).
Section 1.2 Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement shall
have the meanings assigned in the Pooling and Servicing Agreement.
SPECIAL SERVICING PROCEDURES
Section 1.3 Reports and Notices.
(a) In connection with the performance of its duties under the Pooling
and Servicing Agreement relating to the realization upon defaulted Mortgage
Loans, the Company as Master Servicer shall provide to the Purchaser the
following notices and reports:
(i) Within five Business Days after each Distribution Date (or
included in or with the monthly statements to Certificateholders pursuant
to the Pooling and Servicing Agreement), the Company, shall provide to the
Purchaser a report, using the same methodology and calculations in its
standard servicing reports, indicating for the Trust Estate the number of
Mortgage Loans that are (A) thirty days, (B) sixty days, (C) ninety days or
more delinquent or (D) in foreclosure, and indicating for each such
Mortgage Loan the loan number and outstanding principal balance.
(ii) Prior to the Commencement of Foreclosure in connection with any
Mortgage Loan, the Company shall cause (to the extent that the Company as
Master Servicer is granted such authority in the related Servicing
Agreement) the Servicer to provide the Purchaser with a notice (sent by
telecopier) of such proposed and imminent foreclosure, stating the loan
number and the aggregate amount owing under the Mortgage Loan. Such notice
may be provided to the Purchaser in the form of a copy of a referral letter
from such Servicer to an attorney requesting the institution of
foreclosure.
(b) If requested by the Purchaser, the Company shall cause the
Servicer (to the extent that the Company as Master Servicer is granted such
authority in the related Servicing Agreement) to make its servicing personnel
available (during their normal business hours) to respond to reasonable
inquiries, by phone or in writing by facsimile, electronic, or overnight mail
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transmission, by the Purchaser in connection with any Mortgage Loan identified
in a report under subsection (a) (i) (B), (a) (i) (C), (a) (i) (D), or (a) (ii)
which has been given to the Purchaser; provided, that (1) the related Servicer
shall only be required to provide information that is readily accessible to its
servicing personnel and is non-confidential and (2) the related Servicer shall
respond within five Business Days orally or in writing by facsimile
transmission.
(c) In addition to the foregoing, the Company shall cause the Servicer
(to the extent that the Company as Master Servicer is granted such authority in
the related Servicing Agreement) to provide to the Purchaser such information as
the Purchaser may reasonably request provided, however, that such information is
consistent with normal reporting practices, concerning each Mortgage Loan that
is at least ninety days delinquent and each Mortgage Loan which has become real
estate owned, through the final liquidation thereof; provided, that the related
Servicer shall only be required to provide information that is readily
accessible to its servicing personnel and is non-confidential provided, however,
that the Purchaser will reimburse the Company and the related Servicer for any
out of pocket expenses.
Section 1.4 Purchaser's Election to Delay Foreclosure Proceedings.
(a) The Purchaser shall be deemed to direct the Company to direct (to
the extent that the Company as Master Servicer is granted such authority in the
related Servicing Agreement) the related Servicer that in the event that the
Company does not receive written notice of the Purchaser's election pursuant to
subsection (b) below within 24 hours (exclusive of any intervening non-Business
Days) of transmission of the notice provided by the Company under Section 2.01
(a) (ii) subject to extension as set forth in Section 2.02(b), the related
Servicer may proceed with the Commencement of Foreclosure in respect of such
Mortgage Loan in accordance with its normal foreclosure policies without further
notice to the Purchaser. Any foreclosure that has been initiated may be
discontinued (i) without notice to the Purchaser if the Mortgage Loan has been
brought current or if a refinancing or prepayment occurs with respect to the
Mortgage Loan (including by means of a short payoff approved by the related
Servicer) or (ii) if the related Servicer has reached the terms of a forbearance
agreement with the borrower. In the latter case, the related Servicer may
complete such forbearance agreement unless instructed otherwise by the Purchaser
within two Business Days notification.
(b) In connection with any Mortgage Loan with respect to which a
notice under Section 2.01(a)(ii) has been given to the Purchaser, the Purchaser
may elect to instruct the Company to cause, to the extent that the Company as
Master Servicer is granted such authority in the related Servicing Agreement,
the related Servicer to delay the Commencement of Foreclosure until such time as
the Purchaser determines that the related Servicer may proceed with the
Commencement of Foreclosure. Such election must be evidenced by written notice
received within 24 hours (exclusive of any intervening non-Business Days) of
transmission of the notice provided by the Company under Section 2.01(a)(ii).
Such 24 hour period shall be extended for no longer than an additional four
Business Days after the receipt of the information if the Purchaser requests
additional information related to such foreclosure; provided, however, that the
Purchaser will have at least one Business Day to respond to any requested
additional information. Any such additional information shall be provided only
to the extent it (i) is not confidential in nature and (ii) is obtainable by the
related Servicer from existing reports, certificates or statements or is
otherwise readily accessible to its servicing personnel. The Purchaser agrees
that it has no right to deal with the mortgagor during
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such period. However, if such servicing activities include acceptance of a
deed-in-lieu of foreclosure or short payoff, the Purchaser will be notified and
given two Business Days to respond.
(c) With respect to any Mortgage Loan as to which the Purchaser has
made an Election to Delay Foreclosure, the Purchaser shall obtain a Current
Appraisal as soon as practicable, but in no event more than 15 business days
thereafter, and shall provide the Company with a copy of such Current Appraisal.
(d) Within two Business Days of making any Election to Delay
Foreclosure, the Purchaser shall remit by wire transfer to the Company, for
deposit in the Collateral Fund, an amount, as calculated by the Company, equal
to the sum of (i) 125% of the greater of the unpaid principal balance of the
Mortgage Loan and the value shown in the Current Appraisal referred to in
subsection (c) above (or, if such Current Appraisal has not yet been obtained,
the Company's estimate thereof, in which case the required deposit under this
subsection shall be adjusted upon obtaining such Current Appraisal), and (ii)
three months' interest on the Mortgage Loan at the applicable Mortgage Interest
Rate. If any Election to Delay Foreclosure extends for a period in excess of
three months (such excess period being referred to herein as the "Excess
Period"), within two Business Days the Purchaser shall remit by wire transfer in
advance to the Company for deposit in the Collateral Fund the amount of each
additional month's interest, as calculated by the Company, equal to interest on
the Mortgage Loan at the applicable Mortgage Interest Rate for the Excess
Period. The terms of this Agreement will no longer apply to the servicing of any
Mortgage Loan upon the failure of the Purchaser to deposit any of the above
amounts relating to the Mortgage Loan within two Business Days of the Election
to Delay Foreclosure or within two Business Days of the commencement of the
Excess Period subject to Section 3.01.
(e) With respect to any Mortgage Loan as to which the Purchaser has
made an Election to Delay Foreclosure, the Company may withdraw from the
Collateral Fund from time to time amounts necessary to reimburse the related
Servicer for all related Monthly Advances and Liquidation Expenses thereafter
made by such Servicer in accordance with the Pooling and Servicing Agreement and
the related Servicing Agreement. To the extent that the amount of any such
Liquidation Expenses is determined by the Company based on estimated costs, and
the actual costs are subsequently determined to be higher, the Company may
withdraw the additional amount from the Collateral Fund. In the event that the
Mortgage Loan is brought current by the mortgagor and the foreclosure action is
discontinued, the amounts so withdrawn from the Collateral Fund shall be
redeposited if and to the extent that reimbursement therefor from amounts paid
by the mortgagor is not prohibited pursuant to the Pooling and Servicing
Agreement or the related Servicing Agreement, applicable law or the related
mortgage note. Except as provided in the preceding sentence, amounts withdrawn
from the Collateral Fund to cover Monthly Advances and Liquidation Expenses
shall not be redeposited therein or otherwise reimbursed to the Purchaser. If
and when any such Mortgage Loan is brought current by the mortgagor, all amounts
remaining in the Collateral Fund in respect of such Mortgage Loan (after
adjustment for all permitted withdrawals and deposits pursuant to this
subsection) shall be released to the Purchaser.
(f) With respect to any Mortgage Loan as to which the Purchaser has
made an Election to Delay Foreclosure, the related Servicer shall continue to
service the Mortgage Loan in accordance with its customary procedures (other
than the delay in Commencement of Foreclosure as provided herein). If and when
the Purchaser shall notify the Company that it believes that it is appropriate
to do so, the related Servicer may proceed with the Commencement of Foreclosure.
In
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any event, if the Mortgage Loan is not brought current by the mortgagor by the
time the loan becomes 6 months delinquent, the Purchaser's election shall no
longer be effective and at the Purchaser's option, either (i) the Purchaser
shall purchase the Mortgage Loan from the related Trust Estate at a purchase
price equal to the fair market value as shown on the Current Appraisal, to be
paid by (x) applying any balance in the Collateral Fund to such to such purchase
price, and (y) to the extent of any deficiency, by wire transfer of immediately
available funds from the Purchaser to the Company for deposit in the related
Certificate Account; or (ii) the related Servicer shall proceed with the
Commencement of Foreclosure.
(g) Upon the occurrence of a liquidation with respect to any Mortgage
Loan as to which the Purchaser made an Election to Delay Foreclosure and as to
which the related Servicer proceeded with the Commencement of Foreclosure in
accordance with subsection (f) above, the Company shall calculate the amount, if
any, by which the value shown on the Current Appraisal obtained under subsection
(c) exceeds the actual sales price obtained for the related Mortgaged Property
(net of Liquidation Expenses and accrued interest related to the extended
foreclosure period), and the Company shall withdraw the amount of such excess
from the Collateral Fund, shall remit the same to the Trust Estate and in its
capacity as Master Servicer shall apply such amount as additional Liquidation
Proceeds pursuant to the Pooling and Servicing Agreement. After making such
withdrawal, all amounts remaining in the Collateral Fund in respect of such
Mortgage Loan (after adjustment for all permitted withdrawals and deposits
pursuant to this Agreement) shall be released to the Purchaser.
Section 1.5 Purchaser's Election to Commence Foreclosure Proceedings.
(a) In connection with any Mortgage Loan identified in a report under
Section 2.01(a)(i)(B), the Purchaser may elect to instruct the Company to cause,
to the extent that the Company as Master Servicer is granted such authority in
the related Servicing Agreement, the related Servicer to proceed with the
Commencement of Foreclosure as soon as practicable. Such election must be
evidenced by written notice received by the Company by 5:00 p.m., New York City
time, on the third Business Day following the delivery of such report under
Section 2.01(a)(i).
(b) Within two Business Days of making any Election to Foreclose, the
Purchaser shall remit to the Company, for deposit in the Collateral Fund, an
amount, as calculated by the Company, equal to 125% of the current unpaid
principal balance of the Mortgage Loan and three months interest on the Mortgage
Loan at the applicable Mortgage Interest Rate. If and when any such Mortgage
Loan is brought current by the mortgagor, all amounts in the Collateral Fund in
respect of such Mortgage Loan (after adjustment for all permitted withdrawals
and deposits pursuant to this Agreement) shall be released to the Purchaser if
and to the extent that reimbursement therefor from amounts paid by the mortgagor
is not prohibited pursuant to the Pooling and Servicing Agreement or the related
Servicing Agreement, applicable law or the related mortgage note. The terms of
this Agreement will no longer apply to the servicing of any Mortgage Loan upon
the failure of the Purchaser to deposit the above amounts relating to the
Mortgage Loan within two Business Days of the Election to Foreclose subject to
Section 3.01.
(c) With respect to any Mortgage Loan as to which the Purchaser has
made an Election to Foreclose, the related Servicer shall continue to service
the Mortgage Loan in accordance with its customary procedures (other than
Commencement of Foreclosure as provided herein). In connection therewith, the
Company shall have the same rights to make withdrawals
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Monthly Advances and Liquidations Expenses from the Collateral Fund as are
provided under Section 2.02(e), and the Company shall make reimbursements
thereto to the limited extent provided under such subsection in accordance with
its customary procedures. The Company shall not be required to cause, to the
extent that the Company as Master Servicer is granted such authority in the
related Servicing Agreement, the related Servicer to proceed with the
Commencement of Foreclosure if (i) the same is stayed as a result of the
mortgagor's bankruptcy or is otherwise barred by applicable law, or to the
extent that all legal conditions precedent thereto have not yet been complied
with, or (ii) the Company believes there is a breach of representations or
warranties by the Company, a Servicer, or a Seller, which may result in a
repurchase or substitution of such Mortgage Loan, or (iii) the Company or
related Servicer reasonably believes the Mortgaged Property may be contaminated
with or affected by hazardous wastes or hazardous substances (and, without
limiting the related Servicer's right not to proceed with the Commencement of
Foreclosure, the Company supplies the Purchaser with information supporting such
belief). Any foreclosure that has been initiated may be discontinued (x) without
notice to the Purchaser if the Mortgage Loan has been brought current or if a
refinancing or prepayment occurs with respect to the Mortgage Loan (including by
means of a short payoff approved by the Purchaser) or (y) with notice to the
Purchaser if the related Servicer has reached the terms of a forbearance
agreement unless instructed otherwise by the Purchaser within two Business Days
of such notification. Any such instruction shall be based upon a decision that
such forbearance agreement is not in conformity with reasonable servicing
practices.
(d) Upon the occurrence of a liquidation with respect to any Mortgage
Loan as to which the Purchaser made an Election to Foreclose and as to which the
related Servicer proceeded with the Commencement of Foreclosure in accordance
with subsection (c) above, the Company shall calculate the amount, if any, by
which the unpaid principal balance of the Mortgage Loan at the time of
liquidation (plus all unreimbursed interest and servicing advances and
Liquidation Expenses in connection therewith other than those paid from the
Collateral Fund) exceeds the actual sales price obtained for the related
Mortgaged Property, and the Company shall withdraw the amount of such excess
from the Collateral Fund, shall remit the same to the Trust Estate and in its
capacity as Master Servicer shall apply such amount as additional Liquidation
Proceeds pursuant to the Pooling and Servicing Agreement. After making such
withdrawal, all amounts remaining in the Collateral Fund (after adjustment for
all withdrawals and deposits pursuant to subsection (c) in respect of such
Mortgage Loan shall be released to the Purchaser.
Section 1.6 Termination.
(a) With respect to all Mortgage Loans included in the Trust Estate,
the Purchaser's right to make any Election to Delay Foreclosure or any Election
to Foreclose and the Company's obligations under Section 2.01 shall terminate
(i) at such time as the Principal Balance of the Class B Certificates has been
reduced to zero, (ii) if the greater of (x) 43% (or such lower or higher
percentage that represents the related Servicer's actual historical loss
experience with respect to the Mortgage Loans in the related pool as determined
by the Company) of the aggregate principal balance of all Mortgage Loans that
are in foreclosure or are more than 90 days delinquent on a contractual basis
and REO properties or (y) the aggregate amount that the Company estimates
through the normal servicing practices of the related Servicer will be required
to be withdrawn from the Collateral Fund with respect to Mortgage Loans as to
which the Purchaser has made an Election to Delay Foreclosure or an Election to
Foreclosure, exceeds (z) the then-current principal balance of the Class B
Certificates, (iii) upon any transfer by the Purchaser of any interest (other
than the
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minority interest therein, but only if the transferee provides written
acknowledgment to the Company of the Purchaser's right hereunder and that such
transferee will have no rights hereunder) in the Class B Certificates (whether
or not such transfer is registered under the Pooling and Servicing Agreement),
including any such transfer in connection with a termination of the Trust Estate
or (iv) upon any breach of the terms of this Agreement by the Purchaser.
(b) Except as set forth in 2.04(a), this Agreement and the respective
rights, obligations and responsibilities of the Purchaser and the Company
hereunder shall terminate upon the later to occur of (i) the final liquidation
of the last Mortgage Loan as to which the Purchaser made any Election to Delay
Foreclosure or any Election to Foreclose and the withdrawal of all remaining
amounts in the Collateral Fund as provided herein and (ii) ten Business Days'
notice. The Purchaser's right to make an election pursuant to Section 2.02 or
Section 2.03 hereof with respect to a particular Mortgage Loan shall terminate
if the Purchaser fails to make any deposit required pursuant to Section 2.02(d)
or 2.03(b) or if the Purchaser fails to make any other deposit to the Collateral
Fund pursuant to this Agreement.
COLLATERAL FUND; SECURITY INTEREST
Section 1.7 Collateral Fund.
Upon receipt from the Purchaser of the initial amount required to be
deposited in the Collateral Fund pursuant to Article II, the Company shall
establish and maintain with Bankers Trust Company as a segregated account on its
books and records an account (the "Collateral Fund"), entitled "Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, for the benefit of
registered holders of Xxxxx Fargo Asset Securities Corporation Mortgage
asset-backed pass-through Certificates, Series 200 - ." Amounts held in the
-- --
Collateral Fund shall continue to be the property of the Purchaser, subject to
the first priority security interest granted hereunder for the benefit of the
Certificateholders, until withdrawn from the Collateral Fund pursuant to Section
2.02 or 2.03 hereof. The Collateral Fund shall be an "outside reserve fund"
within the meaning of the REMIC Provisions, beneficially owned by the Purchaser
for federal income tax purposes. All income, gain, deduction or loss with
respect to the Collateral Fund shall be that of the Purchaser. All distributions
from the Trust Fund to the Collateral Fund shall be treated as distributed to
the Purchaser as the beneficial owner thereof.
Upon the termination of this Agreement and the liquidation of all
Mortgage Loans as to which the Purchaser has made any Election to Delay
Foreclosure or any Election to Foreclose pursuant to Section 2.04 hereof, the
Company shall distribute or cause to be distributed to the Purchaser all amounts
remaining in the Collateral Fund (after adjustment for all deposits and
permitted withdrawals pursuant to this Agreement) together with any investment
earnings thereon. In the event the Purchaser has made any Election to Delay
Foreclosure or any Election to Foreclose, prior to any distribution to the
Purchaser of all amounts remaining in the Collateral Fund, funds in the
Collateral Fund shall be applied consistent with the terms of this Agreement.
Section 1.8 Collateral Fund Permitted Investments.
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The Company shall, at the written direction of the Purchaser, invest
the funds in the Collateral Fund in Collateral Fund Permitted Investments. Such
direction shall not be changed more frequently than quarterly. In the absence of
any direction, the Company shall select such investments in accordance with the
definition of Collateral Fund Permitted Investments in its discretion.
All income and gain realized from any investment as well as any
interest earned on deposits in the Collateral Fund (net of any losses on such
investments) and any payments of principal made in respect of any Collateral
Fund Permitted Investment shall be deposited in the Collateral Fund upon
receipt. All costs and realized losses associated with the purchase and sale of
Collateral Fund Permitted Investments shall be borne by the Purchaser and the
amount of net realized losses shall be deposited by the Purchaser in the
Collateral Fund promptly upon realization. The Company shall periodically (but
not more frequently than monthly) distribute to the Purchaser upon request an
amount of cash, to the extent cash is available therefore in the Collateral
Fund, equal to the amount by which the balance of the Collateral Fund, after
giving effect to all other distributions to be made from the Collateral Fund on
such date, exceeds the Required Collateral Fund Balance. Any amounts so
distributed shall be released from the lien and security interest of this
Agreement.
Section 1.9 Grant of Security Interest.
The Purchaser hereby grants to the Company for the benefit of the
Certificateholders under the Pooling and Servicing Agreement a security interest
in and lien on all of the Purchaser's right, title and interest, whether now
owned or hereafter acquired, in and to: (1) the Collateral Fund, (2) all amounts
deposited in the Collateral Fund and Collateral Fund Permitted Investments in
which such amounts are invested (and the distributions and proceeds of such
investments) and (3) all cash and non-cash proceeds of any of the foregoing,
including proceeds of the voluntary conversion thereof (all of the foregoing
collectively, the "Collateral").
The Purchaser acknowledges the lien on and the security interest in
the Collateral for the benefit of the Certificateholders. The Purchaser shall
take all actions requested by the Company as may be reasonably necessary to
perfect the security interest created under this Agreement in the Collateral and
cause it to be prior to all other security interests and liens, including the
execution and delivery to the Company for filing of appropriate financing
statements in accordance with applicable law. The Company shall file appropriate
continuation statements, or appoint an agent on its behalf to file such
statements, in accordance with applicable law.
Section 1.10 Collateral Shortfalls.
In the event that amounts on deposit in the Collateral Fund at any
time are insufficient to cover any withdrawals therefrom that the Company is
then entitled to make hereunder, the Purchaser shall be obligated to pay such
amounts to the Company immediately upon demand. Such obligation shall constitute
a general corporate obligation of the Purchaser. The failure to pay such amounts
within two Business Days of such demand (except for amounts to cover interest on
a Mortgage Loan pursuant to Sections 2.02(d) and 2.03 (b)), shall cause an
immediate termination of the Purchaser's right to make any Election to Delay
Foreclosure or Election to Foreclose and the Company's obligations under this
Agreement with respect to all Mortgage Loans
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to which such insufficiencies relate, without the necessity of any further
notice or demand on the part of the Company.
MISCELLANEOUS PROVISIONS
Section 1.11 Amendment.
This Agreement may be amended from time to time by the Company and the
Purchaser by written agreement signed by the Company and the Purchaser.
Section 1.12 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 1.13 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 1.14 Notices.
All demands, notices and direction hereunder shall be in writing or by
telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company,
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attention: Vice President, Master Servicing
Phone: 000-000-0000
Fax: 000-000-0000
(b) in the case of the Purchaser,
___________________________________________
___________________________________________
___________________________________________
___________________________________________
Attention _________________________________
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Section 1.15 Severability of Provisions.
If any one or more of the covenants, agreements, provision or terms of
this Agreement shall be for any reason whatsoever, including regulatory, held
invalid, then such covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
Section 1.16 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders;
provided, however, that the rights under this Agreement cannot be assigned by
the Purchaser without the consent of the Company.
Section 1.17 Article and Section Headings.
The article and section headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 1.18 Confidentiality.
The Purchaser agrees that all information supplied by or on behalf of
the Company pursuant to Sections 2.01 or 2.02, including individual account
information, is the property of the Company and the Purchaser agrees to hold
such information confidential and not to disclose such information.
Each party hereto agrees that neither it, nor any officer, director,
employee, affiliate or independent contractor acting at such party's direction
will disclose the terms of Section 4.09 of this Agreement to any person or
entity other than such party's legal counsel except pursuant to a final,
non-appealable order of court, the pendency of such order the other party will
have received notice of at least five business days prior to the date thereof,
or pursuant to the other party's prior express written consent.
Section 1.19 Indemnification.
The Purchaser agrees to indemnify and hold harmless the Company, the
Seller, and each Servicer and each person who controls the Company, the Seller,
or a Servicer and each of their respective officers, directors, affiliates and
agents acting at the Company's, the Seller's, or a Servicer's direction (the
"Indemnified Parties") against any and all losses, claims, damages or
liabilities to which they may be subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of, or are
based upon, actions taken by, or actions not taken by, the Company, the Seller,
or a Servicer, or on their behalf, in accordance with the provisions of this
Agreement and (i) which actions conflict with the Company's, the Seller's, or a
Servicer's obligations under the Pooling and Servicing Agreement or the related
Servicing Agreement, or (ii) give rise to securities law liability under federal
or state securities laws with respect to the Certificates. The Purchaser hereby
agrees to reimburse the Indemnified Parties for the reasonable legal or other
expenses incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action. The indemnification obligations of the
Purchaser hereunder shall survive the termination or expiration of this
Agreement.
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IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
Xxxxx Fargo Bank Minnesota, National
Association
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
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EXHIBIT N
FORM OF INITIAL CERTIFICATION OF THE CUSTODIAN
________________, 20__
Xxxxx Fargo Asset Securities Corporation
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
_________________________
_________________________
Re: The Pooling and Servicing Agreement, dated ________, 20 __, among
Xxxxx Fargo Asset Securities Corporation, as Seller, Xxxxx Fargo
Bank Minnesota, National Association, as Master Servicer, and ,
as Trustee, relating to Xxxxx Fargo Asset Securities Corporation;
Mortgage asset-backed pass-through Certificates, Series 200 - .
-- --
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), the undersigned, as Custodian on behalf of the Trustee, hereby
certifies that, except as specified in any list of exceptions attached hereto,
it has received the original Mortgage Note relating to each of the Mortgage
Loans listed on the Mortgage Loan Schedule.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement in connection with this initial certification.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Custodian on behalf of the Trustee
By: ____________________________________
Name: __________________________________
Title: _________________________________
N-2
EXHIBIT O
FORM OF FINAL CERTIFICATION OF THE CUSTODIAN
[__________ __, ____]
Xxxxx Fargo Asset Securities Corporation
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
_________________________
_________________________
Re: The Pooling and Servicing Agreement, dated ____________, 20__ ,
among Xxxxx Fargo Asset Securities Corporation, as Seller, Xxxxx
Fargo Bank Minnesota, National Association, as Master Servicer,
and , as Trustee, relating to the Xxxxx Fargo Asset Securities
Corporation; Mortgage asset-backed pass-through Certificates,
Series 200__- __
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), the undersigned, as Custodian on behalf of the Trustee, hereby
certifies that, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in any list of exceptions attached hereto, such
Mortgage File contains all of the items required to be delivered pursuant to
Section 2.01 of the Pooling and Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement in connection with this final certification. The
Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Custodian on behalf of the Trustee
By: ____________________________________
Name: __________________________________
Title: _________________________________
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