EXHIBIT 4.4
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WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC,
as Depositor
and
[-----],
as Owner Trustee
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TRUST AGREEMENT
Dated as of [_____]
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WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC [_____] TRUST
Wachovia Asset Securitization Issuance, LLC Asset-Backed Certificates,
Series [_____]
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TABLE OF CONTENTS
Page
ARTICLE I Definitions..............................................1
Section 1.01. Definitions..............................................1
Section 1.02. Other Definitional Provisions............................1
ARTICLE II Organization.............................................2
Section 2.01. Name.....................................................2
Section 2.02. Office...................................................2
Section 2.03. Purposes and Powers......................................2
Section 2.04. Appointment of Owner Trustee.............................3
Section 2.05. Initial Capital Contribution of Trust Estate.............3
Section 2.06. Declaration of Trust.....................................3
Section 2.07. Title to Trust Property..................................4
Section 2.08. Situs of Trust...........................................4
Section 2.09. Representations and Warranties of the Depositor..........4
Section 2.10. Payment of Trust Fees....................................7
ARTICLE III Conveyance of the Mortgage Loans; Certificates...........7
Section 3.01. Conveyance of the Mortgage Loans.........................7
Section 3.02. Payment of Purchase Price for Subsequent Mortgage Loans
and Additional Balances..................................9
Section 3.03. Draws During Rapid Amortization Period..................10
Section 3.04. Allocation..............................................10
Section 3.05. Addition of Subsequent Mortgage Loans...................10
Section 3.06. Initial Ownership.......................................11
Section 3.07. Issuance of Certificates................................11
Section 3.08. Authentication of Certificates..........................11
Section 3.09. Registration of and Limitations on Transfer and Exchange
of Certificates.........................................12
Section 3.10. Mutilated, Destroyed, Lost or Stolen Certificates.......14
Section 3.11. Persons Deemed Certificateholders.......................15
Section 3.12. Access to List of Certificateholders' Names and
Addresses...............................................15
Section 3.13. Maintenance of Office or Agency.........................15
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TABLE OF CONTENTS
(continued)
Section 3.14. Certificate Paying Agent................................16
Section 3.15. Cooperation.............................................17
Section 3.16. [Reserved]..............................................17
Section 3.17. Subordination...........................................17
Section 3.18. No Priority Among Certificates..........................18
ARTICLE IV Authority and Duties of Owner Trustee...................18
Section 4.01. General Authority.......................................18
Section 4.02. General Duties..........................................18
Section 4.03. Action upon Instruction.................................18
Section 4.04. No Duties Except as Specified under Specified Documents
or in Instructions......................................19
Section 4.05. Restrictions............................................19
Section 4.06. Prior Notice to Certificateholders and the Enhancer
with Respect to Certain Matters.........................20
Section 4.07. Action by Certificateholders with Respect to Certain
Matters.................................................20
Section 4.08. Action by Certificateholders with Respect to
Bankruptcy..............................................20
Section 4.09. Restrictions on Certificateholders' Power...............20
Section 4.10. Majority Control........................................21
Section 4.11. Doing Business in Other Jurisdictions...................21
Section 4.12. Removal of Mortgage Loans...............................21
ARTICLE V Application of Trust Funds..............................21
Section 5.01. Distributions...........................................21
Section 5.02. Method of Payment.......................................22
Section 5.03. Signature on Returns....................................22
Section 5.04. Statements to Certificateholders........................22
Section 5.05. Tax Reporting...........................................22
ARTICLE VI Concerning the Owner Trustee............................23
Section 6.01. Acceptance of Trusts and Duties.........................23
Section 6.02. Furnishing of Documents.................................24
Section 6.03. Representations and Warranties..........................24
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TABLE OF CONTENTS
(continued)
Section 6.04. Reliance; Advice of Counsel.............................25
Section 6.05. Not Acting in Individual Capacity.......................25
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents...............................................25
Section 6.07. Owner Trustee May Own Certificates and Notes............26
ARTICLE VII Compensation of Owner Trustee...........................27
Section 7.01. Owner Trustee's Fees and Expenses.......................27
Section 7.02. Indemnification.........................................27
ARTICLE VIII Termination of Trust Agreement..........................28
Section 8.01. Termination of Trust Agreement..........................28
ARTICLE IX Successor Owner Trustees and Additional Owner
Trustees................................................29
Section 9.01. Eligibility Requirements for Owner Trustee..............29
Section 9.02. Replacement of Owner Trustee............................29
Section 9.03. Successor Owner Trustee.................................30
Section 9.04. Merger or Consolidation of Owner Trustee................30
Section 9.05. Appointment of Co-Trustee or Separate Trustee...........31
ARTICLE X Miscellaneous...........................................32
Section 10.01. Amendments..............................................32
Section 10.02. No Legal Title to Trust Estate..........................33
Section 10.03. Limitations on Rights of Others.........................34
Section 10.04. Notices.................................................34
Section 10.05. Severability............................................34
Section 10.06. Separate Counterparts...................................34
Section 10.07. Successors and Assigns..................................35
Section 10.08. No Petition.............................................35
Section 10.09. No Recourse.............................................35
Section 10.10. Headings................................................35
Section 10.11. GOVERNING LAW...........................................35
Section 10.12. Integration.............................................35
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TABLE OF CONTENTS
(continued)
Section 10.13. Rights of Enhancer to Exercise Rights of Certif.........35
EXHIBITS
Exhibit A - Form of Certificate........................................A-1
Exhibit B - Certificate of Trust.......................................B-1
Exhibit C - Form of Rule 144A Investment Representation................C-1
Exhibit D - Form of Investor Representation Letter.....................D-1
Exhibit E - Form of Transferor Representation Letter...................E-1
Exhibit F - Form of Certificate of Non-Foreign Status..................F-1
Exhibit G - Form of ERISA Representation Letter........................G-1
Exhibit H - Form of Representation Letter..............................H-1
Exhibit I - Form of Addition Notice....................................I-1
Exhibit J - Form of Transfer Agreement.................................J-1
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This trust agreement, dated as of [_____] (as amended from time to time,
the "Trust Agreement"), is among Wachovia Asset Securitization Issuance, LLC, a
North Carolina limited liability company, as depositor (the "Depositor"), and
[_____], a [_____] banking corporation, as owner trustee (the "Owner Trustee").
WITNESSETH:
WHEREAS, the Depositor and the Owner Trustee desire to form a Delaware
statutory trust;
NOW, THEREFORE, In consideration of the mutual agreements herein contained,
the Depositor and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01.Definitions. For all purposes of this Trust Agreement, except
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as otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the indenture dated as of [_____]
(the "Indenture"), among Wachovia Asset Securitization Issuance, LLC [_____]
Trust, as Issuer, Wachovia Bank, National Association, as Paying Agent, and
[_____], as Indenture Trustee, and such Appendix A is hereby incorporated by
reference and made are part of this Trust Agreement. All other capitalized terms
used herein shall have the meanings specified herein.
Section 1.02 Other Definitional Provisions.
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(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Trust Agreement or in any such certificate or
other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Trust Agreement shall refer to this Trust Agreement as
a whole and not to any particular provision of this Trust Agreement; Section and
Exhibit references contained in this Trust Agreement are references to Sections
and Exhibits in or to this Trust Agreement unless
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otherwise specified; the term "including" shall mean "including without
limitation"; "or" shall include "and/or"; and the term "proceeds" shall have the
meaning ascribed thereto in the UCC.
(d) The definitions contained in this Trust Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
Organization
Section 2.01. Name. The trust created hereby shall be known as "Wachovia
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Asset Securitization Issuance, LLC [_____] Trust," in which name the Owner
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the Owner
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Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificateholders, the
Depositor, and the Enhancer.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage in
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the following activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Trust Agreement and to sell the Notes and the Certificates;
(b) to purchase the Mortgage Loans and to pay the organizational,
start-up and transactional expenses of the Trust;
(c) to assign, grant, transfer, pledge and convey the Mortgage Loans
pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to Section 5.01 any portion of the Mortgage Loans
released from the Lien of, and remitted to the Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(e) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith, including, without limitation, to
accept additional contributions of equity that are not subject to the Lien of
the Indenture; and
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(f) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the Trust
Estate and the making of distributions to the Securityholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Trust Agreement or the
other Basic Documents while any Note is outstanding without the consent of the
holders of Certificates evidencing a majority of the aggregate Certificate
Percentage Interest of the Certificates, the Indenture Trustee, the Enhancer and
the holders of Notes representing a majority of the Note Balance of the Notes;
provided that any Certificate registered in the name of the Seller or an
Affiliate of the Seller will not be considered a Certificate for purposes of
such consent; provided, further, that if 100% of the Certificates are held by
the Seller or an Affiliate of the Seller, the consent of the Certificateholders
will not be required.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints
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the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. In
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consideration of the delivery by the Owner Trustee, on behalf of the Trust, of
the Securities to the Depositor or its designee, upon the order of the
Depositor, the Depositor, as of the Closing Date and concurrently with the
execution and delivery hereof, does hereby transfer, assign, set over and
otherwise convey to the Trust, without recourse, but subject to the other terms
and provisions of this Trust Agreement, all of the right, title and interest of
the Depositor in and to the Trust Estate. The foregoing transfer, assignment,
set over and conveyance does not, and is not intended to, result in a creation
or an assumption by the Trust of any obligation of the Depositor or any other
Person in connection with the Trust Estate or under any agreement or instrument
relating thereto, except as specifically set forth herein.
The Owner Trustee, on behalf of the Trust, acknowledges the conveyance to
the Trust by the Depositor, as of the Closing Date, of the Trust Estate,
including all right, title and interest of the Depositor in and to the Trust
Estate. Concurrently with such conveyance and in exchange therefor, the Trust
has pledged the Trust Estate to the Indenture Trustee and has executed the
Certificates and the Notes and caused them to be duly authenticated and
delivered.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that
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it shall hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a statutory trust under the Statutory
Trust Statute and that this Trust Agreement constitute the governing instrument
of such statutory trust. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust. It is the
intention of the parties hereto that solely for federal, state and local income
and franchise tax purposes, for so long as 100% of the Certificates are held by
a single person or entity, the Trust shall be treated as an entity wholly owned
by such person or entity, with the assets of the entity being the Trust Estate,
and the Notes being debt of the entity, and the
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provisions of this Trust Agreement shall be interpreted to further this
intention. If more than one person owns the Certificates, it is the further
intention of the parties hereto that solely for federal, state and local income
and franchise tax purposes the Owner Trust shall be treated as a partnership,
with the assets of the partnership being Trust Estate, the partners of the
partnership being the Certificateholders and the Notes being debt of the
partnership. The provisions of this Trust Agreement shall be interpreted to
further such intentions. Neither the Depositor nor any Certificateholder shall
have any personal liability for any liability or obligation of the Trust, other
than the indemnification obligations as provided in Section 7.2 herein.
Section 2.07. Title to Trust Property. Legal title to the Trust Estate
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shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust will be located and administered in
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the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware or
taking actions outside the State of Delaware in order to comply with Section
2.03. Payments will be received by the Trust only in Delaware, New York or the
Corporate Trust Office of the Certificate Paying Agent, and payments will be
made by the Trust only from Delaware, New York or the Corporate Trust Office of
the Certificate Paying Agent. The only office of the Trust will be at the
Corporate Trust Office of the Owner Trustee in Delaware.
Section 2.09. Representations and Warranties of the Depositor. The
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Depositor hereby represents and warrants to the Owner Trustee and the Enhancer
that:
(a) The Depositor has been duly formed, is validly existing in good
standing under the laws of the state of its formation, and is duly qualified to
do business and is in good standing under the laws of each jurisdiction where
the character of its property, the nature of its business or the performance of
its obligations, if any, under the Basic Documents make such qualification
necessary. The jurisdiction of organization of the Depositor is Delaware and the
Depositor is a "registered organization" (within the meaning of Section 9-102 of
the UCC in effect in Delaware).
(b) The Depositor has all requisite power and authority to own its
properties, to conduct its business, to execute and deliver each of the Basic
Documents to be executed and delivered by the Depositor and to enter into and
perform all of its obligations thereunder and any of the transactions
contemplated thereby.
(c) Each Basic Document to be executed and delivered by the Depositor
has been duly authorized, executed and delivered by the Depositor and, assuming
the due execution and delivery by the other parties thereto, constitutes a
legal, valid and binding agreement, enforceable against the Depositor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
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now or hereafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general principles
of equity (whether considered in a proceeding at law or in equity).
(d) The execution and delivery by the Depositor of the Basic Documents
to which the Depositor is a party and the performance by the Depositor of its
obligations thereunder do not (A) violate any of the provisions of the
organizational documents of the Depositor, (B) violate any provision of any law,
governmental rule or regulation currently in effect applicable to the Depositor
or to its properties or by which the Depositor or its properties may be bound or
affected, which violation would materially and adversely affect the right of the
Trust to perform any of the applicable provisions of the Basic Documents, (C)
violate any judgment, decree, writ, injunction, award, determination or order
currently in effect applicable to the Depositor or to its properties or by which
the Depositor or its properties are bound or affected, which violation would
materially and adversely affect the right of the Trust to perform any of the
applicable provisions of the Basic Documents, (D) conflict in any material
respect with, or result in a breach in any material respect of, or constitute a
default in any material respect under, any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which the Depositor is
a party or by which it is bound, which conflict, breach or default would
materially and adversely affect the right of the Depositor to perform any of the
applicable provisions of the Basic Documents, or (E) result in the creation or
imposition of any Lien upon any of the properties of the Depositor pursuant to
the terms of any such indenture, mortgage, deed of trust, contract or other
instrument (other than the Basic Documents).
(e)No consent, approval, order or authorization by, and no filing with
or notice to, any court or other governmental authority in respect of the
Depositor is required in connection with the authorization, execution, delivery
or performance by the Depositor of the Basic Documents to which it is a party.
(f) There are no pending or, to the best of the Depositor's knowledge,
threatened, actions, suits, proceedings or investigations before any court,
administrative agency, arbitrator or governmental body that, if decided
adversely, would materially and adversely affect (A) the condition (financial or
otherwise), business or operations of the Depositor or (B) the ability of the
Depositor to perform its obligations under, or the validity or enforceability
of, the Basic Documents to which it is a party.
(g) The Depositor is solvent, and the Depositor does not contemplate
any pending insolvency or believe or have reason to believe that it will not be
able to pay its debts and other obligations as they become due. The Depositor
did not transfer the Transferred Property pursuant to this Agreement with any
intent to hinder, delay or defraud any of its creditors.
(h) Immediately prior to (1) the transfer hereunder, the Depositor had
good and marketable title to the interest in the Initial Transferred Property
conveyed to it, free and clear of all Liens, pledges, charges, encumbrances,
security interests or adverse claims of any nature, and this Agreement
constitutes a valid assignment and transfer to the Trust of all right, title and
interest of the Depositor in and to the Initial Transferred Property and (2) the
transfer under the related Subsequent Transfer Agreement, the Depositor had good
and marketable title
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to the interest in the related Subsequent Transferred Property conveyed to it,
free and clear of all liens, pledges, charges, encumbrances, security interests
or adverse claims of any nature and this Agreement and the related Subsequent
Transfer Agreement, when executed and delivered, will constitute a valid
assignment and transfer to the Trust of all right, title and interest of the
Depositor in and to the related Subsequent Transferred Property.
(i) The Depositor is not in default under any agreement, contract,
instrument or indenture to which such party is a party or by which such party or
its respective properties is or are bound, or with respect to any order of any
court, administrative agency, arbitrator or governmental body, that would have a
material adverse effect on the transactions contemplated under the Basic
Documents; and no event has occurred that with notice or lapse of time or both
would constitute such a default with respect to any such agreement, contract,
instrument or indenture, or with respect to any such order of any court,
administrative agency, arbitrator or governmental body.
(j) The chief executive office of the Depositor is located at the
address set forth in Section 10.04.
(k) The Depositor acquired title to its interest in the Transferred
Property in good faith, without notice of any adverse claim to the Transferred
Property.
(l) The Depositor has caused its computer and accounting records to be
marked to show that a sale of, or a security interest in, the Transferred
Property has been made or granted to the Issuer.
(m) The purchase price paid by the Depositor for the portion of the
Transferred Property relating to the Closing Date or related Subsequent Transfer
Date, as applicable, is the fair market value of such portion of the Transferred
Property.
(n) This Agreement creates a valid and continuing security interest
(as defined in the applicable UCC) in the Loan Agreements in favor of the
Issuer, which security interest is prior to all other Liens (except as expressly
permitted otherwise in this Indenture), and is enforceable as such as against
creditors of and purchasers from the Issuer.
(o) The Loan Agreements constitute "accounts," "general intangibles"
or "instruments" within the meaning of the applicable UCC.
(p) The Depositor owns and has good and marketable title to the Loan
Agreements free and clear of any Lien of any Person.
(q) The Depositor has received all consents and approvals required by
the terms of the Loan Agreements to the sale of the Loan Agreements hereunder to
the Trust.
(r) The Depositor has caused or will have caused, within ten days, the
filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Loan Agreements granted to the Trust hereunder.
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(s) Other than the security interest granted to the Trust pursuant to
this Agreement, the Depositor has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Loan Agreements. The
Depositor has not authorized the filing of and is not aware of any financing
statements against the Depositor that include a description of collateral
covering the Loan Agreements other than any financing statement relating to the
security interest granted to the Depositor hereunder or any security interest
that has been terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor.
(t) The Servicer, on behalf of the Depositor, has in its possession
all original copies of the Loan Agreements. The Loan Agreements do not have any
marks or notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Depositor, the Trust and the Indenture
Trustee. All financing statements filed or to be filed against the Depositor in
favor of the Trust in connection herewith describing the Loan Agreements contain
a statement to the following effect: "A purchase of or security interest in any
collateral described in this financing statement will violate the rights of the
Trust."
(u) None of the Mortgage Notes that constitute or evidence the
Mortgage Loans has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Trust.
The representations and warranties set forth in Section 2.09(n) through (t)
shall not be waived without the prior written consent of Standard and Poor's.
Upon notice from the Enhancer, the Issuer, the Owner Trustee, the Indenture
Trustee, the Paying Agent or the Servicer, as applicable, of a breach of the
Depositor's respective representations or warranties above that materially and
adversely affects the interests of the Securityholders in any Mortgage Loan, the
Depositor shall, within 90 days of its discovery or its receipt of notice of
such breach, either (i) cure such breach in all material respects or (ii) to the
extent that such breach is with respect to a Mortgage Loan or a Related
Document, either (A) repurchase such Mortgage Loan from the Purchaser or its
assignee at the Repurchase Price, or (B) substitute one or more Eligible
Substitute Loans received from the Seller pursuant to the Purchase Agreement.
It is understood and agreed that the obligation of the Depositor to cure
any breach, or to repurchase or substitute for any Mortgage Loan as to which
such a breach has occurred and is continuing, shall constitute the sole remedy
respecting such breach available to the Enhancer, the Issuer, the Enhancer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against the Depositor.
Section 2.10. Payment of Trust Fees. The Owner Trustee shall pay the
Trust's fees and expenses incurred with respect to the performance of the
Trust's duties under the Indenture.
ARTICLE III
Conveyance of the Mortgage Loans; Certificates
Section 3.01. Conveyance of the Mortgage Loans.
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(a) The Depositor, by the execution and delivery of this Agreement,
does hereby sell, assign, set over, and otherwise convey to the Trust, without
recourse (except as expressly provided herein), all of its right, title and
interest, whether now owned or existing or hereafter created, arising, or
acquired, in, to and under (i) the Initial Mortgage Loans and the other related
Initial Transferred Property and (ii) the Subsequent Mortgage Loans and other
related Subsequent Transferred Property, in each case purchased by the Depositor
from the Seller pursuant to the Purchase Agreement; provided, however, that the
Trust does not assume any obligations (including any obligations to fund Draws)
arising under or related to the Related Documents. Such conveyance shall be
deemed to be made: (1) with respect to the Cut-Off Date Principal Balances
relating to the Initial Mortgage Loans, as of the Closing Date; (2) with respect
to the Cut-Off Date Principal Balances relating to the Subsequent Mortgage
Loans, as of the related Subsequent Transfer Date; (3) with respect to the
amount of each Additional Balance created on or after the Cut-Off Date or the
Subsequent Cut-Off Date, as applicable, and prior to the commencement of the
Rapid Amortization Period, as of the later of the Closing Date or the related
Subsequent Cut-Off Date, as applicable, and the date that the corresponding Draw
was made pursuant to the related Loan Agreement, subject to the receipt by the
Depositor of consideration therefor as provided herein under Section 3.02(c).
(b) The Depositor hereby assigns to the Trust all of the Depositor's
right, title and interest to and under the Purchase Agreement and any Subsequent
Transfer Agreement executed by the Depositor as Purchaser, including without
limitation the Depositor's right to enforce the obligations of the Seller
thereunder (including the Seller's obligation to repurchase Mortgage Loans as
the result of a breach of the Seller's representations and warranties in the
Purchase Agreement).
(c) In connection with the conveyance by the Depositor of the Initial
Mortgage Loans, the Depositor further agrees, at its own expense, on or prior to
the Closing Date, to indicate in its books and records that the Initial Mortgage
Loans have been sold to the Trust pursuant to this Agreement, and to deliver to
the Trust true and complete lists of all of the Mortgage Loans specifying for
each Mortgage Loan the information contained in the Mortgage Loan Schedule. The
Mortgage Loan Schedule is attached as Exhibit A to the Servicing Agreement and
is hereby incorporated into and made a part of this Agreement.
(d) Upon the sale of the Initial Mortgage Loans and the Subsequent
Mortgage Loans, as applicable, the ownership of each related Loan Agreement,
each related Mortgage and the contents of the related Mortgage File shall be
vested in the Trust and the ownership of all records and documents with respect
to the Initial Mortgage Loans and the Subsequent Mortgage Loans, as applicable,
that are prepared by or that come into the possession of the Depositor, as
seller of the Initial Mortgage Loans hereunder and the Subsequent Mortgage Loans
under the related Subsequent Transfer Agreement, or by the Servicer under this
Agreement shall immediately vest in the Trust, and shall be retained and
maintained in trust by the Servicer at the will of the Trust, in such custodial
capacity only, or in trust by the Indenture Trustee if the Mortgage Files are
required to be transferred by the Servicer to the Indenture Trustee, pursuant to
the Servicing Agreement; provided, however, that any records and documents that
come into the possession of the Depositor shall be promptly delivered to the
Servicer or the Indenture, as applicable. The Depositor's records will
accurately reflect the sale of the Initial Mortgage Loans by it to the Trust.
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The Trust hereby acknowledges its acceptance of all right, title and
interest to the property conveyed to it pursuant to this Section 3.01.
(e) The parties hereto intend that the transactions set forth herein
constitute a sale, including for accounting purposes, by the Depositor to the
Trust of the Depositor's right, title and interest in and to the Mortgage Loans
and the other Transferred Property, and not a secured borrowing. In the event
the transactions set forth herein are deemed not to be a sale, the Depositor
hereby grants to the Trust a security interest in all of the Depositor's right,
title and interest, whether now owned or hereafter acquired, in, to and under
the Transferred Property to secure all of the Depositor's obligations hereunder,
and this Agreement shall and hereby does constitute a security agreement under
applicable law. Each of the Mortgage Loan Schedules is hereby incorporated by
reference and made a part of this Trust Agreement. The Depositor agrees to take
or cause to be taken such actions and to execute such documents, including
without limitation the authorization and the filing of any continuation
statements with respect to the UCC financing statements filed with respect to
the Mortgage Loans and other Transferred Property by the Depositor on the
Closing Date, if any, and any amendments thereto required to reflect a change in
the name or structure of the Depositor or the filing of any additional UCC
financing statements due to the change in the principal office or jurisdiction
of organization of the Depositor as are necessary to perfect and protect the
Trust' and its assignees' interests in the Transferred Property. The Depositor
shall file any such continuation statements on a timely basis.
Section 3.02. Payment of Purchase Price for Subsequent Mortgage Loans
--------------------------------------------------------
and Additional Balances.
- -----------------------
(a) The "Purchase Price" for the Subsequent Mortgage Loans and the other
Subsequent Transferred Property to be paid by the Trust to the Depositor on the
related Subsequent Transfer Date shall be 100 percent of the related Cut-Off
Date Principal Balances thereof (as identified on the Mortgage Loan Schedule
attached to the related Subsequent Transfer Agreement provided by the
Depositor). In the case of each Additional Balance transferred hereunder created
on or after the Cut-Off Date or Subsequent Cut-Off Date, as applicable, and
prior to the commencement of the Rapid Amortization Period, the Purchase Price
thereof shall be 100 percent of the principal amount of the related Draw under
the related Loan Agreement as of the later of the Closing Date or Subsequent
Transfer Date, as applicable, and the date of creation of such Additional
Balance, adjusted to reflect such factors as the Depositor and the Trust
mutually agree will result in a Purchase Price determined to be the fair market
value of such Additional Balance and the related Transferred Property.
(b) With respect to each Subsequent Mortgage Loan transferred pursuant to a
Subsequent Transfer Agreement and each Additional Balance transferred hereunder
or pursuant to a Subsequent Transfer Agreement with respect to any Mortgage
Loan, as applicable, the Trust shall pay or cause to be paid to the Depositor or
its designee the Purchase Price specified above in Section 3.02(a) for such
Additional Balance or Subsequent Mortgage Loan in one of the following ways, as
applicable: (i) a cash payment pursuant to Section 3.02(a) hereof in an amount
equal to the related Draw or Cut-Off Date Principal Balance, as applicable, if
then available from Principal Collections on any Payment Date or amounts on
deposit in the applicable Funding Account, as applicable, or (ii) with respect
to an Additional Balance only, an
9
increase in the related Additional Balance Increase Amount as of the day on
which such Additional Balance was created, equal to the amount of such
Additional Balance.
Section 3.03. Draws During Rapid Amortization Period. During the Rapid
----------------------------------------
Amortization Period, any Excluded Draws shall not be Additional Balances, and
the ownership of the related balances shall be retained by the Seller. Payments
and collections allocable pursuant to Section 3.04 to an Excluded Draw shall not
be deposited into the Custodial Account, the Distribution Account or the Note
Payment Account, and shall be distributed by the Servicer to the Seller no less
frequently than monthly in accordance with reasonable instructions provided by
the Seller.
Section 3.04 Allocation. The Depositor, the Trust and the Servicer agree
----------
that all collections on the Mortgage Loans will be allocated and applied as
provided by the terms of the related Loan Agreements or by applicable law.
Except with respect to Liquidation Loss Amounts, if the Loan Agreement or
applicable law does not specify a method of allocation and application for
particular Collections, such Collections shall be allocated and applied (i)
first, to interest pro rata (based on the respective amounts coming due on such
day) among the amounts coming due on such dates, and (ii) then, to principal in
the order of the dates on which such amounts were first incurred. If, as a
result of the provisions of this Section 3.04, Collections are allocated to
Excluded Draws, such Collections shall not be property of the Purchaser or its
assignees and shall be paid by the Servicer to the Seller as provided in Section
3.03. Liquidation Loss Amounts shall be allocated as provided in the definition
of Excluded Amount.
Section 3.05. Addition of Subsequent Mortgage Loans. The transfer by the
--------------------------------------
Depositor of any Subsequent Mortgage Loans to the Issuer, is conditioned upon
the satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Date:
(a) the Depositor shall have provided the Indenture Trustee, the Issuer,
the Paying Agent, the Enhancer and the Rating Agencies with a timely Addition
Notice substantially in the form of Exhibit I attached hereto, which notice
shall be given no later than five Business Days prior to the related Subsequent
Transfer Date, and shall designate the Subsequent Mortgage Loans to be sold to
the Issuer and the aggregate Principal Balance of such Subsequent Mortgage Loans
as of the related Subsequent Cut-Off Date;
(b) the Depositor shall have delivered to the Indenture Trustee, the Paying
Agent, the Enhancer and the Rating Agencies duly executed Subsequent Transfer
Agreement substantially in the form of Exhibit J, (A) confirming the
satisfaction of each condition precedent specified in this Section 3.05(b) and
in Section 2 of the related Subsequent Transfer Agreement and (B) including a
Mortgage Loan Schedule listing the Subsequent Mortgage Loans;
(c) as of each Subsequent Transfer Date, as evidenced by delivery to the
Indenture Trustee of the Subsequent Transfer Agreement, the Depositor shall not
be insolvent, made insolvent by such transfer or aware of any pending
insolvency;
(d) such sale and transfer shall not result in a material adverse tax
consequence to the Issuer or, due to any action or inaction on the part of the
Seller , to the Securityholders; and
10
(e) the Depositor shall have provided each of the Enhancer and each Rating
Agency with loan level information in the Enhancer's and each such Rating
Agency's standard format no later than five Business Days prior to the related
Subsequent Transfer Date, which shall designate the Subsequent Mortgage Loans to
be sold to the Issuer, and shall receive verbal consent from the Enhancer and
verbal confirmation from each Rating Agency that the addition of the Subsequent
Mortgage Loans will not result in a Rating Event.
Within five Business Days after each Subsequent Transfer Date, the
Depositor shall deliver to the Issuer, the Rating Agencies, the Enhancer, the
Paying Agent and the Indenture Trustee a copy of the Mortgage Loan Schedule
reflecting the Subsequent Mortgage Loans in electronic format.
Section 3.06. Initial Ownership. Upon the formation of the Trust by the
------------------
contribution by the Depositor pursuant to Section 2.05 and the conveyance of the
Initial Mortgage Loans pursuant to Section 3.01 and the issuance of the
Certificates, Depositor shall be the sole Certificateholder.
Section 3.07. Issuance of Certificates. The Certificates shall be issued in
------------------------
minimum denominations of a Percentage Interest of [_____]% and integral
multiples of [_____]% in excess thereof. The Certificates shall be issued in
substantially the form attached hereto as Exhibit A.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.08. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. A Person shall become a Certificateholder and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder upon
such Person's acceptance of a Certificate duly registered in such Person's name,
pursuant to Section 3.09.
A transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered in
such transferee's name pursuant to and upon satisfaction of the conditions set
forth in Section 3.09.
Section 3.08. Authentication of Certificates. Concurrently with the
--------------------------------
acquisition of the Initial Mortgage Loans by the Trust, the Owner Trustee or the
Certificate Paying Agent shall cause the Certificates in an initial Percentage
Interest of 100.00% to be executed on behalf of the Trust, authenticated by the
Indenture Trustee and delivered to or upon the written order of the Depositor,
signed by its chairman of the board, its president or any vice president,
without further action by the Depositor, in authorized denominations. No
Certificate shall entitle the Certificateholder thereof to any benefit under
this Trust Agreement or be valid for any purpose unless there shall appear on
such Certificate a certificate of authentication substantially in the form set
forth in Exhibit A hereto, executed by the Owner Trustee or the Indenture
Trustee, by
11
manual signature, and such authentication shall constitute conclusive evidence
that such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section 3.09. Registration of and Limitations on Transfer and Exchange of
------------------------------------------------------------
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
- ------------
office or agency maintained pursuant to Section 3.13, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Paying Agent
shall be the initial Certificate Registrar. If the Certificate Registrar resigns
or is removed, the Owner Trustee shall appoint a successor Certificate
Registrar.
Subject to satisfaction of the conditions set forth below, upon surrender
for registration of transfer of any Certificate at the office or agency
maintained pursuant to Section 3.13, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Indenture Trustee as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or the Indenture Trustee. At the option of a Certificateholder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.13. The initial
Certificateholder agrees to not transfer any Certificate during either the
Revolving Period or the Managed Amortization Period, unless the initial
Certificateholder receives an Opinion of Counsel stating that such transfer of
the Certificate will not adversely affect the opinion delivered on the Closing
Date by such counsel regarding the transfer of the Mortgage Loans by Seller to
the Depositor.
Every Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Certificateholder
or such Certificateholder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Certificate Registrar in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner 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.
Except as described below, each Certificateholder shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9
and the Certificate of Non-Foreign Status (in substantially the form attached
hereto as Exhibit F).
A Certificate may be transferred to a Certificateholder unable to establish
its non-foreign status as described in the preceding paragraph only if such
Certificateholder provides an Opinion of Counsel to the Depositor, the
Certificate Registrar and the Enhancer, which Opinion of Counsel shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor, satisfactory to the Depositor, the Certificate Registrar and the
Enhancer, that such
12
transfer (1) will not affect the tax status of the Owner Trust and (2) will not
adversely affect the interests of any Securityholder or the Enhancer, including,
without limitation, as a result of the imposition of any United States federal
withholding taxes on the Owner Trust (except to the extent that such withholding
taxes would be payable solely from amounts otherwise distributable to the
Certificate of the prospective transferee). If such transfer occurs and such
foreign Certificateholder becomes subject to such United States federal
withholding taxes, any such taxes will be withheld by the Certificate Paying
Agent at the direction of the Servicer. Each Certificateholder unable to
establish its non-foreign status shall submit to the Certificate Paying Agent a
copy of its Form W-8BEN, Form W-8ECI or Form W-8IMY, or such successor forms
thereto as required by then-applicable regulations, and shall resubmit such form
every three years or with such frequency as required by then-applicable
regulations. In addition, prior to any transfer of a Certificate prior to July
of 2008 to a Certificateholder that cannot establish its non-foreign status, the
Certificateholder shall deliver to the Owner Trustee, the Paying Agent and the
Indenture Trustee, at the expense of the Certificateholder, an Opinion of
Counsel that no withholding tax would apply to payments made under any Yield
Maintenance Agreement.
No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with the Securities Act and such state
laws. In the event of any such transfer, the Certificate Registrar or the
Depositor shall prior to such transfer require the transferee to execute (A)
either (i) (a) an investment letter in substantially the form attached hereto as
Exhibit C (or in such form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor) which investment letters shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and which investment letter states that, among other
things, such transferee (a) is a "qualified institutional buyer" as defined
under Rule 144A, acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (b) is aware that the
proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the Securities Act and such state laws or is being made pursuant
to the Securities Act and such state laws, which Opinion of Counsel shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and (b) the transferee executes a representation
letter, substantially in the form of Exhibit D hereto, and the transferor
executes a representation letter, substantially in the form of Exhibit E hereto,
each acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (B) the
Certificate of Non-Foreign Status (in substantially the form attached hereto as
Exhibit F) acceptable to and in form and substance reasonably satisfactory to
the Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. If such Certificateholder is unable to provide a Certificate of
Non-Foreign Status, such Certificateholder must provide an Opinion of Counsel as
described in the preceding paragraph. The Certificateholder desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Certificate Paying Agent, the Indenture
Trustee, the Servicer, the Paying Agent,
13
the Enhancer and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws. No transfer of Certificates or any interest therein shall be made to
any Plan, any Person acting, directly or indirectly, on behalf of any such Plan
or any Person acquiring such Certificates with Plan Assets unless the Depositor,
the Owner Trustee, the Certificate Registrar, the Enhancer and the Servicer are
provided with an Opinion of Counsel that establishes to the satisfaction of the
Depositor, the Owner Trustee, the Certificate Registrar, the Enhancer and the
Servicer that the purchase of Certificates is permissible under applicable law,
will not constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Owner Trustee,
the Certificate Registrar, the Certificate Paying Agent, the Indenture Trustee,
the Paying Agent, the Enhancer or the Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Trust Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar, the Enhancer or the Servicer. In lieu of such Opinion of
Counsel, a Plan, any Person acting, directly or indirectly, on behalf of any
such Plan or any Person acquiring such Certificates with Plan Assets of a Plan
may provide a certification in the form of Exhibit G to this Trust Agreement,
which the Depositor, the Owner Trustee, the Certificate Registrar, the
Certificate Paying Agent, the Indenture Trustee, the Paying Agent, the Enhancer
and the Servicer may rely upon without further inquiry or investigation. Neither
an Opinion of Counsel nor a certification will be required in connection with
the initial transfer of any such Certificate by the Depositor to an Affiliate of
the Depositor (in which case, the Depositor or any such Affiliate shall be
deemed to have represented that such Affiliate is not a Plan or a Person
investing Plan Assets of any Plan) and the Owner Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee, shall be a written representation) from the Depositor of the status of
such transferee as an Affiliate of the Depositor.
In addition, no transfer of a Certificate shall be permitted, and no such
transfer shall be registered by the Certificate Registrar or be effective
hereunder, unless evidenced by an Opinion of Counsel addressed to the
Certificate Registrar, the Servicer and the Enhancer that establishes that such
transfer or the registration of such transfer would not cause the Trust to be
classified as a publicly traded partnership, by having more than 100
Certificateholders at any time during the taxable year of the Trust, an
association taxable as a corporation, a corporation or a taxable mortgage pool
for federal and relevant state income tax purposes, which Opinion of Counsel
shall not be an expense of the Certificate Registrar and shall be an expense of
the proposed transferee. No Opinion of Counsel will be required if such transfer
is made to a nominee of an existing beneficial holder of a Certificate.
In addition, no transfer, sale, assignment, pledge or other disposition of
a Certificate shall be made unless the proposed transferee executes a
representation letter substantially in the form of Exhibit H hereto, that (1)
the transferee is acquiring such Certificate for its own behalf and is not
acting as agent or custodian for any other Person or entity in connection with
such acquisition and (2) if the transferee is a partnership, grantor trust or S
corporation for federal income tax purposes, the Certificates acquired are not
more than 50% of the assets of the partnership, grantor trust or S corporation.
14
Section 3.10. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
-------------------------------------------------
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar, the Indenture Trustee and the Owner Trustee such
security or indemnity as may be required by them to save each of them and the
Issuer from harm, then in the absence of notice to the Certificate Registrar,
the Indenture Trustee or the Owner Trustee that such Certificate has been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee or the Indenture Trustee, as the Trust's
authenticating agent, shall 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 denomination. In connection with the issuance of any new
Certificate under this Section 3.10, the Owner Trustee, the Indenture 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 connection
therewith. Any duplicate Certificate issued pursuant to this Section 3.10 shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 3.11. Persons Deemed Certificateholders. Prior to due presentation
---------------------------------
of a Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Certificate Paying Agent may treat the Person in
whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Trust, the
Owner Trustee, the Certificate Registrar or the Certificate Paying Agent shall
be bound by any notice to the contrary.
Section 3.12. Access to List of Certificateholders' Names and Addresses.
------------------------------
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor or the Owner Trustee, within 15 days after receipt by the Certificate
Registrar of a written request therefor from the Depositor or the Owner Trustee,
a list, in such form as the Depositor or the Owner Trustee, as the case may be,
may reasonably require, of the names and addresses of the Certificateholders as
of the most recent Record Date. If three or more Certificateholders, or one or
more Certificateholders evidencing not less than 25% of the Certificate
Percentage Interest, apply in writing to the Owner Trustee or the Certificate
Registrar, 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 such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five (5) Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar, the Certificate Paying Agent or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 3.13. Maintenance of Office or Agency. The Owner Trustee, on behalf
-------------------------------
of the Trust, shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The
15
Owner Trustee initially designates the Corporate Trust Office of the Certificate
Registrar (or such other office as the Certificate Registrar may specify to the
Owner Trustee) as its office for such purposes. The Owner Trustee shall give
prompt written notice to the Depositor, the Certificateholders, the Indenture
Trustee and the Enhancer of any change in the location of the Certificate
Register or any such office or agency.
Section 3.14. Certificate Paying Agent.
------------------------
(a) The Certificate Paying Agent shall make distributions to
Certificateholders from the Distribution Account on behalf of the Trust in
accordance with the provisions of the Certificates and Section 5.01 hereof from
payments remitted to the Certificate Paying Agent by the Paying Agent pursuant
to Section 3.05 of the Indenture. The Trust hereby appoints the Paying Agent as
the Certificate Paying Agent. The Certificate Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Certificates in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of
which a Responsible Officer of the Certificate Paying Agent has actual knowledge
in the making of any payment required to be made with respect to the
Certificates;
(iii) at any time during the continuance of any such default, upon the
written request of the Owner Trustee, forthwith pay to the Owner Trustee on
behalf of the Trust all sums so held in trust by such Certificate Paying Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith pay
to the Owner Trustee on behalf of the Trust all sums held by it in trust for the
payment of Certificates if at any time it ceases to act as Paying Agent under
the Indenture or meet the standards required to be met by the Paying Agent at
the time of its appointment under the Indenture;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith; and
(vi) make available to the Owner Trustee a copy of the Servicing
Certificate prepared with respect to each Payment Date by the Servicer pursuant
to Section 4.01 of the Servicing Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying Agent
if the Owner Trustee determines in its sole discretion that the Certificate
Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Paying Agent shall be permitted to resign
as Certificate Paying Agent upon 30 days' written notice to the Owner Trustee
and the Enhancer; provided, however, that the Paying Agent is also resigning as
Paying Agent under the Indenture at such time. In the event that the Paying
Agent shall no longer be the Certificate Paying Agent under this Trust Agreement
and Paying Agent
16
under the Indenture, the Owner Trustee shall appoint a successor to act as
Certificate Paying Agent (which shall be a bank or trust company) and which
shall also be the successor Paying Agent under the Indenture. The Owner Trustee
shall cause such successor Certificate Paying Agent or any additional
Certificate Paying Agent appointed by the Owner Trustee to execute and deliver
to the Owner Trustee an instrument to the effect set forth in this Section 3.14
as it relates to the Certificate Paying Agent. The Certificate Paying Agent
shall return all unclaimed funds to the Trust and upon removal of a Certificate
Paying Agent such Certificate Paying Agent shall also return all funds in its
possession to the Trust. The provisions of Sections 6.01, 6.04 and 7.01 shall
apply to the Certificate Paying Agent to the extent applicable. Any reference in
this Trust Agreement to the Certificate Paying Agent shall include any co-paying
agent unless the context requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself
the Distribution Account in which the Certificate Paying Agent shall deposit, on
the same day as it is received from the Servicer, the Indenture Trustee or
Paying Agent, each remittance received by the Certificate Paying Agent with
respect to payments made pursuant to the Indenture or the Servicing Agreement.
Pending any such distribution, funds deposited in the Distribution Account on a
Payment Date and not distributed to the Certificateholders on such Payment Date
shall be invested by the Certificate Paying Agent in Permitted Investments
selected by the Servicer (or if no selection is made by the Servicer in
Permitted Investments described in clause (v) of the definition thereof)
maturing no later than the Business Day preceding the next succeeding Payment
Date (except that any investment in the institution with which the Distribution
Account is maintained may mature or be payable on demand on such Payment Date
and shall not be sold or disposed of prior to the maturity). All investment
income earned in respect of funds on deposit in the Distribution Account shall
be credited to the Distribution Account, except that an amount equal to one
day's interest on any such investment shall be for the benefit of the
Certificate Paying Agent. A portion of any losses incurred in respect of any
such investments shall be deposited in the Distribution Account by the
Certificate Paying Agent out of its own funds immediately as realized in an
amount such that the percentage of any such loss allocated to the Certificate
Paying Agent shall equal a fraction, the numerator of which equals one (1) and
the denominator of which equals the number of days the funds in the Distribution
Account were invested in such investment. The remainder of any such losses shall
be charged against the Distribution Account. The Certificate Paying Agent shall
make all distributions on the Certificates as provided in Section 3.05 of the
Indenture and Section 5.01(a) of this Trust Agreement from moneys on deposit in
the Distribution Account.
Section 3.15. Cooperation. The Owner Trustee shall cooperate in all
-----------
respects with any reasonable request by the Enhancer for action to preserve or
enforce the Enhancer's rights or interest under this Trust Agreement or the
Insurance Agreement, consistent with this Trust Agreement and without limiting
the rights of the Certificateholders as otherwise expressly set forth in this
Trust Agreement.
Section 3.16. [Reserved].
--------
Section 3.17. Subordination. Except as otherwise provided in the Basic
-------------
Documents, for so long as any Notes are outstanding or unpaid, the
Certificateholders will generally be subordinated in right of payment, under the
Certificates or otherwise, to payments to the
17
Noteholders under, or otherwise related to, the Indenture. If an Event of
Default has occurred and is continuing under the Indenture, the Certificates
will be fully subordinated to obligations owing by the Trust to the Noteholders
and the Enhancer under, or otherwise related to, the Indenture, and no
distributions will be made on the Certificates until the Noteholders, the Paying
Agent, the Note Registrar, the Certificate Paying Agent, the Certificate
Registrar and the Indenture Trustee and the Enhancer have been irrevocably paid
in full.
Section 3.18. No Priority Among Certificates. All Certificateholders shall
------------------------------
rank equally as to amounts distributable upon the liquidation, dissolution or
winding up of the Trust, with no preference or priority being afforded to any
Certificateholders over any other Certificateholders.
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and
------------------
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party, as well
as any certificate that supports the factual assumptions made in any Opinion of
Counsel delivered on the Closing Date, and any amendment or other agreement or
instrument described herein, in each case, in such form as the Owner Trustee
shall approve, as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is obligated to take
all actions required of the Trust pursuant to the Basic Documents.
Section 4.02. General Duties. The Owner Trustee shall be responsible to
---------------
administer the Trust pursuant to the terms of this Trust Agreement and the other
Basic Documents to which the Trust is a party and in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement.
Section 4.03. Action upon Instruction.
-----------------------
(a) Subject to this Article IV and Section 10.13 of this Trust
Agreement and in accordance with the terms of the Basic Documents, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to this Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any other Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Trust Agreement or
under any other Basic Document, or in the event that the Owner Trustee is unsure
as to the application of any provision of this Trust Agreement or any other
Basic Document or any such provision is ambiguous as to its application, or is,
or appears to be, in conflict with any other applicable
18
provision, or in the event that this Trust Agreement permits any determination
by the Owner Trustee or is silent or is incomplete as to the course of action
that the Owner Trustee is required to take with respect to a particular set of
facts, the Owner Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders (with a copy to
the Enhancer) requesting instruction as to the course of action to be adopted,
and to the extent the Owner Trustee acts in good faith in accordance with any
written instructions received from Certificateholders of Certificates
representing a majority of the aggregate Certificate Percentage Interest of the
Certificates, the Owner Trustee shall not be liable on account of such action to
any Person. If the Owner Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement or the other Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person
for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or in
-------------------------------------------------------------
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
- ------------
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations
shall be read into this Trust Agreement or any other Basic Document against the
Owner Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any filing with the Commission for
the Trust or to record this Trust Agreement or any other Basic Document. The
Owner Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any part
of the Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Trust
Estate.
Section 4.05. Restrictions.
------------
(a) The Owner Trustee shall not take any action (i) that is
inconsistent with the purposes of the Trust set forth in Section 2.03 or (ii)
that, to the actual knowledge of the Owner Trustee, would cause the Trust to be
treated as an association (or a publicly-traded partnership) taxable as a
corporation or a taxable mortgage pool for federal income tax purposes or at any
time that any of the Notes or Certificates are outstanding or any obligations
are due and owing to the Enhancer under the Insurance Agreement. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Trust Estate, to any
person unless (i) it shall have received an Opinion of Counsel to the effect
that such transaction will not have any
19
material adverse tax consequence to the Trust or any Certificateholder and (ii)
such conveyance or transfer shall not violate the provisions of Section 3.16(b)
of the Indenture.
Section 4.06. Prior Notice to Certificateholders and the Enhancer with
--------------------------------------------------------
Respect to Certain Matters. With respect to the following matters, the Owner
- ---------------------------
Trustee shall not take action unless, at least 30 days before the taking of such
action, the Owner Trustee shall have notified the Certificateholders and the
Enhancer in writing of the proposed action and the Enhancer and the
Certificateholders of Certificates representing a majority of the aggregate
Certificate Percentage Interest of the Certificates shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any Proceeding by the Trust (except Proceedings
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any Proceeding brought by or
against the Trust (except with respect to the aforementioned Proceedings for
collection of cash distributions due and owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Statutory
Trust Statute);
(c) the amendment of any of the Basic Documents in circumstances where
the consent of any Noteholder is required;
(d) the amendment of any of the Basic Documents in circumstances where
the consent of any Noteholder is not required and such amendment materially and
adversely affects the interest of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust Agreement
of a successor Certificate Registrar or Certificate Paying Agent or the consent
to the assignment by the Note Registrar, Paying Agent, Indenture Trustee,
Certificate Registrar or Certificate Paying Agent of its obligations under the
Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain Matters.
------------------------------------------------------------
The Owner Trustee shall not have the power, except upon the written direction of
Certificateholders evidencing not less than a majority of the aggregate
Certificate Percentage Interest of the Certificates, and with the consent of the
Enhancer, to (a) remove the Servicer under the Servicing Agreement pursuant to
Section 7.01 thereof or (b) except as expressly provided in the Basic Documents,
sell the Mortgage Loans after the termination of the Indenture.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy. The
-------------------------------------------------------
Owner Trustee shall not have the power to commence a voluntary Proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders, and with the prior written consent of the Enhancer, and the
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
20
Section 4.09. Restrictions on Certificateholders' Power. The
-------------------------------------------------
Certificateholders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the other
Basic Documents or would be contrary to Section 2.03, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any
----------------
action that may be taken by the Certificateholders under this Trust Agreement
may be taken by the Certificateholders of Certificates evidencing not less than
a majority of the aggregate Certificate Percentage Interest of the Certificates.
Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be effective
if signed by the Certificateholders evidencing not less than a majority of the
aggregate Certificate Percentage Interest of the Certificates at the time of the
delivery of such notice.
Section 4.11. Doing Business in Other Jurisdictions. Notwithstanding
-----------------------------------------
anything contained herein to the contrary, neither [_____] nor the Owner Trustee
shall be required to take any action in any jurisdiction other than in the State
of Delaware if the taking of such action will, even after the appointment of a
co-trustee or separate trustee in accordance with Section 9.05 hereof, (i)
require the consent or approval or authorization or order of or the giving of
notice to, or the registration with or the taking of any other action in respect
of, any state or other governmental authority or agency of any jurisdiction
other than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of the State of Delaware becoming payable by
[_____], or (iii) subject [_____] to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by [_____] or the Owner
Trustee, as the case may be, contemplated hereby.
Section 4.12 Removal of Mortgage Loans. Subject to and in accordance with
--------------------------
Section 3.22 of the Servicing Agreement, the Issuer may notify the Owner Trustee
of its direction to the Servicer to remove Mortgage Loans from the Trust Estate.
Promptly following receipt of any such request, the Owner Trustee shall deliver
to the Servicer the written notice and request required to be delivered to the
Servicer pursuant to Section 3.22 of the Servicing Agreement. Any Mortgage Loans
removed from the Trust Estate pursuant to Section 3.22 of the Servicing
Agreement shall be property of the Issuer and, upon the written request of the
Certificateholders holding 100% of the Certificate Percentage Interests of the
Certificates, be released to the Certificateholders as a dividend and in
accordance with the written instructions of such Certificateholders.
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions.
-------------
(a) On each Payment Date and on any date on which the Trust is
terminated pursuant to Section 8.01, the Certificate Paying Agent shall
distribute to the Certificateholders all funds on deposit in the Distribution
Account and available therefor as provided in Section 3.05
21
of the Indenture. All distributions made pursuant to this Section to any
Certificates shall be distributed to the Certificateholders pro rata based on
the respective Percentage Interests thereof.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section 5.01. The Certificate Paying Agent is hereby
authorized and directed to retain or cause to be retained from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of any
tax that is legally owed by the Trust (but such authorization shall not prevent
the Owner Trustee from contesting any such tax in appropriate Proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such Proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Certificate Paying Agent and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders.
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions
-----------------
required to be made to Certificateholders on any Payment Date as provided in
Section 5.01 shall be made to each Certificateholder of record on the preceding
Record Date by wire transfer, in immediately available funds, to the account of
each Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Payment Date.
Section 5.03. Signature on Returns. The Servicer shall sign on behalf of
--------------------
the Trust the tax returns, if any, of the Trust.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
---------------------------------
Certificate Paying Agent shall make available to each Certificateholder the
Servicing Certificate provided to the Owner Trustee and the Certificate Paying
Agent by the Servicer pursuant to Section 4.01 of the Servicing Agreement with
respect to such Payment Date.
Section 5.05. Tax Reporting. The Certificateholders by their acceptance of
-------------
a Certificate, agree to appoint the Servicer as their agent and the Servicer, as
agent for such holders under the Servicing Agreement, has agreed to perform all
duties necessary to comply with federal and state income tax laws.
Any Certificateholder that holds 100% of the Certificates agrees by its
purchase of 100% of the Certificates to treat the Trust Estate as an entity
wholly owned by such Certificateholder for purposes of federal and state income
tax, franchise tax and any other tax measured in whole or in part by income,
with the assets of the entity being the assets held by the Trust, and the Notes
being debt of the Trust.
22
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
-------------------------------
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all moneys
actually received by it constituting part of the Trust Estate upon the terms of
this Trust Agreement and the other Basic Documents to which each is a party. The
Owner Trustee shall not be answerable or accountable hereunder or under any
Basic Document under any circumstances, except (i) for its own willful
misconduct, negligence or bad faith or negligent failure to act or (ii) in the
case of the inaccuracy of any representation or warranty contained in Section
6.03 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) no provision of this Trust Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(b) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(c) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by the Depositor for the form, character, genuineness, sufficiency, value
or validity of any of the Trust Estate, or for or in respect of the validity or
sufficiency of the Basic Documents, the Notes, the Certificates, other than the
certificate of authentication on the Certificates, if executed by the Owner
Trustee and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein or in the other Basic Documents;
(d) the execution, delivery, authentication and performance by the
Owner Trustee of this Trust Agreement will not require the authorization,
consent or approval of, the giving of notice to, the filing or registration
with, or the taking of any other action with respect to, any governmental
authority or agency;
(e) the Owner Trustee shall not be liable for the default or
misconduct of the Depositor, Indenture Trustee, the Certificate Paying Agent,
the Paying Agent or the Servicer under any of the Basic Documents or otherwise
and the Owner Trustee shall have no obligation or liability to perform the
obligations of the Certificate Paying Agent, the Paying Agent, the Depositor or
the Trust under this Trust Agreement or the other Basic Documents that are
required to be performed by the Indenture Trustee or the Paying Agent under the
Indenture or the Seller under the Purchase Agreement; and
23
(f) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it or duties imposed by this Trust Agreement, or
to institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any other Basic Document, at
the request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Trust Agreement or in any
other Basic Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its negligence, bad faith or willful
misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to
-----------------------
the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents other than any Yield Maintenance Agreement.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
--------------------------------
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust Agreement
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound;
(d) This Trust Agreement, assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Owner Trustee, 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;
(e) The Owner Trustee 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
24
condition (financial or other) or operations of the Owner Trustee or its
properties or might have consequences that would materially adversely affect its
performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04. Reliance; Advice of Counsel.
---------------------------
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in
the performance of its duties and obligations under this Trust Agreement or the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents, attorneys, custodians or nominees (including persons acting under a
power of attorney) pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) if such persons have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it at the
expense of the Trust. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the opinion or advice
of any such counsel, accountants or other such Persons and not contrary to this
Trust Agreement or any other Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in this
---------------------------------
Article VI, in accepting the trusts hereby created [_____] acts solely as Owner
Trustee hereunder and not in its individual capacity, and all Persons having any
claim against the Owner Trustee by reason of the transactions contemplated by
this Trust Agreement or any other Basic Document shall look only to the Trust
Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related
-----------------------------------------------------------
Documents. The recitals contained herein and in the Certificates (other than the
- ---------
signatures of the Owner Trustee on the Certificates) shall be taken as the
statements of the Depositor, and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Trust Agreement, of any other Basic Document or
of the Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee shall
at no time
25
have any responsibility or liability with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Trust Agreement or the Noteholders under the
Indenture, including, the compliance by the Depositor or the Seller with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, or any action
of the Certificate Paying Agent, the Certificate Registrar, the Paying Agent or
the Indenture Trustee taken in the name of the Owner Trustee.
Section 6.07 Owner Trustee May Own Certificates and Notes. The Owner
-------------------------------------------------
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Seller, the
Certificate Paying Agent, the Certificate Registrar, the Paying Agent and the
Indenture Trustee in transactions with the same rights as it would have if it
were not Owner Trustee.
26
ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
----------------------------------
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof in accordance with Section 6.06 of
the Servicing Agreement, and the Owner Trustee shall be reimbursed for its
reasonable expenses hereunder and under the other Basic Documents, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may reasonably employ
in connection with the exercise and performance of its rights and its duties
hereunder and under the other Basic Documents which shall be payable by the
Servicer pursuant to Section 3.11 of the Servicing Agreement.
Section 7.02. Indemnification. The Certificateholders of the majority of
---------------
the Percentage Interest of the Certificates shall indemnify, defend and hold
harmless the Owner Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Trust Agreement, the other Basic Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder; provided, however, that:
(a) such Certificateholder shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from the Owner Trustee's willful misconduct, negligence or bad faith or as a
result of any inaccuracy of a representation or warranty contained in Section
6.03 expressly made by the Owner Trustee;
(b) with respect to any such claim, the Indemnified Party shall have
given such Certificateholder written notice thereof promptly after the
Indemnified Party shall have actual knowledge thereof;
(c) while maintaining control over its own defense, such
Certificateholder shall consult with the Indemnified Party in preparing such
defense; and
(d) notwithstanding anything in this Trust Agreement to the contrary,
such Certificateholder shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of such
Certificateholder, which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Trust Agreement. In
the event of any Proceeding for which indemnity may be sought pursuant to this
Section 7.02, the Owner Trustee's choice of legal counsel, if other than the
legal counsel retained by the Owner Trustee in connection with the execution and
delivery of this Trust Agreement, shall be subject to the approval of the
27
Certificateholder of the majority of the Percentage Interest of the
Certificates, which approval shall not be unreasonably withheld. In addition,
upon written notice to the Owner Trustee and with the consent of the Owner
Trustee, which consent shall not be unreasonably withheld, the Certificateholder
of the majority of the Percentage Interest of the Certificates shall have the
right to assume the defense of any Proceeding against the Owner Trustee.
ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement.
------------------------------
(a) This Trust Agreement (other than this Article VIII) and the Trust
shall terminate and be of no further force or effect upon the final distribution
of all moneys or other property or proceeds of the Trust Estate in accordance
with the terms of the Indenture and this Trust Agreement. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall not
(i) operate to terminate this Trust Agreement or the Trust, (ii) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any Proceeding in any court for a partition or winding up of all or any
part of the Trust or the Trust Estate or (iii) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date on which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution thereon and
cancellation thereof, shall be given by the Certificate Paying Agent by letter
to the Certificateholders and the Enhancer mailed within five Business Days of
receipt of notice of such termination from the Owner Trustee, stating (i) the
Payment Date upon or with respect to which final payment of the Certificates
shall be made upon presentation and surrender of the Certificates at the office
of the Certificate Paying Agent therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Certificate Paying Agent
therein specified. The Certificate Paying Agent shall give such notice to the
Owner Trustee and the Certificate Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Certificate Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not have surrendered
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Certificate Paying Agent shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 5.01, all the Certificates shall not
have been surrendered for cancellation, the Certificate Paying Agent may take
appropriate steps, or may appoint an agent to
28
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Distribution Account after exhaustion of such remedies
shall be distributed by the Certificate Paying Agent to the Certificateholder of
the majority of the Percentage Interest of the Certificates with respect to
which such amounts are due.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(c) of the Statutory Trust Statute.
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
-------------------------------------------
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $[_____] and subject
to supervision or examination by federal or state authorities; and having (or
having a parent that has) long-term debt obligations with a rating of at least
[___] by Moody's, Standard & Poor's or Fitch, if rated by Fitch. If such
corporation shall publish reports of condition at least annually pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purpose of this Section, the combined capital and surplus of such
corporation 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
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.01, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at
----------------------------
any time resign and be discharged from the trusts hereby created by giving 30
days' prior written notice thereof to the Enhancer, the Indenture Trustee, the
Paying Agent and the Depositor. Upon receiving such notice of resignation, the
Indenture Trustee shall promptly appoint a successor Owner Trustee with the
consent of the Enhancer, which consent shall not be unreasonably withheld, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Indenture Trustee (and the Indenture Trustee shall make
such request upon (i) the written direction of the Enhancer, so long as the
Enhancer is not in default under the Policy, or (ii) the written direction of
holders of Notes representing not less than a majority of the Note Balance of
the Notes if the Enhancer is in default under the Policy), or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of
29
its property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Indenture Trustee may,
and, at the direction of the Enhancer, shall, remove the Owner Trustee. If the
Indenture Trustee shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Indenture Trustee shall promptly appoint a
successor Owner Trustee reasonably acceptable to the Enhancer by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee,
and shall pay all fees owed to the outgoing Owner Trustee. If the Indenture
Trustee is unable to appoint a successor Owner Trustee within 60 days after any
such direction, the Indenture Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
-------------------------
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Indenture Trustee, the Paying Agent and to its predecessor Owner Trustee an
instrument accepting such appointment under this Trust Agreement, and thereupon
the resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Trust Agreement, with like effect as
if originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Trust Agreement; and
the predecessor Owner Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Owner Trustee all such rights, powers, duties
and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Paying Agent shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders, the Rating Agencies
and the Enhancer. If the Paying Agent shall fail to mail such notice within 10
days after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Paying Agent.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into
------------------------------------------
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein
30
to the contrary notwithstanding; provided, however, that such Person shall be
eligible pursuant to Section 9.01; provided, further, that the Owner Trustee
shall mail notice of such merger or consolidation to the Rating Agencies.
Section 9.05 Appointment of Co-Trustee or Separate Trustee. Notwithstanding
---------------------------------------------
any other provisions of this Trust Agreement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Estate may at the time be located, the Owner Trustee shall have the power
and shall execute and deliver all instruments to appoint one or more Persons to
act as co-trustee, jointly with the Owner Trustee, or as separate trustee or
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust or any part thereof and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Owner Trustee may consider necessary or desirable. No co-trustee
or separate trustee under this Trust Agreement shall be required to meet the
terms of eligibility as a successor Owner Trustee pursuant to Section 9.01 and
no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner 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 singly by
such separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) No trustee under this Trust Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Trust
Agreement; and
(c) The Owner Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article IX. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee.
31
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as 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
Trust 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 Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE X
Miscellaneous
Section 10.01. Amendments.
----------
(a) This Trust Agreement may be amended from time to time by the
parties hereto as specified in this Section 10.01, provided that any such
amendment, except as provided in paragraph (e) below, shall be accompanied by an
Opinion of Counsel addressed to the Owner Trustee and the Enhancer to the effect
that such amendment complies with the provisions of this Section.
(b) If the purpose of any such amendment (as detailed therein) is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered in this Trust Agreement (i.e., to give effect to the
intent of the parties), it shall not be necessary to obtain the consent of any
Certificateholders, but the Owner Trustee shall be furnished with (i) a letter
from each Rating Agency that the amendment will not result in a Rating Event,
determined without regard to the Policy and (ii) an Opinion of Counsel to the
effect that such action will not adversely affect in any material respect the
interests of any Certificateholder, and the consent of the Enhancer shall be
obtained.
(c) If the purpose of the amendment is to prevent the imposition of
any federal or state taxes at any time that any Security is outstanding (i.e.,
technical in nature), it shall not be necessary to obtain the consent of any
Certificateholder, but the Owner Trustee shall be furnished with an Opinion of
Counsel that such amendment is necessary or helpful to prevent the imposition of
such taxes and is not materially adverse to any Certificateholder and the
consent of the Enhancer shall be obtained.
(d) If the purpose of the amendment is to add or eliminate or change
any provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (i) the consent of the Enhancer and an
Opinion of Counsel to the effect that such action will not adversely affect in
any material respect the interests of any Certificateholder and (ii) either (A)
a letter from each Rating Agency that such amendment will not cause a Rating
Event, if determined without regard to the Policy or (B) the consent of
Certificateholders evidencing a majority of the aggregate Certificate Percentage
Interest and the Indenture Trustee; provided, however, that no such amendment
shall reduce in any manner the amount of, or delay the timing of, payments
received that are required to be distributed on any Certificate without the
consent of each Certificateholder affected thereby and the Enhancer, or reduce
the aforesaid percentage of Certificates the Certificateholders of which are
required to
32
consent to any such amendment, without the consent of the Certificateholders of
all such Certificates then outstanding; provided, further, that no Certificate
registered in the name of the Seller or an Affiliate of the Seller shall be
considered a Certificate for purposes of such consent.
(e) No amendment of this Trust Agreement may provide for the holding
of any of the Certificates in book-entry form.
(f) If the purpose of any such amendment is to provide for the
issuance of additional Certificates representing an interest in the Trust, it
shall not be necessary to obtain the consent of any Certificateholder, but the
Owner Trustee shall be furnished with (i) an Opinion of Counsel to the effect
that such action will not adversely affect in any material respect the interests
of any Certificateholders and (B) a letter from each Rating Agency to the effect
that such amendment will not cause a Rating Event, if determined without regard
to the Policy, and the consent of the Enhancer shall be obtained.
(g) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee, the
Paying Agent, the Enhancer and each of the Rating Agencies. It shall not be
necessary for the consent of Certificateholders or the Indenture Trustee
pursuant to this Section 10.01 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Trust Agreement or in any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement
to which the Trust is a party, other than this Trust Agreement, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
documents subject to such amendment and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
(i) The Owner Trustee may, but shall not be obligated to, execute any
amendment which adversely affects its rights, duties or immunities hereunder.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Section 10.02. No Legal Title to Trust Estate. The Certificateholders shall
------------------------------
not have legal title to any part of the Trust Estate. The Certificateholders
shall be entitled to receive distributions with respect to their undivided
beneficial interest therein only in accordance with Articles V and VIII. No
transfer, by operation of law or otherwise, of any right, title or interest of
the Certificateholders to and in their ownership interest in the Trust Estate
shall operate to terminate this Trust Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
33
Section 10.03. Limitations on Rights of Others. Except for Section 2.07,
--------------------------------
the provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Enhancer and, to the extent
expressly provided herein, the Paying Agent, the Indenture Trustee and the
Noteholders, and nothing in this Trust Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Trust Estate or under or in
respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04. Notices.
-------
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt:
if to the Owner Trustee, addressed to its Corporate Trust Office; if to the
Paying Agent, addressed to its Corporate Trust Office, if to the Certificate
Paying Agent, addressed to [_____], [_____] Attention: [_____], with a copy to
the Corporate Trust Office of the Indenture Trustee, if to the Depositor,
addressed to Wachovia Asset Securitization Issuance, LLC, 8739 Research Drive,
NC0121-Suite D, Charlotte, North Carolina 28288-0121, Attention: Robert J.
Perret, Telecopier: (704) 383-8121; if to the Enhancer, addressed to [_____],
[_____], Attention: [_____], Telecopier: [_____] (Wachovia Asset Securitization
Issuance, LLC [_____] Trust); if to the Rating Agencies, addressed to Moody's
Investors Service, Inc., 99 Church Street, 4th Floor, New York, New York 10001
and Standard & Poor's, a division of The McGraw-Hill Companies, Inc., 55 Water
Street, New York, New York 10004, Attention: Structured Finance Department -
MBS; or, as to each of the foregoing Persons, at such other address as shall be
designated by such Person in a written notice to each of the other foregoing
Persons.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Trust Agreement to a
Certificateholder shall be conclusively presumed to have been duly given,
whether or not such Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust
shall also be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be executed
---------------------
by the parties hereto in any number of counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties,
----------------------
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the
34
Enhancer, the Depositor, the Owner Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this Trust
-----------
Agreement, and each Certificateholder, by accepting a Certificate, hereby
covenants and agrees that it will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy Proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the other Basic
Documents.
Section 10.09. No Recourse. Each Certificateholder, by accepting a
------------
Certificate, acknowledges that such Certificateholder's Certificate represents a
beneficial interest in the Trust only and does not represent an interest in or
obligation of the Depositor, the Seller, the Owner Trustee, the Indenture
Trustee, the Paying Agent or any Affiliate thereof, and that no recourse may be
had against such Persons or their assets, except as may be expressly set forth
or contemplated in the Certificates, this Trust Agreement or the other Basic
Documents.
Section 10.10. Headings. The headings of the various Articles and Sections
--------
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12 Integration. This Trust Agreement constitutes the entire
-----------
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understanding pertaining thereto.
Section 10.13 Rights of Enhancer to Exercise Rights of Certificateholders.
------------------------------------------------------------
By accepting its Certificate, each Certificateholder agrees that unless a
Enhancer Default exists, the Enhancer shall have the right to exercise all
rights of the Certificateholders under this Trust Agreement without any further
consent of the Certificateholders. Nothing in this Section, however, shall alter
or modify in any way, the fiduciary obligations of the Owner Trustee to the
Certificateholders pursuant to this Trust Agreement, or create any fiduciary
obligation of the Owner Trustee to the Enhancer. The Enhancer shall be an
express third party beneficiary of this Trust Agreement.
35
IN WITNESS WHEREOF, the Depositor and the Owner 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.
WACHOVIA ASSET SECURITIZATION
ISSUANCE, LLC,
as Depositor
By:
---------------------------
Name:
Title:
[______],
not in its individual
capacity but solely as Owner
Trustee, except with respect
to the representations and
warranties contained in
Section 6.03 hereof
By:
---------------------------
Name:
Title:
Acknowledged and Agreed:
[______],
not in its individual capacity but solely
as Indenture Trustee
By:
------------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar and Certificate
Paying Agent
By:
------------------------------------------
Name:
Title:
36
WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC
[_____] TRUST,
By: [_____],
not in its individual capacity but solely
as Owner Trustee
By:
------------------------------------------
Name:
Title:
37
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES 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
STATE LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND SUCH STATE LAWS AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 3.05 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
RESTRICTIONS AND THE FIDUCIARY RESPONSIBILITY REQUIREMENTS 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"), ANY PERSON ACTING,
DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY PERSON USING "PLAN
ASSETS," WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS SECTION
2510.3-101, TO ACQUIRE THIS CERTIFICATE (EACH, A "PLAN INVESTOR"), OR (ii) IF
THIS CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN INVESTOR,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER AND THE CERTIFICATE REGISTRAR, OR
A CERTIFICATION IN THE FORM OF EXHIBIT G TO THE AGREEMENT, TO THE EFFECT THAT
THE PURCHASE OR HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT
ENACTMENTS) AND WILL NOT SUBJECT THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER,
THE CERTIFICATE REGISTRAR, OR THE CERTIFICATE PAYING AGENT TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THE TRANSFEREE OF THIS CERTIFICATE SHALL BE SUBJECT TO UNITED STATES
FEDERAL WITHHOLDING TAX UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A
CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A
U.S. PERSON OR CORPORATION OR PARTNERSHIP UNDER U.S. LAW.
A-1
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE,
the Paying Agent OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY
PROVIDED IN THE AGREEMENT OR THE OTHER BASIC DOCUMENTS.
A-2
Certificate No. 1
Cut-Off Date:
[______]
Date of Trust Agreement:
[______]
First Payment Date: Percentage Interest: 100%
[______]
Final Payment Date:
[______]
WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC
ASSET-BACKED CERTIFICATES, SERIES [_____]
evidencing a fractional undivided interest in Wachovia Asset Securitization
Issuance, LLC [_____] Trust (the "Issuer"), the property of which consists
primarily of the Mortgage Loans.
This Certificate is payable solely from the assets of the Trust Estate, and
does not represent an obligation of or interest in the Depositor, the Seller,
the Servicer, the Indenture Trustee, the Paying Agent or the Owner Trustee or
any of their Affiliates. This Certificate is not guaranteed or insured by any
governmental agency or instrumentality or by the Depositor, the Seller, the
Servicer, the Indenture Trustee, the Paying Agent or the Owner Trustee or any of
their affiliates. None of the Depositor, the Seller, the Servicer, the Indenture
Trustee, the Paying Agent or the Owner Trustee or any of their Affiliates will
have any obligation with respect to any certificate or other obligation secured
by or payable from payments on the Certificates.
This certifies that Wachovia Asset Securitization Issuance, LLC is the
registered owner of the Certificate Percentage Interest evidenced by this
Certificate (as set forth on the face hereof) in certain distributions with
respect to the Trust Estate, consisting primarily of the Mortgage Loans, created
by Wachovia Asset Securitization Issuance, LLC (the "Depositor"). The Trust (as
defined herein) was created pursuant to a trust agreement dated as of [_____]
(as amended and supplemented from time to time, the "Agreement"), among the
Depositor and [_____], as owner trustee (the "Owner Trustee," which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in Appendix A to the indenture dated as of [_____], among the Trust, the Paying
Agent and the Indenture Trustee. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof assents
and by which such Certificateholder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
[___] day of each month or, if such [___] day is not a Business Day, the
Business Day immediately following (the "Payment Date"), commencing on the first
Payment Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last
A-3
day is not a Business Day, the Business Day immediately preceding such last day)
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the pro rata portion evidenced by this Certificate
(based on the Percentage Interest stated on the face hereon) of the amount, if
any, required to be distributed to Certificateholders of Certificates on such
Payment Date. Distributions on this Certificate will be made as provided in the
Agreement by the Certificate Paying Agent by wire transfer to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Pursuant
to the Agreement, the Trust has issued the Certificates.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Certificate Paying Agent of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
designated by the Certificate Registrar for that purpose.
No transfer of this Certificate will be made unless such transfer is exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and any applicable state securities laws or is made in
accordance the Securities Act and such state laws. In the event that such a
transfer is to be made, (i) the Certificate Registrar or the Depositor may
require an opinion of counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor 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,
and of any applicable statute of any state and (ii) the transferee shall execute
an investment letter in the form described in the Agreement and (iii) the
Certificate Registrar shall require the transferee to execute an investment
letter and a Certificate of Non-Foreign Status in the form described by the
Agreement (or if a Certificate of Non-Foreign Status is not provided, an Opinion
of Counsel as described in the Agreement), which investment letter and
certificate or Opinion of Counsel shall not be at the expense of the Trust, the
Owner Trustee, the Certificate Registrar or the Depositor. The Certificateholder
hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trust, the Owner Trustee, the Depositor, the Servicer, the
Certificate Registrar and the Certificate Paying Agent 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
Certificate Registrar (unless otherwise directed by the Depositor) will also
require either (i) a representation letter, in the form as described by the
Agreement, stating that the transferee is not an employee benefit or other plan
subject to the prohibited transaction restrictions or the fiduciary
responsibility requirements of ERISA or Section 4975 of the Code (a "Plan"), any
person acting, directly or indirectly, on behalf of any such Plan or any Person
using the "plan assets," within the meaning of the Department of Labor
Regulations Section 2510.3-101, to effect such acquisition (collectively, a
"Plan Investor") or (ii) if such transferee is a Plan Investor, an opinion of
counsel acceptable to and in form and substance satisfactory to the Depositor,
the Owner Trustee, the Servicer and the Certificate Registrar, or a
certification in the form of Exhibit G to the Agreement, to the effect that the
purchase or holding of such Certificate is permissible under applicable law,
will not constitute or result in a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Depositor, the Owner Trustee, the Servicer,
the Enhancer or the Certificate Registrar to any obligation or liability
(including obligations or liabilities under Section 406 of ERISA or Section 4975
of the Code) in addition to those undertaken in the Agreement.
A-4
This Certificate is one of a duly authorized issue of Certificates
designated as Wachovia Asset Securitization Issuance, LLC Asset-Backed
Certificates of the Series specified hereon (the "Certificates").
The Certificateholder of this Certificate, by its acceptance hereof, agrees
that it will look solely to the funds on deposit in the Distribution Account
that have been released from the Lien of the Indenture for payment hereunder and
that neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement.
The Certificateholder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are subordinated
to the rights of the Noteholders as described in the Indenture.
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Agreement or any of the other Basic Documents.
The Agreement permits the amendment thereof as specified below, provided
that any amendment be accompanied by the consent of the Enhancer and an Opinion
of Counsel to the Owner Trustee to the effect that such amendment complies with
the provisions of the Agreement and will not cause the Trust to be subject to an
entity level tax. If the purpose of any such amendment is to correct any
mistake, eliminate any inconsistency, cure any ambiguity or deal with any matter
not covered, it shall not be necessary to obtain the consent of any
Certificateholder, but the Owner Trustee shall be furnished with a letter from
each Rating Agency to the effect that such amendment will not cause a Rating
Event, determined without regard to the Policy, and the consent of the Enhancer
shall be obtained. If the purpose of any such amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
Outstanding, it shall not be necessary to obtain the consent of the any
Certificateholder, but the Owner Trustee shall be furnished with an Opinion of
Counsel that such amendment is necessary or helpful to prevent the imposition of
such taxes and is not materially adverse to any Certificateholder and the
consent of the Enhancer shall be obtained. If the purpose of the amendment is to
add or eliminate or change any provision of the Agreement, other than as
specified in the preceding two sentences, the amendment shall require either (a)
a letter from each Rating Agency to the effect that such amendment will not
cause a Rating Event, determined without regard to the Policy or (b) the consent
of Certificateholders of a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate without
the consent of all Certificateholders affected thereby and the Enhancer, or (ii)
reduce the aforesaid percentage of Certificates the Certificateholders of which
are required to consent to any such amendment without the consent of the
Certificateholders of all such Certificates then outstanding.
A-5
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the Certificate Registrar, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Certificateholder hereof or such Certificateholder's attorney
duly authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee. The initial Certificate Registrar
appointed under the Agreement is the Paying Agent.
Except as provided in the Agreement, the Certificates are issuable only in
minimum denominations of a 10.0000% Percentage Interest and in integral
multiples of a 0.0001% Percentage Interest in excess thereof. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of authorized denominations, as requested
by the Certificateholder surrendering the same. This Certificate is issued in
the Percentage Interest above.
No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar
and any agent of the Owner Trustee, the Certificate Paying Agent, or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
This Certificate shall be governed by and construed in accordance with the
laws of the State of Delaware.
The obligations created by the Agreement in respect of this Certificate and
the Trust created thereby shall terminate upon the final distribution of all
moneys or other property or proceeds of the Trust Estate in accordance with the
terms of the Indenture and the Agreement.
It is the intent of the Depositor, the Issuer and the Certificateholder
that for federal, state and local income, single business and franchise tax
purposes, (a) the Trust will not be treated as an association (or publicly
traded partnership) taxable as a corporation or a taxable mortgage pool and (b)
the Trust will not fail to be treated as a disregarded entity.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee or the Indenture Trustee, as
authenticating agent by manual signature, this Certificate shall not be entitled
to any benefit under the Agreement or be valid for any purpose.
A-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
WACHOVIA ASSET SECURITIZATION
ISSUANCE, LLC [_____] TRUST
By: [_____],
not in its individual
capacity but solely as
Owner Trustee
Dated: [_____] By:
---------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
[______],
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------------
Authorized Signatory
or ,
------------------------------------------
as Authenticating Agent of the Owner Trustee
By:
------------------------------------------
Authorized Signatory
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
________________________________ */
Signature Guaranteed: -
________________________________ */
-
- --------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
to_______________________________________________________
_______________________________________________________
for the account of ___________________________________________, account number
, or, if mailed by check, to ____________________________________.
Applicable statements should be mailed to ____________________________.
------------------------------
Signature of assignee or agent
(for authorization of wire
transfer only)
A-9
EXHIBIT B
CERTIFICATE OF TRUST
OF
WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC [_____] TRUST
THE UNDERSIGNED, [_____], as owner trustee (the "Trustee"), for the purpose
of forming a statutory trust does hereby certify as follows:
1. The name of the statutory trust is:
WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC [_____] TRUST
2. The name and business address of the Trustee of the statutory trust in
the State Delaware is [_____], [_____].
3. The statutory trust reserves the right to amend, alter, change, or
repeal any provision contained in this Certificate of Trust in the manner now or
hereafter prescribed by law.
4. This Certificate of Trust shall be effective upon filing.
THE UNDERSIGNED, being the Trustee hereinbefore named, for the purpose of
forming a statutory trust pursuant to the provisions of the Delaware Statutory
Trust Act, does make this certificate of trust, hereby declaring and further
certifying that this is its act and deed and that to the best of the
undersigned's knowledge and belief the facts herein stated are true.
[_____],
not in its individual
capacity but solely as owner
trustee under the trust
agreement to be dated as of
[_____]
By:
---------------------------
Name:
Title:
Dated: [_____]
B-1
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the
"Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby
certifies the following facts: Neither the Seller nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the Owner
Trustee and the Depositor, pursuant to Section 3.09 of the trust agreement dated
as of [_____] (the "Agreement"), among Wachovia Asset Securitization Issuance,
LLC, as depositor (the "Depositor"), and [_____], as owner trustee (the "Owner
Trustee"), as follows:
a. The Buyer understands that the Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding the
Rule 144A Securities that it has requested from the Seller, the Indenture
Trustee, the Owner Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a
C-1
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security with, any person in any manner, or made any general solicitation
by means of general advertising or in any other manner, or taken any other
action, that would constitute a distribution of the Rule 144A Securities
under the 1933 Act or that would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will it
authorize any person to act, in such manner with respect to the Rule 144A
Securities.
e. The Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. The Buyer is aware that the sale to it is being made in reliance on Rule
144A. The Buyer is acquiring the Rule 144A Securities for its own account
or the accounts of other qualified institutional buyers, understands that
such Rule 144A Securities may be resold, pledged or transferred only (i) to
a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the 1933 Act.
3. The Buyer represents that:
(i) either (a) or (b) is satisfied, as marked below:
____ a. The Buyer is not any employee benefit plan subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or the Internal Revenue Code of 1986, as amended (the "Code"), a
Person acting, directly or indirectly, on behalf of any such plan or
any Person acquiring such Certificates with "plan assets" of a Plan
within the meaning of the Department of Labor Regulations Section
2510.3-101; or
____ b. The Buyer will provide the Depositor, the Owner Trustee, the
Certificate Registrar, the Enhancer and the Servicer with either: (x)
an opinion of counsel, satisfactory to the Depositor, the Owner
Trustee, the Certificate Registrar, the Enhancer and the Servicer, to
the effect that the purchase and holding of a Certificate by or on
behalf of the Buyer is permissible under applicable law, will not
constitute or result in a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Depositor, the Owner
Trustee, the Certificate Registrar, the Certificate Paying Agent, the
Enhancer or the Servicer to any obligation or liability (including
liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in the Trust Agreement, which opinion of counsel
shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar, the Enhancer or the Servicer; or (y) in lieu of
C-2
such opinion of counsel, a certification in the form of Exhibit G to
the Trust Agreement; and
(ii) the Buyer is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that
each of the parties to which this certification is made is relying and
will continue to rely on the statements made in this paragraph 3.
This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the indenture dated as of [_____],
among the Trust, the Paying Agent and the Indenture Trustee.
C-3
IN WITNESS WHEREOF, each of the parties has executed this document as of
the date set forth below.
- ------------------------------ ---------------------------------
Print Name of Seller Print Name of Buyer
By: By:
--------------------------- ------------------------------
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
---------------------------- ------------------------------
Date: Date:
------------------------- ------------------------------
C-4
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $ 1 in securities (except for the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A) and (ii) the Buyer
satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any state, territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
- --------
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-5
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state or
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a state, its political subdivisions, or any agency
or instrumentality of the state or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940. as amended.
___ SBIC. The Buyer is a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958, as amended.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940, as amended.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
established and maintained by a state, its political
subdivisions, or any agency or instrumentality of the state or
its political subdivisions, for the benefit of its employees, or
(b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, as amended, but
is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Rule 144A
Securities are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer may be in reliance on Rule 144A.
____ ____ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that,
in connection with any purchase of securities sold to the Buyer for the account
of a third party (including any separate account) in reliance on Rule 144A, the
Buyer will only purchase for the account of a third party that at the time is a
"qualified institutional buyer" within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party
unless the Buyer has obtained a current representation letter from such third
party or taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification is
made of any changes in the information and conclusions herein. Until such notice
is given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
---------------------------------
Print Name of Buyer
By:
------------------------------
Name:
Title:
Date:
----------------------------
C-7
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
____ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made
C-8
herein because one or more sales to the Buyer will be in reliance on Rule 144A.
In addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
---------------------------------
Print Name of Buyer
By:
------------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------
Print Name of Buyer
Date:
----------------------------
C-9
EXHIBIT D
FORM OF INVESTOR REPRESENTATION LETTER
___________________, ___
Wachovia Asset Securitization Issuance, LLC
8739 Research Drive
NC0121 Suite D
Charlotte, North Carolina 28288-0121
[______]
[______]
[______]
Attention: [______]
Wachovia Bank, National Association
401 South Tryon Street-NC 1179,
Charlotte, NC 28288,
Attn: Structure Finance Trust Services
Re: Wachovia Asset Securitization Issuance, LLC
Asset-Backed Certificates, Series [_____]
--------------------------------------------
Ladies and Gentlemen:
___________________ (the "Purchaser") intends to purchase from
___________________ (the "Seller") % Certificate Percentage Interest of Series
[_____] (the "Certificates"), issued pursuant to the trust agreement dated as of
[_____] (the "Trust Agreement"), among Wachovia Asset Securitization Issuance,
LLC, as depositor (the "Depositor") and [_____], as owner trustee (the "Owner
Trustee"). Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in Appendix A to the indenture dated as of
[_____], among the Trust, the Paying Agent and the Indenture Trustee. The
Purchaser hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Certificate Registrar that:
1. The Purchaser understands that (a) the Certificates have not been
and will not be registered or qualified under the Securities Act of 1933,
as amended (the "Act"), or any state securities law, (b) the Company is not
required to so register or qualify the Certificates, (c) the Certificates
may be resold only if registered and qualified pursuant to the provisions
of the Act or any state securities law, or if an exemption from such
registration and qualification is available, (d) the Trust Agreement
contains restrictions regarding the transfer of the Certificates and (e)
the Certificates will bear a legend to the foregoing effect.
D-1
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any
applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters, and, in particular, in such matters related to securities similar
to the Certificates, such that it is capable of evaluating the merits and
risks of investment in the Certificates, (b) able to bear the economic
risks of such an investment and (c) an "accredited investor" within the
meaning of Rule 501(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity
to review a copy of the Trust Agreement and such other information
concerning the Certificates, the Mortgage Loans and the Depositor as has
been requested by the Purchaser from the Depositor or the Seller and is
relevant to the Purchaser's decision to purchase the Certificates. The
Purchaser has had any questions arising from such review answered by the
Depositor or the Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicit any offer to buy
or to accept a pledge, disposition of other transfer of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approach or negotiate with respect to
any Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) make any general solicitation
by means of general advertising or in any other manner or (e) take any
other action, that (as to any of (a) through (d) above) would constitute a
distribution of any Certificate under the Act, that would render the
disposition of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer any of
the Certificates, except in compliance with the provisions of the Trust
Agreement.
6. The Purchaser represents:
(i) that either (a) or (b) is satisfied, as marked below:
____ a. The Purchaser is not any employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended (the
"Code"), a Person acting, directly or indirectly, on behalf of any
such plan or any Person acquiring such Certificates with "plan assets"
of a Plan within the meaning of the Department of Labor Regulations
Section 2510.3-101; or
____ b. The Purchaser will provide the Depositor, the Owner
Trustee, the Certificate Registrar, the Enhancer and the Servicer with
either: (x) an opinion of counsel, satisfactory to the Depositor, the
Owner Trustee, the
D-2
Certificate Registrar, the Enhancer and the Servicer, to the effect
that the purchase and holding of a Certificate by or on behalf of the
Purchaser is permissible under applicable law, will not constitute or
result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Depositor, the Owner Trustee, the
Certificate Registrar, the Certificate Paying Agent, the Enhancer or
the Servicer to any obligation or liability (including liabilities
under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Trust Agreement, which opinion of counsel shall not
be an expense of the Depositor, the Owner Trustee, the Certificate
Registrar, the Enhancer or the Servicer; or (y) in lieu of such
opinion of counsel, a certification in the form of Exhibit G to the
Trust Agreement; and
(ii) the Purchaser is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406 and
407 of ERISA and Section 4975 of the Code and understands that each of the
parties to which this certification is made is relying and will continue to
rely on the statements made in this paragraph 6.
7. The Purchaser is not a non-United States person.
Very truly yours,
By:
------------------------------
Name:
Title:
D-3
EXHIBIT E
FORM OF TRANSFEROR REPRESENTATION LETTER
___________________, ___
Wachovia Asset Securitization Issuance, LLC
8739 Research Drive
NC0121 Suite D
Charlotte, North Carolina 28288-0121
[______]
[______]
[______]
Attention: [_____]
Wachovia Bank, National Association
401 South Tryon Street-NC 1179,
Charlotte, NC 28288,
Attn: Structure Finance Trust Services
Re: Wachovia Asset Securitization Issuance, LLC
Asset-Backed Certificates, Series [_____]
--------------------------------------------
Ladies and Gentlemen:
____________________ (the "Purchaser") intends to purchase from
_________________ (the "Seller") a ______% Percentage Interest of Certificates
of Series [_____] (the "Certificates"), issued pursuant to the trust agreement
dated as of [_____] (the "Trust Agreement"), among Wachovia Asset Securitization
Issuance, LLC, as depositor (the "Depositor"), and [_____], as owner trustee
(the "Owner Trustee"). Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in Appendix A to the indenture
dated as of [_____], among the Trust, the Paying Agent and the Indenture
Trustee. The Seller hereby certifies, represents and warrants to, and covenants
with, the Depositor and the Certificate Registrar that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that
E-1
would render the disposition of any Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto.
The Seller will not act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Seller has not and will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions of
the Trust Agreement.
Very truly yours,
---------------------------------
(Seller)
By:
------------------------------
Name:
Title:
E-2
EXHIBIT F
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status is delivered pursuant to Section
3.09 of the trust agreement dated as of [_____] (the "Trust Agreement"), among
Wachovia Asset Securitization Issuance, LLC, as depositor (the "Depositor"), and
[_____], as owner trustee, in connection with the acquisition of, transfer to or
possession by the undersigned, whether as beneficial owner (the "Beneficial
Owner"), or nominee on behalf of the Beneficial Owner of Wachovia Asset
Securitization Issuance, LLC Asset-Backed Certificates, Series [_____] (the
"Certificates"). Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in Appendix A to the indenture dated as
of [_____], among the Trust, the Paying Agent and the Indenture Trustee.
Each holder must complete Part I, Part II (if the holder is a nominee), and
in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of
the Internal Revenue Code (relating to withholding tax on foreign partners) do
not apply in respect of the Certificates held by the undersigned, the
undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (the Beneficial Owner is ) not a non-resident alien for
purposes of U.S. income taxation;
2. My (the Beneficial Owner's) name and home address are:
______________________________
______________________________
______________________________; and
3. My (the Beneficial Owner's) U.S. taxpayer identification
number (Social Security Number) is ____________________.
B. Corporate, Partnership or Other Entity as Beneficial Owner
1. ________________ (Name of the Beneficial Owner) is not a
foreign corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the Code and
Treasury Regulations;
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is
F-1
______________________________
______________________________
______________________________; and
3. The Beneficial Owner's U.S. employer identification number
is .
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this Certificate has been made in reliance upon
information contained in:
____ an IRS Form W-9
____ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
- ------------------------------------------
Name
- ------------------------------------------
Title (if applicable)
- ------------------------------------------
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
F-2
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
____________________, ___
Wachovia Asset Securitization Issuance, LLC
8739 Research Drive
NC0121 Suite D
Charlotte, North Carolina 28288-0121
[______]
[______]
[______]
Wachovia Bank, National Association
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
[______]
[______]
[______]
Attention: [_____]
Re: Wachovia Asset Securitization Issuance, LLC
Asset-Backed Certificates, Series [_____]
--------------------------------------------
Dear Sirs:
___________________________ (the "Transferee") intends to acquire from
__________________ (the "Transferor") a _______% Percentage Interest of Wachovia
Asset Securitization Issuance, LLC Asset-Backed Certificates, Series [_____]
(the "Certificates"), issued pursuant to a trust agreement dated as of [_____],
among Wachovia Asset Securitization Issuance, LLC, as depositor (the
"Depositor"), and [_____], as owner trustee (the "Owner Trustee"). Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in Appendix A to the indenture dated as of [_____], among the
Trust, the Paying Agent and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and covenants
with, the Depositor, the Owner Trustee, the Certificate Registrar, the Enhancer
and the Servicer that:
The Certificates (i) are not being acquired by, and will not be transferred
to, any employee benefit plan within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other retirement arrangement, including individual retirement accounts and
annuities, Keogh plans and bank collective
G-1
investment funds and insurance company general or separate accounts in
which such plans, accounts or arrangements are invested, that is subject to
Section 406 of ERISA or Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") (any of the foregoing, a "Plan"), (ii) are not
being acquired with "plan assets" of a Plan within the meaning of the
Department of Labor ("DOL") Regulations Section 2510.3-101, and (iii) will
not be transferred to any entity that is deemed to be investing in plan
assets within the meaning of the DOL Regulations Section 2510.3-101.
The Transferee is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406 and
407 of ERISA and Section 4975 of the Code and understands that each of the
parties to which this certification is made is relying and will continue to
rely on the statements made herein.
Very truly yours,
---------------------------------
By:
------------------------------
Name:
Title:
G-2
EXHIBIT H
FORM OF REPRESENTATION LETTER
__________________, ____
Wachovia Asset Securitization Issuance, LLC
8739 Research Drive
NC0121 Suite D
Charlotte, North Carolina 28288-0121
[______]
[______]
[______]
Wachovia Bank, National Association
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
[______]
[______]
[______]
Attention: [_____]
Re: Wachovia Asset Securitization Issuance, LLC
Asset-Backed Certificates, Series [_____]
Dear Sirs:
_________________ (the "Transferee") intends to acquire from ____________
(the "Transferor") a ____% Percentage Interest of Wachovia Asset Securitization
Issuance, LLC Asset-Backed Certificates, Series [_____] (the "Certificates"),
issued pursuant to a trust agreement dated as of [_____] (the "Trust
Agreement"), Wachovia Asset Securitization Issuance, LLC, as depositor (the
"Depositor"), and [_____], as owner trustee (the "Owner Trustee"). Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in Appendix A to the indenture dated as of [_____], among the
Trust, the Paying Agent and the Indenture Trustee.
The Transferee hereby certifies, represents and warrants to, and covenants
with, the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer that:
(1) the Transferee is acquiring the Certificate for its own behalf and
is not acting as agent or custodian for any other person or entity in
connection with such acquisition; and
H-1
(2) the Transferee is not a partnership, grantor trust or S
corporation for federal income tax purposes, or, if the Transferee is a
partnership, grantor trust or S corporation for federal income tax
purposes, the Certificates are not more than 50% of the assets of the
partnership, grantor trust or S corporation.
Very truly yours,
------------------------------
By:
---------------------------
Name:
Title:
H-2
EXHIBIT I
FORM OF ADDITION NOTICE
DATE:
[_____] Standard & Poor's, a division of The McGraw-
[_____] Hill Companies, Inc.
[_____] 26 Broadway
Attention: [_____] New York, New York 10004-1064
Wachovia Asset Securitization Moody's Investors Service, Inc.
Issuance, LLC 99 Church Street
[_____] Trust New York, New York 10007
c/o [_____],
as Owner Trustee
[______]
[______]
[______]
Attn: [_____]
Wachovia Bank, National Association [_____]
401 South Tryon Street-NC 1179, [_____]
Charlotte, NC 28288, [_____]
Attn: Structure Finance Trust Services [_____]
Re: WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC
-------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 3.05 of the Trust Agreement, dated as of [_____] (the
"Trust Agreement"), among and Wachovia Asset Securitization Issuance, LLC, as
Depositor and Wachovia Asset Securitization Issuance, LLC [_____] Trust, as
Issuer, the Depositor, the Issuer has designated the Subsequent Mortgage Loans
identified on the Mortgage Loan Schedule attached hereto to be sold to the
Issuer on __________, ____, with an aggregate Principal Balance of
$______________. Capitalized terms not otherwise defined herein have the meaning
set forth in the Appendix A to the Indenture dated as of [_____], among the
Issuer, the Paying Agent and [_____], as indenture trustee.
I-1
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
WACHOVIA ASSET SECURITIZATION
ISSUANCE, LLC,
[_____] TRUST, as Issuer
By:[_____], not in its individual
capacity but solely as Owner
Trustee
By:
------------------------------
Name:
Title:
WACHOVIA ASSET SECURITIZATION
ISSUANCE, LLC
as Depositor
By:
------------------------------
Name:
Title:
EXHIBIT J
FORM OF TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No. (the "Agreement"), dated
as of __________, ____, among Wachovia Asset Securitization Issuance, LLC, as
seller (the "Depositor"), and Wachovia Asset Securitization Issuance, LLC
[_____] Trust (the "Issuer") and pursuant to the Trust Agreement dated as of
[_____] (the "Trust Agreement"), among the Depositor and the Issuer, the
Depositor and the Issuer agree to the sale by the Depositor and the purchase by
the Issuer of the mortgage loans listed on the attached Schedule of Subsequent
Mortgage Loans (the "Subsequent Mortgage Loans").
Capitalized terms used and not defined herein have their respective
meanings as set forth in Appendix A to the Indenture dated as of [_____], among
the Issuer, Wachovia Bank, National Association, as Paying Agent (the "Paying
Agent") and [_____], as indenture trustee (the "Indenture Trustee"), which
meanings are incorporated by reference herein. All other capitalized terms used
herein shall have the meanings specified herein.
Section 1. Sale of Subsequent Mortgage Loans.
---------------------------------
(a) The Depositor, by the execution and delivery of this Agreement, does
hereby sell, assign, set over, and otherwise convey to the Issuer, without
recourse (except as expressly provided herein and in the Trust Agreement), all
of its right, title and interest, whether now owned or existing or hereafter
created, arising, or acquired, in, to and under the following: (i) the
Subsequent Mortgage Loans identified on the Mortgage Loan Schedule attached
hereto as Attachment B and the other related Subsequent Transferred Property
purchased by the Depositor from the Seller pursuant to the Purchase Agreement;
provided, however, that the Issuer does not assume any obligations (including
any obligations to fund Draws) arising under or related to the Related
Documents. Such conveyance shall be deemed to be made: (1) with respect to the
Cut-Off Date Principal Balances, with respect to the Subsequent Mortgage Loans,
as of the related Subsequent Transfer Date; and (2) with respect to the amount
of each Additional Balance created on or after the Subsequent Cut-Off Date and
prior to the commencement of the Rapid Amortization Period, as of the later of
the related Subsequent Cut-Off Date and the date that the corresponding Draw was
made pursuant to the related Loan Agreement, subject to the receipt by the
Depositor of consideration therefore as provided in Section 3.02(c) of the Trust
Agreement. The Depositor, contemporaneously with the delivery of this Agreement,
has delivered or caused to be delivered to the Issuer each item set forth in
Section 3.04 of the Trust Agreement.
The transfer to the Issuer by the Depositor of the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule shall be absolute and is intended
by the parties hereto to constitute a sale by the Depositor to the Issuer on the
Subsequent Transfer Date of all the Depositor's right, title and interest in and
to the Subsequent Mortgage Loans, and other related Subsequent Transferred
Property as and to the extent described above, and the Issuer hereby
acknowledges such transfer. In the event the transactions set forth herein are
deemed not to be a sale, the Depositor hereby grants to the Issuer a security
interest in all of the Depositor's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Subsequent Transferred Property to
secure all of the Depositor's obligations hereunder, and this Agreement shall
and hereby does constitute a security agreement under applicable law. The
Depositor agrees to take or cause to be taken such actions and to execute such
documents, including
without limitation the authorization and filing of any continuation statements
with respect to the UCC financing statements filed with respect to the
Subsequent Transferred Property by the Depositor on the related Subsequent
Transfer Date, if any, and any amendments thereto required to reflect a change
in the name or structure of the Depositor or the filing of any additional UCC
financing statements due to the change in the principal office or jurisdiction
of organization of the Depositor as are necessary to perfect and protect the
Issuer's interests in the Subsequent Transferred Property. The Depositor shall
file any such continuation statements or amendments on a timely basis.
(b) The expenses and costs relating to the delivery of the Subsequent
Mortgage Loans and the related Subsequent Transferred Property, this Agreement
and the Mortgage Loan Purchase Agreement shall be borne by the Depositor.
(c) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Conditions Precedent; Assignment.
--------------------------------
(a) The Depositor hereby affirms the representations and warranties made by
it and set forth in Section 2.09 of the Trust Agreement as of the date hereof.
The Depositor hereby confirms that each of the conditions set forth in Section
2.2(b) of the Mortgage Loan Purchase Agreement have been satisfied in connection
with the Subsequent Transfer Agreement, dated as of the date hereof, among the
Seller and the Depositor as Purchaser and Section 3.05(c) of the Trust
Agreement, respectively, are satisfied as of the date hereof.
(b) The Depositor is solvent, is able to pay its debts as they become due
and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this Instrument or by the performance of its obligations hereunder nor is it
aware of any pending insolvency; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Depositor prior to the
date hereof.
(c) All terms and conditions of the Trust Agreement relating to the
Subsequent Mortgage Loans are hereby ratified and confirmed; provided, however,
that in the event of any conflict the provisions of this Agreement shall control
over the conflicting provisions of the Mortgage Loan Purchase Agreement.
(d) The Depositor hereby assigns to the Issuer all of the Depositor's
right, title and interest to and under the Subsequent Transfer Agreement, dated
as of _______ __, ____ among the Seller and the Depositor as Purchaser,
including the Depositor's right to enforce the obligations of the Seller
thereunder (including the Seller's obligation to repurchase Mortgage Loans as
the result of a breach of the Seller's representations and warranties in such
Subsequent Transfer Agreement and the Purchase Agreement).
Section 3. GOVERNING LAW. THIS INSTRUMENT 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 4. Counterparts. This Instrument may be executed in counterparts,
------------
each of which, when so executed, shall be deemed to be an original and together
shall constitute one and the same instrument.
Section 5. Successors and Assigns. This Agreement shall inure to the
------------------------
benefit of and be binding upon the Depositor and the Purchaser and their
respective successors and assigns.
WACHOVIA ASSET SECURITIZATION
ISSUANCE, LLC,
as Depositor
By:
------------------------------
Name:
Title:
WACHOVIA ASSET SECURITIZATION
ISSUANCE, LLC
[_____] TRUST, as Issuer
By:
------------------------------
Name:
Title:
Acknowledged and Accepted:
[_____], not in its individual capacity
but solely as Indenture Trustee
By:
---------------------------------------
Name:
Title:
Attachments
-----------
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Depositor's Officer's Certificate.
WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC 2002-HE1 TRUST
ATTACHMENT A TO FORM OF SUBSEQUENT TRANSFER AGREEMENT
________________, ____
A.
1. Subsequent Cut-Off Date:
2. Pricing Date:
3. Subsequent Transfer Date:
4. Aggregate Principal Balance of the Subsequent Mortgage Loans as of the
Subsequent Cut-Off Date:
5. Purchase Price: 100.00%
B.
As to all Subsequent Mortgage Loans:
1. Longest stated term to maturity: _____ months
2. Minimum Loan Rate: _____%
3. Maximum Loan Rate: _____%